Sitting of 20 February 2001

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.

Message from the Queen
Lord Luce: My Lords, I have the honour to present to your Lordships a message from Her Majesty the Queen signed by her own hand. The message is as follows:
"I have received with great satisfaction the dutiful and loyal expression of your thanks for the speech with which I opened the present Session of Parliament".

Skills Shortages
2.37 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
What plans they have to counter chronic skills shortages in a number of sectors of the economy.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the Government recognise the need to raise skills levels and to boost vocational training in all sectors. We set up the National Skills Task Force to advise us on those issues. We have set out our approach to tackling skills shortages in the White Paper published last week. It puts forward our strategy for training people in information and communication technology skills and for strengthening the network of national training organisations.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply. As she is well aware, there are skills shortages not only in the public sector, in relation to teachers, nurses, firemen and ambulance crew, but there are also deep shortages of skills such as those required by plumbers and carpenters. Is the Minister aware that that lack of technical skills is now regarded as one of the fundamental factors holding back the productivity of the UK economy? As this Government have been in office for four years, and are sitting on the largest public sector surplus of any government for many years, why have they failed to implement the fundamental recommendation of the National Skills Task Force to entitle those aged between 19 and 24—as well as those under 19—to free tuition for technical training up to level three?
Baroness Blackstone: My Lords, the Government certainly are not complacent about skills shortages. We recognise that more investment is required to ensure that people have the skills needed to create the kind of productive economy that the noble Baroness
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wants to see, as does every noble Lord. However, this Government have done a great deal, ranging from a massive additional investment in further education, and a large additional investment in higher education for higher level and more advanced skills, including the establishment of foundation degrees. So the Government are taking action and they have done a great deal to prepare for improvements as regards adult basic skills. We know that there are many adults whose basic literacy and numeracy skills are far below what they should be.
Baroness Trumpington: My Lords, does the Minister agree that the best way to become a millionaire is to be a plumber or an electrician? Perhaps she would pass that information on to the youth of today.
Baroness Blackstone: My Lords, I am not sure whether becoming a plumber or an electrician means that millionaire status will come quickly, but I accept that there is good money to be made in both those important occupations. The Government are creating a vocational stream in secondary education so that those young people who are particularly interested in that kind of career can start early. From the point of view of motivating young people who are disaffected in relation to a more academic curriculum, it is important to offer vocational GCSEs and vocational A-levels. We are also developing a much larger number of rigorous high quality modern apprenticeships in those areas mentioned by the noble Baroness.
Lord Hylton: My Lords, has the Minister's department studied the recent report that showed that a high proportion of asylum seekers are either graduates or otherwise professionally qualified? Will the department consider what can be done to encourage such people to fill the skills shortages in this country, perhaps by retraining them before the six-month period is up?
Baroness Blackstone: My Lords, it is important to establish the long-term status of asylum seekers before substantial investment is made in their training, but I accept that, where asylum seekers are accepted for permanent residence in the UK, it is important that we make use of their skills. I believe that that is happening already.
Lord Randall of St Budeaux: My Lords. to what extent are the requirements of small and medium-sized enterprises (SMEs), as laid down at the Lisbon Summit, met by these plans?
Baroness Blackstone: My Lords, the Government have set up the Learning and Skills Council and its 47 local arms. One of the jobs of that council, both nationally and locally, will be to work with small and medium-sized enterprises to encourage them to carry out more training and to provide them with the support to do so.
Lord Oakeshott of Seagrove Bay: My Lords, does the Minister accept that skills shortages are as much a

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regional as a sectoral problem in our economy? Often the skills and the jobs are hundreds of miles apart, with just clapped-out railways and jammed-up motorways in between. Will she press her colleagues, particularly in the Treasury and the DETR, for much more powerful joined-up action to promote growth in jobs in regions other than the over-heated and over-crowded South East of England?
Baroness Blackstone: My Lords, the Government are doing that. Having set up the RDAs, we have asked them to look particularly at skills shortages in their areas which may be impeding economic development. The White Paper published last week set out a number of recommendations to try to encourage better training and the development of skills in some parts of the country.
I question what the noble Lord said about sectoral shortages. There are clearly some sectors where there are no skills shortages; in others, such as IT, there are substantial shortages. Again, the Government are addressing that problem by setting up a large number of IT centres for adult training around the country.
Lord Pilkington of Oxenford: My Lords, can the Minister say whether the new specialist schools will be modelled on technical colleges? Can she also say whether having 10 per cent of the admission based on vocational skills is sufficient? In order to meet the skills shortages, does she not feel that she must produce something like the technical schools that existed before 1960?
Baroness Blackstone: No, my Lords, because the technical schools that existed before 1960 were very few in number; they never took off; they were also selective by ability and they therefore covered only a very restricted number of young people into them. The Government want secondary schools, whether specialist or non-specialist, to provide a vocational route for 14 to 16 year-olds, which has not been available up to now, right across the board. That would produce far larger numbers of young people ready to go into apprenticeships when they leave school.
Lord Elton: My Lords, can the Minister tell us what is the current rate of adult functional illiteracy in this country? Would not reducing that illiteracy have the biggest impact on skills shortages?
Baroness Blackstone: My Lords, between 6 million and 7 million adults in this country have levels of literacy and numeracy far below what we would expect of an adult who is able to function properly in a job with reasonable demands. I entirely accept the point made by the noble Lord, Lord Elton, as to the high priority that we must attach to making sure that all these people become both literate and numerate and, where possible, IT literate as well. Only when that happens will they be able to secure long-term employment of a highly productive kind.
Lord Lawson of Blaby: My Lords, I was disappointed by the Minister's reply to my noble friend Lord Pilkington because is it not the case that the Government are now strongly in favour of selection on the basis of aptitude?
Baroness Blackstone: My Lords, the Government have said that it is possible for specialist schools to select up to 10 per cent of their pupils on the basis of aptitude. That is a rather different matter from going back to the technical schools that were established in the late 1940s.
Baroness Gardner of Parkes: My Lords, does the Minister recall my asking her about the quick-track immigration process for the specially skilled people which she told me would come into force in January? Can she tell me whether there has been any progress made on that and whether it is helping to fill these necessarily skilled vacancies?
Baroness Blackstone: My Lords, it is too early for me to give the noble Baroness any feedback about how the new scheme is operating since it was introduced only last month, but I shall be very happy to write to her and let her know as soon as we have information available. All these schemes are important and will help us to fill vacancies as they occur. One of the benefits of the UK system is that it is far more flexible than that of some other countries where there are rigid quotas. We need to stick with that flexibility.
Lord Taylor of Blackburn: My Lords, does my noble friend not feel that it is outstandingly pitiful that after 18 years of Conservative rule we still have so many people who cannot read and write?
Baroness Blackstone: My Lords, it is unfortunate that over the past 20 years more was not done to address the problem. In the announcement we shall make shortly about this matter, I very much hope that the Government can put in place a scheme that will attract large numbers of adults. But we shall be dependent on the employers' help and support in identifying those employees who have difficulty both in reading and in simple numeracy. I am afraid that that situation is true of just too many adults in this country.

Illegal Immigrants
2.48 p.m.
Lord Rotherwick Lord Rotherwick asked Her Majesty's Government:
What steps they intend to take to remove illegal economic migrants.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, last year we removed a record number of immigration offenders. We established a dedicated arrest team to trace and remove illegal entrants. We are expanding the number of detention places available. We are recruiting extra

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immigration officers for enforcement work. We can prosecute employers who exploit illegal immigrants. We introduced a new automated fingerprint system, which has led to the prosecution of many multiple applicants. We have increased the number of operations undertaken by the Immigration Service.
Lord Rotherwick: My Lords, in the eight years leading up to 1997 there were 59,000 illegal immigrants unaccounted for. Last year alone 76,000 illegal immigrants were refused entry. Can the Minister say what impact these illegal immigrants have on the National Health Service, the housing shortage, schools and crime? If he is unable to do so, can he say what steps he is taking to address the matter?
Lord Bassam of Brighton: My Lords, the noble Lord hardly may be described as a liberal on these matters, but we need to adopt a careful and measured tone when addressing this issue. This Government take firm and effective action where someone comes to this country and makes an unfounded claim for asylum. It is essential to deal properly with claims, but also for us to demonstrate humanity and integrity. Members of the party opposite would be wise to recall that.
As regards the impact on health and other services, clearly we need to make provision while people's cases are being considered. We make adequate provision and it is quite proper that we do so.
Lord Dholakia: My Lords, can the Minister give an assurance that the skills of those classified as economic migrants will be analysed to see whether such skills could be used in areas where we are experiencing grave staff shortages? I am thinking in particular of the health service and the shortage of doctors and nurses, as well as teachers. Perhaps I may remind the Minister that the contribution of overseas doctors and that of people employed in the transport sector has kept those services going in this country.
Lord Bassam of Brighton: My Lords, the noble Lord has made a sensible point. People come to this country in search of asylum. When asylum has been granted, they often go on to make a valuable contribution to the life of our great nation. Obviously, when someone has satisfied the conditions and has been granted asylum rights or exceptional leave to remain, they can then make a contribution to our workforce. We welcome and celebrate that. It adds to the diversity of our nation. However, it is wise and sensible for the Government to keep a careful eye on the situation and of course we undertake to do that.
Lord Naseby: My Lords, is the Minister aware that it is no exaggeration to say that thousands come here from Sri Lanka? Among those thousands are probably several hundred who are supporters of the LTTE, the terrorist group which imposes extortionate demands on legitimate Sri Lankans living in this country. Will the Minister encourage his department to redouble its efforts to ensure that those Sri Lankans staying here
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illegally are returned to Sri Lanka, not least because welcome progress is now being made towards peace in that country?
Lord Bassam of Brighton: My Lords, we take firm and effective measures against terrorism from wherever it comes. The noble Lord will know that last year we put in place new terrorism legislation. I must rely on the points that have already been made; namely, that we have put in place firm and effective measures to deal with what might be described as illegal immigration. We shall rigorously enforce those measures, as we always have. However, if someone makes a legitimate claim for asylum, that claim falls to be dealt with properly. We must consider it fairly under the conventions which apply.
Lord Laming: My Lords, does the Minister agree that many unaccompanied refugee children who have come to this country have already proved themselves to be successful, positive and constructive members of our society?
Lord Bassam of Brighton: My Lords, people who come and settle in our country, perhaps because of terrible events which have taken place in their home countries, often make an outstanding contribution to our society. No doubt certain Members of your Lordships' House came here as young people. Those Members have made outstanding contributions. We welcome that. It is something which our society generally should celebrate. This Government are determined to offer opportunities to all young people, from wherever they come, if they are living here quite properly.
Baroness Knight of Collingtree: My Lords, has the Minister noted that the statistics indicate that more illegal immigrants are disappearing into the woodwork in this country than in any other country? Other European countries seem to be far better at locating them and sending them back to where they should be than are we. What has the Minister to say about that?
Lord Bassam of Brighton: My Lords, I do not accept that we are ineffective in dealing with people who come here illegally. I agree that there is a gap in some of the figures, but we have put in place an extremely effective raft of measures to deal with it. We are setting up reporting centres to keep track of people on temporary admission or temporary release. We are increasing the number of immigration officers after—it has to be said—their staffing levels were run down disgracefully during the early part of the 1990s. They are deployed on enforcement work and are establishing dedicated removals teams. Last year a record number of removals were recorded. It falls to us to work co-operatively with all our neighbours in the European Union. That is what we are doing.
This is not a problem peculiar to the United Kingdom. If the noble Baroness had studied the statistics, she would have seen that we are placed in the middle of the European table for receiving people from

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abroad seeking asylum. We must be both robust and effective, but we must also behave fairly and properly. I appeal to the noble Baroness to approach this particular and sensitive issue in that fair-minded manner.
Lord MacKenzie of Framwellgate: My Lords, will my noble friend consider carefully the role of the police in removing illegal immigrants from this country? I make the point having spoken recently with a chief constable who strongly emphasised the importance of maintaining good community relations with refugee communities in this country. He envisaged difficulties that might be caused if officers are asked to act as community officers during the day, but then go around at night in black vans rounding up those who need to be removed from the country. Will the Minister look carefully at the role of the police when assisting immigration officers?
Lord Bassam of Brighton: My Lords, the recent report from the Association of Chief Police Officers on the matter was telling in this regard. ACPO rightly made the point that we need to handle this issue with great sensitivity. I pay tribute to the work of many police services up and down the country because they have done exactly that. In my early days in my current post, I had good cause to contact the Kent police force. The work of that force in community relations was among the best. Their officers were to be congratulated on dealing with an extremely difficult situation which unfortunately had become inflamed and had lost any sense of proportion. Their work and the work of other police forces across the United Kingdom provides ample evidence of the dedicated way in which they conduct themselves. They demonstrate the care and sensitivity which are required to approach what are sometimes extremely sensitive issues.
Lord Cope of Berkeley: My Lords, am I right in thinking that more than half of those refused permission for asylum nevertheless remain here? Given those circumstances, does that not make rather a nonsense of the legislation providing for new tribunals, extra staff and so forth in order to try to decide who is entitled to asylum?
Lord Bassam of Brighton: My Lords, the noble Lord will know that, last year, 78,000 refusals were made. Once a person has been refused, then of course they are entitled to pursue an appeals process. The last piece of legislation on asylum and immigration matters put in place a one-stop appeals process. Prior to that, we had an absolute mess involving multiple appeals over multiple decisions. We were left with a nonsensical situation.
That is not our view only. It was also the view held by certain former Tory Ministers. In the Sunday People of 29th August 1999, David Mellor said:
"The Tories have nothing to be proud of. This crisis has been brewing a long time. When I was in the Cabinet it was raised. Two of us expressed concern".
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It is a great shame that more members of that Cabinet did not express concern, because then we would not have been left with the problem that we have had to resolve.
Lord Avebury: My Lords, further to the question put by the noble Lord, Lord MacKenzie of Framwellgate, is the Minister satisfied that firm and effective measures are being taken by the police against the particular menace posed by women being trafficked into the sex industry in this country? In that connection, did he read the remarks made last week by Inspector Paul Holmes, following a raid on a number of brothels in London? Thirty-two women were arrested. We are in danger of encountering a situation which already exists in Germany, where criminal gangs bring into Europe women from the Balkans and the Far East. They have now occupied all the turf and have started to shoot at each other. Can the noble Lord give an assurance that vice squads will be attached to all police services in England and Wales and that apprehending the people responsible for these crimes will be made a key performance indicator for chief constables?
Lord Bassam of Brighton: My Lords, the noble Lord has touched on an important issue here. The trafficking in human beings for profit is appalling. We would all condemn that. I am grateful for the hard work being undertaken by the police in this sphere. The National Criminal Intelligence Service is acutely aware of the problem and ACPO is addressing it closely. We need rigorous enforcement here. A great deal of work is being done, but even more needs to be done. The work being undertaken at ports to attempt to head off the problem as it arrives on our shores is also urgently needed. However, I believe that we are doing extremely well and our enforcement is becoming increasingly effective.

Quality Assurance Agency
3 p.m.
Baroness Perry of Southwark Baroness Perry of Southwark asked Her Majesty's Government:
Whether the new Quality Assurance Agency rules will improve the quality of academic life in Britain's universities.
Baroness Blackstone: My Lords, external assessment has a place in higher education and the reports produced can be a useful source of evidence on which universities can draw in seeking to enhance teaching quality. The revised review method which the Quality Assurance Agency will be introducing from autumn 2001 follows extremely full consultation with the sector. It is designed to be far less bureaucratic than its predecessor, which, I am sure, will be welcomed.
Baroness Perry of Southwark: My Lords, I thank the Minister for her reply, but is she aware of the burden which is placed upon universities, even under the new

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procedures, with 168 rules which they have to follow; nine codes of practice, and we are promised more to come; 22 subject bench-marks for student teaching and 20 more still to come? Those are specific burdens which universities are carrying which have little to do with the overall quality of teaching. Will she also assure the House that the academic freedom and diversity of universities can be preserved, despite the fact that those rules apply equally and across the board to all universities even though their admissions and intake may be very different?
Baroness Blackstone: My Lords, I start by giving the House an assurance that the academic freedom of universities and their diversity must be preserved. I should add also that the new system has not yet been introduced in England and it will not start until September. So it is early days to start condemning it and questioning whether or not it will reduce the burden. It is certainly the Government's intention that the burden should be reduced; that there should be far more self-assessment; that the amount of material which the individual subject department must produce for a review will be much smaller than in the past.
Lord Renfrew of Kaimsthorn: My Lords, is the noble Baroness aware of the mountain of paperwork which is currently required under the teaching quality assessment and its sibling in bureaucracy, the research assessment exercise, which obviously has the purpose of assessing the research output? Will she accept that all universities, I think, recognise the need for scrutiny of standards in teaching and in research? But is she aware that some university departments employ somebody effectively full-time to prepare the paperwork for those exercises? Will she tell the House how many universities employ staffs of administrators in order to prepare the paperwork to be devoured by those time-consuming exercises?
Baroness Blackstone: My Lords, I am grateful to the noble Lord for accepting that external review, whether in the area of teaching or research, is highly desirable. Universities need to be accountable just as any other consumer of very substantial amounts of public money.
But I accept also that the burden, particularly for teaching quality assessment, has become rather bureaucratic. It is for those reasons that a new system is being introduced in the autumn. We need to wait to see how well that works.
As regards the research assessment exercise, it is well understood by everybody in the university system that we must be selective in how we fund research. We cannot give the same amount of money to every department, regardless of the quality or the extent of its research. For that reason, the RAE was introduced some years ago and it is accepted widely across the system that it is necessary.
But once again, changes are being introduced in the next round which should reduce the amount of preparation that departments have to do.
Lord Smith of Clifton: My Lords, does the Minister have any estimate of the proportion by which costs will be reduced on QAAs under the new system compared with the existing system?
Baroness Blackstone: My Lords, I cannot give a precise figure as to how far the cost will be reduced but I should expect it to be substantially reduced. For example, the number of individual subjects to be reviewed is being reduced by about one-third. The number of days which the people undertaking the review—and we must remember that it is largely peer review—will be reduced by about one-fifth. Those changes in themselves should make a substantial difference. But the real difference will be in that the amount of material that has to be produced specially for those exercises is being slashed. It will be extremely limited compared with what it has been in the past.
Lord Laming: My Lords, is the Minister aware of the deep concern felt by some university staff over the relative decline in their salary levels? Can the Minister say anything to encourage them?
Baroness Blackstone: My Lords, I think that is rather a long way from the Question on the Order Paper. However, I am happy to inform the noble Lord that the Government have put in a substantial additional amount of funding for university pay, not just for academics but for all staff in universities. That should mean that universities are better able to reward their staff as they would like to.
Baroness Blatch: My Lords, there appears to be no evidence to support any significant reduction in the overall burden for external scrutiny. Is the Minister aware that the Middlehurst evaluation of academic review trials in chemistry, law and history found absolutely no evidence to support what the noble Baroness is claiming to be the case?
Baroness Blackstone: My Lords, he could hardly have found any evidence as the new system does not come into play until September.
Baroness Blatch: My Lords, I said that they were trials which have already preceded the changes.
Baroness Blackstone: My Lords, such trials are hardly true evidence of a new system that is being introduced. I do not believe that what has been claimed in those trials has any validity.

Business: Private Notice Question
Lord Strathclyde: My Lords, I rise to ask the noble Baroness the Leader of the House a question about the business today of which I have given notice.
Often at this time of the afternoon, we see the Government Chief Whip approach the Dispatch Box and announce that a Statement will be made. Today he has not done so. Yet, outside this House, the headlines

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and bulletins are dominated by an issue of national importance; namely, the story of the fund-raising dinner which took place at the Atlantic Bar and Grill on 7th February and the role of the noble and learned Lord the Lord Chancellor in what has become known as the cash for wigs scandal.
But in this House, we are not allowed to debate it, question it or even receive a Statement. So will the noble Baroness confirm that she refused a Private Notice Question from me yesterday which would have given us the opportunity, early on, to discuss those matters? Will the noble Baroness confirm also that the noble and learned Lord the Lord Chancellor will reply to the noble Lord, Lord McNally, at Question Time tomorrow morning? Will she explain why she believes that a topical Question tomorrow is any substitute at all for the Government, in the shape of the noble and learned Lord the Lord Chancellor, coming forward with a fully prepared Statement to deal with the most serious allegations being made about the noble and learned Lord? Will she give the noble and learned Lord the opportunity to explain himself here in this House rather than allowing those stories to run outside which now, inevitably, raise the whole question of the position and future of the role of the office of the Lord Chancellor, which I believe has served us so well?
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I must say to the noble Lord that I can only do what my right honourable friend the Prime Minister did at the Glasgow conference at the weekend and say that I am very surprised that the Opposition take all their views from the newspaper delivery boy. It really is a high level of opportunism to raise the matter in this way this afternoon.
As the noble Lord himself has mentioned, the noble Lord, Lord McNally, will ask a Question tomorrow on this matter to which I am sure my noble and learned friend the Lord Chancellor will respond very fully. It is obviously the case that that is the appropriate moment for this Question to be answered. The noble Lord is aware that, if he had a concern about the Private Notice Question on this matter which he tabled yesterday afternoon, he should have raised it yesterday afternoon. He did not.
Lord Waddington: My Lords, perhaps I may ask the noble Baroness one further question. She must be aware that many people are using this issue to raise wider issues, such as whether the role of the Lord Chancellor should be changed, whether he should lose all his judicial functions, or whether, indeed, there should be a ministry of justice—none of which I approve of, I might say. It would be highly desirable, if only to clear the air, to get back to discussing the real issue as to whether the Lord Chancellor was lacking in judgment in getting involved in fund raising, rather than being diverted, as all the newspapers are today, to far wider questions of whether there should be a ministry of justice, and so on.
Baroness Jay of Paddington: My Lords, I am sure that the noble Lord raises some interesting questions
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that are worthy of debate. However, a Private Notice Question is probably not the appropriate forum in which to do that. I am sure that the noble Lord, Lord Waddington, who says that he does not agree with the theoretical questions that are being raised about the potential role of a ministry of justice, and so on, would agree with the opinions of the noble Lord, Lord Kingsland, who said on the radio this morning that he believed that the present Lord Chancellor had acted with the utmost probity in fulfilling his functions.
Lord Renton: My Lords, I became a student of Lincoln's Inn as long ago as 1929. Apart from the noble and learned Lord, Lord Shawcross, I am the most senior Queen's Counsel in England and Wales. I, therefore, have memory of these matters, going back some 70 years. May I say that during that time there has never arisen such an occasion as this.

Special Educational Needs and Disability Bill [H.L.]
3.10 p.m.
Report received.
Baroness Blatch Baroness Blatch moved Amendment No. 1:
Before Clause 1, insert the following new clause—
(".—( ) In the implementation of this Act by local authorities, schools, parents, and all concerned with the welfare of children and young adults who have some form of disability or learning difficulty, the following principles shall be observed.
(1) The best and most appropriate available education shall be offered—

(a) to a disabled pupil,

(b) to a pupil with a statement of special educational needs maintained under section 324, or

(c) to a pupil with special educational needs but with no statement.

(2) Any requirement in this Act to prefer any particular type of school must always be of secondary consideration to that of making available the best and most appropriate available education for each particular child.
(3) Any placement of a pupil with special needs in a mainstream school must not be to the detriment of the best and most appropriate education available for the other pupils in that school.
(4) The wishes of the parent and the pupil must be respected at all times.").
The noble Baroness said: My Lords, during our discussions of the Bill in Committee, it was obvious that noble Lords from all sides of the House wished to do the best that was possible and affordable for children with special educational needs, with or without a statement, and later, in Part II, Chapter I of the Bill, for children with some form of disability.
The only acceptable purpose of a Bill of this kind is to make the best possible provision for children and young persons. Any consideration of convenience to local authorities or schools must be secondary to the welfare of the child. Ideology should not come into the equation at all. It is a matter of where best, and how best, to educate children. Finance comes into the

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matter, and any proposed changes to our arrangements must be properly financed, otherwise they are best not done.
The Bill places much emphasis on putting children with special educational needs into mainstream schools. Here and there, the Bill offers limited exceptions to that imperative. In the light of our discussions in Committee, and the assurances given by the noble Baroness the Minister it seems to me essential for the Bill to reassert the principle that the welfare of the child should come first. Where best to assert that principle than by making it the first clause of the Bill?
My proposed new clause is in no way controversial. It simply qualifies the rest of the Bill with something with which we all agree, namely that the needs and welfare of the child should remain paramount. If it is so obvious that that need is paramount, some might say that it is unnecessary to say so. But, my Lords, I believe that it is necessary. We are not formulating only guidelines, which have no force in law. We are formulating law, a law which might be challenged in the courts, a law which must be followed by local authorities, schools and parents, and a law which has to be followed not just by this Government but by subsequent ones as well.
In asserting at the start that the overall purpose of the Bill is to provide as best we can for children with special educational needs, we shall not only guide the lawyers as to our intentions; we shall clearly and specifically kill off rumours some noble Lords have already heard that in some way the Bill is intended to reduce our expenditure on children with learning difficulties or disability, or that it is intended to close all or some of our most special and specialist schools.
I trust that the Minister will confirm that it is not the Government's intention to do either of those things. The proposed new clause would write into the Bill the clear intention that the interests of the child are a priority. I beg to move.
Baroness Blackstone: My Lords, Amendment No. 1 would wreck the Government's proposals to strengthen the right to a mainstream place for children with special educational needs. The starting point is not a blank page. Rather, the Bill seeks to improve existing legislation. The amendment would have us retain provisions equivalent to those that have been abused and used unduly to limit inclusion in the past.
The amendment has been presented as a measure to ensure the right response for individual children with special educational needs or disabilities. Of course, we are all in favour of that, but the amendment could make it harder for pupils who deserve the benefits inclusion can bring to gain a place in a mainstream school. I remind noble Lords that our proposals to strengthen the right to a mainstream place, which also safeguard the interests of all children, have been welcomed.
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The position of the Special Educational Consortium is that it wants,
"to ensure that the education provided for a child is appropriate for their needs".
The consortium feels,
"that the new inclusion framework"—

proposed by Clause 1—
"provides the best legislative framework to ensure this takes place".
The consortium is not in favour of amendments that would have the effect of reinstating "the first caveat". It believes that that,
"could lead to an unnecessary restriction on disabled children being offered a mainstream place".
The amendment would make the education of individual children paramount. It would entitle every child who has SEN or a disability to the best possible education. What is the best education? Is it a better education than that to which children who do not have SEN or disabilities have access? Is that really what the noble Baroness wants? We believe that the needs of individual children should be balanced alongside the needs of all children. If the,
"best and most appropriate available education"
for a child with "some form of disability"—whatever hose terms might mean—conflicts with the best and most appropriate available education for other pupils at the school, what is it intended should happen? The amendment provides no answer. Education involves balancing many interests. The Bill provides for that, but the amendment does not.
The amendment promotes the interests of children with SEN and disabilities over and above the needs of other children. It is not clear whether other children are being given comparable rights to the best possible education. If they are not, it would render the Bill incompatible with the Human Rights Act 1998.
Our policy for children with SEN and disabilities is clear and simple. Every child has the right to have his or her needs identified, assessed and met. Every child has the right to a broad and balanced curriculum, differentiated according to his or her needs. The SEN framework will ensure consistency and that the right support is put in place.
I suspect that the amendment has been promoted, at least in part, by the Opposition's belief that more children with SEN should be placed in non-maintained schools, though perhaps I am wrong about that. The Bill will not prevent or limit local education authorities from funding placements in the non-maintained sector. The duties of LEAs are unchanged, but they should seek to use resources efficiently. Excessive or inappropriate expenditure on one child can come only at the expense of other children. When appropriate, LEAs can name a non-maintained school in a child's statement and pay for the placement.
In answer to one of the questions of the noble Baroness, it is not the Government's intention to reduce in any way the amount of resources available to children who, with or without statements, have special

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educational needs. On the contrary, the Government are providing additional resources to make this Bill, when implemented, work in practice.
I turn to the second question of the noble Baroness. We have underlined a continuing and vital role for special schools. The facts speak for themselves. The size of the specialist sector has remained static, broadly catering for 1.2 per cent of all children. We do not envisage that that will change. Sometimes special schools are closed; sometimes they are opened.
The amendment also provides an absolute parental and pupil veto. The amendment reads:
"The wishes of the parent and the pupil must be respected at all times".
Again, the noble Baroness, Lady Blatch, did not feel that that was necessary for the 1993 Act. Such a veto could result in inappropriate and potentially damaging placements. What parents want is not necessarily always a reliable measure of what is right for the child. The SEN system is complex and parents sometimes need support and advice, hence the need for parent partnership services, which this Bill will establish.
We believe that the Bill strikes the right balance. It promotes inclusion and makes disability discrimination unlawful. It will enhance provision for all pupils with SEN. It protects the interests of all children. We believe that the amendment would seriously jeopardise that balance. I hope therefore that the noble Baroness is able to withdraw it.
Baroness Blatch: My Lords, that was an extraordinary answer. The terms of the amendment read:
"The best and most appropriate available education shall be offered—

(a) to a disabled pupil,

(b) to a pupil with a statement of special educational needs maintained under section 324, or

(c) to a pupil with special educational needs but with no statement".

It says nothing about preference for maintained or non-maintained schools. It refers to what is right for the child in question.
The noble Baroness said a number of things in the course of responding to the amendment. But she made no argument against what is a clear, unequivocal statement at the beginning of the Bill that whatever provision is made should be in the interests of and consistent with the educational needs of the child. The noble Baroness said that the amendment placed an unnecessary restriction on disabled children. It is incumbent on the Minister to tell me exactly where that restriction appears in the amendment.
The noble Baroness also said that children with special educational needs are given provision over and above other children. The Minister has given assurances and reassurances on many occasions that there will not be an adverse impact on other children. My understanding therefore is that the aim of the
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education service is to give all children, with or without special educational needs, the best possible provision without disadvantaging one or the other.
The noble Baroness attributed to me wrong motives. In fact she said she might be wrong and I can say to her that she is very wrong. My motives are no different from what is incorporated in the first amendment; that is, that this Bill is about making appropriate provision for young people with disabilities and special educational needs. That is stated unequivocally in my suggestion for Clause 1. The noble Baroness might like to tell us how many special and specialist schools have in fact closed in recent times.
My last comment is one of almost incredulity. The noble Baroness said that parents and children have a veto. My understanding is that nowhere in this Bill do parents or children have a veto. They certainly have the right to have their views taken into account. In fact, the Government propose that children should have their say. But I should be pleased to be pointed to the part of this Bill where parents and/or children are given a veto.
Baroness Blackstone: My Lords, the answer to the first question of the noble Baroness in relation to the effect that the amendment will have on disabled children or children with special educational needs is quite clear. The amendment reinstates the equivalent of the first caveat in previous legislation. That has been misused, and sometimes grossly so, to deny children who have a disability and, as a result, special educational needs access to mainstream schools when in fact those children could be educated in mainstream schools to their advantage and to the advantage of other children who will learn what it means to be disabled from being educated alongside children with disabilities. That is an important facet of mainstreaming which is sometimes forgotten.
The noble Baroness asked about the role of parents. I repeat that the amendment provides an absolute parental and pupil veto. It reads:
"The wishes of the parent and the pupil must be respected at all times".
That can only be interpreted to mean that if a parent wants something which is contrary to the advice given by teachers, people with medical expertise, doctors and others who have the knowledge and understanding of what is likely to best support and help a child, their wishes will have to be respected and taken into account and therefore the decision made that those parents want. I understand from legal advice that that is how the amendment will be interpreted.
Therefore for both those reasons I ask the House to accept the Government's commitments, made clearly throughout the Committee stage of this Bill, to specialist schools and to providing the resources necessary. This amendment runs a coach and horses through one of the Government's main commitments

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in this Bill; that is, to make available mainstream education for a higher proportion of those children who have special educational needs.
Baroness Blatch: My Lords, I am not sure of the rules of the House. However, with the leave of the House I come back to my amendment. That response was even more extraordinary than the first answer. The amendment is unequivocal. It simply asks for,
"The best and most appropriate available education",
to be offered. It does not talk about misuse. It does not allow for misuse. It is an unequivocal statement at the outset of the Bill. Therefore I do not understand that response.
If the noble Baroness says that respecting the wishes of parents at all times is an adverse proposition, then I am suspicious of the Government's motives and ask for the opinion of the House.
3.28 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 162.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Hooper, B.

Astor of Hever, L.

Howe of Aberavon, L.

Attlee, E.

Hylton, L.

Baker of Dorking, L.

Jenkin of Roding, L.

Blaker, L.

Kimball, L.

Blatch, B.

Kingsland, L.

Boardman, L.

Knight of Collingtree, B.

Brougham and Vaux, L.

Lawson of Blaby, L.

Burnham, L. [Teller]

Liverpool, E.

Caithness, E.

Luke, L.

Campbell of Alloway, L.

Lyell, L.

Campbell of Croy, L.

McColl of Dulwich, L.

Carnegy of Lour, B.

Marlesford, L.

Colwyn, L.

Miller of Hendon, B.

Courtown, E.

Molyneaux of Killead, L.

Cox, B.

Montrose, D.

Craig of Radley, L.

Mowbray and Stourton, L.

Crickhowell, L.

Murton of Lindisfarne, L.

Dean of Harptree, L.

Naseby, L.

Denham, L.

Noakes, B.

Dixon-Smith, L.

Northbourne, L.

Elles, B.

Northesk, E.

Elliott of Morpeth, L.

Oxfuird, V.

Elton, L.

Park of Monmouth, B.

Erroll, E.

Perry of Southwark, B.

Feldman, L.

Peyton of Yeovil, L.

Fookes, B.

Pilkington of Oxenford, L.

Freeman, L.

Platt of Writtle, B.

Gardner of Parkes, B.

Renfrew of Kaimsthorn, L.

Garel-Jones, L.

Renton, L.

Geddes, L.

Roberts of Conwy, L.

Glenarthur, L.

Rogan, L.

Glentoran, L.

Rotherwick, L.

Gray of Contin, L.

Seccombe, B.

Hanham, B.

Selborne, E.

Haslam, L.

Selsdon, L.

Hayhoe, L.

Skelmersdale, L.

Henley, L. [Teller]

Soulsby of Swaffham Prior, L.

Higgins, L.

Strathclyde, L.

Holderness, L.

Swinfen, L.

604

Thomas of Gwydir, L.

Waddington, L.

Trumpington, B.

Wilcox, B.

Vivian, L.

Young, B.

NOT-CONTENTS

Acton, L

Hilton of Eggardon, B.

Addington, L.

Hogg of Cumbernauld, L.

Ahmed, L.

Hollis of Heigham, B.

Alli, L.

Hooson, L.

Amos, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Hoyle, L.

Ashley of Stoke, L.

Hughes of Woodside, L.

Ashton of Upholland, B.

Hunt of Kings Heath, L.

Avebury, L.

Irvine of Lairg, L. (Lord Chancellor)

Bach, L.

Barker, B.

Islwyn, L.

Barnett, L.

Jacobs, L.

Bassam of Brighton, L.

Janner of Braunstone, L.

Bernstein of Craigweil, L.

Jay of Paddington, B. (Lord Privy Seal)

Blackburn, Bp.

Blackstone, B.

Jeger, B.

Blease, L.

Jenkins of Putney, L

Boothroyd, B.

Judd, L.

Borrie, L.

King of West Bromwich, L.

Bragg, L.

Kirkhill, L.

Brennan, L.

Lea of Crondall, L.

Brightman, L.

Levy, L.

Brookman, L.

Lipsey, L.

Brooks of Tremorfa, L.

Listowel, E.

Bruce of Donington, L.

Lockwood, B.

Burlison, L.

Lofthouse of Pontefract, L.

Carter, L. [Teller]

Macdonald of Tradeston, L.

Chalfont, L.

McIntosh of Haringey, L. [Teller]

Chandos, V.

Christopher, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L

Clement-Jones, L.

Mackie of Benshie, L.

Clinton-Davis, L.

Maddock, B.

Cocks of Hartcliffe, L.

Mallalieu, B.

Crawley, B.

Manchester, Bp.

Darcy de Knayth, B.

Mar and Kellie, E.

David, B.

Marsh, L.

Davies of Coity, L.

Mason of Barnsley, L.

Davies of Oldham, L.

Massey of Darwen, B.

Dholakia, L.

Merlyn-Rees, L.

Dixon, L.

Mishcon, L.

Donoughue, L.

Morgan, L.

Dubs, L.

Morris of Castle Morris, L

Eatwell, L.

Morris of Manchester, L.

Elder, L.

Nicol, B.

Elis-Thomas, L.

Parekh, L.

Evans of Parkside, L.

Patel, L.

Evans of Temple Guiting, L.

Patel of Blackburn, L.

Evans of Watford, L.

Paul, L.

Ezra, L.

Peston, L.

Farrington of Ribbleton, B.

Plant of Highfield, L.

Faulkner of Worcester, L.

Ponsonby of Shulbrede, L.

Fitt, L.

Prys-Davies, L.

Fyfe of Fairfield, L.

Puttnam, L.

Gale, B.

Ramsay of Cartvale, B.

Gibson of Market Rasen, B.

Rea, L.

Gladwin of Clee, L.

Redesdale, L.

Goodhart, L.

Rendell of Babergh, B.

Gordon of Strathblane, L.

Richard, L.

Goudie, B.

Rix, L.

Gould of Potternewton, B.

Rodgers of Quarry Bank, L.

Graham of Edmonton, L.

Roll of Ipsden, L.

Grenfell, L.

Roper, L.

Hamwee, B.

Sandberg, L.

Hardy of Wath, L.

Scotland of Asthal, B.

Harris of Greenwich, L.

Scott of Needham Market, B.

Harris of Richmond, B.

Serota, B.

Harrison, L.

Sharp of Guildford, B.

Haskel, L.

Shepherd, L.

Hayman, B.

Shore of Stepney, L.

605

Simon, V.

Thomson of Monifieth, L.

Smith of Clifton, L.

Tomlinson, L.

Smith of Leigh, L.

Tordoff, L.

Stallard, L.

Turnberg, L.

Stone of Blackheath, L.

Turner of Camden, B.

Uddin, B.

Strange, B.

Wallace of Saltaire, L.

Symons of Vernham Dean, B.

Weatherill, L.

Taverne, L.

Wedderburn of Charlton, L.

Taylor of Blackburn, L.

Whitaker, B.

Tenby, V.

Wilkins, B.

Thomas of Gresford, L.

Williams of Elvel, L.

Thomas of Walliswood, B.

Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.38 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 2:
Page 1, line 11, leave out ("who should") and insert ("whom the parents of that child wish to").
The noble Baroness said: My Lords, the Minister's tone has hardened, and she has become more explicit, since our attempt to elicit a response in Grand Committee. There is clearly an unequivocal aim to ensure that more children with special educational needs are educated in mainstream schools. I had hoped the Minister would agree that a child should be placed wherever it is appropriate to place that child—a matter that we shall debate throughout the whole afternoon. That may, or may not, mean placing more children in mainstream schooling, but that should not be the overriding aim. The aim should be to provide the kind of schooling that is appropriate for the child.
I have re-read the response that I received from the Minister in Committee. She did not meet the objection that I raised to the present wording of the Bill. The Minister claimed that my amendment was unnecessary because under other legislation non-school based education is permitted. That being the case, the Bill is in conflict with the earlier provision. It follows that if a legal challenge were to arise—for example, in the case to which I referred in Committee where a person with ME was educated at home—lawyers on both sides of the argument would seize on the two contradictory pieces of legislation.
I am no lawyer, but let us suppose that the later legislation overrides the earlier provision. Clause 1 of the Bill as drafted states:
"This section applies to a child with special educational needs who should be educated in a school".
My amendment would replace "should" with the words,
"whom the parents of that child wish to".
Nowhere in the Bill, or in previous special needs legislation, is it stated who decides that a child should be educated in school. By implication, it is the local education authority which makes the decision, not the parents. In other words, according to the legislation, if a local education authority says that a child should be educated in school, the child must attend school. That is not right. It conflicts with the long-standing provision that all children of a certain age must be
606
educated but that that education need not necessarily take place in a school: it could be provided at home or by tutors, or it could be a mixture of both.
I can find no reason in the Minister's reply in Committee as to why this simple amendment is not acceptable. The noble Baroness tells us that the wording in the Bill still allows parents to choose to educate a child with special educational needs at home, but clearly it does not do that; it leaves it open to a local authority to override parents' wishes. I beg to move.
Lord Ashley of Stoke: My Lords, I am interested in the amendment now before us, but I am also interested in the fate of this Bill. I have a tremendous respect for the political skills of the mover of the amendment. The noble Baroness is someone who is very experienced; indeed, she knows exactly what she is doing. Can the noble Baroness tell the house why there is such a vast number of amendments tabled in her name on the Marshalled List? I believe that she may be jeopardising the Bill. The noble Baroness has done a great deal of work on these issues. We all appreciate what she has done. She is a very eloquent person. However, if this Bill is lost, we should be in no doubt that we would be losing a non-controversial piece of legislation that would help disabled children. That would be scandalous; and the blame could well lie with the noble Baroness.
We discussed all these issues in Grand Committee. As she may well recognise, I spoke on the matter now before us at that stage. Therefore, all the skill and expertise that she brings to our debates, which we greatly respect—indeed, I admire her—is being misplaced with this amendment, and with others. I beg the noble Baroness to reconsider her approach. The loss of this Bill would be a grave loss to disabled children, and those with special educational needs, in Britain. I hope that the noble Baroness will take account of what I have said.
Baroness Blackstone: My Lords, I am grateful for what my noble friend has said. Like him, I am surprised that this issue has been raised again. In Grand Committee, the noble Baroness seemed to accept that the amendment was unnecessary. She said:
"the answer of the noble Baroness is helpful".—[Official Report, 23/1/01; col. CWH 13.]
I should point out that I have in no way hardened my view. It is important for us to provide education that is appropriate to the individual needs of children.
The amendment is about the rights of parents to choose to educate their children outside the school system. The matter was raised in Grand Committee. I should like to reiterate what I said on that occasion: this is a right that all parents enjoy and it is protected by the Education Act 1996. It is provided for under Section 7 of the Act, not Section 5 as I said previously and for which I apologise. Provision is also made for this under the SEN framework. There is no conflict. Section 7 permits parents to educate their children outside school, and Section 316 of that Act preserves that position.

607
The current provisions are in place to ensure that all children receive an appropriate education. Our intention has always been to safeguard the interests of all children, so we do not believe that it is appropriate to change the existing provisions. Therefore, in the light of my assurances, and in an effort not to waste any further time, I hope that the noble Baroness will find it possible to withdraw her amendment.
3.45 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Lord for the complimentary remarks that he made about me, but I am deeply disturbed by the implications of what he said. I believe that he is saying, "Abandon any sort of interest in this Bill at this stage because it is so good". I have been asked to withdraw the amendment because we discussed these matters in Grand Committee in the Moses Room. It has been suggested that I should now back off, not discuss my amendments any further because the subject matter has been discussed previously and let the Bill pass through the House quickly.
There is another year of this Parliament to run. The noble Lord, Lord Harris of Greenwich, is grimacing at that thought. If the Government wish to curtail this Parliament, it is a matter for them to decide the timing and, thereby, allow the Bill to go through. We should like to see it on the statute book; indeed, that applies to everyone who has given much time and effort to these proceedings.
I have two comments to make about the Moses Room. It is the most difficult place in this building to work, and it is extremely cold. I notice that the Clerk is also grimacing. When the heating problem was addressed on one of the four days in Committee, it was actually too hot: so it is either too hot or too cold. The acoustics are awful and the lighting is oppressive; indeed, I suffered my first real illness in something like four or five years after having worked for four days in the Moses Room.
Moreover—I have said this on so many occasions during discussions on amendments—it is not possible under the Moses Room procedure to bring any matter to a resolution, or to a conclusion. That can only take place when there is unanimity between the Minister and those noble Lords who are putting forward amendments. It is only when there is absolute agreement between us that we can conclude deliberations on a particular amendment. That happened on so few occasions. Even on this amendment, I said that I wanted to read the Minister's response. I have done so. I began my introduction to the amendment by saying that I had read what the noble Baroness said in Grand Committee. I have returned to certain points about which I wish to speak.
Finally, as regards the Moses Room, we were promised that our deliberations would not clash on any occasion with the business taking place in the Chamber. I know that an accommodation was made on the first day of our proceedings, but on each of the other days work was being carried out in the Chamber in which a number of us would have liked to have been
608
involved. Therefore, the attendance for much of the time in the House was very patchy. We have a job to do; we are in opposition.
The Bill is not contentious. It is not a party-politically contentious Bill. However, there are very contentious areas within it—resourcing is one area. Other areas include: the emphasis on the particularly aggressive policy of mainstream education vis-à-vis special school education; the protection of special schools within the system; and whether children should be appropriately accommodated in both the maintained and non-maintained sector. Such issues will take time to resolve on the Floor of the House. I am sorry if I am being accused, as a individual, of prolonging the discussions on the Bill.
Lord Carter: My Lords, with the leave of the House, perhaps I may point out to the noble Baroness that it was the decision of the Opposition to take the Committee proceedings on the Bill in the Moses Room. We discussed the programme. In order to get the business programme of the House through, I said that it would be necessary for two Bills out of the eight that we started in this House to go to the Moses Room for the Committee stage. I suggested that the Commonhold and Leasehold Bill should be one of them, and that is being discussed in the Moses Room today. It is a very complicated and technical Bill. I then asked the Opposition to choose the other Bill; and they chose the Bill now before us.
Baroness Blatch: My Lords, as I said before—and I repeat—I do not believe that this is a party-politically contentious Bill. Perhaps I may point out to the noble Lord the Chief Whip that he is part of the usual channels, whereas I am not. It was agreed by the usual channels that this Bill should be considered in the Moses Room. I believe that it was the wrong Bill to be considered in the Moses Room: it is too complicated, too sensitive and too full of issues that need debate by the whole House. The inevitability of going into the Moses Room with such a Bill is that the Report stage will be prolonged.
Lord Carter: My Lords, the noble Baroness may be right. However, her discussions should be with the Leader of the Opposition and her Chief Whip, not with the House.
Baroness Blatch: My Lords, there would not have been a debate at all if I had not been accused of prolonging this stage of the Bill. I was urged either not to discuss my amendments or to withdraw them, which I do not intend to do—
Lord Harris of Greenwich: My Lords, the noble Baroness seemed to say that she very much deplored the fact that this Bill had gone to the Moses Room for consideration. I am sure that Black Rod will look into the various complaints that she made about the heating, and so on. However, as the Government Chief Whip pointed out, this was done only with the agreement of the usual channels, of which I am part.

609
There was never any suggestion as far as I was aware that it was not accepted by the Opposition. Members of the Conservative Front Bench in this House have an obligation to their own Chief Whip, who agreed this matter, to support him when the matter comes before the House.
Baroness Blatch: My Lords, I have that obligation and, indeed, I met it. We considered the Bill in the Moses Room. I discussed the Bill in the Moses Room without complaining except on one day when I was almost numb with cold and I complained about the temperature in the room. As I say, I met my obligation. However, in my view, this was the wrong Bill to be discussed in the Moses Room. That view is shared by many people who took part in the Grand Committee. They are not speaking out now but they spoke with me informally outside the Moses Room when we discussed the discomforts of that room.
As regards Amendment No. 2 that we are discussing, I am sure that we have broken all the rules of procedure on Report. However, I do not claim any culpability in that regard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees (Lord Mackay of Ardbrecknish): My Lords, in calling Amendment No. 3, I inform the House that if it is agreed to, I cannot call Amendments Nos. 4 to 7 due to pre-emption.
Baroness Blatch Baroness Blatch moved Amendment No. 3:
Page 1, leave out lines 12 and 13.
The noble Baroness said: My Lords, Amendment No. 3 heads a large group of amendments, which I believe are the most important amendments we shall discuss today. They are Amendments Nos. 3, 7, 13, 14 and consequential Amendments Nos. 22 and 23. The other amendments in the group are Amendments Nos. 5, 6, 8, 10, 11 and 12.
We discussed in Grand Committee amendments which sought to ensure that the mainstream school was in a position to provide the education necessary to meet the needs of the child and that the education to be provided was appropriate to that child's needs. However, having witnessed the result of the Division on Amendment No. 1, I now find that notion deeply disturbing. In rejecting those amendments the Minister accepted the concerns expressed by myself, by my noble friend Lord Baker, and by other noble Lords, but she sought comfort in the words of the statement issued upon the child. She also said that the code of practice to be produced by the Government after the Bill became law would cover the point.
Neither of those reasons for rejecting the amendments holds water. It seems that noble Lords on all sides of the House agree that if the child with special needs—I would say with or without a statement—is to be placed in a mainstream school, that mainstream school must be in a position to make proper and
610
appropriate provision for that child. Most of that proper and appropriate provision will have to be in the form of extra, properly trained and qualified staff to deal with the particular learning difficulty of the child in question. For many children that provision would probably have to be provided on a one-to-one basis. I believe that that much is agreed between us.
We all know that the statement issued upon a child is by no means sufficiently specific to ensure that the means to provide the necessary and appropriate education for that child are in place at the maintained school before that child joins the school, or at least at the time the child joins the school. Therefore, recourse to the statement is by no means equivalent to specifying on the face of the Bill that the education must be appropriate and must be available at the school. That is all that the various amendments sought to do—to give protection to all concerned by ensuring that the needs of the child are met before enforcing a placement in a mainstream school.
The other reason the Minister gave—she virtually agreed with those of us who said that a statement was not enough—was to say that guidelines, or, as she put it, a code of practice, would at some time be issued. That is not good enough; it is not legislation. In the last analysis it is not binding. The only thing that is binding in law is that regard must be had to the measure, not that it must necessarily be followed. There is no good reason, therefore, for the amendments to be resisted. If we all agree that the child's needs should be met, and we all agree that the child should not be placed in a school where they cannot be met, we must have an amendment to that effect on the face of the Bill. I beg to move.
Lord Rix: My Lords, I hope that no one in your Lordships' House will have any doubt about my concern to support the needs of the child. However, at the risk of alienating many of my friends now present I feel that I am unable to support these amendments which will not achieve that for which we are all striving. I fully support the desire to take into account the needs of the child in determining the most appropriate education, but I believe that that is already adequately taken care of by Schedule 27 to the 1996 Education Act and, indeed, by the statementing process.
For many years I, and other disability rights campaigners, including the Disability Rights Task Force and the Special Educational Consortium, have sought the removal of this condition from Section 316 of the 1996 Act on the ground that it has been used to exclude children from mainstream education who could have been well accommodated by such provision. This denies them rights afforded to other children and has been a wholly unacceptable state of affairs. I fear that the amendments we have before us today could be a retrograde step.
Furthermore, the 1989 Children Act requires the authorities to take into account the needs of the child. I believe the amendments at best superfluous and at worst to be adding to the danger of letting discrimination once more slip through the net.
Lord Northbourne: My Lords, I say to the noble Lord, Lord Rix, that the conditions under Section 316 of the Education Act 1996 are that the child will receive,
"the special educational provision which his learning difficulty calls for"
We hope to retain that provision with these amendments—
"the provision of efficient education for the children with whom he will be educated"—
That provision is in the Bill—and,
"the efficient use of resources".
I respectfully suggest to the noble Lord that it may well have been the efficient use of resources which enabled local authorities to dodge their responsibilities rather than the other matters to which he referred.
I speak to Amendments Nos. 5, 6, 11 and 12. In Grand Committee the noble Baroness said on several occasions that the Government believed that it was best, wherever possible, for SEN and disabled children to be educated in mainstream schools. She said,
"I stress that with the right support most children could be included in mainstream schools".—[Official Report, 30/1/01; col. CWH 158.]
I support that policy wholeheartedly with the proviso that the experience which the child has in a mainstream school is a positive experience and not a negative one. That is where the rub comes. If the child experiences failure and rejection when he is put into a mainstream school, that will be worse than his remaining in a special school.
For almost every special educational needs child some support will be needed if he or she is to succeed in a mainstream school and become successfully integrated into the community of that school. That support will comprise either additional facilities or additional trained staff. Can the noble Baroness tell the House what proportion of mainstream schools today have provision for special support for all disabilities? How many have not yet got any special provision at all? I believe that in the Bill the Government are putting the cart before the horse. In effect they are saying that the only way they can get schools to install the necessary provisions is to push a lot of children into them and hope that the schools' conscience will make them do something about the position. That is totally wrong. It seems to me that the right way to proceed is to ensure that the provision is in place and only then to move the children into that mainstream school.
The Government's policy will inevitably need to be implemented with flexibility to deal with individual children and individual schools. But we are putting these requirements into primary legislation. Primary legislation is not flexible. Once we have passed this legislation another Act of Parliament will be required if experience shows that the measure needs to be changed.
The main danger for a child who cannot cope in a mainstream school is that he will fall dreadfully behind, not understanding what is going on. That will lead to his rejecting education, truanting, exclusion
612
and all that flows from that. Alternatively, he will fail to cope with the emotional and social problems of being plunged into a large community of children who are not disabled. That can again lead to withdrawal, truanting and exclusion. In either case the sequel will be disruptive behaviour or "switching off" followed by truancy, probably trouble with the police, drugs and unemployability. The cost to society of each child who fails in this way is enormous.
It is interesting to note that the money paid to schools to educate a child is of the order of £2,500 a year. The cost per year per child of a special day school is of the order of £11,000. With colleagues I had the privilege of visiting recently the Medway Secure Training Centre. The cost per child per year at this centre is £156,000.
The ideal solution could be for all mainstream schools to have special units to cope with all types of physical, mental and emotional disability. But most mainstream schools do not have them. To achieve that solution will take time and money. In the meantime, children will suffer. Children should not be used as guinea-pigs. Support systems should be in place before children with disabilities are sent to mainstream schools.
My amendments would give all concerned some flexibility with regard to what is best for the child. I recognise the fears of some organisations that disabled children are prevented by local authorities from going into mainstream schools by the loopholes in previous legislation. Surely there must be a better way of solving this problem than to push children into schools where the necessary support is not available for them.
4 p.m.
Lord Baker of Dorking: My Lords, Amendment No. 8 stands in my name. The issues raised are common to all the amendments in the group. They provide different ways of achieving the objective. I believe that Amendment No. 8 provides the best way, but that may not win universal support.
The purpose of the amendments is to secure for a child with special educational needs the education appropriate to him. Clearly, it is not a party political matter. It is a non-controversial Bill. I hope that the Bill, suitably amended, will get to the statute book. However, I do not believe that it goes far enough. Successive governments have got into a muddle over special education. Some 20 or 30 years ago, in the definition of the department and in public debate special education referred to children who had clear physical disabilities, a clear mental handicap, who suffered from a hereditary genetic disease like cerebral palsy or Asperger's syndrome, who were visually impaired to the point of being blind, or were hard of hearing to the point of being deaf. That, broadly speaking, was what special education referred to some 30 years ago.
Then there were children who were slow learners; they did not get on well at school. Only in the past 30 years has one been able to define the problems from

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which those children suffer. When I was Secretary of State the department virtually did not recognise dyslexia. One of my officials referred to it as a fad. That was the attitude. The effect of autism on children's learning abilities is now clearly recorded and defined and has been measured. The behavioural and emotional problems of children have been analysed and more clearly determined and leads them to be clearly defined as children with special educational needs. I am certain that that group of children will benefit from going to mainstream schools. They will not have the sense of exclusion sometimes felt by children who go to special schools.
Those children represent 20 per cent of the school population. About 3 per cent of children have acute educational needs. The remainder are those whom I have described. I believe that with proper assistance and proper teaching those children can be accommodated appropriately within a mainstream school. I do not object to that. The noble Lord, Lord Rix, has been associated with that cause over a number of years.
I am concerned about the children who have more complex difficulties, who now find it difficult to get into special schools. A number of special schools have closed. The number has been roughly halved in the past 20 years. Despite what the Minister may say when winding up, it is well known that the department has not been too favourably disposed to special schools. It was not particularly favourably disposed to special schools in my time.
We must ensure that if children are to be thrust into mainstream schools, they have appropriate provision for the complexity of the needs for their education. That is why those of us who are associated with special schools do not believe that the Bill as drafted is adequate. We seek to ensure an entitlement for the child: the LEA has to state specifically the educational regime that the child will receive.
The noble Lord, Lord Rix, said that he did not support that aim because he believes that the statementing system works and provides that. I refer him to a document which has been sent to all Peers. It is not a group with whom I am associated. The document is headed Action on Entitlement. It cites the case of a boy called Jonathan who was born with cerebral palsy and therefore is subject to epilepsy. He was statemented. His statement said that he must have speech therapy but did not state how much. So he went to a mainstream school with a special unit. His parents contacted the speech therapist to inquire how much speech therapy Jonathan would receive. The speech therapist explained that she was used mainly in a consultative capacity, visiting the school once a term. His parents were told that Jonathan would probably get 20 minutes therapy a term. Jonathan's need for speech therapy has been identified, but there is no obligation on the local authority to provide it.
What happened? Jonathan's parents appealed to a special needs tribunal which ordered the LEA to rewrite the statement to specify weekly speech therapy. It also ordered the LEA to name a different school in
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Part 4—one where the required level of speech therapy could be arranged and co-ordinated to meet his complex learning needs. What a procedure to go through. Why is it not reasonable in such a case for the LEA to state, "This boy has cerebral palsy. He needs speech therapy. We shall provide it on the basis of so many hours per week, so many lessons during the term"? There is no such obligation in the Bill. It is an enormous lacuna.
Noble Lords may know that I am the chairman of the Royal London Society for the Blind which maintains one of the leading schools for the blind in the country. I asked some of the teachers in that school to tell me the school's teaching methods and what it provides. It is a charitable school. It is independent, but virtually all the fees are paid by the LEA, the state. It is a fantasy to believe that it is a sort of Eton world; the fees are infinitely higher than at Eton and parents cannot afford them.
I shall read out a list of the provision made at Dorton House and then invite the Minister to identify a school anywhere in the country that can provide similar services for visually impaired children. She will not be able to do so because the information does not lie in her department. I have asked Questions about the issue, and the department is not aware of all the answers. The department is simply saying that the statement is enough and it is up to the LEAs. The Minister is abandoning her responsibility if she is not aware of how the issues are working in practice.
Dorton House school for the blind provides specialist teachers for the visually impaired. It offers small group teaching in classes of six, with braillists. It provides access to the relevant technology and full access to the whole national curriculum, which is geared and presented for visually impaired students. I asked specifically this morning how many hours a week were spent on the four main subjects in the national curriculum—English, maths, science and IT. I was told that there was four hours of teaching per week on each. That means a total of 16 hours of teaching on the basic national curriculum subjects. Which LEA schools can do that?
Dorton House also provides specialist equipment for sport, music and technology, which are critically important to blind children, including appropriately adapted industry standard equipment and an outstanding music technology suite, together with specialist support for individual instrumental tuition. There are also trained mobility staff for all students. Blind children have to be guided around the school, sometimes by other children who have some sight. Some have to be shown how to get from classroom to classroom or to the canteen.
Boarding students receive a 24-hour curriculum and day pupils receive life skills for independent living. A blind child cannot learn how to use a knife and fork by watching someone else, as the rest of us learn. They cannot learn to tie up their shoes by watching how it is done, as we learn. They have to be taught. That requires patience and skills.

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Then there are resources. Dorton House provides braillers, Mountbattens, which are an old form of braillers, Eureka and braillites, which allow a teacher who is not visually impaired to speak and the children to record the notes on braille as they go along. There is counselling for those students who are experiencing loss of sight.
All pupils at Dorton House have individual education plans that are reviewed termly. What happened to the individual education plan for Jonathan, the boy with cerebral palsy? It did not exist. Speech and language therapy are available, as well as physiotherapy, occupational therapy and other therapies, including dance and music.
Those are the services provided by special schools. There are other special schools that deal with the problems of the visually impaired and the blind. There are several special schools for the deaf, which also have to provide and create special learning environments.
If there is a presumption that a child should go to a mainstream school, there should be an obligation on the LEA to set out specifically how that child will be educated. There is nothing specific in the current legislation or codes of practice. Ministers know that. They are reluctant to accept the amendments because the resource implications of the Bill are enormous. The Minister has said on several occasions that the Government are providing more money for special education, but every child is entitled to the best that society can provide. That will not be guaranteed without amendments along the lines proposed.
We may not come to a conclusion on the amendments today, but I hope that there will be sufficient agreement across the House to insist that the Government go further to give the parents and the child an entitlement to know the exact educational provision that will be made to cater for the child's disability.
4.15 p.m.
Baroness Sharp of Guildford: My Lords, I have some difficulty with the amendments. I hear what the noble Lord, Lord Rix, said and I am well aware of the extent to which the mealy-mouthed weasel words, "appropriate to their needs" have been used to exclude children from mainstream education. There are three reasons why the Bill would be improved if some move were made in the direction of taking account of the needs or best interests of the child.
First, the words, "the best interests of the child" are used in the Children Act. Those interests should be paramount. Secondly, I am worried that there may be conflict between the two criteria on the face of the Bill: the wishes of the child and what is judged to be in the interests of the efficient education of other children. How will such conflict be resolved? Should we not be looking to what is in the interests of the child?
Thirdly, I echo the words of the noble Lord, Lord Baker. We pressed the Minister in Grand Committee about resources. It is clear that a lot of resources will be provided for capital improvement, particularly in relation to the disability section of the Bill, which we
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shall come to later, but I am not convinced that there are the necessary resources in the system to meet the needs that are being imposed on the ordinary school system.
I recognise that we are taking on a progressive agenda and putting in resources, but without adequate resources in the ordinary school system to support provision for special needs many children will be short-changed. There are too many examples of the statement of special educational needs not specifying sufficiently clearly what quantity shall be provided. We have had some reassurances that the new code of practice will provide for quantitative specification, but I want clear assurances about the provision of resources and about making some allowance for the child. I had hoped that others would table amendments on the wishes of the child. I may well table one on Third Reading. The wishes of the child need to be taken into account if they are ascertain able.
I am currently perplexed by the amendments. I have some sympathy and I shall listen very hard to the Minister.
Lord Renton: My Lords, this is the most important group of amendments that we have to consider on Report. Not all of them can be accepted, but I hope that the Minister will take very seriously the anxieties that are felt not only by a few of us in your Lordships' House but by many people outside about the Government stressing and prioritising the education of children with learning difficulties in mainstream schools. Of course, some are suitable for that, but we have to consider the needs of the child above all else.
I listened with interest to the noble Lord, Lord Northbourne, and my noble friend Lord Baker of Dorking. As this is the first time that I have intervened in the proceedings on this Bill, perhaps I may declare that for nearly 30 years I have had reason to be closely involved with this matter. I have a daughter, now in her 40s, who has very severe learning difficulties and an incurable physical condition. When I retired from the Bar 26 years ago I became involved with Mencap. I was treasurer for two years, chairman for four years and president for six years. I am glad to say that the best thing I ever did for Mencap when I was chairman was to persuade the noble Lord, Lord Rix, to become the secretary-general. That was very valuable. Perhaps I may say how disappointed I was when I heard him speak very briefly. He is entitled to change and improve his mind, if I dare to say so.
My association with Mencap and my general interest in mentally handicapped people caused me to visit not only some special schools but also several mainstream schools, especially in my Huntingdonshire constituency where pupils with learning difficulties were having a hard time. That worried the parents who asked me to consider the matter.
Having children with learning difficulties in mainstream schools causes serious problems. The first is that the children become more conscious of their mental handicap which gives them an inferiority complex. Alas, sometimes they are bullied and often

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they are treated with casual contempt by normal pupils and even by teachers. There is a gentleman in the north of England who has a very great reputation. He has handicapped children of his own. He has written a memorandum dealing with this matter in which he says,
"Integration into mainstream schools often means disruption and delays in the classrooms detrimental to the normal pupils"
perhaps I may repeat the words—
"detrimental to the normal pupils, while placing an impossible workload on the teachers".
Therefore, will the noble Baroness change her mind and persuade her colleagues to do likewise over the emphasis in Clause 1 on mainstream schools. It must be done if we are to achieve justice and if we are to do our best for those with learning difficulties.
How do we achieve that? Various ways have been suggested. But surely, above all else, when considering the drafting of Clause 1 we should place an obligation on all concerned to consider the special needs of children with learning difficulties. If that were written into Clause 1 it would do the Government no harm. It would not impair their policy, but it would mean that they were meeting the special needs of children with learning difficulties.
Many of the amendments are acceptable, but from the drafting point of view I hope that Amendment No. 10 might have appeal because it is the simplest and most direct. It states,
"leave out from ("a") to end of line 16 and insert ("school which is compatible with—(aa) the needs of the child,").
That has been left out of the Bill. The needs of the child are paramount. If we approved that amendment, subsection (3) would read,
"If a statement is maintained under section 324 for the child, he must be educated in a school which is compatible with the needs of the child, the wishes of his parent or the provision of [special] education for other children".
I would have preferred the word "and"—that can be put right—to "or". Surely, they are the three dominant factors which we should put into the Bill. One could say much more about this, but I hope that I have made the vital point.
Lord Lucas: My Lords, I support the noble Lord, Lord Renton, and other noble friends who have spoken. I understand what the noble Lord, Lord Rix, said when he referred to the old practice of local authorities using the words in the 1996 Act and not even thinking about a child with a statement. The child is bunged into a special school because that is easier for the system and one does not have to think about the problems of providing a place in a mainstream school.
However, under the Bill we are in danger of going too far in the other direction. Let us imagine a blind child in a mainstream school which cannot provide for that child. The child is quiet and docile and presents no problem, so the local authority cannot suggest a specialist school under Clause 1(3)(b). The parents may be perfectly content with a quiet education in which the child learns how to get on in the real world
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but receives no particular help to cope with blindness. It may be that the parents are prejudiced or have some problem. The child is stuck in that situation. That also applies to a child who has dyslexia and is bullied unmercifully because of it. If it is the wish of the parents, the child stays in a mainstream school, and the local authority can do nothing. It has no power to name a special school even though that would be very much the best thing in either of the two cases I have mentioned.
We have completely taken away the power of the local authority to do the best for the child. As far as I can see, the local authority has no ability to improve matters. It is true that we are dealing with the problem of malevolent local authorities, but we are putting the whole burden on the child. We are going to dump children in mainstream schools in extremely unsuitable circumstances and offer them no way out. That is not acceptable. Although the previous system was bad, it was a great deal better than the one we are about to adopt if this Bill goes through as it is.
Baroness Blackstone: My Lords, we have had a long debate about this group of amendments concerning the needs and interests of individual children. At the very outset perhaps I might say how grateful I am for the support of the noble Lord, Lord Rix, in resisting these amendments, as I shall. I believe that he was right in the short and pointed way in which he made clear the position of those who are knowledgeable about special educational needs. I say to the noble Lord, Lord Renton, that I entirely accept that there are anxious people and I take those anxieties very seriously. I was, however, very shocked by one comment that he made. He claimed that inclusion has no positive impact. That is simply not true. I do not believe that that view is held by anyone who spoke at the Committee stage of this Bill or who has spoken so far today. There is excellent independent research, not carried out by the Government but by Barnardo's, which concluded that inclusion brings both social and educational benefits to pupils with and without special educational needs.
Lord Renton: My Lords—
4.30 p.m.
Baroness Blackstone: No, my Lords, this is Report stage and we should get on. Perhaps the noble Lord will allow me to finish. I reiterate that I entirely accept that there are some children whose special educational needs are such that they need to be educated in special schools. I shall say more about that later.
I wish to deal first with the amendments focusing on children who have special educational needs but who do not have a statement, and conclude by considering the amendments which focus on children with statements. Amendment No.3 seeks to remove the requirement that a child without a statement of special educational needs should be placed in a mainstream school in all but a few exceptional circumstances. Amendment No. 7 seeks to insert a parental opt-out in the very section that Amendment No. 3 seeks to

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remove. Amendments Nos. 5 and 6, proposed by the noble Lord, Lord Northbourne, seek to protect the interests of the individual child. I shall return to that aspect in a moment. Perhaps it would be helpful if I reminded the noble Baroness, Lady Blatch, that she is on record as saying, back in 1992 when she discussed children without statements, that the then government were firmly committed to,
"the presumption that placements should be made in mainstream schools if at all possible".—[Official Report, 11/6/92; col. 1407.]
That is exactly what the Government want to do. It puzzles me that she now wants to relax those arrangements. The Government believe that that would be a retrograde step.
I say to the noble Lord, Lord Northbourne, and to others who have spoken in this debate, that of course we want any child in a mainstream school to have a positive experience. I cannot give precise figures about how many mainstream schools could at this point provide the specialist help and resources needed to enable more children to come into the mainstream system. It would be ridiculous to try to do that in advance of the reform. No mainstream school can make arrangements without knowing about the individual needs of a particular child who has SEN. I was asked a totally unanswerable question. Moreover, I do not think that it would be possible for a local authority to make provision in mainstream schools in advance of changes that might be made after the Bill's eventual enactment.
I state categorically to the noble Lord that there is no intention for children to become guinea pigs under the legislation; far from it. I say to the noble Baroness, Lady Sharp, that we certainly do not want to shortchange children. Of course, if we were to agree to Amendment No. 3 there would be no provision within Section 316 to ensure that the majority of children who have SEN but who do not have a statement are educated within the mainstream system.
We want an inclusive education service to offer excellence and choice and we believe that parents' wishes should be listened to. However, we also firmly believe that a mainstream place is right and in the best interests of the vast majority of children who have SEN. As the noble Lord, Lord Baker, said, that may involve up to 20 per cent of children who do not have a statement.
We acknowledge that there will be a small minority of cases in which a child has SEN but does not have a statement for whom a special school is more appropriate. We have previously acknowledged that. Those "exceptional circumstances" have been set out in the Bill. The exceptional circumstances provide sufficient flexibility to ensure that a child who does not have a statement but who needs to go to a special school can do so. At a time when we are seeking to strengthen the right to a mainstream place for children who have statements, it would be bizarre to unduly limit access to the mainstream in relation to children who do not have a statement. In the light of that, I hope that the amendments will be withdrawn.
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The remaining amendments—Amendments Nos. 8, 10 to 14, 22 and 23—seek to protect the interests of children who have statements. In effect, they reinstate provisions that are equivalent to the first caveat of the existing Section 316. As I said when discussing earlier amendments, the Government do not intend to do that.
I was interested in the history of SEN and special schools and the account of how they are treated given by the noble Lord, Lord Baker. I must say, however, that his speech was more appropriate for a Second Reading debate and was not absolutely confined to the amendments. Never mind: a great deal of his historical comments were absolutely right. I cannot go back as far as he did, but I can state that during the past five years the number of places in special schools has been static. About 1.2 per cent of all children are provided for, which amounts to approximately 97.000 places. Under this Government, there has not been an attack on special schools. I said throughout the Bill's Committee stage that the Government greatly respect the important work that special schools do.
We thought very carefully about the nature of the changes that we wanted to make to Section 316. We have always balanced the promotion of inclusion with the need to ensure that the education of all children is safeguarded. We did not drop the first caveat in order to downgrade or disregard the interests of individual children with statements. It was dropped—I repeat myself again—because we had clear evidence that it had been used inappropriately to block inclusion and that parents were ill placed to argue against such a judgment. Equally, we firmly believe that there are sufficient safeguards elsewhere in law to ensure that the needs of both the individual child and all pupils are protected. Of course, many children, such as those who are blind or deaf, to whom the noble Lord, Lord Baker, referred, will need the support of a special school.
In our approach we have the support of the Special Educational Consortium. I say to the noble Lord, Lord Renton, that he is a little out of touch with recent thinking on those matters. I am sure that his successor at Mencap, my noble friend Lord Rix, will confirm that. The SEC's position is that it has publicly welcomed our removal of the caveat relating to appropriate provision for the child because in practice that has often led to LEAs putting unnecessary barriers in the way of the need to provide a child with a mainstream place. The consortium supports increased access to appropriate mainstream placements that the removal of that caveat represents.
The whole point of identifying and assessing a child who needs a statement, and making a statement, is to ensure that the child receives the special educational provision that he needs. Under Schedule 27 to the 1996 Act, an authority is not required to comply with a parental preference for a maintained school if it is,
"unsuitable to the child's age, ability or aptitude or to his special educational needs, or the attendance at the school would be incompatible with the provision of efficient education for children with whom he would be educated, or the efficient use of resources".

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That ensures that the individual needs of the child are taken into account when deciding whether to name a parent's choice of maintained school in their child's statement.
When a non-maintained school is requested, Section 9, which also applies to maintained schools, sets the general principle that,
"pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training".
That will, we believe, enable a local authority to safeguard a child's interests if it considered that the provision suggested by a child's parents was incompatible with that child's efficient education or training.
When parents believe that an authority has named a school in a statement that cannot meet the needs of their child, they have the right of redress to the Special Educational Needs and Disability Rights Tribunal. Members of the tribunal consider each case on its merits and take full account of the special educational needs of children. That affords an additional level of protection. I hope that the informal arrangements contained in Clause 3 for resolving disputes will also be helpful in this context.
I say to the noble Lord, Lord Northbourne, that Section 317 means that governing bodies of maintained schools must use their best endeavours to secure SEN provision for children with learning difficulties. I say to the noble Lord, Lord Baker, and the noble Baroness, Lady Sharp—I hope that this will provide her with the assurance she sought—that we shall enhance the guidance in the final version of the revised SEN code of practice. We will make it absolutely clear that the statement should: describe clearly all of the child's SEN needs in full; set out the main objectives that the SEN provision aims to meet; specify clearly and in detail the provision required to meet each of the child's needs; describe the arrangements for setting shorter-term objectives for the child; describe any special arrangements for the annual review of the statement; stress the importance of monitoring the child and evaluating his or her progress during the year; and emphasise the importance of the LEA monitoring the child's progress towards identified outcomes with a school.
I hope that that provides reassurance. Your Lordships will recall that I signalled during Committee stage our intention to ask HM Chief Inspector of Schools to monitor the new inclusion framework. The Secretary of State has now written to him and, once confirmed, this additional accountability will help to prevent any potential abuses and ensure that the needs of the child are safeguarded.
We do not therefore believe that it would be right to reinsert provisions that might be seen as equivalent to the old first caveat. I do understand that these concerns have been raised solely by the wish to ensure that the interests of all children are safeguarded. I really want to try to be helpful. I am happy to give a commitment today that the statutory guidance which
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will support the new inclusion arrangements will underline the need to ensure that the interests of all children are protected—and I mean all—and will clearly set out where those safeguards are, in law, which protect the interests of individual children. I hope that in the light of that rather long response to the debate it will be possible for these amendments to be withdrawn—
Lord Baker of Dorking: My Lords, before the noble Baroness sits down, will she clarify some of the points that she has just made? She said she would go quite a long way towards meeting the objectives of these amendments in the code of guidance. I also think she said that when a statement is made on the needs of a child, not only the needs but the actual provision required will be spelt out. If that is the case, then I have to say that she could surely accept these amendments. But it does not go quite far enough. We are seeking through these amendments to give the child an entitlement to know that when his or her special educational needs are identified and the child has been sent to a mainstream school, it is up to the LEA to say to the parents, "This is how we are going to cope with your blindness, your deafness, your epilepsy and so on."
I do not think the noble Baroness is prepared to go quite as far as that, but that is what is needed. Education authorities should have an obligation upon them to say, for example, that there should be an educational plan agreed for each child, for each term. How many mainstream schools do that for children with special educational needs? I bet there are very few; but special schools do that. I believe that the noble Baroness has to go a little further. Maybe this is not the point to pursue this and perhaps it could be done at Third Reading. Perhaps by Third Reading the noble Baroness could circulate the draft code and draft guidance so that we can all understand what is meant. I realise that it cannot be amended, but we will at least have a clear understanding of what is in her mind. The noble Baroness knows perfectly well that many local education authorities do not handle special educational needs or disabilities very well. That is not good enough. These children should have the best education that our society can provide.
Lord Renton: My Lords, also before the noble Baroness sits down—
Baroness Blackstone: My Lords, this is Report stage. We have just had a long speech from the noble Lord, Lord Baker, and I must remind the House—I hate to do this—that at Report it is reasonable to ask the Minister, before she sits down, for some clarification. I am willing to give a short answer for clarification, although the question was asked at great length by the noble Lord, Lord Baker.
We are clear that LEAs have to specify the provision that each child needs according to their assessment of the needs when the child has a statement.
Lord Renton: My Lords, before the noble Baroness sits down, and very briefly, she accused me of being out of touch, but I do not think that suggesting the insertion of needs puts me out of touch.
Lord Lucas: My Lords, before the noble Baroness sits down, she twice used the phrase that there are sufficient safeguards elsewhere in law. To the extent that those safeguards were not particularised in her later remarks, could she please write to tell me what she thinks they are?
Lord Northbourne: My Lords, would the noble Baroness consider talking to some of us betweeen this stage of the Bill and Third Reading about some kind of compromise? It seems to be extraordinarily clumsy, if I may say so, to take out the words "appropriate provision for the child", which is going to expose the child to not getting the appropriate provision simply because some LEAs have been misusing their powers.
4.45 p.m.
Baroness Blatch: My noble friend did in fact ask the noble Baroness a direct question and I am not tall enough to recognise any signals made by her. It would be helpful if the whole House could hear the Minister's reply.
Baroness Blackstone: My Lords, I am happy to write to the noble Lord on the basis that he has requested.
Baroness Blatch: My Lords, is there an equal nod to the request for a meeting between now and the next stage of the Bill?
Baroness Blackstone: My Lords, we have had a great many meetings on this Bill already and I have to consider whether it is reasonable to use the resources of the department for yet more meetings. Of course I will take that away and consider it, but I cannot make an absolute commitment since I have set out very clearly the position to the noble Lord, Lord Northbourne, and others who have taken part in the discussion on this group.
Baroness Blatch: My Lords, I am sorry: that was a churlish reply. I do not believe that I ever refused Members of this House meetings between stages of a Bill. The noble Lord, Lord Northbourne, suggested that it would be possible to reach a compromise between what is a very genuine desire on the part of noble Lords who have pressed their amendments and the noble Baroness, who has said that the resolution of these points will be found elsewhere. As my noble friend Lord Lucas said, it would be helpful for us to know exactly where.
I do not know from what the noble Baroness was reading. If it was from the guidance or the code of practice it would be helpful—as it is available to the Minister and the department—for it to be made available to the rest of us who are involved in discussing this Bill. It would also be helpful to know whether it was the final draft, because I understand
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that specifying the detail is qualified by further words "when appropriate". It would be helpful to have some clarification on who decides when something is appropriate. It would be helpful if the noble Baroness could give us some idea as to whether what was being read from was definitive. If it is, can we all see it? If it is not definitive, may we know whether any suggested changes are being considered?
Several times this afternoon the noble Baroness has prayed in aid the Special Educational Consortium. I have had meetings with it, as have other Members of the House, and my understanding is that it would like to see the best interests of the child met. I do not remember it having objections to some of these amendments, certainly those which refer quite specifically to the best interests of the child know that it would wish to see additional numbers of children—I agree with the noble Baroness over that—into mainstream schools, but it would add the caveat that we all have, that it would be effective only if it was done with the particular support that a child would need.
The noble Baroness prayed in aid other documents, either guidance or a further code of practice. These are not binding in law, other than that we are required to have regard to them. Therefore there is no obligation in law for LEAs or anybody to do more than have regard to the guidance. The suggestion has been made that something should go on to the face of the Bill, especially as the noble Baroness has actually agreed with the sentiments of these amendments. It would be a very easy step, as my noble friend Lord Baker of Dorking said, to give young people an entitlement—that is what it would be converted to—rather than for it to be in a code of practice and/or guidance, to which regard only "has to be had".
The noble Baroness quoted me from, I believe, a 1992 Hansard. I hold up my hands and plead guilty. I said that the Government at that time had a presumption in favour of mainstream where mainstream can cope and it is in the interests and the educational needs of the child. The noble Baroness did not go on to qualify that, but that has always been my position both as a Minister and ever since. I have to say that the words on the face of this Bill are in conflict with many of the things that the noble Baroness has been saying. There is a rigidity of provision for children who have special educational needs, but who do not have a statement. There is a rigidity in the Bill. The wording in the Bill is that they "must" be educated in mainstream schools. We shall discuss that later.
The Minister said that no maintained school can make arrangements without knowing what the statement contains, but my noble friend Lord Baker of Dorking, and many of us in Committee, said that statements are inadequate. Because the Government are not prepared to put something on the face of the Bill that would guarantee specification of a statement, they will continue to be inadequate because nothing

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can be done about that in law. Therefore, we would like to see that entitlement written into the Bill. My noble friend gave a good example of a young person with cerebral palsy. I believe that a young person who had suffered from birth with cerebral palsy would require a little more than speech therapy, even if the amount of speech therapy is not quantified.
The noble Baroness, Lady Sharp, referred to her confusion in relation to the amendments. I am not that confused about the amendments collectively, as each amendment is discrete in itself, except for Amendments No. 22 and 23 which are consequential. However, the noble Baroness, Lady Sharp, rightly referred to tension being created where a placement in a mainstream school may be deemed appropriate as that may adversely affect the education of other children. That is provided for in the Bill.
If the placement of a child with special needs into any school, whether non-maintained or maintained, has an adverse effect on other children in the school, it will not be in the best interest of that child or the other children in the school. I see that being resolved by simply saying that that is not the best placement and certainly not in the best interests of the child.
Amendment No. 3 is unequivocal. Clause 1 states that a child with special educational needs, but without a statement must—I repeat "must"—be educated in a mainstream school. There is no flexibility. If there is a caveat somewhere else in legislation, or somewhere else in the Bill, this is otiose and does not need to be here. The Government either mean "must" or they do not. The Minister has given a long and complicated response to the amendments for which we are grateful, and because this is a complicated group of amendments I would like to read what she has said, although we shall certainly return to the issue on report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 4:
Page 1, line 13, leave out ("educated") and insert ("registered").
The noble Baroness said: My Lords, the response of the Minister in Committee makes interesting reading. I argued that where the clause says that the child must be educated in a mainstream school, it would preserve current flexibility in provision for a child with special education needs if the word "educated" were replaced by "registered".
We had a semantic debate on that, and on re-reading what the Minister said I am not convinced. It would mean that a child with special educational needs could be registered in a mainstream school but that, according to the child's needs, some of the education given to that child could take place elsewhere, possibly at a special school, where provision for some particular aspect of that child's education could be better met. My noble friend Lord Lucas described the situation as the mainstream school subcontracting part of the education to a special school or to some other institution.
In reply the Minister warmly agreed that indeed such placements can and do occur. She used the term "dual placements". Indeed, she argued the case well for the amendment. Perhaps I may quote the words from the report:
"There are many examples up and down the country of a child who is registered at one school spending part of his or her time at another, often a special school. It has been very effective in helping both pupils and schools. Therefore, where it is appropriate and in the child's best interests, we certainly agree that dual placements should be used".
The noble Baroness herself used the word "registered" and that is the appropriate word. Yet, as the Bill is worded, that becomes illegal, not just with the words in Clause 1(2), but in further references to
"must be educated in a mainstream school",
which occur elsewhere in the Bill.
Given the Minister's acceptance that what I argued for, and what she argued for in agreement with me, is current good practice and should continue, does she now accept that the word "educated" should be changed to "registered"? I beg to move.
Baroness Blackstone: My Lords, the amendment seeks to clarify the role of dual placements in supporting children with SEN. The noble Baroness, Lady Blatch, believes that it would be more appropriate for pupils with SEN who do not have a statement to be "registered" rather than "educated" at a mainstream school. She argues that where a child who does not have a statement is being supported by a dual placement, he or she is not being wholly educated in a mainstream school.
I wrote to the noble Lord, Lord Lucas, about dual placements in response to the debate we had on this subject during the Grand Committee and the letter was copied to those present at the first day of the Grand Committee. I confirmed then, and I shall do so again today, that dual placements—namely, where a child is registered at more than one school—are permitted under the Education (Pupils Registration) Regulations 1995 (provided for by Section 434 of the Education Act 1996). This Bill in no way inhibits the appropriate use of dual placements. Indeed, we think they are helpful and important.
We firmly believe that a mainstream place is right and in the interests of the vast majority of children with SEN who do not have statements. The exceptional circumstances set out on the face of the Bill provide sufficient flexibility to ensure that where a mainstream place is not right, a child without a statement can attend a special school. Children who do not have statements can be supported by dual placements, but we believe that they should receive the majority of their education at the mainstream school. Section 316(2) and the use of the word "educated" ensures that.
This amendment would allow a child to be placed on the register of one school but taught at a totally different school. The concern is that that could be abused. I hope noble Lords will agree that it would be far from satisfactory for parents to gain a place for their child at a mainstream school only to find out that the school did not intend to educate the child for the

627
majority of the time, but proposed to send the child elsewhere. Where appropriate, inclusion should be real and not a sham. Having heard my assurances, I hope that dual registration can take place and that the amendment can be withdrawn.
Baroness Blatch: My Lords, the Bill is deeply frustrating. I am left with the same problem that I had in the Moses Room. The Bill says that a child without a statement "must" be educated—not "registered"—in a mainstream school. Part of that provision may not be at a mainstream school, but at home or in a specialist school which is not maintained or it may be anywhere. On the one hand, the Minister says that that is all possible, and yet the Bill does not make it possible.
If the Minister is saying that somewhere else in statute that is made possible, this is otiose. On the point that children must be educated in a mainstream school, and therefore not educated anywhere else, the word "registered" gets us over the problem. They can be registered in a mainstream school, or registered in an independent school, but part of their education can be met somewhere else.
As I say, the tone is different and the thrust of what the Minister said in response to these amendments is different from her response in the Moses Room. In the Moses Room the Minister tried to be all things to all people. The truth is that there is now an aggressive move to mainstream education. On so many occasions the Minister has talked about abuse of the system, where an LEA may want to put someone in a specialist school, either partly or wholly, but that would be against the wishes of the department. One cannot have it both ways. One cannot have on the face of the Bill that a child without a statement must be educated in a mainstream school and then allow for the child in part to be educated at a non-maintained school. It simply does not add up. Therefore, unless the Minister is able to be more accommodating in her response to the amendment, I wish to seek the opinion of the House.
5.1 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 164.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Campbell of Alloway, L.

Anelay of St Johns, B.

Campbell of Croy, L.

Astor of Hever, L.

Carnegy of Lour, B.

Baker of Dorking, L.

Chadlington, L.

Beaumont of Whitley, L.

Colwyn, L.

Biffen, L

Cope of Berkeley, L.

Blaker, L.

Courtown, E.

Blatch, B.

Cox, B.

Boardman, L.

Craig of Radley, L.

Bowness, L.

Crickhowell, L.

Brougham and Vaux, L.

Dean of Harptree, L.

Burnham, L.

Denham, L.

Caithness, E.

Dixon-Smith, L.

628

Eden of Winton, L.

Murton of Lindisfarne, L.

Elles, B.

Naseby, L.

Elliott of Morpeth, L.

Noakes, B.

Elton, L.

Northbourne, L.

Fookes, B.

Northesk, E.

Gardner of Parkes, B.

Palmer, L.

Geddes, L.

Park of Monmouth, B.

Glentoran, L.

Peyton of Yeovil, L.

Gray of Contin, L.

Platt of Writtle, B.

Hanham, B.

Quirk, L.

Haslam, L.

Rawlings, B.

Hayhoe, L.

Renton, L.

Henley, L. [Teller]

Renton of Mount Harry, L.

Higgins, L.

Roberts of Conwy, L.

Holderness, L.

Rotherwick, L.

Hooper, B.

Seccombe, B.

Howe, E.

Selborne, E.

Selsdon, L.

Hunt of Wirral, L.

Shrewsbury, E.

Jenkin of Roding, L.

Skelmersdale, L.

Kimball, L.

Stewartby, L.

Kingsland, L.

Stodart of Leaston, L.

Knight of Collingtree, B.

Strathclyde, L.

Lamont of Lerwick, L.

Thomas of Gwydir, L.

Lucas, L.

Vivian, L.

Luke, L. [Teller]

Waddington, L.

Lyell, L.

Wade of Chorlton, L.

McColl of Dulwich, L.

Weatherill, L.

Miller of Hendon, B.

Wilcox, B.

Montrose, D.

Young, B.

NOT-CONTENTS

Acton, L.

Eatwell, L.

Addington, L.

Elder, L.

Ahmed, L.

Elis-Thomas, L.

Alli,L.

Erroll, E.

Amos, B.

Evans of Parkside, I,.

Andrews, B.

Evans of Temple Guiting, L.

Archer of Sandwell, L.

Evans of Watford, L.

Ashley of Stoke, L.

Falkland, V.

Ashton of Upholland, B.

Farrington of Ribbleton, B.

Avebury, L.

Faulkner of Worcester, L.

Bach, L.

Filkin, L.

Barker, B.

Fyfe of Fairfield, L.

Barnett, L.

Gale, B.

Bassam of Brighton, L.

Gibson of Market Rasen, B.

Bernstein of Craigwell, L.

Gladwin of Clee, L.

Billingham, B.

Goldsmith, L.

Blackstone, B.

Goodhart, L.

Blease, L.

Gordon of Strathblane, L.

Borrie, L.

Goudie, B.

Bragg, L.

Gould of Potternewton, B.

Brennan, L.

Graham of Edmonton, L.

Brett, L.

Grenfell, L.

Brooke of Alverthorpe, L.

Hamwee, B.

Brookman, L.

Hardy of Wath, L.

Brooks of Tremorfa, L.

Harris of Greenwich, L.

Burlison, L.

Harris of Haringey, L.

Carter, L.[Teller]

Harris of Richmond, B.

Chandos, V.

Harrison, L.

Christopher, L.

Haskel, L.

Clarke of Hampstead, L.

Hayman, B.

Clement-Jones, L.

Hilton of Eggardon, B.

Clinton-Davis, L.

Hogg of Cumbernauld, L.

Cocks of Hartcliffe, L.

Hollis of Heigham, B.

Craigavon, V.

Holme of Cheltenham, L

Crawley, B.

Hooson, L.

Darcy de Knayth, B.

Howells of St. Davids, B.

David, B.

Howie of Troon, L.

Davies of Coity, L.

Hoyle, L.

Davies of Oldham, L. [Teller]

Hughes of Woodside, L.

Dholakia, L.

Hunt of Chesterton, L.

Dixon, L.

Hunt of Kings Heath, L.

Donoughue, L.

Irvine of Lairg, L. (Lord Chancellor)

Dubs, L.

629

Islwyn, L.

Rendell of Babergh, B.

Jacobs, L.

Rennard, L.

Janner of Braunstone, L.

Richard, L.

Jay of Paddington, B. (Lord Privy Seal)

Rodgers of Quarry Bank, L.

Roper, L.

Jeger, B.

Scotland of Asthal, B.

Jenkins of Putney, L.

Scott of Needham Market, B.

Judd, L.

Serota, B.

King of West Bromwich, L.

Sewel, L.

Kirkhill, L.

Sharp of Guildford, B.

Lea of Crondall, L.

Shepherd, L.

Lipsey, L.

Shore of Stepney, L.

Lockwood, B.

Simon, V.

Lofthouse of Pontefract, L.

Simon of Glaisdale, L.

Macdonald of Tradeston, L.

Smith of Gilmorehill, B.

McIntosh of Haringey, L.

Smith of Leigh, L.

McIntosh of Hudnall, B.

Stem, B.

MacKenzie of Culkein, L.

Stoddart of Swindon, L.

Mackenzie of Framwellgate, L.

Stone of Blackheath, L.

Mackie of Benshie, L.

Symons of Vernham Dean, B.

Maddock, B.

Taylor of Blackburn, L.

Mallalieu, B.

Tenby, V.

Mar and Kellie, E.

Thomas of Gresford, L.

Marsh, L.

Thomas of Walliswood, B.

Massey of Darwen, B.

Tomlinson, L.

Merlyn-Rees, L.

Tordoff, L.

Mishcon, L.

Turnberg, L.

Molloy, L.

Turner of Camden, B.

Morgan, L.

Uddin, B,

Morris of Castle Morris, L.

Wakefield, Bp.

Morris of Manchester, L.

Wallace of Saltaire, L.

Nicol, B.

Warwick of Undercliffe, B.

Parekh,L.

Wedderburn of Charlton, L,

Patel of Blackburn, L.

Whitaker, B.

Peston, L.

Whitty, L.

Plant of Highfield, L.

Wilkins, B.

Prys-Davies, L.

Williams of Elvel, L.

Puttnam, L.

Williams of Mostyn, L.

Ramsay of Cartvale, B.

Williamson of Horton, L.

Rea, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.11 p.m.
[Amendments Nos. 5 to 8 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 1, line 15, leave out ("must") and insert ("will normally").
The noble Baroness said: My Lords, in subsection (3) of Clause 1, we turn our attention to the child with special needs. However, unlike the child referred to in subsection (2), the child in this subsection is one with a statement.
Those noble Lords with detailed knowledge of a child with a statement—indeed, those noble Lords who have had relatives with such learning difficulties—will know that if parents have gone so far as to secure a statement for a child, then that child's disability or learning difficulty will be pretty severe. Indeed, I would argue that today many children with special needs should hold a statement, but for whatever reason a local authority may drag its feet in the assessment procedure to establish and issue the statement. Thus most children who have achieved a statement are in great need of specialist help.
In Committee, I tabled amendments to this subsection but they were not voted on because the procedure did not allow for it. Along with another amendment to the clause to which I shall speak later, I wish to assert that adequate provision for a child with severe difficulties has to be made available in a mainstream school before parents can be obliged to place their child in such a mainstream school.
I hope that the noble Lord will be able to look more favourably on the aim of Amendment No. 9 and that he will be able to be more accommodating at this stage of our deliberations. I beg to move.
Lord Davies of Oldham: My Lords, with this amendment the noble Baroness, with her customary subtlety, seeks to restrict access to mainstream schools for children with statements.
I find this rather strange, because the argument—over which we have spent a considerable amount of time this afternoon—turns on the fact that the Government seek to ensure that the potential social, moral and educational benefits of inclusion are realised by this Bill. I believe that all sides of the House recognise that inclusion has its benefits. That is why young people who are able to attend a mainstream school, provided that it can provide adequate accommodation for them, will benefit from the aspect of inclusion which underpins the entire Bill.
The Government's commitment to inclusion has been strong and constant. Clause 1 of the Bill delivers our commitment to strengthen the right to a mainstream place for children with special educational needs. This is in line with the recommendation of the Disability Rights Task Force. The Bill provides that, where a child's parents want a mainstream place and where this would not prejudice the efficient education of other children, that child should be educated in a mainstream school.
We believe, and the majority of those who responded to the Bill's consultation agree—indeed, we have heard evidence in earlier debates this afternoon to that effect—that we have struck the right balance between, on the one hand, delivering greater inclusion, with all the benefits that that can bring, and, on the other hand, protecting the interests of other children. We are not restricting the use of dual placements or external support. We have also underlined that there is a continuing and vital role for specialist provision. Our intention is to safeguard the needs of all children and we believe that this clause delivers that aim.
What the amendment before the House would do would be to create further ambiguity in the system. We are trying to introduce transparency and clarity. For that reason, I ask the noble Baroness to consider withdrawing her amendment.
Lord Baker of Dorking: My Lords, in reply to the last debate, the Minister's colleague stated that plans were in place to modify the code of practice in respect of statemented children. She said that not only should the needs of a statemented child be set out but also the provisions needed for such a child. Perhaps I may ask

631
the Minister to detail in a letter to me how detailed such provision is to be. Will it be like the case of Jonathan, where his need for speech therapy was not met, or will the code specify that such a child needs so many hours per week or per month of speech therapy?
I do not expect the Minister to be able to answer off the cuff, but if he could reply to me before Third Reading, I should be grateful.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord. Perhaps I may say that, so far as concerns the particular example he has cited, the number of hours of speech therapy required will be specified. However, I shall be only too happy to write in detail to the noble Lord before Third Reading.
Baroness Blatch: My Lords, just as we were told in Committee, what the Minister has said in response to this amendment is neither clear nor transparent. The noble Lord began his remarks by suggesting that we are seeking to turn logic on its head. He spoke of strengthening a child's right to secure a place in a mainstream school, but there is an element of rigidity in what the noble Lord, together with his noble friend Lady Blackstone, is arguing here.
The Government have argued against acknowledging the wishes of parents where they wish to make a choice. They have argued against registration and they have returned to the rigid concept that a child must be educated in a mainstream school. They have argued against the notion that that should be compatible with the wishes expressed by the child's parents. They have argued against introducing the element of flexibility that would be present were the words "will normally" to be adopted here; namely, exactly as I said in 1992 and what I believe today. It is not acceptable to make a presumption. The use of the word "must" here is too rigid. In any dictionary, the word "must" is defined as signifying a rigid imperative and does not allow for any flexibility.
The Government have argued against adding the words, "in the best interests of the child". They have argued against the necessity to ensure that the provisions essential to the support of the child should be present in the school. This makes absolutely no sense. As I have said, it is neither clear nor transparent. The clause is rigid in its drafting and is designed for the Government to meet their objective; namely, that children, irrespective of their needs, will be moved from specialist provision into mainstream schools.
However, the Government are not prepared to give guarantees. They are not prepared to accept any amendment to the Bill that would ensure that adequate resources will be in place. They are not prepared to incorporate a form of words to the effect that the "best interests" of the child should be taken into account.
The Government are being prescriptive and restrictive here. They have turned their face against any element of flexibility. I find that both distressing and deeply disappointing. Parents and children will feel the same when the Bill becomes an Act and they discover that the fine words did not materialise. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 to 14 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 15:
Page 2, line 3, at end insert—
("( ) In this section a child is "educated in a mainstream school" if he receives the majority of his education at such a school.").
The noble Lord said: My Lords, these or similar words were used by the Minister in her letter to me; however, she did not repeat this form of words in her reply to the amendment moved earlier by my noble friend Lady Blatch. I should like to know whether the Minister still stands by this formulation of what it means to be educated in a maintained school. If she does, can she point to the authority for it? She may be able to provide the authority merely by stating as much on the official record. That would at least give us some comfort as to how the phrase will be interpreted. I beg to move.
Baroness Blackstone: My Lords, in our view the amendment is unnecessary. As I explained in my letter-to the noble Lord, Lord Lucas, we believe that the detail of how dual placements work on the ground should be determined locally. This ensures that the arrangements are tailored to the needs of the individual child—and to the two schools, which is also important. What works for one child in one area cannot necessarily simply be transferred in another set of circumstances. The noble Lord is keen to say that being overly prescriptive is unhelpful. As I believe he and other noble Lords will agree, this amendment is too prescriptive.
However, I can assure the noble Lord that we shall provide further advice on the use of dual placements—both for children who have statements and for those who do not—within the guidance that will back up the new inclusion framework. This is statutory guidance to which schools and LEAS must have regard. In the light of that, I hope that the noble Lord feels Able to withdraw his amendment.
Lord Lucas: My Lords, I do not disagree with anything the noble Baroness said. However, I am disappointed with her reply. I am sad that she did not say what I asked her to say—namely, that she has some authority for the assertion that the phrase "educated in a mainstream school" allows dual placements. The Minister did not even say that that is what she believes. She certainly did not cite any reasons why the rest of us should believe that the phrase in the Bill allows dual placements to continue where part, or even the majority, of the dual placement is in a special school, particularly if it is an independent special school. I shall, therefore, return to the matter at Third Reading. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 16:
Page 2, leave out lines 9 and 10.
The noble Lord said: My Lords, this brief amendment is a further attempt to clarify the meaning of part of the wording of the Bill.
In Committee, the noble Lord, Lord Davies, said:
"It is not our intention to prevent LEAs funding children in the independent sector if that is appropriate".—[Official Report, 23/1/01; col. CWH 48.]
I declare an interest as a trustee of the Caldecott Community, a residential therapeutic community for about 60 children, who are paid for in general by local authorities—and a great deal they pay too, about £75,000 a year, which shows what a difficult job it is to help those children.
I cannot see how that statement by the noble Lord can be reconciled with the words in the clause,
"if the cost is met otherwise than by a local education authority".
The purpose of my amendment is to probe how those two statements can be reconciled. I beg to move.
Lord Renton: My Lords, this amendment achieves almost exactly the same object as my Amendment 10. I warmly support it.
Baroness Blatch: My Lords, I, too, strongly support the substance of the amendment and the questions posed by the noble Lord, Lord Northbourne. In Committee, the Minister said:
"If parents decide to educate their children in an independent or non-maintained special school, that is a matter for them. If a school is named on a child's statement, or an LEA is satisfied that a child with special educational needs should attend a particular non-maintained school, then under Section 348 of the 1996 Act, the LEA is required to meet the fees".
That is fairly straightforward: it applies to a child with a statement. Why should a child with special educational needs without a statement, where it is appropriate to educate that child in a non-maintained school, be treated so differently? The Minister went on to say:
"LEAs are also given the power to meet the fees of children attending specialised institutions outside England and Wales".
Does that mean Scotland, or Timbuktu? What exactly does it mean? The Minister continued:
"In other cases, the financial burdens of that child's private education should not rest either in whole or in part with the taxpayer".
Presumably that means that no fee at all can fall on the taxpayer. There is no other way of interpreting that sentence.
"LEAs should be required to fund places in non-maintained schools only where it is appropriate for a child's statement to name such a school, or the child's interests require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate".
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I am reinforcing the question asked by the noble Lord, Lord Northbourne. In addition to a child with a statement, the Minister says that,
"only where it is appropriate for a child's statement to name such a school, or"—
an alternative is given—
"the child's interests"—
she does not say the child with or without a statement—
"require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate. Members of the Committee will agree that that preserves the efficient use of resources, and that has been the system up to now".—[Official Report, 23/1/01; CWH 54.]
If it says on the face of the Bill that a child can be placed in a non-maintained school but that the child is not prevented from being educated in an independent school or,
"a school approved under Section 342, if the cost is met otherwise than by a local education authority",
that means that for a non-statemented child a local education authority will not be allowed in law to pay for a child, in whole or in part, in a non-maintained school.
If the noble Lord replies yet again that another part of a statute somewhere else will allow the LEA the freedom to pay, in whole or in part, for the non-maintained provision for a child without a statement, this provision is in conflict with that and it ought not to be on the face of the Bill. If the words on the face of the Bill mean that a child cannot be given a place, in part or in whole, in a non-maintained school, that is very regrettable.
Lord Davies of Oldham: My Lords, it would be regrettable if that were the intent or the effect of the proposals before the House. I want to emphasise, and to reassure the noble Lord, Lord Northbourne, as I sought to do in Committee, that the reference point for proposed new Section 316A(3) provides that the whole of the new section will have no effect on the operation of Section 348 of the 1996 Act. That is the base upon which decisions are to be made. That Act was piloted through this House by the noble Baroness, Lady Blatch. It contains provision for statemented and non-statemented children to have access to public support for attendance at non-maintained schools.
Proposed new Section 316A(3) makes sure that proposed new Section 316 will have no effect whatever on the operation of Section 348 of the 1996 Act. On that basis, I am able to give the noble Lord, Lord Northbourne, the assurances that he seeks. There is neither the intent nor the realisation of discrimination against the use of public funds to support a student in a non-maintained school where that is defined as appropriate.
Lord Northbourne: My Lords, I am grateful to the Minister for that reply. I shall need to read in Hansard what he said. Clearly he is right, but the matter is deeply confusing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 17:
Page 2, leave out line 17.
The noble Baroness said: My Lords, in moving Amendment No. 17, I shall speak also to Amendments Nos. 18 to 21. This has to be a repetition of what happened in Committee, but we continue to be as confused now as we were then about so many of the amendments.
New Section 316A(2) says:
"Section 316(2) does not require a child to be educated in a mainstream school during any period in which—
(a) he is admitted to a special school for the purposes of an assessment under section 323 of his educational needs and his admission to that school is with the agreement of—

(i) the local education authority.

(ii) the head teacher of the school or, if the school is in Wales, its governing body".

Why should that be so? And why should it be with the agreement of,
"any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26"?
I could go on. Those same people are invoked in paragraph (c) of that new subsection.
Why do all those people have such an influence over and above the one influence that matters—that of the parents—and the one consideration that matters; that is, what is appropriate and what is in the best interests of the child? All those named in that section should not have the right of veto.
If the child has been admitted to a special school, as the paragraph states, then the agreement of all concerned has already been sought and given, otherwise the child would not have been admitted to the special school. It is wrong to allow, as these subsections do, the local education authorities and the mainstream school head teachers to object. I beg to move.
Baroness Blackstone: My Lords, the amendments in this group concern provisions for children who have special educational needs but who do not have a statement; in other words, the majority of pupils who have SEN.
Amendments Nos. 17 to 20 would mean that only parental permission would be needed in order to place a child without a statement in a special school, either during a statutory assessment or because of a change in their circumstances. The noble Baroness, Lady Blatch, is repeating what she said in Committee; that is, that her purpose in tabling the amendment is in part to reduce bureaucracy and to ensure that time is not wasted. However, she also felt that all concerned with the child would already have been in agreement.
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I am sorry to say that there is not always the consensus that the noble Baroness assumes. She asked why other parties needed to be considered and to be at the centre of any agreement made. The reason is that parents' wishes are not necessarily always a reliable measure of the best interests of the child. We feel it is crucial that the step of placing a child without a statement outside the mainstream should be taken with the agreement of all parties—parents, LEAs, the head or governing body and other professionals; it should not be left solely to parental wishes.
Where a child has SEN, it can be traumatic for him and his parents. The SEN system may seem complex and parents sometimes need support and advice. We have no reason to believe that the existing arrangements are unnecessarily bureaucratic or timewasting. We set them out on the face of the Bill for clarity. Either unintentionally, or perhaps intentionally, the amendments relax the exceptional circumstances set out at new Section 316A(2). That could inhibit inclusion for children who would and should benefit from mainstream schooling, and that would be wrong.
Amendment No. 21 seeks to accommodate the wishes of the child before he is placed in a special school. As my noble friend Lord Davies said in Committee, the wishes of the child is a recurring theme and an important one that has implications for pupils beyond the scope of this Bill.
I can assure the House that the revised SEN code of practice, which will in due course be placed before Parliament for approval, will make absolutely clear that the views of the child should be taken into account wherever possible. Of course, that includes the statutory processes for making assessment and statements. Local education authorities and others will, by law, have to have regard to the guidance. We believe that to be the most appropriate way forward. I hope, in the light of my remarks, that the noble Baroness will feel able to withdraw her amendment.
Lord Baker of Dorking: My Lords, before my noble friend replies perhaps I can ask a question. Do the four bodies who have to agree—
"the local education authority … head teacher … parent, and
(iv) any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26"—
have to be unanimous in their decision? Suppose it is three-one, either-way or two-two; is that a blocking? How does it work?
Baroness Blackstone: My Lords, the parents can always go to a tribunal if they disagree with what is being suggested by the other parties. It is not a question of a blocking majority. This is not like an ELI council. It is a different set of circumstances. The discussion should be constructive and relatively informal. A vote will not be taken.
Lord Baker of Dorking: My Lords, I understand that parents can go to a tribunal. But suppose the LEA, the parents and the person in paragraph (iv) agree that the child should go to a special school, but the head

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teacher objects. Does the head teacher's view prevail? It is a matter for clarification and I am happy to wait for advice at a later stage.
Baroness Blatch: My Lords, my noble friend's question is actually pertinent. Again, if one goes back to the words on the face of the Bill, it does not say the agreement of the local education authority "or" the agreement of the head teacher "or" the parent, and so forth. It actually says,

"(i) the local education authority,

(ii) the head teacher of the school …

(iii) his parent, and

(iv) any person whose advice is to be sought in accordance with regulations".

So my noble friend's question is perfectly appropriate.
Baroness Blackstone: My Lords, I confirm that of course all parties have to agree. They have to work together and find a consensus as to what is the right provision to meet the individual child's needs.
Baroness Blatch: My Lords, that confirms the appropriateness of my noble friend's question. Suppose they do not agree. Suppose the result is three-one, two-two, one-three; what then? I was very depressed to hear the Minister say that parents can always go to tribunal. I thought this whole Bill was about trying to minimise the number of cases that actually go to tribunals. I thought the whole idea of having an informal conciliation service was to prevent cases from having to take the option of going to tribunal.
What happens if the result of discussion is two-two, three-one or one-three? We need to know. There must be an answer to that question. It is no good the noble Baroness saying, "Do not worry your pretty little heads about these things". They are pertinent questions. The Bill actually says,

"(i) the local education authority,

(ii) the head teacher of the school …

(iii) his parent. and

(iv) any person"—

that could mean all sorts of people,
"whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26".
We know that a large number of people can be involved in such a decision.
The noble Baroness, Lady Blackstone, and the noble Lord, Lord Davies, have not yet said that the status of the extract of the document read earlier by the noble Baroness is definitive; we do not know whether it is the final draft and whether it will be available before the next stage of the Bill or, preferably, immediately after today's Report stage. In particular,
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it would be helpful to know whether the noble Baroness was saying that the specification in detail was unequivocal or would be qualified by the words, "if appropriate".
I do not know if the noble Baroness was criticising me—it certainly appeared to be an implied criticism—when she said that I was being repetitive. Of course I was. The arguments in support of my amendments have not changed. They are precisely the same. I conclude with the point on which I would have ended if my noble friend Lord Baker of Dorking had not intervened; that is, that there is not always a consensus on these matters. I am extremely interested that once again the Government have set their face against taking into account, where possible, the wishes of the child. The Liberal Benches may return to that theme later. So all those people have what appears to be a veto. We have no answer to what happens if their views are split. It would help me, before I decide what to do with the amendment, to have answers to some of the questions posed.
Baroness Blackstone: My Lords, I did not answer the question about a so-called document, which was asked by the noble Baroness earlier, partly because I did not want to keep getting up and down at Report stage, as we have to make some progress. I can say categorically that I was not reading from any document. I was merely listing what the Government intend to be included in the code of practice. As I have said many times, the code of practice, which will be written when the Bill is enacted, will be brought to both Houses of Parliament for debate. I hope that that answers the question of the noble Baroness.
On the issue of disagreements, the purpose of Clause 3 is to find a way to get through such disagreements by a proper system of conflict resolution. I can tell the noble Lord, Lord Baker, that if a head teacher of a special school thought that it was inappropriate and wrong for a particular child to be sent to that school, he would have every right to say so. The head teacher would, of course, have to have good reasons for refusing the child admission, if all the other parties, including the parents thought that it was the right place for the child. However, there is not only one special school for particular needs; there are a number of them. I assume that, in those circumstances, the LEA and the other professionals involved would search for a school where the head teacher would not resist taking in the child.
Baroness Blatch: My Lords, let us suppose that all the professionals whose advice has been sought, and who have become involved in the case, including the parents, agree with the head teacher, but the LEA does not agree. The noble Baroness has not faced up to that. The LEA is one of a block of four interested parties mentioned in the clause, which refers to "and", not either/or. The matter is unsatisfactory. I beg leave to withdraw the amendment, but shall return to the issue at the next stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 23 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 24:
Page 3, line 13, at end insert—
("( ) "Reasonable steps" in the context of this section shall include the provision of specific, extra, supervisory staff; of specialist teachers; and where necessary of nursing staff, according to the special requirements of the individual child with special educational needs.
( ) A child with special educational needs shall not be admitted to a mainstream school unless the necessary extra staffing will be provided.").
The noble Baroness said: My Lords, I believe that Amendment No. 25 is grouped with this amendment.
The previous subsections to the clause refer to "reasonable steps" to be taken by the local authority and/or the school in order that a child may be admitted to the mainstream school. If such "reasonable steps" cannot be taken for good reason, the obligation to admit the child with special needs to a mainstream school will no longer apply. What are those "reasonable steps"? We should spell out in the Bill, not in some subsequent non-binding guidelines, at least what some of those reasonable steps are. I repeat what guidelines mean. It will not be for parents to argue about the specific support, or lack of it, for their child in a school. All that the LEA or the school need do is to say that in reaching their decision about provision and the steps that needed to be taken, they had regard to the guidelines. End of story. That is what the tribunal will consider.
When we come to the later clauses on disability, the reasonable steps are likely to include physical adaptation of the school premises, but for children with learning difficulties the most obvious reasonable steps are the provision of the necessary staff to cope properly with the needs of the child with special needs. I return to that same point with a new clause, which I suggest should be inserted after Clause 4, covering both special needs and disability, and in which we would allow governors to object to an admission if the necessary staffing is not in place.
Before the child joins the school, there needs to be in place the necessary extra staff. I note—and we have said this before—that the financial appraisal does not appear to include staffing implications for moving children from special needs into mainstream schools. That is a great puzzle to those of us following the Bill. Such staffing implications include teaching, supervisory and, possibly, nursing staff. The local authority must take reasonable steps to put such staff in place. If, in the context of Clause 1, the local authority is unable, for good reason, to put such staff in place—to take reasonable steps—it should be exempt from having to admit the child with special needs to that mainstream school.
One good reason might be that, at least for the present, no person with the necessary experience and qualifications for the particular needs of the child can be found. I beg to move.
5.45 p.m.
Lord Addington: My Lords, Amendment No. 25, in my name and that of my noble friend Lady Sharp, takes another approach, and follows Amendment No. 30 to which I spoke in the Grand Committee.
We believe that "reasonable steps" should be set out in the guidance, and that only a reference to such guidance should be contained in the Bill. That meets the Minister more than half way. In that way, guidance can be changed without going through the whole process of changing the Bill. There would also be a point of reference. It is important that those who are involved in such matters have an easy point of reference. Mentioning the guidance in the Bill might be a way of helping such professionals to find out what is meant. I suggest that this is a reasonable and progressive amendment.
Lord Baker of Dorking: My Lords, this is the first occasion on which to address the question of the resource implications of the Bill. The Minister will be aware from our debates in the Moses Room and the comments that have already been made, that many of us fear that the resources will not be adequate to fulfil the full intention of the Government. I know that the Minister will say that extra resources have been allocated, but the Bill will have considerable consequences, especially if LEAs are required to spell out the provision that will be made for children with special educational needs, even for those with statements, let alone those without.
I spoke earlier about the provision in the school that I know about. I can call upon only one special school, dealing with blind children. The classes at GCSE level have a maximum of six. At the ages of four, live and six, the pupil-teacher ratio is 3:1 and 2:1, in some cases. I am referring to children suffering from low incidence disability. I believe that when local education authorities have to face up to providing that degree of provision, they will realise that they will have to recruit many more teachers.
I have tabled a Question, which has probably not yet reached the Minister's desk, asking for an estimate of the extra teachers and teachers' assistants who will be required in the next three to four years when the Bill's provisions are fully implemented. I hope that, the Minister will be specific, although that hope might be dashed. I believe that there will be a big underlying increase in the provision of resources needed for the Bill.
Children who suffer from extreme disabilities will always go to special schools, but what about those who are not totally blind, but severely visually impaired, or those who are not totally deaf, but very hard of hearing, with an associated psychological problem? At present, many of these children are best dealt with in special schools. However, if they are going to attend mainstream schools, or special units maintained by the LEA, the Government must face up to the extra teaching that will be required. There are two big costs:

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the number of teachers and teachers' assistants, together with technical equipment. I shall give the Minister the opportunity to expand on that.
Baroness Young: My Lords, I support what both my noble friends Lady Blatch and Lord Baker have said. I was talking to a teacher quite recently about this Bill. Let us picture the situation in a primary school. There is a teacher with a class of 30. The teacher is asked to consider the special needs of any children who are particularly able in science. So he is looking for that.
Within those 30 children, there will be somebody with special educational needs, possibly a Down's syndrome child who will find reading very difficult. So there is an enormous range within one class with one teacher. That is the reality on the ground.
The teacher will do his best to be fair to everybody. There is a limited time in the course of the day and a limited ability of anybody to do something. It seems to me that this is a very serious issue relating to extra help for those who require it because there is such a range of disabilities.
Only the other day I visited a school for the deaf. Of course, there are great gradations between children who are completely deaf and those who are only slightly deaf. Teachers are being pressed to raise standards; to achieve better SATs results; and to urge the brightest children to show how well they can do. They must then also pull back to help those who are finding the going rather too quick or too difficult. That is no reflection on the child at all. But that is the reality.
Everybody hopes that this legislation will be a success for all the children who are being taught. I urge the Government to look very carefully at this issue, which seems to me absolutely key to making the Bill work.
Lord Renton: My Lords, I wish to add a few words to those very wise words which have been uttered by my noble friends Lady Blatch and Lord Baker.
I must acknowledge that the Government have a problem here. There is an overall shortage of teachers for ordinary mainstream schools. There is also a shortage of teachers trained to deal with special needs in special needs schools. It seems to be that that problem could be mitigated somewhat. When it is not possible to make that extra provision available in mainstream schools, then surely it is better that those children should be in special schools. That means that teachers in mainstream schools can get on with teaching children in the ordinary way while the children needing special training will be able to obtain it, perhaps more easily, by attending a special needs school rather than a mainstream school and being specially treated for their learning difficulties there.
Lord Williamson of Horton: My Lords, I support those who have drawn attention, by these amendments, to the question of resources. It is extremely important that we should not launch legislation which will change the current situation, and
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which I broadly support, without being a little more explicit on the question of resources. We must avoid launching a new iniative which is broadly supported in the country only to find afterwards that the resources are simply not there or the public believes that they are not there, particularly in mainstream schools which are dealing with pupils with special needs.
Therefore, we need something rather more explicit in the Bill. I go along with the amendments proposed, including the amendment put forward by the noble Baroness, Lady Sharp, which does not go as far but does at least indicate a benchmark in relation to the definition of "reasonable steps". That is important. I should not be satisfied with the answer that it is not necessary for that to be on the face of the Bill, which is an answer that we often hear. I believe that it would be useful to put it on the face of the Bill.
Baroness Blackstone: My Lords, Amendment No. 24 seeks to set out on the face of the Bill that the steps it could be reasonable for maintained schools and LEAs to take in order to prevent inclusion being incompatible with the efficient education of others will include the provision of extra staff.
As I argued in Committee, it is not appropriate to set out details of reasonable steps in primary legislation. To do so could unnecessarily restrict the inclusion of children in the future. Inclusion is a process; it is not a fixed state. What is unreasonable now may not be in future when schools will be, we hope, more inclusive and more accessible. Instead, considerations of what reasonable steps could be will be set out in guidance. Of course, guidance will address issues such as staffing and training levels, as well as many others, in dealing with the question of how reasonable steps can be determined. LEAs and schools will have to have regard to the guidance which is referred to on the face of the Bill. Again, I assure noble Lords that we intend to consult widely on the guidance to make sure that we get it right.
The amendment refers to the special requirements of children with SEN. Those requirements are not what "reasonable steps" are designed to address. Their special educational needs are dealt with by the statementing process, which exists solely to make the special educational provision that their needs call for. Reasonable steps are steps which could be taken to protect the education of other children, including other children with SEN.
I do not believe that the noble Baroness, Lady Young, was present in Committee and I should tell her that I said then that where a child's inclusion would mean, even with other support, that the teacher had to spend a greatly disproportionate amount of time with the child in relation to the rest of the class, then a mainstream place may well not be appropriate.
The second part of the amendment would give an incentive to a maintained school which did not want to take a child with SEN not to take reasonable steps to prevent that child's inclusion being incompatible with the efficient education of others. If a child is not admitted to a school, his education cannot be

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incompatible with the efficient education of other children at that school. LEAs and governing bodies of maintained schools will not need to rely on that caveat, so the obligation to take reasonable steps will not be triggered. Our starting point is that, with the right support, many children—indeed, nearly all children—could be included in mainstream schools. We want to turn Section 316 into a positive endorsement of inclusion while also safeguarding the needs of all children.
I turn now to the questions raised by the noble Lord, Lord Baker, the noble Baroness, Lady Young, and the noble Lord, Lord Williamson, about resources. We are realistic about the need for extra resources. We are supporting expenditure of £82 million from the SEN standards fund next year, up from £55 million this year. That will support, for example, the expansion of parent partnership services. It will also provide funding for additional training for staff, as the revised SEN code of practice is brought into effect.
Of course, I accept that additional training will be needed. Indeed, all qualified teachers in future will need to have, as part of their training, the ability to recognise children with special educational needs and a whole lot of other matters associated with that.
We have also announced that schools will receive £220 million to improve access for disabled children over the next three years. The spending for school access in 2001–02 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 about 6,000 different schools. That increase will have a very direct impact on the environment of many schools. It will certainly help to improve accessibility for disabled pupils.
I could go on but in the interests of time I should now turn to Amendment No. 25. This amendment seeks to include on the face of the Bill a requirement that guidance on Sections 316 and 316A will define what could be considered reasonable steps for maintained schools and LEAs to take in order to prevent inclusion being incompatible with the efficient education of others.
In Committee, I outlined that the appropriate place to set out what "reasonable steps" could be was in guidance. I am very pleased that the noble Lord, Lord Addington, agrees with me on that point. I also gave an assurance that Clause 1 will make provision in that respect.
I understand the strength of the debate over this issue. I am, therefore, happy to accept the principle being argued for on this occasion. I shall bring forward a suitable government amendment on Third Reading, so that a requirement will be placed in the Bill that the guidance referred to in Section 316A(8) will include advice about the "reasonable steps" mentioned in Section 316A(5) and (6).
Baroness Blatch: My Lords, because of the rules of the House, I shall leave the noble Lord, Lord Addington, to give his thanks when it comes to dealing
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with Amendment No. 25. I congratulate him. We have at least taken one small step forward for children with special needs; indeed, it is a very welcome one.
There is a genuine concern that teachers have to wait until someone goes to a tribunal before they know what is happening. They can take decisions in good faith, and can believe at the time that they are being entirely reasonable in the circumstances. Indeed, they can say, "We simply have no more funds available", "We simply do not have the staffing levels available", or, as in the example given by my noble friend Lady Young, "We simply do not have the expertise to cope with that range of ability within one classroom". It leaves teachers and head teachers—and, sometimes, even governors—extremely vulnerable, until someone takes the dramatic step of taking the matter to a tribunal and they are found to have acted unreasonably, albeit that, at the time, they may have acted in good faith.
I am sorry that it has not been possible to go a little further. However, if we are to have the steps spelt out in detail in guidance, that is a welcome step forward. Nevertheless, I believe that it would be preferable to have such provision on the face of the Bill. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
6 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 26:
After Clause I. insert the following new clause—
EARLY INTERVENTION SERVICES
(". A local education authority shall provide early intervention services to children under 2 from the time of diagnosis of the disability onwards, where it can be demonstrated that such intervention is necessary to promote the early development of speech and language.").
The noble Lord said: My Lords, at first sight, it may seem that the extension of education to children aged from nought to two years of age is unimportant. When this proposition was first put to me, I must confess that I thought it was a little absurd because surely children of that age cannot absorb education in any meaningful way. However, the more that I have thought about it, the more reason there seems to be for my amendment.
The matter was first brought to my attention by David Livermore, the chairman of the Royal National Institute for Deaf People. I hope that my noble friend the Minister will respond constructively. The amendment is mainly concerned with profoundly deaf children. We all know that hearing children learn to speak at the crucial age of between nought and two; they learn how to use their voices and it is easy for them to learn. However, the opposite is the case for deaf children. Indeed, it is not only difficult for some children, it can also be absolutely impossible when it is a case of total deafness, and that is because of the brain's plasticity that the hearing child can use. Surgeons speak of the brain's plasticity: it can absorb sounds. However, in the case of total deafness, children cannot take advantage of this very great asset.
I am now a convert. I believe that helping young children at this very early age would really prove to be a major step forward. It would help them to develop their speech. It would mean a real change in the lives of deaf children. Surely that would be something very worth while. Most of all, I hope that my noble friend realises that it would reduce further education costs when the child is older. I am trying to save the Government money. Therefore, I cannot believe that my noble friend will not accept an amendment couched in those terms.
I want to anticipate what my noble friend the Minister may say. Currently, local education authorities can make provision for children aged up to two years. But the operative word is "can". There is no statutory obligation on them to do so. Any provision that they make can be, and is, very variable. Such provision is vulnerable to cuts by local authorities, which simply do not know, or care. It is not good enough to leave it to local authorities so that they can please themselves whether or not they meet this educational requirement for young children. There will be an increased demand when the Government's universal, neo-natal hearing screening gets under way. This amendment is vital because it would make the provision of education for such young children mandatory. That is the issue. I hope that my noble friend the Minister will go along with it. I beg to move.
Lord Rix: My Lords, for some inexplicable reason, Amendment No. 26 regarding early intervention services tabled in the name of the noble Lord, Lord Ashley of Stoke, has been coupled with my Amendment No. 66, which is about nursery education. I suppose that a certain osmosis is discernible, but I should like to join the noble Lord in stressing the importance of early intervention services for people with a range of disabilities.
An estimated 20 per cent of children with learning disabilities also have some form of hearing impairment, and could well benefit from interventions to promote the development of speech and language. However, I trust that noble Lords will forgive me if I dwell for a few moments on Amendment No. 66. I do not intend to detain the House for long, as I do not believe that the Government and I are divided over the general principle of this amendment. Rather, it is a question of delivery of their intentions.
In Grand Committee, the Minister expressed the Government's intention to make the publication of an SEN disability policy a full condition of grant in the 2001–02 nursery education providers' condition of grant. That is a very welcome move, and one which takes us considerably further than current arrangements. However, I am in favour of dealing with this issue via regulations, which have a greater degree of emphasis and permanence than something written on to the back of a funding document. I was under the impression that the Government were also of that view when draft regulations were published last July.
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I also believe that Her Majesty's Chief Inspector of Schools should have the power to inspect the implementation of that policy, so that we can be assured that the policy is more than something that is left to moulder in a filing cabinet and dusted off when a funding review takes place. I should be delighted if the Minister could confirm her intention to go ahead with that regulation; and, indeed, others that were published in July. I hope that she will also take this opportunity to explain how providers will be monitored and held to account in delivering their content.
Lord Morris of Manchester: My Lords, I shall be brief in supporting Amendment No. 26, the case for which I raised in Grand Committee on 30th January. This Bill, aptly described by Linda Shaw of the Centre for Studies on Inclusive Education as one of the most important anti-discrimination measures to have been considered by Parliament, needs to make urgent progress today; and I shall do all that I can to facilitate its progress.
One of the highest priorities in policy-making for disabled people is to reduce the handicapping effects of their disabilities. Failure to promote the early development of speech and language in deaf babies—much apart from reducing—hugely increases the handicapping effects of their disability, as well as exposing them to lifelong deprivation of the most cruel and punishing kind. Fundamentally, that is the case for this proposed new clause to the Bill.
My noble friend Lady Blackstone will recall the plea that I made in Grand Committee for early intervention services for children under two years of age where it can be demonstrated that it is necessary to promote language and speech. I argued then—and reiterate now—that such intervention can change lives. It can have a major impact on the development of a child's ability to communicate and this, in turn, increases her or his chances of successful mainstream education and reduces special educational needs. That makes good sense in cost terms as well as being more humane than a "do-as-you-please, when-you-please" approach to educational provision.
In responding to me in Grand Committee, my noble friend Lady Blackstone was not unsympathetic to my case for the purposes of this new clause. I very much hope she can go further today in accepting it. I am sure that she will want to be as helpful as she can.
Lord Baker of Dorking: My Lords, this is the first time that one has really had a chance to debate the problems of young children from nought to two years of age. The noble Lord, Lord Ashley, has tabled an amendment that concerns speech and language. But, tragically, some children are born with a severe visual impairment and some are born blind. I cannot imagine a greater affliction. Those children also have their problems. If the Minister is minded to accept the general tenor of the amendment of the noble Lord, Lord Ashley, which has been supported by the noble Lords, Lord Rix and Lord Morris of Manchester, she

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would have to extend provision to those with other disabilities as well and even to those with physical disabilities.
The school for blind children with which I am involved has a nursery section. I hope to raise £½ million to build a nursery wing. The school accepts children of two and two and a half years of age. Usually they are totally blind or severely visually impaired. As one can imagine, they often have emotional and psychological problems even at that early age. There is absolutely no doubt—I endorse everything that the noble Lord, Lord Ashley, said in that regard—that a considerable influence to the good can be exerted in helping a child at that age. Their minds are growing and they are aware of sensory influences. If the Government are minded to make this provision available, I would welcome that.
If it is a question of making grants available to local education authorities and schools that provide education for those aged nought to two years, I should like to include in that provision the non-maintained schools, the special schools. Some of them are already making that provision available at their own cost from charitable funds.
Lord Addington: My Lords, both of the amendments address real problems. They both have one thing in common in that they seek to address these problems at an early stage. Let us learn from the Jesuits as regards this matter. I take the point made by the noble Lord, Lord Baker, that speech and language abilities are important, but so is visual recognition. If support can be provided to enable these children to communicate, one may reduce their emotional problems. If someone is deaf and dyslexic, one will probably not find that out as the person cannot talk. One has to be able to try to establish communication to be able to deal with these children also in later life.
I turn to Amendment No. 66 in the name of the noble Lord, Lord Rix. If a body is to receive funding, it should make adequate provision available. An amendment along the lines of Amendment No. 66 should be included in the Bill. I await with interest the Minister's comments. If we are to fund educational provision, we should ensure that it is satisfactory.
Baroness Blatch: My Lords, I also support the amendments. I believe that on Second Reading and in Grand Committee, when speaking to other amendments, I said that the key to the success of the Bill would be early intervention. The more emphasis that can he placed on early intervention, the better matters will turn out. I strongly support the amendments. I have one question for the Minister. How do the amendments, which I support strongly, interact with a provision of the 1993 Act and, I believe, the 1996 Act, whereby statements can be made for children of the age of two? This is more than a question of children requiring statements. Some children will require intervention to prevent them needing full blown statements later. As I say, the key here is early intervention and I support the noble Lord, Lord Ashley.
6.15 p.m.
Baroness Blackstone: My Lords, we believe that early identification of special needs and the provision of appropriate support for very young children with identified special needs and disabilities are critical if we are to help them to secure the best opportunities to succeed. We are wholly committed to improving expertise and services in this area.
The first of these two amendments seeks to secure government commitment to provide support, post-diagnosis, for children under two years, when it can be shown that the absence of early intervention will significantly impede speech and language acquisition. The effect of this amendment would be to place a duty on LEAs to support a child under two by providing speech and language support, where it is needed.
The second of these amendments—I believe that they have been grouped as they both concern young children—seeks to put a requirement on the face of the Bill to ensure that early years settings delivering government funded early education have an SEN and disability policy. While I cannot accept these amendments, I am more than happy to offer a very positive response that completely supports the intentions behind them.
With respect to the first of the two proposed amendments, the Government fully agree with my noble friend Lord Ashley of Stoke that early and appropriate intervention is critical to securing the best outcomes for children with special needs arid disabilities who may have difficulties with speech and language acquisition. In fact, we recognise that early intervention is appropriate for all children—to respond to the noble Lord, Lord Baker—with special needs and disabilities. We do not think, however, that imposing a statutory duty on LEAs is the appropriate way forward.
LEAs do not have the same duties to make educational provision for children under two as they have in respect of those over two. However, they have the power to make and maintain a statement for children under two if they consider it necessary, and they must carry out an assessment of a child with SEN if they need to determine the special educational provision that the child needs, and the parents request an assessment. Thus, where a child's needs are such that educational provision cannot be made without providing a statement, the LEA can make that statement and set in place arrangements to provide for the child. I hope that that answers the question of the noble Baroness, Lady Blatch. Any parent who considers that an LEA should assess, or make or amend, a statement for his or her child under two can, if they are dissatisfied, complain to the Secretary of State, who can direct the LEA to take action.
We are already investing significantly in pilot activity and projects around the country to try to advance and evaluate best practice. Sure Start programmes focus on children under four. We are expanding those programmes and they are in the lead in developing a multi-agency approach, which we favour. The Department of Health recently

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announced a pilot of 20 sites around England to introduce Universal Neo-Natal Hearing Screening (UNHS), a new hearing test for babies in the first few days of life. My department has taken a number of steps to support the pilot.
The National Screening Committee, which advises the Department of Health, regards UNHS as a much more effective (and, indeed, cost-effective) approach than the infant distraction test which is currently used but has concluded that rather more work is needed on the practicalities of introducing the change across the NHS—hence the pilot projects.
We consider that the most appropriate way forward is to establish a multi-agency working party that would include representation from specialist bodies with an interest to develop practical guidance for the range of professionals involved in the identification of, and support for, young children's special needs. We envisage that the Special Educational Consortium (SEC) should play a key role in this work, as the leading umbrella organisation for those with an interest in children's SEN and disabilities. The guidance will exemplify best practice and set out in practical terms how practitioners and agencies should work together to optimise the support they can offer to children who need it and their families. We intend that it should discuss the importance of early identification and intervention; explain the legal responsibilities of the agencies involved; and address the needs of families as well as individual children. As part of this, it will establish protocols for engaging services for children who need them. The working party will include in its remit work to establish a system of monitoring and review to be overseen by Government to ensure that the guidance is implemented effectively.
Local authorities have duties under the Children Act 1989 to provide services for disabled children within their area so as to minimise the effect of their disabilities. The guidance will provide advice on what those services might be for the under-twos and how they might be provided. If the local authority acts unreasonably in failing to provide those services, it can be held to account through judicial review.
For the future, we intend that early years and childcare development partnerships should acknowledge the cross-departmental guidance in their plans and explain how they will implement that guidance. This is not the realm of a single department. A joint approach is essential and I hope that a working party along the lines that I have outlined can deliver what we are all seeking. Ministers in my department have already discussed this idea briefly with colleagues at the Department of Health who have indicated their support. Further meetings between officials are planned for the near future.
I turn to the second of the amendments. We support fully the notion that all early years settings delivering government funded early education should have an SEN policy and we are committed to achieving that. But I do not think that it is necessary to have further legislation to do so. Conditions of grant are an entirely appropriate mechanism for achieving the desired aim
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with respect to SEN policies. They ensure that the requirement has the right profile and the very fact that they are conditions on which payment depends helps to ensure that the requirement bites. There is certainly the power to impose this requirement as a full condition of grant, but there is less certainty about the power to bring about the same end in regulations.
The 2002 revision of Requirements of Nursery Education Grant will make it a full condition of grant for settings to have an SEN policy. Setting such a requirement is currently an option for LEAs. So making it one of the full conditions on which grant is dependent represents a significant strengthening of the arrangements. This change is not a temporary one. We are committed to long-term improvement. Our investment record in this area to date should confirm that. We intend to continue to improve early years SEN support and expertise through a programme of development and training for practitioners.
Enforcement arrangements to ensure compliance with the Requirements of Nursery Education Grant are robust. District auditors will ensure that LEAs comply with the conditions for administering grant. And Ofsted inspections of early years settings delivering government-funded early education will check that SEN policies are in place and that they are being implemented.
I am pleased to confirm that the requirement will stay a full condition of grant. I hope that that reassures my noble friend Lord Rix as to the importance we place on that and that he feels able to withdraw his amendment. I also hope that I have reassured my noble friend Lord Ashley. Increasingly, very young children's needs will be identified early, as they should be, and appropriate action will be taken to get the right support in a timely fashion. On that basis I hope, too, that my noble friend will feel able to withdraw his amendment.
Lord Ashley of Stoke: My Lords, I thank all noble Lords who have taken part in the debate, especially for the support that they expressed for my amendment.
The noble Lord, Lord Baker, was right to raise the point about blind children and those with other disabilities. I spoke about deaf children. I have been President of the Royal College of Speech and Language Therapy for some five years. I am President of the RNID. I am especially interested in the problem; it is a personal problem. I am glad that the Minister accepted the noble Lord's point.
I am sorry that the Minister could not go all the way on the amendments, although I appreciate the spirit in which she advanced her arguments. It is a considerable advance. However, before Third Reading, I should like to know, first, whether the guidance is to be mandatory. If someone with whom I disagree offers me guidance I say, "Thank you very much", and go my own way. So guidance can be important or unimportant; and unimportant guidance is of no value, no matter how kind the Minister's words may be. We seek assurance that the guidance will be mandatory.

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Secondly, unless the guidance is monitored carefully, we shall get nowhere. It will go by default. Can the Minister assure us that it will be monitored carefully by the Secretary of State?
Thirdly, working parties can take years. How soon can we have the guidance? I hope that it will be strengthened by my noble friend's efforts. I am sure that she will do what she can. The RNID and noble Lords who have spoken in the debate regard this amendment as profoundly important. I shall be grateful for the continued endorsement of my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 27:
After Clause I, insert the following new clause—
LOCAL EDUCATIONAL AUTHORITY TO TAKE ACCOUNT OF WISHES OF CHILD
(". In section 323 of the 1996 Act (assessment of educational needs), after subsection (4) insert—
"(4A) In making an assessment under this section, the local education authority shall take account of the ascertainable wishes of the child."").
The noble Baroness said: My Lords, in moving the amendment I speak also to Amendment No. 28. They are grouped together and both have the support of the noble Lord, Lord Rix.
We had long discussions in Committee about these and similar amendments. There was strong support from all sides of the House. The Minister said that the amendments were unnecessary: that the code of practice and guidance would ensure that the voice of the child would be heard, and that would be statutory. I should say that the purpose of Amendment No. 27 is that the child's views are taken into account in the making of an assessment; and Amendment No. 28 ensures that the child's views are taken into account in the making and maintaining of a statement.
The Minister's remarks about the code of practice and the statutory guidance were not accepted as satisfactory by the children's organisations. There was a good deal of disappointment all round that we did not have a better reception for our amendments. I think that the perception is very important. Those children's organisations really want the voice of the child written on the face of the Bill. It is not enough just to say that the guidance is statutory.
There is a precedent in the Children Act for the voice of the child being on the face of the Bill. If it were accepted in this Bill it would mean that the educational side would also be on the face of the Bill. Also in the Standards in Scotland's Schools etc Act 2000 the voice of the child is mentioned.
I do not want to take up the time of the House, but I should like to impress on my noble friend that there is very strong feeling about this issue. I hope that she can be a little more helpful than she was in Committee. I beg to move.
Lord Rix: My Lords, I echo the sentiments of the noble Baroness, Lady David. I recognise and welcome the Government's attempts to strengthen the voices of
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children within the code of practice. But I believe that a greater degree of precision is necessary to link the wishes of the child to statutory assessments and the drawing up of a statement. Without doubt, this would benefit young people, families and educational practitioners.
In Committee, I highlighted the importance of proactively seeking the view of young people with learning disabilities and supporting them where necessary. I believe that that should be routinely done. There was also much debate on the difference of opinion between children, their families and professionals. The amendment does not suggest that the child's voice should be paramount. It is a sensible step forward, ensuring that children with disabilities have a real stake in decisions which crucially affect their lives.
Lord Beaumont of Whitley: My Lords, it is very important that we should acknowledge as often as possible in the Bill the need for children to have their wishes about their own future heard. As the noble Lord, Lord Rix, said, it is not a question of those wishes being paramount, but of their being taken into account. It is important that they should be seen to be taken into account, not just by a mention in the code of practice, but by a specific mention in the Bill. I hope that the Government will see their way to accepting the amendments.
6.30 p.m.
Lord Williamson of Horton: My Lords, I support the amendments. Of course local education authorities and responsible teachers will take account of the ascertainable wishes of the child, but what goes into the Bill is important. We have already dealt with a number of amendments that would have included the words, "the wishes of the child". None of them has passed the Blackstone barrier. I do not complain about that. The Minister has explained her views. However, it is bizarre that Part I of a Bill that deals with special educational needs does not contain a single reference to the wishes of the child. That should be corrected. That is why I support the amendments.
Lord Baker of Dorking: My Lords, I, too, support the view expressed by the noble Lord, Lord Williamson. The amendments would be a sensible change. It is right that the wishes of the child should be taken into account if they are ascertainable—an important condition. It will not be possible to ascertain the wishes of some children who have a mental impairment. However, the great majority of the children concerned do not have a mental impairment.
I have come across these children in large numbers and have discovered that, by the age of 10 or 11, having been looked at, examined, probed and asked questions endlessly, they have become expert in their disability and are usually very articulate about it and able to discuss their problems in an adult way. If their wishes can be ascertained, they should be taken into account. I hope that the Government will be sympathetic.
Baroness Sharp of Guildford: My Lords, I, too, support the amendments. My name should have been attached to them, but they were tabled rather late and I was not able to add my name to them.
A number of arguments for the amendments have already been articulated. There is also the, "Does he take sugar?" principle. There is a great danger of not taking into account the wishes of the person about whom we are taking decisions. We are not saying that those wishes should be paramount. On some occasions, they are not ascertainable, but if they are, the wishes of the person about whom we are taking a decision should be considered.
There is also the issue of the ownership of the principle. If the children have been consulted, they are more likely to be happy with the decision. There is a precedent, which we mentioned in Grand Committee. The Special Educational Needs Tribunal has, from time to time, listened to children and taken account of their wishes.
The noble Lord, Lord Lucas, raised another important issue in Grand Committee. Some children do not have parents to speak up for them and have to rely on local authority social services departments. If the wishes of the child are ascertainable in those circumstances, they should certainly be taken into account.
In Committee, the Minister told us not to worry, because there was a whole chapter in the code of practice dealing with the issue. However, some people do not necessarily always adhere to the strict letter of the code of practice. If the provision is written into the legislation, they are more likely to obey it. We therefore feel that it is better for provision to be made on the face of the Bill. Both amendments would do that.
Baroness Blatch: My Lords, I, too, support the amendments. I re-emphasise the key points already mentioned—that the wishes of the child should be ascertainable and that they should simply be taken into account. They do not have to be met if that is not in the educational interests of the child. Clearly, the professional judgment about what is in their interests may well supersede. The noble Baroness, Lady David, has simply made it clear that those wishes should be taken into account.
Like the noble Lord, Lord Williamson, I am deeply disappointed that there is no reference in this part of the Bill to the wishes and interests of the child. Both issues are important, although they may not always be the same. The wishes of the child may not entirely be reconciled with their educational interests. However, they should be primary aims of the Bill. The Minister keeps saying that they are, but the Bill would be much strengthened if those issues were on the face of the Bill and the Government would lose nothing if they conceded the point. I strongly support the noble Baroness, Lady David.
Baroness Blackstone: My Lords, the amendments would require LEAs to take account of the
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ascertainable wishes of the child when carrying out assessments and making and maintaining statements of SEN. We fully support the principle that the views of the child should be taken into account whenever they are ascertainable, according to the child's age, maturity and understanding. However, I fear that I am going to disappoint my noble friend Lady David and others who have spoken. We do not believe that putting the provision on the face of the Bill is the right way forward.
We can achieve a sensible solution through the SEN code of practice. We give the views of the child clear prominence as a fundamental principle at the beginning of the draft revised SEN code of practice. We have devoted a whole chapter in the draft to seeking the views of children and young people with SEN throughout their school life, including in their early years. Going beyond what I said in Committee, we shall enhance the guidance in the final version of the revised code of practice to carry an expectation that schools and LEAs will seek and take account of the views of the child wherever possible. We shall ensure that there are clear links between the general principles in the chapter on pupil participation and the later chapters on specific aspects of the formal processes for making assessments and statements, for example in relation to decisions about the provision to be made for a child or young person.
We will encourage schools and LEAs actively to involve pupils in other ways, such as through setting and reviewing individual education plans during the school year and by encouraging and supporting children to give their views on their progress during the previous year, to discuss any difficulties encountered and to share their hopes and aspirations for the future in the annual review and transition processes. That could involve attending all or part of the annual review and other meetings.
In addition to strengthening the SEN code of practice, we are strengthening the arrangements for hearing the child's views at tribunals. The new SEN tribunal regulations will entitle the child to attend the hearing of an appeal and give evidence at the tribunal's discretion. The current regulations do not expressly entitle the child to attend hearings. That is another step forward.
Strengthening the provision in the revised code of practice is not a soft option. I remind the noble Baroness, Lady Sharp, that LEAs must, by law, have regard to the code of practice. They cannot ignore it. If it contains an expectation that they will seek and take account of the ascertainable views of the child or young person in relation to assessments and the provision to be made for them, the LEA will need to do that. The Secretary of State can consider a formal complaint if they do not. The SEN tribunal will consider whether LEAs have complied with the code of practice when it hears appeals. The new SEN tribunal regulations will also require an LEA responding to an appeal to state the ascertainable views of the child. Having heard my reassurances and

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the fact that the code of practice will really bite in this respect, I hope that my noble friend is able to withdraw her amendment.
Lord Rix: My Lords, before the Minister sits down, perhaps I may ask a question. Recently the DfEE released a video which shows parents attending a tribunal. Does not the Minister believe it appropriate to withdraw that video, for the child is not present at the moment? If the child is to be present under the terms of this Bill, then I assume that the video should be brought up to date.
Baroness Blackstone: My Lords, I am happy to give an assurance to the noble Lord, Lord Rix, that we shall look again at this video to see whether we can adjust it to take that factor into account.
Baroness David: My Lords, I thank all noble Lords who have spoken in support of this amendment. I am pleased that that support has come from all round the House, which is very satisfactory in itself. I do not pretend that I am not disappointed by what my noble friend has said, but I suppose that I must draw some crumbs of comfort from the fact that she is going to enhance the guidance and strengthen the code of practice, particularly as regards the tribunals. Rather reluctantly, I accept what my noble friend has said and hope it will work out in practice. I shall naturally be following the matter with very great interest when the Bill becomes an Act. I beg leave to withdraw the Amendment
[Amendment No. 28 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 29:
After Clause 1, insert the following new clause—
INFORMING SCHOOLS
(". In paragraph 3(4) of the 1996 Act, after second "school" insert ", providing them with a copy of the draft statement,".").
The noble Baroness said: My Lords, I spoke to this amendment at Committee stage. I was speaking in support of a very real concern of the National Association of Head Teachers. I made the point, which was made to me, that the association supports the aims of the Bill and that it wants the Government to know that. I suspect that they know it anyway because they have been in discussions with that body. The association also wishes to be party to making the Bill work. Therefore, its starts from a very positive position.
At col. CWH 87 of Hansard of 29th January, the noble Lord, Lord Davies of Oldham, when commenting on this amendment, spoke of the intention under the code of practice to provide full information to the proposed school, including the draft statement. But the point of the amendment on that occasion, which I again make today, is to assure schools that sight of the draft will be sufficiently timely for the school to have a meaningful input. The noble Lord is probably well aware of it anyway, but perhaps I may remind him that, at CWH col. 88, he said that he would consider what had been said. On that
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occasion he appeared to be reasonably impressed with the arguments and the concerns expressed on behalf of schools.
As I have said, the head teachers are very positive about the aims of the Bill and about wanting to make it work. However, they need to be involved in the process at a stage when they can make the kind of input that would either make it easier to pave the way for young people to be received into their schools or to prevent a situation becoming much more difficult where tensions rise, tempers are frayed, the parents, children, and perhaps the professionals, are very frustrated by the process. If they can be involved at a very early stage some of these problems may be avoided. I beg to move.
6.45 p.m.
Lord Davies of Oldham: My Lords, as the noble Baroness has rightly said, I gave sonic. positive indications at Committee that the arguments she put forward on that occasion found considerable favour and that we would seek to make progress along the lines which the noble Baroness suggested.
We have tabled Amendment No. 64, which is a paving amendment for Amendment No. 152, which is tabled in the name of my noble friend Lady Blackstone. That will ensure that maintained schools, which an LEA is considering naming in a child's statement, will receive a copy of the proposed statement or proposed amended statement for that child. Where a school being considered is in the area of another authority, the school and that authority will also receive a copy. That will ensure that schools are fully consulted and previous good practice in this area is standardised. The noble Baroness referred to good practice in Committee.
Head teachers will be able to discuss with the LEA the arrangements that may be required to make provision for the child within the school. The agreed arrangements can then be reflected in the final statement or alternatives can be considered. In those circumstances I hope that the noble Baroness, Lady Blatch, can safely withdraw her amendment.
Baroness Blatch: My Lords, I am very grateful for the positive way in which the noble Lord has responded to my amendment. I wish to be absolutely clear that timeliness has been properly taken on board; that we are not talking about the proposed statement, but a draft before it is proposed as the final statement. Therefore, it will be at a stage when the statement itself can be modified in the light of the opinions of the receiving school.
If I heard the noble Lord correctly, he referred to the named school. In the course of drafting statements and making choices about which is the appropriate school, more than one school will be mentioned. It may be a school preferred by a parent, one named by a professional or a different school named by the LEA.

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I would like an assurance about timeliness and the fact that in the draft statement there may be reference to more than one school.
Lord Davies of Oldham: My Lords, I can certainly give an assurance that the draft statement is also included within the framework of the proposed Amendment No. 152, which we shall have the opportunity of debating at a later stage at Report.
Baroness Blatch: My Lords, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord Renton Lord Renton moved Amendment No. 30:
After Clause 1, insert the following new clause—
EXERCISE OF FUNCTIONS UNDER PART IV OF 1996 ACT
(". In the 1996 Act, after section 316 insert the following section—
"Consideration of disproportionate expenditure.
316AA. In the exercise of any functions under this Part, provision is not to be considered as giving rise to disproportionate expenditure only because that provision is more expensive than comparable provision." ").
The noble Lord said: My Lords, this amendment relates to a new clause which raises the question of comparable expenditure. It says in effect that in deciding whether a mainstream or a special school is to be preferred, the cost should be irrelevant; that is to say, that the wishes of the parents and the needs of the children can be given priority irrespective of the cost.
This amendment was moved in Committee by my noble friend Lord Pearson of Rannoch, who cannot be here today. The main point in favour of the amendment is that in the Learning and Skills Act 2000 the principle contained in the new clause was applied to students between the ages of 19 and 22; so why should it not apply to younger pupils?
Perhaps I may quote one short passage from my noble friend when moving the amendment at Committee stage. He said,
"Special schools benefit from economies of scale and from a concentration of personnel and facilities for SEN children in a way which cannot be matched in the necessarily more dispersed environment of a mainstream school".—[Official Report, 29/1/01; col. CWH 81.]
Therefore, there appears to be a strong case for this amendment. I beg to move.
Lord Davies of Oldham: My Lords, we resist this amendment, which would have the effect of making LEAs incur greater costs in making special educational provision than is necessary. Local education authorities are required to provide education as efficiently as possible for all children, including those with special educational needs, but not of course to make the most expensive provision available.
I hope that the noble Lord, Lord Renton, and others will accept that there are no convincing reasons to alter the present situation provided that local authorities
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can meet the child's needs in full at a more reasonable cost. LEAs are not required to make utopian provision for some children, but rather to make suitable and adequate provision for all children with SEN who may need it.
If LEAs did not take into account the cost effectiveness and value for money of the provision, they could justly be accused of wasting public money. The Government certainly do not want that. Of course, if LEAs fail to make acceptable provision for pupils with SEN, they should not hide behind arguments about prohibitive cost to excuse themselves. However, if a parent considers the content of a statement of SEN to be unacceptable, he or she can already appeal to the Special Educational Needs and Disability Rights Tribunal. The Secretary of State for Education and Employment may investigate other complaints about possible unreasonableness or failure to act in accordance with the statutory duty of LEAs. The amendment therefore seems to us to impose a quite unnecessary straitjacket on local education authorities.
In addition, should LEAs spend more than is necessary on provision for young people with SEN, other deserving children might be prevented from having the support that they deserve and need, which would be to the detriment of their education and future attainments. That would be a thoroughly unsatisfactory situation, but I fear that that may happen if more articulate and well-informed parents choose to exploit the opportunity that would be offered by the proposed new clause. Local education authorities must be free to decide what would be most suitable for each child. Less costly provision can often serve the child as well as, and sometimes even better than, more expensive alternatives.
I also point out that LEAs that seek to make an efficient use of resources do not necessarily have to settle on the least expensive provision for a child. The one does not always equate to the other. For example, it might be an efficient use of resources to opt for more expensive provision in the short term so that a child needs less help, and less funding, in the longer term. It is right that LEAs should be able to consider each case on its merits.
I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.
Lord Renton: My Lords, the Minister may be forgiven for giving that reply. The amendment's drafting may need to be altered and improved.
I hope that the explanation that I gave when I moved the amendment was concerned not with the cost of establishing the schools but with the necessarily comparable cost, which is unavoidable, that arises when there is a choice between one type of school and another, both of which may have been established with the greatest economy but which nevertheless are not identical. The principle is that the child with SEN should not be prevented from going to whichever school is most suitable merely because the cost of one is a bit more than that of the other. That is all that my

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point is and all that the amendment was intended to get at. However, I dare to forgive the Minister for giving that reply; I quite agree that the amendment's drafting could be reconsidered. In view of his reply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Advice and information for parents]:
Lord Baker of Dorking Lord Baker of Dorking moved Amendment No. 31:
Page 3, line 30, at end insert ("all alternative options for").
The noble Lord said: My Lords, this is the first occasion on which we consider the advice that is made available to parents when they realise that they have a child with SEN. Some parents of course realise that when their child is at a very early age, because the symptoms are so observable. Other parents come to that view rather later. Some parents with a child with learning difficulties are often reluctant to recognise that their child has SEN and tend to blame the school. Whatever the stage, parents recognise at some stage that their child has SEN, and they have to search around for the best advice.
I hope that the Minister will agree to the amendment in the light of the gist of what was said in Committee. When a similar amendment was moved I was unfortunately absent that day. However, it was moved absolutely brilliantly by my noble friend Lady Blatch. In reply, the noble Baroness, Lady Blackstone, was very optimistic and encouraging. She said:
"The Government arc aware that it is essential that parents know about the wide range of options that will be available to help them make good decisions about the education of their children with SEN. It is fundamental to the role of the parent partnership services. The Bill provides for advice and information to he given about matters that relate to children's special educational needs, and those will include details of how the SEN system works, parents' and children's rights, and"—
this is the important point—
"the various options that are open to parents".—[Official Report, 2911/01: col. CWH 98.]
I draw great comfort from that phrase. One option that is open to parents involves the availability of special schools in the non-maintained sector. I again point out that those schools are not similar to Eton; they are fundamentally funded—in some cases, they are almost completely funded—through sources from the public sector. They are usually charities, which raise considerable sums of extra money—several million pounds a year—for those schools. It is important for a local education authority to bring to the attention of parents the existence of such schools. Some LEAs do so; Kent, for example, which is a frank and open LEA, does so. However, other LEAs are reluctant to say that 20 or 30 miles away, or even on the doorstep, there is a special school that can provide assistance to those who are hard of hearing, severely physically disabled or visually impaired.
My point in the amendment is that when the code is redrafted and when guidance is given, it should be stated that alternative schools outside an LEA should also be drawn to the attention of parents. I beg to move.
Baroness Blatch: My Lords, I rise to support my noble friend, who made a powerful case in support of
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the amendment. I also wish to discuss two amendments that are grouped with Amendment No. 31; namely, Amendments Nos. 32 and 36, which appear in my name on the Marshalled List.
Proposed new subsection (1) in Clause 2 states:
"A local education authority must arrange for the parent of any child in their area with special educational needs to be provided with advice and information about matters relating to those needs".
We have no argument with that. However, in this context we are considering a child about whom, until that point, there had been no suggestion or indication that he or she had SEN. Neither the LEA nor any other body has assessed the child. Who is to say at that stage that the child does or does not have SEN? When that matter was raised in Committee, the noble Baroness, Lady Blackstone, said:
"Where children definitely have special educational needs—that has been agreed by the school, the local education authority, educational psychologists and others—they need to have access to this advice and information".—[Official Report, 29/1/01: col. CWH 97.]
From that, we may infer that the child is deemed to have SEN if the LEA, the school, educational psychologists and others consider that the child has SEN. Again, we do not argue with that.
Your Lordships will note that the child's parents were not included in the list of persons who make a preliminary assessment. However, is it not highly probable that the first people who will note some difficulty or aberration, or the fact that something is not quite right with the child, will very often be the child's parents? After all, they are with the child more than anyone else. No doubt such parents will make an informal visit to the school and ask the teachers whether they have noticed anything unusual about the child. Whether or not the teachers confirm the parents' concern, the parents will still think that there is a possibility that the child has SEN, even if the parents have, until that point, never heard of the expression, "special educational needs". They may well say, quite simply, that the child is having difficulty learning or is not behaving normally, or they may find another explanation for whatever the apparent problem appears to be to them. They will want to know where they can go for further professional advice. Of course, it reinforces their case if the school also believes that something is amiss, but in the early stages of a difficulty it is likely that it will be the parents who will notice that there is a problem.
I am arguing for statutory requirements, as provided for in the Bill, enabling the LEA to give advice and information or to point the parents in the direction of such advice and information not only if a child definitely has special needs but if the parents believe that it has. We are talking about advice and information to parents at this stage. Such a request from parents is not going to be made capriciously. No parent likes to believe that there is something wrong with their child. They will not voice their concern to the LEA or anyone else unless they have good reason to believe that something is wrong.

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All the talk that the noble Baroness gave us in Committee about the development of the parent partnership services or about guidance being avalable at some future time is never going to meet the particular situation of my amendments, where the parents of a child who has special educational needs must know where to go for further advice and information. Such advice may well confirm their fears and point them in the direction of assistance or it may reassure them that their perceived difficulty does not amount to special educational needs.
After all, we are agreed throughout the Chamber about early intervention and we should not be hung up as to who spots the need for it. If it is a parent, that ought to be given a place in the Bill. It should be a duty on the LEA to provide advice and information to all parents who need it and not just to those who are thought by the LEA to need it.
At Committee stage the noble Baroness appeared to have a lack of sympathy for such parents. Certainly I found her refusal to put this simple provision in the Bill quite unacceptable. If a parent is genuinely concerned that the child has particular learning difficulties, it is important that advice should be available when they seek it.
My Amendment No. 36, which refers to Schedule 27 to the 1996 Act, provides that when an LEA makes a statement on a child the LEA shall make certain information available in writing to a parent.
Lord Lucas: My Lords, my Amendment No. 33 should be in this group. I think that my noble friend Lady Blatch has said almost everything I would want to say. The time parents really need help is when they do not know what is going on. In those circumstances it is very difficult for them to know where to turn. They should be able to rely on a local authority at least for help on where they should go and how they find out about these difficult and often hard-to-get-to-the-bottom-of conditions from which children in quite large numbers suffer.
Lord Davies of Oldham: My Lords, it will come as no surprise to the House to recognise that the Government share the broad intentions behind the amendments. We want parents to have the maximum relevant information as a contribution to the development of their child's education. I have what I hope the noble Lord, Lord Baker, will regard as just a minor quibble with his amendment. It specifies the wrong line, and technically is therefore not quite acceptable, but I fully understand the intent behind it and I shall address myself to that.
The Bill provides for advice and information to be given about matters relating to special educational needs and about how the system works. Parental rights under the legislation, as well as a wide range of options, are open to parents. I repeat the assurance given by my noble friend Lady Blackstone at Committee stage that the revised code of practice will clearly set out the provision of advice and that
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information on SEN matters will be part of the minimum standards and core functions to be expected of parent partnership services. There is no question of those services seeking to promote a particular type of school or discouraging parents from opting for certain types of provision. That would be totally unacceptable.
It is not for the parent partnership service to seek to promote or champion any particular type of placement or to seek to persuade parents to accept a certain type of provision. Rather, their role is to give parents accurate information on the available options to help them make informed decisions for themselves. I can assure the noble Lord, Lord Baker, that we will cover this within the minimum standards we expect all parent partnerships to achieve. I hope that, given these reassurances, he may consider withdrawing his amendment.
Amendment No. 32 would give absolute rights to information and advice to parents who simply claim that their child has special educational needs. Parent partnership services must not be open to possible misuse. As my noble friend the Minister said during Committee stage, we will be making clear in the revised code of practice and the accompanying good practice guide that parent partnership services must be flexible in their approach. It will be made clear that they must not turn away any parent out of hand.
We know already that they do not draw any hard and fast lines and we shall encourage this flexible approach. My noble friend acknowledged at Committee stage that there are cases where a child's special educational needs may not have been recognised or identified, and parent partnership services can help by supporting parents in pursuing the matter with the school or the LEA. This was a point raised by the noble Baroness, Lady Blatch.
Some parents may think their child has special educational needs when in fact they do not. They may simply not be doing as well at school as their parents had hoped. Parent partnership services should not be expected to provide advice and information on non-SEN related matters. Their prime role is to help the parents of children who really do have these needs. I am sure your Lordships would not want parent partnership services to be diverted from their prime function. That would be at the expense of the very people we have identified as needing advice and support.
This is a sensitive issue, which I believe is better suited to guidance when matters can be set out in detail. I hope, having heard my assurances that parent partnership services will act flexibly and sensitively and will not turn parents away out of hand, that Amendment No. 32 may also be withdrawn.
Turning to Amendment No. 36, I understand that it is meant to ensure that parents know about the various sources of professional advice open to them at the time the statement is issued. We believe that all parents with children who have special educational needs should have access to advice from a range of professions at any stage and not just when a statement is issued.

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I believe I can be helpful to the noble Baroness, Lady Blatch. Although we think this amendment overlaps with the provisions of Clause 2(3), we agree it is essential that parents know where they can seek advice at the point when a statement, or proposed amended statement, is issued. I happily give an assurance that we will use the regulation-making powers provided for in Schedule 27 to the Education Act of 1996 to require LEAs to remind parents about the range of advice and information available from the parent partnership services at the time a proposed statement or proposed amended statement is being issued. I hope what I have said will meet the points raised by the noble Baroness.
Turning to the amendment of the noble Lord, Lord Lucas, this would give an absolute right to information and advice being given to anyone who may have a general query about special educational needs. That is not really the prime function of parent partnership services, as I indicated earlier. Their main focus must be on those who have a real need for help and support; that is, parents whose children have special educational needs. As I said earlier, we are seeking to avoid the parent partnership services being open to misuse by those asking rather more general educational questions about their children who may not fit into the category for whom the parent partnership services are designed to meet.
I recognise that in Committee the noble Lord, Lord Lucas, was concerned about parents who believe that their children have special educational needs having access to advice and support. At that stage, the Minister said that there are cases where the child's special educational needs may not have been recognised or identified. Of course, the needs of those parents must not be overlooked. Parent partnership services can help by supporting parents in pursuing the matter with the school or the LEA. I am sure that noble Lords will agree that we do not want to divert the services from their prime function. That would be at the expense of the people who need their advice and support. These issues are interesting and challenging, but I hope in the light of what I have said that the noble Lord will feel able to withdraw his amendment.
Lord Baker of Dorking: My Lords, I am grateful to the Minister for the broadly sympathetic reply that he has given to these amendments. There is little between us. Clearly, one would like to see more on the face of the Bill, but I accept that codes and guidance are a way of proceeding in educational matters.
However, the parent partnership services should not, as the Minister said, advocate one school or another or one type of school or another; they should lay out the possible alternatives. My point is that when a child has severe disabilities, such as being blind, the parents should be aware of the special schools for the blind; if a child is deaf, the parents should be aware of the special schools for the deaf; and if a child is very severely physically disabled, the parents should be aware of the small number of schools that deal with severely physically disabled children. I hope that that specific recommendation of mine is taken on board in the guidance.
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Several times this evening, in relation to a variety of matters, the Ministers have given reassurances that the concerns expressed on all sides of the House will be met in the revised code of practice and the revised guidelines. I express the hope that, if that is the case, they should be circulated well before Third Reading so that we can reflect upon them. It would be unfair if we do not see them before Third Reading, because so much of the Government's case is that there is no need to worry because our requirements will be catered for in the code of practice and in the guidelines. Clearly, we shall have another day on Report, after which there will be a gap before Third Reading, and so it should be possible to issue a draft of the guidance.
Lord Davies of Oldham: My Lords, the draft guidance is already available and has been subjected to wide consultation. If the noble Lord is saying that the final version should be ready before Third Reading, I am afraid that that would not be possible. I assume that he is talking about the broad lines of the draft.
Lord Baker of Dorking: My Lords, the Minister has said that he will accept the broad intentions of what we say. I believe that all sides of the House are interested in the narrow acceptances. Much of what the Government have said tonight has inferred that we should not worry because this and that concern will be dealt with. As they have specifically said that, I believe that the Minister owes it to the House to say exactly how the guidance or the code will be modified. That is only fair, otherwise we shall drift off into the unknown. I ask him to reflect upon that by Third Reading. On that semi-undertaking from the Government, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 32:
Page 3, line 31, leave out ("with") and insert ("who has, or whose parents believe he may have").
The noble Baroness said: My Lords, I emphasise the point made by my noble friend on guidance. Constantly, we are told in response to these amendments that something will happen in guidance that will achieve what we want. If that is the case, we need to know that that is definitive advice and that what the Minister has said will appear in the guidance.
The guidance was in a fairly finished state and the draft code of practice was almost complete. There should be no reason why we should not have them before Third Reading, unless the Government have plans to alter them substantially.
The record books are littered with parents who have ended up at tribunals in regard to their children. They have spent months, and sadly even years, trying to convince someone that there is a problem. Eventually someone at a tribunal agrees that that is the case and

665
action is taken. The Minister said that there are some parents who believe that their children have special educational needs when they do not. Of course, there are, but there are many parents who believe that their children have special educational needs when in fact they do.
No one is asking for an entitlement to an assessment, but this modest amendment simply says that where a parent is sufficiently concerned to go to the LEA and/or to the school saying, "I believe that my child has special educational needs"—it is likely that they will go to the teacher in the first instance—they should be given advice and information at that point.
The parent partnerships that the noble Lord believes will be the answer to everything will not be the answer to the sort of parent to whom this amendment is aimed. I come from a rural district in Cambridgeshire where there are isolated families who will not have access to committees and sub-committees. At the end of the day, parent partnerships will have an office building somewhere and people who sit on committees and they will not be the kind of people whom parents can approach. Parents want to be able to approach a school teacher to say, "I believe that my son/my daughter has a problem", and they will want information on where they can seek help. I believe that that should be an entitlement.
Lest the noble Lord believes that I am simply being negative, I, like my noble friend Lord Baker of Dorking, welcome the reassuring remarks made in regard to the other amendments, particularly Amendment No. 36. I thank the Minister for that.
I believe that parents should have an entitlement to advice and information. It should not be left to the happenstance of a parent partnership or some other formal committee picking up such matters by chance. If this Bill is about anything, it ought to be about responding to parents in that way. I beg to move.
Lord Davies of Oldham: My Lords, the House will recognise that in my earlier comments I sought to respond to those issues. In principle, we accept Amendment No. 32. That will establish the basis on which we finalise the guidance. The guidance will also be subject to debate in both Houses, so there will be parliamentary scrutiny of the final product. In relation to this amendment, I have indicated the role to be played by the parent partnerships.
Baroness Blatch: My Lords, the Minister has not answered our particular point. When a parent asks for information there should be an obligation to respond positively by giving advice and information. Nothing that the noble Lord has said convinces me that that obligation is to be met under the Bill. I wish to test the opinion of the House.
7.20 p.m.
On Question, Whether the said amendment (No. 32) shall be agreed to?
Their Lordships divided: Contents, 57; Not-Contents, 146.

Division No. 3

CONTENTS

Astor, V.

Jenkin of Roding, L.

Astor of Hever, L.

Kimball, L.

Baker of Dorking, L.

Kingsland, L.

Blatch, B.

Knight of Collingtree, B.

Boardman, L.

Lamont of Lerwick, L.

Burnham, L. [Teller]

Lucas, L.

Caithness, E.

Luke, L.

Carnegy of Lour, B.

Lyell, L.

Colwyn, L.

Mancroft, L.

Cope of Berkeley, L.

Miller of Hendon, B.

Cox, B.

Noakes, B.

Craig of Radley, L.

Northesk, E.

Dean of Harptree, L.

Norton of Louth, L.

Dixon-Smith, L.

Park of Monmouth, B.

Pilkington of Oxenford, L.

Elliott of Morpeth, L.

Plumb, L.

Flather, B.

Renfrew of Kaimsthorn, L.

Fookes, B.

Renton, L.

Gardner of Parkes, B.

St John of Fawsley, L.

Geddes, L.

Seccombe, B.

Glenarthur, L.

Selborne, E.

Glentoran, L.

Selsdon, L.

Griffiths of Fforestfach, L.

Shrewsbury, E.

Hanham, B.

Skelmersdale, L.

Henley, L. [Teller]

Stewartby, L.

Hooper, B.

Stodart of Leaston, L.

Howe, E.

Strathclyde, L.

Hurd of Westwell, L.

Thomas of Gwydir, L.

Hylton, L.

Waddington, L.

NOT-CONTENTS

Acton, L.

Dholakia, L.

Addington, L.

Elder, L.

Ahmed, L.

Evans of Temple Guiting, L.

Allenby of Megiddo, V.

Evans of Watford, L.

Alli, L.

Farrington of Ribbleton, B.

Amos, B.

Faulkner of Worcester, L.

Andrews, B. [Teller]

Filkin, L.

Archer of Sandwell, L.

Fyfe of Fairfield, L.

Ashley of Stoke, L.

Gale, B.

Ashton of Upholland, B.

Gibson of Market Rasen, B.

Bach, L.

Goldsmith, L.

Barker, B.

Goodhart, L.

Bassam of Brighton, L.

Gordon of Strathblane, L.

Bernstein of Craigwell, L.

Goudie, B.

Billingham, B.

Gould of Potternewton, B.

Blackstone, B.

Grabiner, L.

Blease, L.

Graham of Edmonton, L.

Borrie, L.

Grenfell, L.

Bragg, L.

Hamwee, B.

Brennan, L.

Harris of Greenwich, L.

Brett, L.

Harris of Haringey, L.

Brooke of Alverthorpe, L.

Harris of Richmond, B.

Brookman, L.

Harrison, L.

Brooks of Tremorfa, L.

Haskel, L.

Burlison, L.

Hayman, B.

Carter, L. [Teller]

Hilton of Eggardon, B.

Chandos, V.

Hogg of Cumbernauld, L.

Clarke of Hampstead, L.

Hollis of Heigham, B.

Clinton-Davis, L.

Hooson, L.

Cocks of Hartcliffe, L.

Howells of St. Davids, B.

Craigavon, V.

Howie of Troon, L.

Crawley, B.

Hoyle, L.

Darcy de Knayth, B.

Hughes of Woodside, L.

David, B.

Hunt of Chesterton, L.

Davies of Coity, L.

Hunt of Kings Heath, L.

Davies of Oldham, L.

Irvine of Lairg, L. (Lord Chancellor)

Dean of Thornton-le-Fylde, B.

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Islwyn, L.

Prys-Davies, L.

Jacobs, L.

Ramsay of Cartvale, B.

Jay of Paddington, B. (Lord Privy Seal)

Rea, L.

Rendell of Babergh, B.

Jenkins of Putney, L.

Richard, L.

Judd, L.

Rix, L.

King of West Bromwich, L.

Rodgers of Quarry Bank, L.

Kirkhill, L.

Scotland of Asthal, B.

Laird, L.

Sewel, L.

Lea of Crondall, L.

Sharp of Guildford, B.

Lipsey, L.

Shepherd, L.

Lockwood, B.

Simon, V.

Lofthouse of Pontefract, L.

Smith of Gilmorehill, B.

Longford, E.

Smith of Leigh, L

Macdonald of Tradeston, L.

Stoddart of Swindon, L.

McIntosh of Haringey, L.

Symons of Vernham Dean, B.

McIntosh of Hudnall, B.

Thomas of Gresford, L.

MacKenzie of Culkein, L.

Thomas of Walliswood, B.

Mackenzie of Framwellgate, L.

Thomson of Monifieth, L.

Mackie of Benshie, L.

Tomlinson, L.

McNally, L.

Tordoff, L.

Maddock, B.

Turnberg, L.

Mallalieu, B.

Turner of Camden, B.

Mar and Kellie, E.

Wallace of Saltaire, L.

Massey of Darwen, B.

Walmsley, B.

Merlyn-Rees, L.

Warner, L.

Molloy, L.

Warwick of Undercliffe, B.

Monson, L.

Wedderburn of Charlton, L.

Morgan, L.

Whitaker, B.

Morris of Castle Morris, L.

Whitty, L.

Morris of Manchester, L.

Wigoder, L.

Nicol, B.

Wilkins, B.

Oakeshott of Seagrove Bay, L.

Williams of Crosby, B.

Palmer, L.

Williams of Elvel, L.

Parekh, L.

Williams of Mostyn, L.

Patel of Blackburn, L.

Williamson of Horton, L.

Plant of Highfield, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.29 p.m.
Lord Davies of Oldham: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Prison Service
7.30 p.m.
The Earl of Longford The Earl of Longford rose to ask Her Majesty's Government how they propose to deal with the penal situation described by the Director-General of the Prison Service at its annual conference.
The noble Lord said: My Lords, the Director-General of the Prison Service, Mr Martin Narey, a young civil servant—or at least, young by my standards because he is less than half my age—recently delivered a speech which was one of the most astonishing that I can remember in all my long years. Those noble Lords who are to speak in this debate, along with many other people, will have read what he had to say. However, I shall not quote from the speech because we have so little time. Mr Narey has stated that he is not prepared much longer to defend the
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indefensible. He spoke about the betrayal of duty to those in our care. That is pretty extreme language. I have never heard anything like it from a government official. I hope that the Government will pay attention to his words.
Mr Narey has described the situation in our prisons as "appalling". To an extent, he places the blame on the Government. However, being a civil servant, he cannot blame the Ministers. Sir David Ramsbotham, who knows more about prisons than anyone else, takes the same view as regards the gravity of the situation. However, he blames senior management along with the Government. We shall have to take a broad view of the matter.
Nearly 60 years ago I was working as the personal assistant to Sir William Beveridge. I was his bottle washer. We met Sir David Margesson, then Secretary of State for War. At the time, Beveridge was compiling a report on the use of skilled manpower in the services, although later he was to become famous for his work on social security. Sir David Margesson proudly described what was being done and asked, "Is there not a great deal to admire in that, Sir William?". Beveridge paused and then said, "A miserable show". I am afraid that that is also the verdict passed by Mr Narey on the situation in the Prison Service. It is a miserable show. Sir David Ramsbotham does not take quite the same view. Although he thinks that the situation is equally grave, he places responsibility for it firmly on senior management and the Government.
I do not seek this evening to place any blame because I am more concerned about the future. First, however, another recollection has come to mind. I once heard Harold Macmillan describe in an after dinner speech how he had cried himself to sleep on the first night at his prep school. The little boy in the next bed said, "Don't cry. Your position is bad, but not hopeless". I shall start from the assumption that the position is not hopeless. Something can be done about it.
In the last resort, we must ask the Government to do something, because they are responsible. Prisons are a part of the public service. The Government must take responsibility if the situation has deteriorated into a total shambles. However, we must first ask ourselves what the Government ought to be doing. In my view, they should concentrate on two matters. First, they need to spend much more money on the Prison Service. To be fair, they are doing so and I give them full credit for that. The second, and more important matter, is the need to reduce the number of people in prison. That is essential.
I am pleased to see that I shall be followed by the noble Lord, Lord Hurd of Westwell, a former Home Secretary and Chairman of the Prison Reform Trust. I am gratified that he will address the House today and I am sorry that he has only six minutes in which to speak. I hope that the noble Lord will recall that, when he was Home Secretary, the prison population stood at 46,000. Today we have well over 60,000 in prison. I hope that he will be able to tell the House of the beauties of a smaller prison population.
The Lord Chief Justice, the noble and learned Lord, Lord Woolf, has given a scathing account of the situation. He has insisted that the prison population must be reduced. That opinion forms the main emphasis of my contribution this evening. What is going to be done to reduce the prison population? It may be said that people are sent to prison by the courts, not by governments. That response is not good enough. When Michael Howard became Home Secretary, he announced a new policy which was very much less agreeable or laudable than that of the noble Lord, Lord Hurd. Mr Howard announced that, "Prison works". Within four years, the prison population had increased by 50 per cent, with no corresponding increase in crime. That shows what governments can do when they put their minds to it.
Although I give the Government credit for increasing the money available to prisons, what are they going to do to reduce the prison population? They will not even admit that they are in the wrong. No government ever did. I have been a Minister and I have done my bit. One says that whatever the government do, is right. However, I know that that is not the opinion of those outside such circles. We have a mess which needs to be cleared up. It is in the Government's power to do that.
I do not expect a revolutionary statement from the Parliamentary Under-Secretary of State this evening. I am not quite so innocent as that. An election is coming and nothing must be done to suggest that the Government have become soft on crime. I ask only that the Minister will not commit himself still further in the wrong direction. In a sense, I hope that the less he can say, the better. Perhaps I may ask him only that he will promise to place all that is said in our debate tonight in front of his chief. I cannot ask for more and I shall not get any more.
When all is said and done, this is a grave matter. To return to what I said at the beginning of my remarks, I cannot think of another occasion in my lifetime when a top civil servant has threatened to quit unless a situation is improved. I leave on the table the question: what are the Government going to do? If they can do nothing now, I hope that, when Mr Straw becomes Home Secretary again after the election, he will take action that will be worthy of him.
7.39 p.m.
Lord Hurd of Westwell: My Lords, everyone who is interested in prisons has long owed a debt to the noble Earl. Sometimes he has been laughed at a little for his diligence and his compassion. But some of his warnings and prophesies are clearly coming true. Therefore, our debt to him has increased. It has further increased because he has taken the initiative to organise this debate.
It is high time that we had a full debate on prisons in this House. The other place debated the subject on 12th February. We had a debate on universities not long ago and it was a considerable success. There is a good deal of knowledge and feeling about prisons in
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this House. I hope that, between them, the Front Benches will overcome their hesitation, even their timidity, on this subject and allow us to have a full-scale debate.
The noble Earl rightly fastened on the speech by Mr Narey, the Director-General of the Prison Service. It was, as he said, a remarkable speech and I hope that many who have not yet read it will do so. It was delivered by a devoted public servant who is known to many of us, a man who was clearly under great stress—not least from the immediate audience in front of him of prison governors. He said that he was proud of much that has been achieved, but that he is no longer willing to put up with excuses for things that are inexcusable, and no longer willing to make such excuses for them himself. There was a contrast between that speech and the bland reassurances that were given in the other place by Ministers at the end of the debate on 12th February.
As the noble Earl said, Mr Narey is not alone. On 31st January, the Lord Chief Justice gave a notable lecture to the Prison Reform Trust, of which I am chairman; and Sir David Ramsbotham, the Chief Inspector of Prisons, in a series of tough and admirable reports, has thrown light into the dark corners of the prison world. It will be sad indeed if, as we fear, the clear voice of the chief inspector is silenced within a matter of months if he is not reappointed when his term in that post comes to an end.
This is a crucially important service, and it is now under great strain. Much good work is being done, but there is much that is badly wrong. There is no time to go into all the matters that need to be gone into. I must complement the noble Earl's remarks by saying a word about Feltham, a great institution of this country not far from here, where hundreds of young men are held because they have been convicted or accused of quite serious offences. Mr Zahid Mubarek, a young British Asian sentenced for a relatively minor offence and about to be released, was put into a cell with a young white lad who was known to be mentally unbalanced. Mr Mubarek was murdered in that cell a few hours before he was due to be released. Young men at Feltham are allowed less than three and a half hours on average out of their cells each day. Feltham has had four governors in four years. Let anyone who is acquainted with administration dwell on that ominous fact.
The Government have referred the problem to the Commission for Racial Equality. That is the wrong response. It is evasive. There may be racism in the Prison Service, but the real issue at Feltham and at many other places is not racism; it is ragged, inadequate management—the same brand of management that organised the damaging raid on one of the most successful prisons in the service, Blantyre House, and the dislocation of the governor and his staff. The move has been condemned by a House of Commons committee; and it was admirably dissected by my noble and learned friend Lord Mayhew of Twysden in a short debate in this House not long ago.

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Perhaps I may say a word about women in prison. The figure has doubled in the past seven years. When are those of us who are interested in the matter going to have an adequate response to the report by Professor Dorothy Wedderburn, sponsored by the Prison Reform Trust? Are we going to wait until the growing numbers of women prisoners are fully caught up in all the troubles and evils of the prison population as a whole? I hope that the Minister will say something encouraging about a separate board to deal with the problem of women prisoners.
I end on the question of overcrowding. Every serious analysis comes back to that, as did the noble Earl in his speech. The Lord Chief Justice, the noble and learned Lord, Lord Woolf, said the other day in his lecture to the Prison Reform Trust that overcrowding,
"is more destructive of an effective prison system than anything else".
Fifteen years ago, when I was Home Secretary, overcrowding was much worse. The police cells in many of our cities were crowded with prisoners. They had to be looked after by the police because there was no room in the prisons. I had to set up accommodation for prisoners at an army camp on Salisbury Plain. Since then, the prison building programme has reduced that pressure, but in a way that is somewhat insidious. We are no longer dealing with a raging fever, which is referred to on the front page of newspapers and of which everyone is aware and accepts that something has to be done. What we are now faced with is a deep underlying sickness. Preston is 81 per cent overcrowded; Shrewsbury is 74 per cent overcrowded; Northallerton is 62 per cent overcrowded. You cannot run a prison decently in those circumstances. All the efforts to deal with matters about which reformers rightly worry—education, training, treatment for drug abuse and the all-important link between prison and what happens to a prisoner after release—are weakened and frustrated by overcrowding.
Yet Ministers and Opposition leaders fail to acknowledge this problem head on. In the fashionable phrase, they are to some extent "in denial". Why? The noble Earl tactfully touched on the point. Some of the policies being pursued by both main parties would have the effect of making the problem worse. In my most depressed moments I sometimes think that the contest over law and order in the forthcoming election will amount to who can overcrowd our prisons most.
That is a popular cry among those who know little about our prisons, and care even less. They are not told often enough that, since almost all people in prison are released, it is a matter of public safety as well of ordinary human rights that prisons should be run to provide the best possible chance of a prisoner going straight after release.
We are talking briefly about a great public service which many of us know well. We are not talking about a waste management system. We are talking about a service through which thousands of our fellow citizens pass., albeit it through their own fault—
Baroness Farrington of Ribbleton: My Lords, the noble Lord is encroaching on the time of other speakers.
Lord Hurd of Westwell: My Lords, I apologise for overrunning the allotted time. There is a destructive silence. We in this House should do our best to break that silence and insist on the necessary standards.
7.48 p.m.
Lord Judd: My Lords, when the noble Lord, Lord Hurd, with all his experience, speaks as strongly and firmly as he has tonight, we should all take his remarks seriously. I join with him in thanking my noble friend Lord Longford for once again giving us the opportunity to discuss this important subject. We must also express our appreciation to Martin Narey and to the chief inspector for the courageous lead that they repeatedly give in terms of the priorities on which we should concentrate.
Last week, I put a Question to my noble friend the Minister on rehabilitation. I hope that he will forgive me if I say that he sounded a little impatient in his reply. He rattled off a lot of very convincing statistics to put me in my place. I hope that he will also understand that I was not totally convinced. I was convinced by the statistics. But it is rather like someone going up an escalator that is going downhill out of control. When we hear of things that are being done by courageous and dedicated members of the Prison Service to tackle rehabilitation, but then we look at the conditions and the environment in which they are trying to do it, it is very difficult to make progress. The whole problem of overcrowding is central to this matter.
Why does rehabilitation matter? It matters because it is an indication of our self-confidence as a society that we believe we can turn criminals into decent citizens. But it also matters economically, because to fail in rehabilitation is to be certain of growing expenditure in the future as we deal with the consequence of failing to win that battle and with people returning to society only to commit crimes yet again.
I wonder whether my noble friend the Minister agrees with me that part of the problem is that we have a "bubble-in-the-lino" syndrome; that is, when something happens, everybody concentrates on it and tries to work out why it happened and to put that situation right. Then, before we know where we are, the bubble pops up somewhere else. Of course, apart from the bubble in the lino, there is the more sinister issue of the ongoing hell-holes, as Martin Narey described them, which undermine the system as a whole—places like Wormwood Scrubbs, Leeds, Wandsworth, Portland, Brixton and Winston Green.
At this stage we should pay a real tribute to the dedicated work by some governors and much of the prison staff throughout the country who are battling against great odds. But I remain convinced—I do not believe I am alone in this—that there is a cultural challenge in the service as a whole. We have to win the

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battle for convincing the service that what it is about is rehabilitation and not simply incarcerating people. What is the message we give to the Prison Service in this context? We must all take a degree of responsibility in this regard.
Are we spelling out that we believe that rehabilitation is the challenge, the priority? Or are we concentrating too much on sending out the popular message to the people as a whole that we are determined to be tough on criminals? Of course punishment matters. Of course we must not be sentimental about criminality. But if we concentrate on telling the public how tough we are being and fail to educate them and lead them in a commitment to rehabilitation, how can we expect the Prison Service to change its culture?
The Howard League for Penal Reform, to which I am sure we are all grateful, in correspondence with me underlined some important statistics. In 1992 only 5 per cent of magistrates' courts' cases resulted in immediate custody, but by 1999 that had risen to 12 per cent. In 1992 44 per cent of Crown Court cases resulted in immediate custody, but by 1999 that had risen to 63 per cent. Use of immediate custody for women increased from 5 per cent of cases in 1990 to 15 per cent in 1999. The number of people sentenced to less than 12 months doubled between 1993 and 1999.
That does not indicate just an increase in numbers. The interesting statistics are there when we compare ourselves with other countries. For each 100,000 of our population, in England and Wales we have 126 people in prison. In France it is only 89, in Germany 97; even in Greece it is only 68. In Ireland it is 71; in Italy 87; and it is interesting to note that while the figure of 126 per 100,000 is the figure for England and Wales, in Northern Ireland it is only 91 and in Scotland it is 117—lower than England and Wales as a whole.
All that adds up to the overcrowding to which the noble Lord, Lord Hurd, so tellingly referred. If we are looking at the issue of overcrowding and facing up to the increasing numbers, what studies do we make of what is going on in other countries which put less emphasis on imprisonment than we do ourselves? It is interesting to note that the Howard League calculated that the reconviction rate among people sentenced to short periods of imprisonment is some 75 per cent, whereas for those given probation it is 57 per cent. I wonder whether we really are looking seriously enough at the alternatives to prison and whether we are prepared, with some humility, to look at what other countries are achieving in this respect and learn from them.
I finish on the point on which I started. Yes, we have to give punishment where punishment is due. But rehabilitation is the challenge. The process of rehabilitation must be there from day one in prison; but it goes on after prison as people go back into society. We cannot just throw them out of the prisons into the community. People need to be looked after in the process of reintegration. And all that is virtually
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impossible if we go on with this madness of increasing the numbers of people in prison without being able to do anything intelligent with them while they are there.
7.55 p.m.
Lord Quirk: My Lords, in his list of complaints about the service he directs, Mr Narey includes the damning fact that "virtually nothing"—his words—is done during their time inside to prepare prisoners for release; nothing, in other words, to promote rehabilitation about which the noble Lord, Lord Judd, spoke, despite the prominence that is given in the declared aims of the Prison Service.
Of course, the poor quality and minimal quantity of education and training are not as headline grabbing or as shocking to the general public as the overcrowding, physical abuse, racism, drug addiction, squalor and filth that justify some prisons being called "hell-holes". But in this debate, for which we owe our gratitude to the noble Earl, Lord Longford, it is to education and training that I shall devote my brief contribution. Common sense as well as common humanity demand that we do far more to turn the prisoners of today, overwhelmingly male, into the self-respecting, self-supporting citizens of tomorrow.
Easier said than done. And for so many years, far more often said than done. But I hope I am not being too nave in believing that we may now be coming close to achieving a constructive and successful education and training service. I am thinking, for example, of the excellent facilities in the 400-place young offender institution at Ashfield, near Bristol, opened 15 months ago, with its fine classrooms, workshops, library, gymnasium, playing field and running track. I am encouraged too by the new arrangements whereby, from the beginning of April, the DfEE will take over responsibility for educational provision throughout the Prison Service. I hope the Minister will have more on that in his winding-up remarks. I shall not be alone in watching developments closely as targeting and continuity are vastly improved, high motivating courses put in place leading to NVQs and other qualifications, and literacy and numeracy not merely advanced but firmly linked to the inmates' potential interests. And I hope for much much more.
But attractive curricula in bright classrooms and buzzing workshops will be of no avail without the right teaching staff. And here we have a problem that must be addressed with vigour and imagination.
"No one forgets a good teacher", was the slogan of the TTA's recruiting campaign a year or so ago. Seldom can an advertising soundbite have embodied so much simple truth. Well, if it resonates with those of us who can rejoice in the education we received at the hands of good teachers, how much more must the memory of a good teacher mean to a prisoner of 25 or a young offender of 15 who had no such memory before sentence; often indeed little memory of school itself, having truanted his years away or been excluded through bad behaviour.
The TTA campaign had only a limited success in attracting recruits to mainstream schools. So it is not hard to understand the greater difficulties in attracting

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the right young men and women to educate tough, rough, disaffected prisoners who make the most lawless of our inner city school pupils seem angelic by comparison.
The education service in prisons and young offender institutions suffers among other things from a gross over-reliance upon part-time teachers; from the poor integration of education staff with other relevant service personnel; and from a sadly deficient career structure—not to mention the sordid, cramped education space such as I have seen in Brixton and which is still all too common across the prison estate. In consequence, there is a constant turnover of staff as dispirited teachers flee the service.
Yet it need not be like that. Adult prisoners and young offenders alike—truculent, unruly, unlovable and recalcitrant as they may be—are signally responsive to well-managed education and training. In many, if not most, cases they are well aware of what they have missed by way of education and often need little persuasion to start seeing the advantage of using their time inside to make up for lost opportunity. Teaching them can be a rewarding experience, however arduous.
Many young graduates are keen to go and help the needy in far-off, third world countries, not realising, perhaps, what their energies and idealism could do for our own, locally based third world of prisons and young offender institutions. They should be helped to realise, too, that they can by this means do good for themselves as well as for their incarcerated pupils. To this end, there must be good working conditions, full participation in the teaching profession as a whole, and well planned and well publicised opportunities for professional development, including entitlement to further training. And, of course, they must be presented with an attractive career structure, with the possibility not only of winning one of Lord Puttnam's national teaching awards, but of promotion to the grade of advanced skills teacher.
8.3 p.m.
Lord Graham of Edmonton: My Lords, it is a privilege to have the opportunity to participate, all too briefly, in this very important debate. I share the words of the noble Lord, Lord Hurd, that it is time that the usual channels found the opportunity for a major debate on this topic. I am talking about five hours, when speeches could be a little less constrained.
I bring the credential that for some years I was the parliamentary adviser to the Prison Officers' Association. In that time, I visited 32 prisons. It might be said that I have the best record for being in prison than anyone in this House. I have visited Dartmoor, Grendon and Strangeways. In my study at home, I have a slate that was thrown from the roof of Strangeways during the riots. It is inscribed:
"To Ted Graham, a true friend of the Prison Officers Association.
I have also visited Liverpool, Durham, Littlehey, Doncaster, Risley, Bristol and Leicester—I say in deference to my noble friend Lord Fyfe—which is a
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full security prison. I have been to Feltham and Exeter prisons, too. I remember visiting prisons after some terrible times.
The problem is to try to put things in perspective. My memory goes back over 20 years of close involvement and observation. We have to decide what has improved and what has deteriorated. There is no question that the problems of overcrowding, or two or three to a cell, have been tackled—though not mastered—imaginatively.
When I consider the purport of the remarks that we have heard in the debate, Mr Narey has my deepest respect. I put it down as a cry for help. It was not accidental but deliberate. He decided to use the opportunity and the audience that he was addressing to get the maximum dramatic effect, which I believe he achieved. He has the attention of the nation. The public, who abhor the terrible crimes that people commit, think that once the court has passed sentence and the criminal is behind bars, that is the end of the matter. However, we who understand the penal system know that that is only the beginning of the problem for governors, prison officers, the Home Office arid the courts.
I have no brief for any group, but as parliamentarians, we should use every opportunity to engage the attention of the public. They should accept that when they make a prisoner of a man or woman, they also make a prisoner of a prison officer. They are locked inside prisons and their lives can be very difficult. The noble Lord, Lord Hurd, said that Mr Narey was subject to tension and frustration. Nobody has the answer. My noble friend Lord Longford, to whom we are grateful, does not have the answer either. However, he has the right attitude. He knows that the present position is not right. The Minister should look upon this opportunity kindly, because it provides him with the chance to parade what is happening and to tell us the solutions.
I can recall when Roy Jenkins, as Home Secretary, said that 42,000 was an unacceptable figure. It is now nearer 60,000. Of course, there are more prisons, but as a humane society, we ought not to feel that the solution is to build more prisons to house more prisoners. My noble friend Lord Judd and the noble Lord, Lord Quirk, hit the nail on the head by addressing the problem of trying to turn out from prisons men and women who can improve their lot in society.
Without making a party political point, in my time, I have visited prisons and was appalled and depressed to be told about the diminution in educational and employment opportunities. Those aspects of the regime were being slashed and cut, yet we know that the prospect of employment and a home when someone leaves prison are extremely important.
I hope that the Minister will take kindly anything that smacks of a stricture. The purpose of the debate is to encourage him to do more and to do it better. He knows that he has Parliament behind him. We shall be telling the governors and prison officers, who have the dirty end of the stick, that Members of this House want

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to help them if we can. The Minister should be encouraged by this opportunity, as should my noble friend Lord Longford. We want better conditions, but we also want fewer people to be sent to prison. If the Minister can help by giving us an idea of the alternatives to full-time custodial sentences, I, for one, would be grateful.
8.8 p.m
Lord Dholakia: My Lords, perhaps I may also add my thanks to the noble Earl, Lord Longford, for the debate? There is public concern that we have significantly failed to invest in our prison system. Successive governments must bear responsibility for that, as they have failed to arrest the rising tide of people who are being committed to prison. There is a record number—60,000—of inmates in accommodation that could hardly cater for half that number. Added to that, there has been a deterioration in prison regimes, budget limitation and demoralised prison staff. All those factors have affected the progress that we expected following the Woolf report. It is no wonder that the Director-General of the Prison Service has lost his patience with progress in key areas of our prison policy.
We welcome the marginal improvements and certain constructive activity but, overall, the numbers held in cells, the lack of urgency on repairs and refurbishment plans, and the fact that prisoners spend increasing amounts of time locked in cells, is a recipe for disaster. Of course, we are looking at the new arrangements for the Probation Service and hope that the number of seconded staff working in the Prison Service, and staff to supervise prisoners on release will increase. Can the Minister give a projection of any additional probation staff who will be working directly with the Prison Service?
In the past, the Minister has been at pains to mention the very slight improvements in prison education, a point well argued by the noble Lord, Lord Quirk. However, I have seen no evidence of a minimum level of education, except for those of school age, and even their statutory needs are not being met in all cases.
There is not enough work in many of our prisons. It would be helpful to know how many workshops are fully operational. Will the Minister indicate whether there has been an increase in psychologists who design and help to run offending behaviour treatment programmes? I suspect that those too have been cut.
I was delighted to listen to the noble Lord, Lord Hurd of Westwell. Under his enlightened leadership, much progress was made in the criminal justice system. I often ask why we allowed the situation to deteriorate after his period as Home Secretary. The noble Lord often had a difficult time in placating the Conservative Party but he stood firm, for which we all respect him.
At present, the prison population is at least 15 per cent higher than it was at the end of 1992. Twice as many women are in prison than there were in 1992 despite the fact that they commit less serious crimes than men. What are the factors which channel women
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more speedily than men through the criminal justice process? Surely it is unacceptable. It is not just women but it is what they represent—the family, possibly young children, in some cases a stable home environment. If the woman is taken away, then the family structure is destabilised.
The high prison population confirms that prisons do not work. We can contain people in custody, but without the appropriate rehabilitation programme the cycle of prison dependency continues. It no longer acts as a deterrent. Often it is a small break from the life of crime but does little to address the matter of the offending.
Many questions need answers. Has the early release scheme combined with electronic tagging worked? Could that not be used more extensively? Has that helped to reduce the reoffending rate? Is research evidence available to confirm that? Do drug treatment and testing orders have any impact on inmates? Has that helped to reduce drug dependency among vulnerable inmates? Are the schemes for mentally disordered offenders working?
At NACRO, we have worked hard to provide employment schemes and housing for released prisoners. That goes a long way towards resettlement, particularly for short-term prisoners. The Government must join hands with us in that exercise. A better allocation of resources will certainly help but there is also a need for the Government to make a concerted attempt to argue the case for a more sparing use of imprisonment and for greater use of punishment in the community. We have the noble and learned Lord, Lord Woolf, with us on that particular point. It is for the Minister to talk up or talk down the prison population. Ministers can produce a more balanced climate by highlighting the case for the constructive use of community sentences. It is not to succumb to political pressure but to educate the community about our civilised values.
That is what leadership is all about. It is to lead public opinion and not to follow it. The noble Lord, Lord Hurd, is right that prison cannot devolve its responsibility to others, including as regards race relations policy. What will the Commission for Racial Equality find about our prisons?
I welcome the idea floated by the prison chiefs only this week in relation to backing a union for inmates. Equally, we should examine whether voting rights for prisoners could help to make politicians more responsible for penal institutions.
The Director-General of the Prison Service has done much to manage but he needs his managers to support him. Those who fail to do so must make way for the others who are willing. For far too long, restrictive practices in our prisons have hampered progress. We cannot allow that to continue.
I thank Martin Narey for speaking out. It is time for an unequivocal statement from the Government that he has their backing. Nothing less will do. I have spoken to the Minister and also to the noble Viscount, Lord Astor, to tell them that immediately after my speech I need to attend another engagement to which

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I have been committed for a very long time. I hope that the House will accept my apologies but I shall read their contributions with great interest.
8.14 p.m.
Viscount Astor: My Lords, there are fewer policemen now than when this Government came into power and, as a result, I am afraid that the Government are losing the battle against crime. That is the main reason for the increasing prison numbers.
I too pay tribute to the noble Earl, Lord Longford, who has a long history in debating this issue. I believe that my noble friend Lord Hurd is right. We need a proper debate in this House. I shall be brief because I want the Minister to have his full 12 minutes to reply.
When this Government came to power, they inherited a Prison Service which was under strength. There is no doubt about that. But it was in control, if only just. The Government promised to improve the prisons but unfortunately, the system has got worse. What have the Government done or not done to end up in that situation?
In June of this year, the Chief Inspector of Prisons apparently found conditions in Brixton to be worse than in his last report in 1996. He found conditions to be,
"totally unacceptable in any jail",
Brixton having no workshops and no educational facilities worthy of the name.
It has been reported that in a Birmingham prison, half of all the education classes are unfilled. The chief inspector found conditions were significantly worse than when he made his previous critical reports in 1995 and 1998. I am afraid that that is an indictment of the malaise which has developed in the prison system under this Government. The Government can blame us for what the conditions were like in 1995 or 1996 but we certainly cannot be blamed for those conditions in 2001.
Four years into this Government's term of office, report after report has condemned the conditions in our prisons. But the Government have failed to give the Prison Service any priority. In his condemning report on Feltham young offenders institution, the chief inspector reported that it was without clear strategic direction and that conditions were unacceptable. Two years later, the Government have not done anything to solve the crisis.
It is conditions at young offender institutions which should worry us most. It is essential that young offenders should be able to use their period of incarceration to rebuild their lives as useful members of the community.
In his report on conditions at the Portland young offenders institution, the chief inspector stated:
"If an organisation such as the prison service does not have a proactive line management structure that is required to monitor and correct the quality of the treatment and conditions of prisoners, it will fail in its duty towards both prisoners and the public".
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I know Martin Narey and I respect his judgment. He said:
"I am not prepared to continue to apologise for failing prison after prison…I've had enough of trying to explain the very immorality of our treatment of some prisoners and the degradation of some establishments".
The Government have a duty to invest in the Prison Service. They have a duty to show a lead in the Prison Service. They have a duty to protect the public. They have a duty to keep the prisoner out of circulation for the duration of his sentence. But they also have a duty to make it less likely that he will reoffend when he leaves prison. That is an important point which noble Lords have stressed this evening.
8.19 p.m.
Lord Bassam of Brighton: My Lords, first. I thank the noble Viscount, Lord Astor, for providing me with the full 12 minutes, although it is now somewhat nearer to 11. I also put on record my thanks to my noble friend Lord Longford for instigating this short debate. I pay tribute to him for his continued and persistent interest in this subject, a persistence which has gone on for 50 or 60 years in total. I also give my words of gratitude and thanks to the noble Lord, Lord Hurd, for homing in, as one would expect he would with his deep understanding of the prison system and Prison Service, on some of the key issues which confront us.
I want to run through a few of those issues in my speech. But I want to pick up on the director-general's speech made earlier in February. It was, indeed, a remarkable speech and one that I believe bears full reading. I say that because, although the director-general's comments about "hell holes" was mentioned by most speakers, his speech paid a remarkable tribute to what is actually being achieved within the prison system. He spoke of being on the verge of a major break-through in the way in which the Prison Service is beginning to improve. I believe that he did so with justifiable optimism.
However, I take the view that we should approach the subject as being one of those where there is much more to do. Nevertheless, much good has come from the intervention of a Labour administration and from the improvements that we have instigated. The Home Secretary responded to the director-general's speech last week on an Opposition Motion about conditions in prisons. I am glad to be able to consider some of those questions in the House tonight. I should like to draw out what I believe to be key improvements in security, education, offender behaviour programmes and the reduction in drug taking and healthcare.
The improvements in security are probably well known. However, it is perhaps worth reflecting that, back in 1992–93 (under another administration), there were some 232 escapes; but, so far, during the course of this financial year, there have been just 11 escapes. I know of noble Lords' interest in resettlement. The Government are committed to tackling the issues that lead to imprisonment and then, on release, to recidivism. Here, too, there has been real progress over the past few years. Offending behaviour

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programmes—the very measures that attack offending behaviour—have increased by 240 per cent, from 1,373 in 1996–97 to 4,664 in the past year. The figures relating to mandatory drug tests show that the number of positive tests is down from 20.8 per cent in 1997–98 to 12.4 per cent in the current year.
Many noble Lords made reference to the quality—or perhaps the lack of quality—of education provision within our prisons. Last year 60,000 educational certificates were achieved by prisoners and education provision in prisons is now focused on basic skills; that is, skills that ensure people are properly and fully prepared for employment when they leave prison. Moreover, 30,000 full qualifications were gained in prison last year, and there has been a 10 per cent increase in real terms in teaching in our prisons. In my view, that is not a demonstration of a government who are neglectful of the importance of education and its role in prisons.
The noble Viscount, Lord Astor, made reference to making prisons an area of priority. We have demonstrated that: the Government have provided over £79 million from the Comprehensive Spending Review for regime development. We are providing a further £74 million from the Spending Review 2000, over the period 2002–04. That has enabled more prisoners to undertake offending behaviour programmes, improve their basic skills and complete welfare-to-work programmes to enable them to be prepared for the world of work when they leave prison.
However, as a Government we are not complacent and are determined to do far more. We are investing £30 million over the next three years in a new Prison Service custody-to-work programme which is aimed at improving prisoners' chances of obtaining a job and stable accommodation on release. There will be a £5 million programmed spending each year at five local prisons and five young offender institutions to improve regimes with a focus on preparing prisoners for work. The Government will also be making available significant new resources to modernise and improve prison healthcare over that period.
Details of that additional investment are currently being finalised, but there will be two major streams of investment. First, extra funding will come through the Prison Service to improve healthcare premises, to invest in the training and development of healthcare staff and to tackle the threat posed by infectious diseases, such as hepatitis B. New NHS funding is being made available to support the commitment in the NHS plan to develop community-type mental healthcare—in reach services—for prisoners. The NHS plan contains a commitment to engage 300 new staff in providing the kind of mental health service by 2004 that I believe prisoners deserve. It will provide new and better treatment for some 5,000 seriously mentally ill people in our prisons today. We have also announced that funds are being made available to rebuild prison healthcare centres for those that most badly need it. Pentonville, Birmingham and
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Chelmsford prisons are all to receive new healthcare centres. Planning work on those developments has already begun.
The director-general's frank assessment of the conditions in prisons has allowed us to debate in an open and sensible way the need for further improvements. It has also enabled us to report on the real progress that this Government believe is being made. I do not want to leave your Lordships' House in any doubt. This is not a Prison Service in crisis. It is service that is going through a period of change. The scale of the reform and improvement is clear for all to see.
We are not complacent about the need for further improvements. We shall continue to drive performance by setting challenging targets. I should also like to draw noble Lords' attention to some of the best prisons. Swinfen Hall, which was recently praised by the Lord Chief Justice, has been transformed over a number of years from what was previously a moribund young offender institution to one where one cannot but be impressed by the "can do" atmosphere and the way in which staff demonstrate a genuine commitment to delivering a constructive and civilised regime. There is also Elmley in Kent, which is a young prison both in culture and staff, where high standards have been the norm from the outset and where an ethos of good industrial relations and flexibility has been translated into a sense that everything is possible.
Another example is Frankland, which is a dispersal prison holding many of the country's most dangerous high-risk offenders, where security and control are tempered with decency and respect. It is a place where prisoners are able to contribute through world-class industrial workshops. There is also the hugely impressive Altcourse, which is a privately-run prison where innovative design has created an environment that lends itself to the decent treatment of prisoners. Relations between staff and prisoners are clearly of the highest order and levels of purposeful activity are delivered that many training prisons would be delighted to achieve.
Noble Lords asked a battery of questions; indeed, there were too many for me to answer in the short period of time left for my response. I am entirely in agreement with the noble Lord, Lord Hurd, that there is need for a longer debate—perhaps, as the noble Lord, Lord Dholakia, observed, a five-hour debate. As No. 2 prisons Minister, I am sure that many of your Lordships will appreciate how much I would look forward to that happy event.
However, certain comments need to be made in conclusion. We do focus on rehabilitation. My noble friend Lord Judd was absolutely right to raise that issue. For that reason, we have sought and brought forward extra investment to ensure that, when people are in prison, they spend their time usefully and acquire the skills, training and education that will help them when they are released. That is why we invest in our staff; indeed, staff morale is probably higher now than it has been at any time in the recent past. Good quality staff will always ensure that you have a good product at the end.

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I cannot accept the allegation of the noble Lord, Lord Hurd, that there is much badly wrong with the service. I believe that there is much good in our prisons. We need to build on the positive that is already there. I thought that the noble Lord was very gracious to concede that during his watch, so to speak, in the Home Office there was a profound problem of overcrowding—30 per cent of those in prison in the early 1990s were in overcrowded cells. No doubt policies implemented before that time led to that being the case. The noble Lord was clearly determined to tackle the problem, as were successor Home Secretaries. Now we are in the happy position of there being somewhat less than half that number in overcrowded circumstances, despite the fact that the prison population has increased.
We want to see a prison regime that makes people fit for the outside world, one where people can leave prison with the certainty of their being accepted into the world of work and where recidivism rates decline. We believe that we are making progress to that end. We have put in place new programmes, not least those to ensure that there are adequate community punishment programmes in place to help those who urgently seek to go straight in the wider world.
Many other questions were raised in the debate. I shall undertake to study all of them most carefully and to provide a careful written response to noble Lords whose questions I have not managed to answer. I pay tribute to my noble friend Lord Longford for the time and energy that he has devoted to this policy field. I look forward to longer and fuller debates in the future, where we may have the opportunity to discuss at greater length some of those important matters that have been raised in what I believe to have been a most useful short debate this evening.

Special Educational Needs and Disability Bill [H.L.]
8.30 p.m.
Further consideration of amendments on Report resumed on Clause 2.
[Amendment No. 33 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 34:
Page 3, line 33, at end insert—
("( ) A local education authority must at all times have regard to the best interest of the children for which it is responsible.").
The noble Lord said: My Lords, as I discussed before supper, I have degrouped Amendment No. 34 and will speak to it separately. I shall not repeat all that was said in the Moses Room. We went over this subject many times in an effort to try to find a way of using the Bill to bring local education authority practice into line with the Children Act and other more recent pieces of legislation to make sure that the best interests of the child are taken properly into account.
I think that we set up a row of several amendments and the Minister skittled us out very effectively by pointing out that if we impose an obligation on local
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education authorities to have regard to the best interests of a particular child, we were only likely to find ourselves disfavouring some other child. In response to the arguments raised in Committee I seek to impose a general duty on a local education authority to have regard to the best interests of the children in its care and to leave it to that local education authority to balance matters as it sees properly fit. But at least the duty will be there underlying its thoughts and actions and education will come into line with the other ways in which we have dealt with the manner in which authorities deal with children. I beg to move.
Lord Davies of Oldham: My Lords, I am grateful for the elegant way in which the noble Lord introduced his amendment. However, I am sorry that he thought that he had been skittled out in Committee. That is not our intention. If he saw my donkey drop bowling these days, he would realise that I am not capable of skittling anyone out.
I seek to meet the point behind Amendment No. 34. I agree it is right that LEAs should consider children's interests. That is as true of children with special educational needs as it is of all children. In providing advice and information parent partnership services must be neutral. There may be various different ways of making appropriate provision for children with special educational needs. Parents should be offered the choice and they can decide what is in their child's best interests. I think that the noble Lord shares that sentiment.
Parent partnership services can support them in this, but, in giving advice, they should not substitute their judgment for that of parents. They are not in a position to judge what may or may not be in the child's best interest. Parent partnerships can make sure that parents have information about the full range of options that are open to them so that they can take informed decisions about the best provision for their child.
As was indicated earlier, the revised code of practice will clearly set out that the advice and information provided by parent partnership services must be neutral and must set out the wide range of options available. This will be part of the minimum standards and core functions that we expect of parent partnership services. That ought to be the framework within which the interests of the child are best served. I know that that is the intent behind the noble Lord's arguments this evening. I hope that in the light of that reply the noble Lord will feel able to withdraw the amendment.
Lord Lucas: My Lords, I held out no great hope that I would make progress with this amendment. I am grateful for the noble Lord's reply. I shall read it with interest in Hansard, along with the other replies that have been made to amendments on this same subject. But for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 35:
Page 3, line 42, leave out ("proprietors") and insert ("governing bodies").
The noble Baroness said: My Lords, in moving Amendment No. 35, I wish to speak also to Amendments Nos. 37, 39, 59, 97, 98, 99, 156, 157 and 158.
There is a kind of dogmatism that rules in the Bill. I suspect that the edict which has gone out in government circles is, "Whatever you do, do not give in to anything, however strong the arguments might be for it". I read the responses in Hansard to my suggestion for a different word to "proprietor". They make interesting reading. In fact, I tried them out at a dinner party the other night to give the guests some idea of some of the parliamentary gobbledegook that is used. Anyone who consults a dictionary for the meaning of the word "proprietor" will realise that it is the wrong word to use in the Bill.
I refer to the argument which I have always said I am never impressed with, even though I may have been a Minister in the previous government; namely, the fact that it has been used in legislation before is no argument for it to be used again. Whatever counsel may say in the background and however tidy minded people are about the matter, it seems to me that there is a good argument for using a more relevant word and one that means something in practice for the poor people who will have to interpret the meaning of the Bill. They are the people—not us in Parliament—who at the end of the day will have to make sense of the Bill and make it a practical proposition at ground level.
"Proprietors" should be replaced with "relevant authority" or in other parts of the Bill with "governing bodies", "head teachers" and so on. The term "proprietor" appears many times in the Bill. In many of those places I sought to replace it with the words "relevant authority". Elsewhere, where the context requires it, I sought to replace the term with the words "governing bodies" and in other contexts with the terms "head teachers", "governing bodies", "trustees", even "proprietors or other relevant authorities".
The term "proprietor" is clearly understood in the world of education as being the owner of a profit-making independent school. There are few such schools in this country, but there are some which are owned by a proprietor. These are not charities; these are schools which make a profit as an income to the proprietor and possibly also to some shareholders. Most independent schools are not for profit registered charities. Certain well-known independent schools are not for profit exempted charities—a term used by the charity commissioners. A proprietor himself is the governing body of the school or may himself appoint a governing body of several persons. It is clear therefore that the use of the term "proprietor" in the Bill covers only those few for profit schools.
The Minister said in Committee that the term "proprietor",
"has a very long-standing legal meaning. It is defined in Section 579 of the Education Act 1996 as meaning:
'The person, or body of persons, responsible for the management of the school, including governing bodies"'.—[Official Report, 29/1/01; col. CWH 103.]
I suggest that that was a meaning put on it by a civil servant or even by parliamentary counsel. It is certainly not a meaning that one finds in any dictionary in the world. The 1996 Act was passed under the previous government and I make no apologies for that. I simply believe that in the context of the Bill the word is wrong.
If past legislation states that black is white, lawyers might say that black is white. However, everyone else would say that that is nonsense. The use of the term "proprietor" to mean the governing body of all independent schools and even, as the noble Baroness said, of the city technology colleges and academies, is a nonsense. Lewis Carroll may have given the words to Humpty Dumpty in Alice Through the Looking Glass,
"When I use a word it means just what I choose it to mean, nothing more, nothing less".
but I doubt we should apply such logic to a piece of legislation which is supposed to be read, as I said earlier, and understood by all those in the world of education and others besides. For them, when I use a word it has to mean what is generally understood by them to be its meaning.
The noble Baroness put up a vigorous defence of her use of the word "proprietor" and no doubt we shall hear it repeated tonight. However, I cannot understand why she did so when much more accurate descriptions of the persons responsible for a school were offered to her. In no way do the amendments change the intentions contained in the Bill. On the contrary, they clarify that it is the relevant authority of all schools which is to be consulted, informed and so on in the different clauses of the Bill. Nor do you have to go to the Treasury to ask for money. When I was a Minister in this House, I heeded the advice from time to time (although not always) that when the opposition oppose a Bill or put amendments to it, the government should concede if to do so costs nothing or even—dare I say it—may improve the Bill. That used to buy peace. I suggest that the Minister may consider doing the same. The amendment would make more sense to people who have to read the Bill. It would make more sense to parents who have to make sense of legalese. It would make it easier for those who are divorced from reading these legal niceties.
The Minister made one tiny concession in Committee. She said that the Government were prepared to consider adding "or head teacher" at the end of Clause 8(12)(b). I request the noble Baroness to include that concession in the Bill and to accept all the amendments which replace "proprietor" with the more encompassing term "relevant authority". In some clauses of the Bill the proposed amendments spell out all those responsible for schools—trustees, governing bodies and head teachers. In that context, "proprietors" can also be included, thereby covering

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that tiny number of schools which have a proprietor. I see no amendment on the horizon to that effect. I beg to move.
Lord Davies of Oldham: My Lords, I fear that I shall not be tremendously constructive on the amendment. I recognise the strength of feeling with which the noble Baroness presented her case against the word "proprietor". I cannot pretend that it is the most elegant term to have in an education Bill. However, the argument presented in Committee is entirely valid. The word appears in the Education Act 1944 and all Acts since including all the education Acts when appropriate during the 18 years of the last administration. So there are difficulties about producing an alternative to it.
The noble Baroness referred to a small number of schools which may not have governing bodies. The number of schools which do not have governing bodies is 863.
Baroness Blatch: My Lords, perhaps I may correct the noble Lord. I said that there were a very small number of profit-making schools.
Lord Davies of Oldham: My Lords, I misheard the noble Baroness and apologise. I recognise that factor. The noble Baroness contends that to the lay person the concept of "proprietor" seems to involve profit maxirnisation—a concept entirely foreign to her, I imagine, in educational circumstances.
Let me outline our difficulties. What is the alternative? The noble Baroness kindly suggests "relevant authorities". We consider that unacceptable. There is no precise legal definition of the term "relevant authorities". Within Clause 3 "authorities", "relevant child" and "relevant bodies" are defined terms but there is no definition of "relevant authorities". If the amendment were to be accepted, the term "relevant authorities" would be open to various interpretations and could be held to mean a number of different things.
I do not regard "proprietor" as the most elegant word. The clear advantage of the word is that it has a clear and precise meaning in education law and is not open o such misinterpretation. That is why it appears in the Bill.
I accept that in Committee we indicated that we would think further about the point. The noble Baroness referred to the addition of "or head teacher". We shall consider that further and bring forward a suggestion at Third Reading. I accept that "proprietor" does not have the most attractive ring to it. However, the noble Baroness's solution to the problem is flawed. Regrettably, I am unable to accept her contention. I hope that in the light of the assurance of further work on our part the noble Baroness will feel able to withdraw the amendment.
8.45 p.m.
Baroness Blatch: My Lords, the Minister said with an absolutely straight face, "We have been doing this
688
since 1944". It is wrong. It has ceased to have meaning. I suspect that in 1944 there were a fairly large number of profit-making schools with a proprietor—but no longer. The world changes. If the government of the day are asked why they have changed a policy the answer is that the world has changed and they have to change and develop with it. To say, "We have done this since Noah was a lad", has no intellectual validity.
It is interesting that the noble Lord took me to task over "relevant authorities". That appears only in Amendments Nos. 37 and 39, and relevance would be the consideration. Amendment No. 35 refers to "governing bodies". Amendment No. 59 refers to "the headteacher or the governing body". Amendments Nos. 97 to 99 refer to "governing body". Amendments Nos. 156 to 158 specifically refer to,
"governing body, trustees, or proprietor"
where that is appropriate. They are tailored to the part of the Bill. The amendments use the words which are specific to the clauses and the schedule.
To ask, "Who knows what is a relevant authority?" is not an impressive argument. I suspect that neither LEAs nor the Minister would have difficulty on that.
The answer was unimpressive. In Committee the Government promised an amendment but have not brought one forward. They promise one on Report. I wonder how serious they are this time. I commend the amendment.
8.48 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 95.

Division No. 4

CONTENTS

Astor, V.

Kingsland, L.

Astor of Hever, L.

Knight of Collingtree, B.

Blatch, B.

Lucas, L.

Burnham, L. [Teller]

Luke, L.

Carnegy of Lour, B.

Lyell, L.

Noakes, B.

Dean of Harptree, L.

Norton of Louth, L.

Dixon-Smith, L.

Park of Monmouth, B.

Elliott of Morpeth, L.

Renton, L.

Fookes, B.

Saltoun of Abernethy, Ly.

Glentoran, L.

Seccombe, B.

Hanham, B.

Selborne, E.

Henley, L. [Teller]

Shrewsbury, E.

Hooper, B.

Skelmersdale, L.

Howe, E.

Stodart of Leaston, L.

Jenkin of Roding, L.

Strathclyde, L.

NOT-CONTENTS

Acton, L.

Barker, B.

Addington, L.

Bassam of Brighton, L.

Ahmed, L.

Bernstein of Craigweil, L.

Alli, L.

Billingham, B.

Amos, B.

Blackstone, B.

Andrews, B. [Teller]

Blease, L.

Ashley of Stoke, L.

Borrie, L.

Ashton of Upholland, B.

Bragg, L.

Bach, L.

Brennan, L.

689

Brookman, L.

Judd, L.

Burlison, L.

Lea of Crondall, L.

Carter, L. [Teller]

Lockwood, B.

Clarke of Hampstead, L,

Lofthouse of Pontefract, L.

Cocks of Hartcliffe, L.

Macdonald of Tradeston, L.

Craigavon, V.

Mackenzie of Framwellgate, L.

Crawley, B.

Mackie of Benshie, L.

Darcy de Knayth, B.

McNally, L.

David, B.

Maddock, B.

Davies of Coity, L.

Mar and Kellie, E.

Davies of Oldham, L.

Morris of Castle Morris, L.

Elder, L.

Morris of Manchester, L.

Evans of Temple Guiting, L.

Nicol, B.

Evans of Watford, L.

Oakeshott of Seagrove Bay, L.

Farrington of Ribbleton, B.

Parekh, L.

Filkin, L.

Patel of Blackburn, L.

Fyfe of Fairfield, L.

Plant of Highfield, L.

Gale, B.

Ramsay of Cartvale, B.

Geraint, L,

Razzall, L.

Gibson of Market Rasen, B.

Rea, L.

Gordon of Strathblane, L.

Richard, L.

Goudie, B.

Sewel, L.

Gould of Potternewton, B.

Sharp of Guildford, B.

Grabiner, L.

Smith of Gilmorehill, B.

Grenfell, L.

Smith of Leigh, L.

Hamwee, B.

Symons of Vernham Dean, B.

Harris of Haringey, L.

Thomas of Gresford, L.

Harris of Richmond, B.

Thomson of Monifieth, L.

Harrison, L.

Tordoff, L.

Hayman, B.

Turnberg, L.

Hilton of Eggardon, B.

Wallace of Saltaire, L.

Hogg of Cumbernauld, L.

Walmsley, B.

Hooson, L.

Warwick of Undercliffe, B.

Howells of St. Davids, B.

Wedderburn of Charlton, L.

Hoyle, L.

Whitaker, B.

Hughes of Woodside, L.

Whitty, L.

Hunt of Kings Heath, L.

Wilkins, B.

Islwyn, L.

Williams of Crosby, B.

Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.58 p.m.
[Amendment No. 36 not moved.]
Clause 3 [Resolution of disputes]:
[Amendment No. 37 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 38:
Page 4, line 17, at end insert—
("( ) "Independent persons" appointed in accordance with in subsection (3) above means persons with no previous connection with the parents and the child, nor of any of the authorities involved in the dispute, and such persons shall have knowledge and experience relevant to the special educational needs of the child.")
The noble Baroness said: My Lords, the amendment would make it explicit that the independent persons comprising the appeals panel should be competent in the matter of the dispute and truly independent. It is a straightforward and clear addition to the clause.
The only comfort that we received in Committee from the noble Lord, Lord Davies of Oldham, on the issue was that such independent people will receive training, financed by the Government, and that a code of practice will give guidance as to who an independent conciliator should be. Elsewhere, the noble Baroness, Lady Blackstone has advised that the code of practice shall not be published until after the Bill becomes law.
690
From what we gather of the consultation on the code of practice, it will be a long time after the Bill becomes law, so that is not much help to us in getting the definition of independence correct.
I suspect that anybody who wants the body to be truly independent wants people who are already competent and experienced and have knowledge of the special needs in question, not people who still need training to bring them up to scratch. If the Government know how to define what the independent conciliator should be in a code of practice, then they should put that into the body of the Bill. However, if, as I suspect, they have not thought about it, then I still propose that my amendment adequately and properly defines what we mean by independent persons and that remains true whether or not the code of practice is subsequently published.
It is going to be important work. It deals with the most sensitive of queries. It also deals with quite a great deal of distress. Vested interests on all sides, whether it is parents, the LEA or the schools, should not be compromised by someone who is not independent and who could be deemed to be partial to one body or another. It is such an important principle. It would cost absolutely nothing to concede that the principle of independence is established not in the code of practice, which we are not going to see for months after the Bill is passed, but actually on the face of the Bill because it is a first principle, which is very important. I beg to move.
Lord Renton: My Lords, this amendment fills in what is really a gap in Clause 3. The expression "independent persons" could mean almost anything. This amendment describes the people concerned as independents with responsibility given under subsection (3) in the resolution of disputes. It should be defined as people who are without any kind of commitment or prejudice. Therefore, I hope that the Government will consider my noble friend's amendment very sympathetically.
Baroness Blackstone: My Lords, this amendment calls for the independent person to have no previous connection with the parents and the child nor with any of the authorities involved in the dispute. Unfortunately, we believe that that would be unworkable. It would debar any independent person who had already dealt with a school or an authority from dealing with that school or authority again. It would create something of a nightmare scenario for the new services which would continually have to seek out and train new and independent persons to work with local authorities.
Parents responding to our consultations on the Green Paper and this Bill have already clearly signalled to us that they want a degree of independence in the new arrangements. We also want these persons to be independent and that is why the code of practice will set out the qualities an independent conciliator will need and the minimum standards we expect dispute resolution services to have.

691
What is already clear is that in meeting these standards LEAs will have to ensure that the independent person has no role in the decision taken about a particular child's case nor any vested interest in the terms of the settlement, is unbiased, maintains confidentiality, carries out the disagreement resolution quickly and according to the timetable decided by the parties involved, and has the appropriate skills, knowledge and expertise, including a good understanding of SEN processes, procedures and legislation. Having said all that, I hope that that is of some help to the noble Baroness and that, having heard these reassurances, she will be able to withdraw her amendment.
Baroness Blatch: My Lords, perhaps I may first thank my noble friend Lord Renton for reinforcing the importance of independents in these matters. I am prepared to concede to the Minister that my wording may not be right. I can to some extent accept the point that the noble Baroness made about there being absolutely no connection whatsoever with the parents and/or the child or with any of the authorities. Therefore, I am open to a change of wording, but the principle of qualifying independence on the face of the Bill seems to me to be such an important point that it should be addressed. I rather hoped that the Government would accept that principle and would bring forward an amendment that was workable.
The Minister said that LEAs would choose someone who had no role in the case. But that is not going to be a defence against partiality. One may well have someone who has absolutely nothing whatever to do with the case, but is partial generally to local authorities or may be partial on the other side of the argument; namely, towards the parents or the school and may have antipathy towards local authorities. It is independence that is needed from the local authority, the individual school and, as the noble Baroness has conceded, in respect of the case itself. It is a matter of principle.
I hope that the Government will reflect on what they have said. I shall certainly read again what the noble Baroness has said. Some qualification of independence for people doing this work should be established on the face of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 40:
Page 4, line 44, after ("324",) insert—
("( ) an independent school named by the parents of the child.").
The noble Baroness said: My Lords, when we last discussed this amendment the noble Lord, Lord Davies of Oldham, after some discussion, accepted the point that I made; namely, that if, as part of an existing dispute, the school in question is the independent school preferred by the parent, even if not named in the statement, then that is the relevant school in the context of Clause 3.
However, the noble Lord continued by asserting that my amendment was defective because he could interpret it differently, but promised to look at the matter again. I now ask whether the noble Lord has done so and, if so, what is the outcome. It still seems to me that the amendment is not defective, and at Committee stage no-one else seemed to put any interpretation on the amendment other than the straightforward one defined in the clause as to what is meant by the relevant school in any dispute. That would be the school at the centre of the dispute, be it a maintained school or an independent school named in the statement or, as the amendment would have it, the independent school not named in the statement but chosen by the parents. It is still a dispute to be resolved by the LEA under the terms of the clause. I beg to move.
Baroness Blackstone: My Lords, Amendment No. 40 seeks to give parents who wanted an independent school named in their child's statement, but the LEA did not agree, access to the new dispute resolution arrangements. I can assure noble Lords that that will be the case. In these circumstances the dispute is between the parent and the LEA, not between the parent and the school. Disputes between parents and LEAs are provided for under Clause 3(1) of the Bill. There is no question of the parent in dispute with the LEA in these circumstances not having access to the new arrangements.
I believe that the noble Baroness was also concerned that where parents were in dispute with an LEA about an independent school placement for their child the school named by the parent should be part of the dispute resolution process. There is no need for independent schools to be involved at that stage because they will not have to take the child if named in the statement. Generally speaking, independent schools are free to refuse to admit any child. That is not the case for maintained schools, which therefore need access to the dispute resolution process at an earlier stage.
In the light of my comments, I hope that the noble Baroness will withdraw the amendment. Having reflected on the matter, the Government do not believe that there is a need for change in this context.
Baroness Blatch: My Lords, there is nothing surprising in that response—it will be a repeated theme throughout the course of our debate.
There is a flaw in the noble Baroness's argument. She said that if a parent has named an independent school that is part—perhaps the central part—of a dispute, he or she will not have to negotiate with the school or even bring it into the conciliation process because it is not the school that is named in the statement. However, at that point in the negotiations, the parents are trying to resolve a problem. The resolution may be that the parents get their preference. The school that is preferred by the parents is as much a part of the process as is the school that is named in the statement.

693
If the dispute centres on a preference that is expressed by the parents—the Government make it clear in the Bill that they wish to take parents' wishes into account—and if an LEA says, for example, that the placement is not available or appropriate, there would be a good reason for involving the independent school in part of those proceedings. Only in that way could a genuine judgment and assessment be made of the relevant provisions; namely, those involving the school, which may be a non-maintained school, that is preferred by the parents, and those involving the maintained school, which is, for the purposes of my hypothesis, a school in the maintained sector. The noble Baroness's argument simply does not hold water. Will she explain her statement that a non-maintained school that is preferred by the parents has no relevance?
Baroness Blackstone: My Lords, the independent school could give evidence and support the parents, but that school will not be a party. I can only repeat what I have already said; namely, that, generally speaking, independent schools are free to refuse to admit any child.
Baroness Blatch: My Lords, the noble Baroness appears to be determining the outcome of the resolution before the whys and wherefores have been examined. The decision appears to be pre-judged against the independent school. Is the noble Baroness happy about pre-judging an outcome when a parent has made a preference for a non-maintained place? Such pre-judgment appears to be extraordinary. If she is arguing that the school could give evidence, why cannot it be party to the whole resolution process, even if at the end of the day it is decided that the placement in the school that is preferred by the parents is not appropriate, for reasons that would be given by professionals, the LEA and/or other bodies that are party to the dispute? That could be part of the conciliation process.
Baroness Blackstone: My Lords, the dispute is between the LEA and the parents, so there is no pre-judgment. I cannot be any clearer than that.
Baroness Blatch: My Lords, that is deeply depressing. The dispute is between the parent and the LEA because the parent has made a choice, in the example that I gave, for an independent school. The noble Baroness said, "In relation to the conciliation service, we want to resolve disputes before they go to tribunal, but we shall keep out of the picture the very school that is central to the complaint that is being made by the parent". If that is what the noble Baroness is saying, it is quite wrong. I reserve my right to return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Compliance with orders]
Baroness Blatch Baroness Blatch moved Amendment No. 41:
After Clause 4, insert the following new clause—
GOVERNORS: POWER OF OBJECTION
(". If the governors of a mainstream school object to the proposed admission of a pupil who has special needs on grounds of inadequate facilities for that pupil in that school, or inadequate or insufficient staffing for that pupil in that school, the governors' objections shall be sustained until such time as the Local Education Authority has—

(a) made the appropriate extra provision to that school, or

(b) until the Tribunal has ruled that the existing provision is satisfactory for that pupil:")

The noble Baroness said: My Lords, even if the parents of a child and the LEA want the child with SEN to be admitted to a mainstream school, it is still necessary for that school to be able to cope with that child's needs and for those immediately responsible for that school—the governors—to be satisfied that they can cope. It would therefore be right, in terms of the school, the children who are already in the school and the child with SEN, for there to be adequate facilities and staffing before the child with SEN was admitted. It is therefore right for the governors to be able to object and to have their objections sustained if the facilities and/or staffing are inadequate. That objection should continue to be sustained until the extra provision that is necessary has been made by the local authority. It will not be sustained if it is challenged and found to be wanting—the Bill allows for that. My argument is simply that when such objections are made and the supporting evidence is sufficiently robust, the objections should be sustained.
However, in order to overcome the obvious abuse which could be thought to be pursued by the governors in the use of this clause, namely to falsely claim inadequate facilities or staffing, the clause also provides that the tribunal, upon examination of the needs of the child and the school's existing provision, could override the governors. I believe that is what they would do in such a situation. I beg to move.
Lord Renton: My Lords, I hope I am not being tactless when I say that whatever advice the noble Baroness, Lady Blackstone, has received, I hope she will bear in mind that this is a necessary new clause which fills a gap in the Bill. The Government have placed priority upon the opportunity of children with special needs being educated in mainstream schools, but if the governors of such a school really feel that they do not have the teaching facilities to deal with a pupil with special needs, surely there should be a way of dealing with the matter.
This amendment fills a gap in the Bill and it is a very necessary amendment. I hope the noble Baroness will consider it sympathetically. If she feels that she cannot answer the matter fully tonight, I hope she will give an undertaking to consider it between now and Third Reading, because it really is important.
Lord Davies of Oldham: My Lords, I recognise the strength with which this amendment has been supported, but it raises a very significant issue which I should like to present to the House at this stage.

695
It appears that the amendment, placed as it is after Clause 4 which refers to compliance with tribunal orders, seeks to give governing bodies of mainstream schools a veto over the admission of children with statements of special educational needs if the school decides that it has insufficient facilities or staffing to meet a child's needs after the tribunal has made its decision on appeal. The amendment seeks to maintain that veto until such time as the LEA accedes to any demands for resources or the issue has been reconsidered by the tribunal and it has ruled that the existing provision which it has already considered is satisfactory for that child.
If that is the case, the decision on appeal as to whether a school should be named in a child's statement is surely one for the tribunal, not for the governing body after the hearing has taken place and a decision has been made. When a parent makes an appeal to the tribunal the tribunal takes evidence from the parent and from the LEA and its witnesses before giving a decision. The LEA has to back up its decision that the school can make the special educational provision that the child needs, with support as necessary from the LEA itself.
As part of that process, the tribunal will consider information from a school concerning the provision it is able to make for the child, as supplemented by the LEA. It is certainly not uncommon for the school to present evidence directly to the tribunal and for the tribunal to question the school about the provision it is able to make for the child. If the tribunal believes that the school cannot make appropriate provision without additional support being provided, it can make an order precisely to that effect and the LEA is obliged to comply.
However, the effect sought by this amendment is already achieved by the tribunal hearing and the decision. It would surely be inappropriate for school governing bodies to have a veto over the decisions of the tribunal and for additional work and unnecessary delay to be built into the appeals system because of the appeal from the parent.
Baroness Blatch: My Lords, it may be that I need more advice about the drafting of this amendment, but the wording of paragraph (b) in the amendment says:
"until the Tribunal has ruled that the existing provision is satisfactory for that pupil".It does not say "after the tribunal has ruled".
It is prior to the tribunal's ruling. The noble Lord has responded to me on the basis that the tribunal has completed its work, it has made the decision about the child and the school. If that is the case, of course in law the school has no option but to take the child. Placing this new wording after Clause 4 may be putting it in the wrong place. I accept that, but it is not after the tribunal. It is separate from that.
It is saying, as a free-standing clause, that if the governors of a mainstream school object to the proposal—the normal procedure would be for an LEA to propose—that a child should be admitted to a particular school, and the school objects on the grounds that it does not have the facilities for that
696
pupil and has inadequate or insufficient staffing, then its objection shall be sustained until the LEA has either provided extra funding or extra provision or until the tribunal has ruled.
One can only imagine, if that is a genuine reason put forward by the school, that the tribunal will not send a child to a school that does not have the staff or the facilities to cope. Part of its determination may be to instruct the LEA to make funds available so that the child can be accepted at that school, but it will be for the tribunal to rule afterwards. The whole of the Minister's response was predicated on the wrong understanding of my amendment.
Lord Davies of Oldham: My Lords, if it was predicated on the wrong premise in relation to tribunals that is, as the noble Baroness has indicated, because of where she has chosen to locate this new clause. Let us look at her argument which gives a much wider intent behind the amendment. It appears to be designed to give school governing bodies a veto over the naming of their school in a child's statement if the school disagrees with the LEA as to the provisioning that is required. That would mean that LEAs would have all the responsibility for making and maintaining the statement, but no power to make the final decision because the school would object. Surely, that cannot be right.
Of course, LEAs are required to consult schools that they are considering naming in a statement, and, as a result of our Amendment No. 152 to which I referred earlier, they will be required to send them a copy of the draft proposed statement or proposed amended statement for a child. That will ensure that there is a full and informed discussion and will encourage, as far as possible, agreement on any additional provision that the LEA may be expected to make over and above that which the school can provide.
At the end of the day, the LEA has to satisfy itself that the school can make the provision needed for a child before it names that school in the statement, as it has a statutory duty to arrange the provision and maintain the statement. Having regard to the way in which the noble Baroness has presented the issue, effectively this amendment would take the capacity for decision making away from the LEA while leaving it with the statutory duty.
Baroness Blatch: My Lords, I believe that the Minister and I are living on two completely different planets. Having regard to what I said, that is a completely incorrect premise. Nothing in my amendment prevents the naming of a school; there is no question of a veto in relation to the naming of a school. Perhaps I can suggest that the Minister ignores the notes being handed to him and takes note of what I have said.
I am talking about a school that genuinely receives a child as a result of a statement that names the school; I am not talking about one that abuses the system. It is not a veto in relation to the naming of a school. A child may be sent to a school where the school genuinely says that it does not have the staff or the facilities to make provision for the child. That

697
statement is either true or it is not. For the sake of my scenario, let us assume that that is a genuine reason why the school cannot take the child. My amendment simply says that the school should appeal to its LEA—that is the only funding stream for a school in that position—for extra provision so that that school can do its best by that pupil, or it can stand out with its objection, the LEA can refuse to give it any funds and it can have that tested at tribunal. That neither pre-empts the tribunal, nor brings about a veto over the naming of a school. I really do not know how I can explain the matter more clearly.
The noble Lord does not appear to want to say how he has come to his view in relation to a veto over the school. I would like the Minister to say what in my amendment gives the school a veto over the naming of a school. What is the wording in my amendment that achieves that? I wish to test the opinion of the House.
9.25 p.m.
On Question, Whether the said amendment (No. 41) shall be agreed to?
Their Lordships divided: Contents, 23; Not-Contents, 86.

Division No. 5

CONTENTS

Blatch. B.

Kingsland, L.

Cox, B.

Knight of Collingtree, B.

Dean of Harptree, L.

Lucas, L.

Dixon-Smith, L.

Luke, L.

Lyell, L.

Elliott of Morpeth, L.

Norton of Louth, L.

Fookes, B.

Park of Monmouth, B.

Glentoran, L.

Renton, L.

Hanham, B.

Seccombe, B. [Teller]

Henley, L. [Teller]

Selborne, E.

Howe, E.

Skelmersdale, L.

Jenkin of Roding, L.

Strathclyde, L.

NOT-CONTENTS

Acton, L.

Davies of Coity, L.

Addington, L.

Davies of Oldham, L.

Ahmed, L.

Elder, L,

Alli, L.

Evans of Temple Guiting, L.

Amos, B.

Evans of Watford, L.

Andrews, B. [Teller]

Farrington of Ribbleton, B.

Ashley of Stoke, L.

Filkin, L.

Ashton of Upholland, B.

Fyfe of Fairfield, L.

Bach, L.

Gale, B.

Barker, B.

Geraint, L.

Bassam of Brighton, L.

Gordon of Strathblane, L.

Bernstein of Craigweil, L.

Goudie, B.

Billingham, B.

Gould of Potternewton, B.

Blackstone, B.

Grabiner, L.

Blease, L.

Grenfell, L.

Bragg, L.

Harris of Haringey, L.

Brennan, L.

Harris of Richmond, B.

Brookman, L.

Hayman, B.

Burlison, L.

Hilton of Eggardon, B.

Carter, L. [Teller]

Hogg of Cumbernauld, L.

Clarke of Hampstead, L.

Howells of St. Davids, B.

Cocks of Hartcliffe, L.

Hoyle, L.

Craigavon, V.

Hughes of Woodside, L.

Crawley, B.

Hunt of Chesterton, L.

Darcy de Knayth, B.

Hunt of Kings Heath, L.

698

Islwyn, L.

Richard, L.

Judd, L.

Rix, L.

Lockwood, B.

Sewel, L.

Lofthouse of Pontefract, L.

Sharp of Guildford, B.

Macdonald of Tradeston, L.

Smith of Gilmorehill, B.

Mackenzie of Framwellgate, L.

Smith of Leigh, L.

McNally, L.

Symons of Vernham Dean, B.

Maddock, B.

Thomas of Gresford, L.

Mar and Kellie, E.

Thomson of Monifieth, L.

Morris of Castle Morris, L.

Tordoff, L.

Morris of Manchester, L.

Turnberg, L.

Nicol, B.

Wallace of Saltaire, L.

Oakeshott of Seagrove Bay, L.

Walmsley, B.

Parekh, L.

Warwick of Undercliffe, B.

Plant of Highfield, L.

Wedderburn of Charlton, L.

Ramsay of Cartvale, B.

Whitaker, B.

Razzall, L.

Wigoder, L.

Rea, L.

Wilkins, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.35 p.m.
Clause 5[Unopposed appeals]:
[Amendment No. 42 not moved]
Baroness Blatch Baroness Blatch moved Amendment No. 43:
Page 5, line 20, leave out ("withdrawn") and insert ("granted to the parent").
The noble Baroness said: My Lords, when we discussed this amendment previously, the noble Baroness, Lady Blackstone, and I agreed at least on one point: that we were dancing on the head of a pin. Unfortunately, there were no angels on the head of that pin and, in spite of our temporary agreement, the issue is more than merely academic.
The parents and the LEA have a dispute which goes to the tribunal for resolution. The parents have made their appeal against the LEA's decision, whatever that was. There is now an appeal in existence and it is before the tribunal. Before the appeal is resolved one way or the other by the tribunal, the LEA concedes the parents' wishes. In any commonsense use of the word, the parents' appeal has been granted to them and they have won the argument. The appeal has not been withdrawn by the parents; it has not been withdrawn by the LEA; it has not been withdrawn by the tribunal. It has been won by the parents; or, to use more legislative language, it has been granted to the parents—granted in fact by the LEA, but granted nevertheless. This is not merely a matter of semantics. It is important for a family to know that when they took their case to appeal they came away successful. The fact that the LEA has had to concede before the matter goes any further seems to be masked.
If the appeal is to be treated as having been withdrawn, as the clause would have it, that might mean that the LEA would no longer oppose the parents. But it does not necessarily mean that. If, on the other hand, it is to be treated as having been granted to the parents, it certainly will mean that the

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LEA can no longer oppose the parents. The noble Baroness said nothing in Committee which alters the need for the amendment. Therefore, I beg to move.
Lord Lucas: My Lords, I support my noble friend's amendment. I prefer her wording.
Lord Rix: My Lords, I, too, support the noble Baroness, Lady Blatch. There is very good reason for parents to be totally confused by the present wording. I hope that if the noble Baroness's amendment cannot be accepted, the Minister will come back with suitable wording at Third Reading.
Baroness Blackstone: My Lords, the amendment deals with the treatment and classification of appeal cases which are withdrawn because the LEA decides not to oppose the appeal. The amendment would treat these types of cases as decisions upheld in favour of the parent.
The clause already provides for the LEA to meet the parents' wishes within a period to be set out in regulations, when the LEA has conceded the parents' case. However, I shall not claim the status of an angel. We recognise that this may not be immediately obvious from the way the clause is drafted. We shall, therefore, consider how the clause might be amended to make this more obvious and introduce an amendment at Third Reading. The effect would be to make clear that where LEAs do not oppose a parent's case, this is to be treated as the appeal having been resolved in the parent's favour. The amendment will also make it clear that in such cases the tribunal will not have to make an order to this effect, thus avoiding unnecessary bureaucracy.
Baroness Blatch: My Lords, I do not know whether that reply was a result of the intervention by the noble Lord, Lord Rix. At least the Government can save face and say that they have been persuaded by him rather than by me. I am grateful for the Minister's response.
I do not know whether I heard the Minister correctly—I believe I did, and a nod will suffice. Did she say that the amendment will make it clear that the case was resolved in the parents' favour? The noble Baroness nods. Then I am entirely satisfied with her response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
Baroness Blatch Baroness Blatch moved Amendment No. 44:
Before Clause 7, insert the following new clause—
OBJECTIVES CONCERNING ACADEMIC PROGRESS
(". The code of practice shall require that all pupils with special educational needs, with statements and without, shall be set clear objectives concerning academic progress, including progress in reading, against which the provision specified or provided shall be monitored and reviewed.").
The noble Baroness said: My Lords, this is an amendment about which I feel very strongly. I have always believed that, from wherever a child starts and
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however profound the learning difficulties are, making progress is at least one of the primary aims of education. I gave some moving examples of an experience I had when I visited a special school in the North East where the staff believe that all children, from whatever basis they start, make progress and that such progress should be recognised, should be recorded, and should be systematic.
But it is also the case that many young people—particularly as part of this Bill deals with people with physical disabilities, as well as the part which deals with young people with mental disabilities and learning difficulties—can make enormous progress academically in school. If it is right that all young people in mainstream schooling without special needs should have records of achievement, of progress, aims and objectives, targets set and clear objectives in making academic progress, as well as the other progress one would record—noble Lords may refer to Hansard in Committee for examples; I shall not labour them tonight as the hour is late—it must be right that young people with SEN should also have that progress and so forth recorded.
This is an important point. The aims, the objectives, the targets and the progress made should be measured against provision specified or provided, and that progress should be monitored and reviewed. We owe it to all young people, from whatever basis they start, to do that. Making progress is important to them; it is one of the primary aims of education. I beg to move.
Lord Lucas: My Lords, I entirely support my noble friend. I add that if there is such a system—there should be such a system for all pupils—in order to make it work properly it is essential that there should be national standards against which progress can be compared. That is difficult to achieve with special educational needs. It will take some research. But if we do not have standards against which to compare progress, it is possible to lower our expectations to the point where they are easy to achieve.
It is one of the great things that has been achieved in value-added measurements in examinations as a whole—the great efforts made by Durham University, as it is now, with ALIS, MidYIS and YELLIS—to produce national standards against which value-added can be measured. We need to do the same thing with special needs if we are to make a valid system of comparators to judge the sort of process which my noble friend is advocating.
Baroness Blackstone: My Lords, our view is that Amendment No. 44 is unnecessary. Good teaching should involve the setting of objectives and monitoring how well a child is progressing against those objectives. That applies to the teaching of children with SEN as much as it does to the teaching of other children. In that regard I agree with the noble Lord. Lord Lucas.

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The current code of practice already advises schools that individual education plans (IEPs) for children at stages 2 and 3 of the school-based stages of the code should include,
"targets to be achieved in a given time",
and "monitoring and assessment arrangements". Even at stage 1 of the current code, which we are proposing should be dropped when the revised version comes into effect, the code advises that in agreeing the aims of the SEN provision, teachers should record the targets which are to be achieved and the monitoring arrangements. The revised code, on which we consulted, also advises that IEPs should include short-term targets for the child. Practical guidance which will accompany the final version of the revised code will give further advice on the writing of IEPs. In addition, the current SEN regulations require statements of SEN to include objectives and monitoring arrangements to check progress on those objectives.
The amendment makes particular reference to monitoring progress on reading. Progress on reading is, of course, important for all children—I agree with the noble Baroness, Lady Blatch, in that regard. But we are already addressing this through the National Literacy Strategy.
Noble Lords will be interested to know that the teaching of reading among pupils with learning difficulties has been commented upon recently by the Office of Her Majesty's Chief Inspector of Schools, whose report, The National Literacy Strategy in Special Schools, noted that,
"in all schools [in the survey] pupils had made at least sound progress in the development of their literacy skills".
The report concluded that,
"teachers reported a marked improvement in the pupils' concentration, behaviour and attitudes to study, especially with regard to reading".
The strategy has had particularly beneficial effects for children with SEN. For example, we know from the National Literacy Project, which preceded the National Literacy Strategy, that children at the first two stages of the SEN code generally make the most gains, suggesting that the strategy may actually prevent some children from developing SEN.
In the light of what I said, I hope that the noble Baroness, Lady Blatch, will feel able to withdraw the amendment.
Baroness Blatch: That reply was mostly helpful. I should certainly like to read carefully what the noble Baroness said. In Committee, I quoted from the letter written by David Blunkett to colleagues, which is worth repeating. He said:
"We will also stress the need for statements to set out broad objectives against which the child's progress, and the provision being made, can be monitored and reviewed".
I link that point with the one made by my noble friend that, however difficult it is, progress should be measured against certain standards. That should not be beyond the wit of those with the professional expertise to accomplish it.
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Despite what the noble Baroness said about what has been achieved, we know that because expectations for children with special needs are not always as high as they should be, too many under-achieve. It is for that reason that the provision should be more formally stated somewhere. My amendment refers to the code of practice and, if I heard the noble Baroness correctly, that is exactly where the provision will go. So there will be something explicit in the code of practice.
My final point is a positive one. There are those who think that because children have special needs one should not bother with such aims and objectives for them. I argue the other way. I believe that such a measure can be one of the greatest motivators. My experience of visiting special schools is that working in partnership with schools to achieve some of the aims and objectives motivates families. Many young people with special needs work in partnership with the staff of the schools, parents, families and peer groups.
There is a strong argument for the amendment. I believe that the noble Baroness, if a nod will suffice, has agreed that my amendment will be accepted and will be included in the code of practice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Clause 7 [Duty to inform parent where special educational provision made]:
Baroness Blatch Baroness Blatch moved Amendment No. 45:
Page 6, line 5, at beginning insert—
("( ) The parent of a child for whom no statement is maintained under section 324 shall be informed before special educational provision is made for him.
( ) If the parent objects to such provision being made as being unnecessary or inappropriate, the dispute shall be resolved as provided for in section 3 of this Act, and until it is resolved, the special educational provision shall not be made.").
The noble Baroness said: My Lords, in moving Amendment No. 45, I shall also speak to Amendments Nos. 46 and 47.
These amendments seek not only to put parents in the picture, but to restore their responsibility for their children. We trust that this House, the Government, local authorities and schools all have the best interests of the child in mind. We should have liked that to be included in the Bill. We even risk being paternalistic in our efforts to help children with special needs. Such compassion, however, must not obscure the fundamental fact, which some may find uncomfortable but which in a free society remains paramount, that the prime responsibility for a child rests not with the school, the local authority, the Government or the House, but with the parents. If there are no parents, the legal guardians are responsible.
We can advise and cajole a parent as to what we think is in the best interests of that child, but we must not take away the legal and the moral authority of a parent to decide what is best for his or her child. Only in certain extreme circumstances of parental abuse or

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neglect does the law provide for the state to take away that parental responsibility. It therefore follows that no matter how inconvenient it might be for the school, the child psychologist, or anyone else for that matter, the parent should first be informed of any educational provision that is related to perceived special educational needs before that special education is applied to the child. The parent should be entitled to challenge and, if necessary, object to such provision if, for whatever reason, the parent disapproves. We might all disagree with the parent's judgment, but we are not entitled to substitute our own judgment for that of the parents. As I said, only in extreme circumstances does the law allow us to override parental responsibility.
My first amendment simply seeks to write into the Bill that the parent must be informed before provision is made and must be entitled to object and until the objection is resolved, the provision should not be made.
The noble Lord, Lord Davies of Oldham, made quite a chilling reply and I found it even more chilling when I read it again in Hansard. The noble Lord said:
"The problem with the amendments is that they appear to give parents the right to object to special educational provision to meet their children's needs".
Later on, the noble Lord said:
"However, it cannot be right that parents should be given a veto over the SEN provision that schools make for their children".—[Official Report, 29/1/01; col. CWH 124.]
What if that provision turns out to be inappropriate or even downright wrong? Those remarks are almost Stalinist in the way they read in Hansard. The noble Lord's problem seems to be that parents may have the right to object to what they consider to be unnecessary, unhelpful or just plain wrong. But neither I nor the noble Lord has the right to trample on parents' rights which are important. No matter how inconvenient it may be to the professionals in the case and in the light of the noble Lord's reply in Committee, I emphasise all the more strongly that this amendment is necessary to restore parental rights so that they are given back their full responsibilities.
The related amendments in other clauses do the very same thing: they restore parents' rights, first, to be informed and, secondly, to give their approval to such provision.
Baroness Blackstone: My Lords, these amendments would hamper schools, nursery education providers and pupil referral units from making speedy responses to children's newly identified SEN and would trammel the exercise of teachers' professional judgment.
I repeat what my noble friend Lord Davies of Oldham said in Committee. They would give parents a veto over the SEN provision to be made for their child. Were they to be accepted, they would establish arrangements whereby the SEN provision that children need would be at least delayed and could be denied because, for whatever reason, the parents have said that their children should not have it. They assume that in each and every case, parents'
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understanding of their children's educational needs is more fully informed and well-founded than that of their children's teachers.
Regrettably, I do not believe that that is always the case. We must look to teachers and schools, working in accordance with the guidance that they receive from the SEN code, to identify children's special educational needs and intervene as soon as possible to ensure that difficulties can be addressed, if possible, before they become deep-seated. If parents object to their children being identified as having SEN because, perhaps, they feel that some stigma is attached to it, we should look to teachers and schools to work constructively with parents to address those concerns and to provide the reassurance that they seek—that the provision being made really is in the best interests of their child.
The noble Baroness is concerned to ensure that parents know that their child has learning difficulties and are able to challenge any special provision that schools propose to make. The point of Clause 7 is precisely to ensure that the current position where a school can be making special provision for a child's SEN without the parents knowing about it will be a thing of the past. I very much accept that that is a desirable step forward.
The code has a fundamental principle that,
"the knowledge, views and experience of parents are vital",
in ensuring that children's needs are met. It is because we support that principle that we are ensuring that all parents will be informed when their child is identified as having SEN and provision is being made for them.
When schools inform parents, that will give parents the opportunity to comment on the provision that is being made and to raise any concerns that they have with the school. Clause 7 allows for speedy intervention and parental input. We should expect schools and other settings to inform parents as they begin to make special provision, and not some time afterwards.
In Grand Committee, the noble Baroness drew back from saying that parents should be able to object to the provision being proposed for their child by saying that there should be a form of informal resolution procedure. Clause 3 of the Bill already provides for the resolution of disputes between schools and parents over the provision made for children.
However, as I understand it, the noble Baroness is suggesting that resort to these resolution dispute procedures should be made in every case where the parents object to the suggested provision, and that such disputes should be resolved through the procedures before the provision is made. That would introduce an unnecessary level of bureaucracy into the arrangements. In every case, the school would have formally to notify the parents that it intends to make special provision, give the parents time to consider whether they want to challenge the provision and then wait to see whether the parents wish to do so
Through the passage of the Bill, noble Lords opposite have spoken of the need to avoid unnecessary delay; indeed, that is something that the Government

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also wish to avoid. However, I believe that this amendment would introduce delay. Therefore, I ask the noble Baroness to withdraw it.
Baroness Blatch: My Lords, the Minister's reply is quite baffling. The noble Baroness is arguing that somehow or other this would be a delaying tactic; that it would take too long; and that, therefore, if there is a resolution, it cannot in every case be informally resolved. As the noble Baroness will remember, I welcomed the process being set up by the Government. I thought it was important for us to do what we could to prevent cases going to a tribunal because, at the end of the day, that is much more costly and incurs much greater delay. I understood that it would be done informally.
However, the Minister is now suggesting that this is a rather formal process and that very formal procedures have to be adopted. My understanding was that the conciliation was informal and that it was there to resolve disputes. The noble Baroness is asking me to accept that there will be some parents with issues that are not resolved who will not necessarily be subject to the provisions under Clause 3. I am totally puzzled by the Minister's response. Clearly—though now I believe rather naively—I have gone along with an understanding of what that conciliation entailed; namely, that it was informal, local, much closer to the parents and would resolve issues that would prevent their having to go to a tribunal. It now appears that that is not the case. This is such an important issue that I shall return to it on Third Reading. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 and 47 not moved.]
10 p.m.
Clause 8 [Review or assessment of educational needs at request of responsible body]
Baroness Blatch Baroness Blatch moved Amendment No. 48:
Page 7, line 6, after ("body") insert ("or the parent of the child").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 49, 50, 52 and 53. Other noble Lords will speak to Amendments Nos. 51 and 54, which are also included in this group.
The Government's response to these amendments in Grand Committee betrayed yet again the philosophy that the local education authority knows best, and that the parents must do as they are told. All that the first of these amendments would do is to insert "the parent of the child" after the reference to "the responsible body" in paragraph (b) of new Section 329A(1), thus making him or her entitled to ask the LEA for an assessment of the child.
Under the rest of the provision, once the governing body of the school has asked for an assessment, or reassessment, of a child, the LEA can be triggered into action. All I am asking for is that the parents should also be able to trigger the procedure. After all, it is the
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parents' child who may need the reassessment. It is not sufficient to say, as the noble Lord, Lord Davies, said elsewhere, that the parent can ask for the child to be assessed. It is in the context of Clause 8 of the Bill that it is necessary to match the authority of the governing body to ask for an assessment with that of the right of the parent to do the same.
The consequential amendments that I have also tabled would oblige the LEA to get on and make the assessment when asked to do so by the governing body, or by the parent—or probably, in practice, by both. If it is a case of both, it seems to me to be even more important that that request should be met. At present, the Bill leaves it entirely to the discretion of the LEA as to whether or not to accede to the request for an assessment to be made. That is incredible, when one thinks about it. It means that the professionals at the school, or the parents of the child—who, of course, know the child intimately—have judged that an assessment needs to be made and yet the LEA, with no knowledge of the child and with no reassessments made, can nevertheless reject an application for a reassessment.
In defending the absolute right of veto by the LEA, the noble Lord, Lord Davies of Oldham, said in Committee,
"Depriving LEAs of the right to refuse to assess would also be a retrograde step. It cannot be accepted that every single request for assessment, either from parents or schools, is well-founded".—[Official Report, 29/1/01; col. CWH 129.]
There could be examples of stupid governing bodies or stupid parents who capriciously ask for an assessment when there is no need for one. But because any system can be abused if one really wants to do so is no reason at all for denying the great mass of informed and honest people and genuinely concerned parents the right to have their judgment respected. After all, the request for assessment from a governing body or from a parent is founded on the evidence before them, whereas the LEA has at the time of the request no evidence at all upon which to found its decision as to whether or not to make a new assessment. It will have evidence as to what the last assessment made of the child was but it will not yet have any evidence as to what changes have since occurred to the child's assessment and, therefore, to the child's needs.
If we are to have Clause 8 at all—I think that we should—the LEA has to become the servant of those who know the child and not their master. The LEA must assume that each request is well founded and get on with it, arranging and making the assessment. In the course of doing that, the odd request might well prove to be less than well founded. I might add that any school putting in a poorly founded request risks not being trusted in future on that or any other issue.
The first and consequential amendments in the group put the parents back in the frame and put the LEA in the position of being obliged to respond to the request rather than having a discretion as to whether or not to do so. One other amendment of mine in this group seeks to cut the time which the LEA has to respond to the request. The Bill at present commits the LEA to have six months between receiving the request

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and making the assessment. My amendment proposes to cut that down to three months. I think that the noble Lord, Lord Davies, in his reply in Committee mistook the situation when he said,
"Three months is just not long enough for any changes which there may have been to a child's special educational needs since a previous assessment to emerge properly".—[Official Report, 29/1/01; col. CWH 129.]
The situation, in fact, is that before the six month period, or the three month period as proposed in my amendment, even starts, the child has been under observation by teachers and parents. As a result of such observation they have judged that the child's condition has changed—it could be for the better, it could even be for the worse—and that such observed change now needs a renewed formal assessment to be made. The three month period starts from the making of that request.
What we seek from such a new assessment is a revision of the education provision which we make for the child. Having, through observation, judged that an assessment or reassessment is needed, the teachers, through the governing body or the parents, have asked for the assessment to be made. Under other amendments the LEA must then get on and arrange an assessment. Three months is plenty of time to do so. What the noble Lord seemed to think, judging from his response, was that any possible change to the child's condition started at the beginning of the six-month period and, thus, much of the six months would be needed to observe whether or not change was happening. I hope I have made clear that that is not the case. The changes perceived in the child have already occurred before the request for the assessment has been made; otherwise, the request for the assessment would not have been made. It is not up to the LEA to sit back to see what further changes might occur in the subsequent six months. By then a year or more may have passed.
In responding to other amendments in Committee Ministers quite rightly emphasised the need and value of as early an assessment as possible for each child. The earlier we can identify a child's problem, the earlier it can be remedied. There is no need for the LEA to sit back for the best part of six months before getting on with the assessment. It is quite true that in the exceptional case where the child is rapidly going downhill in whatever learning difficulty he or she may have, several assessments might be needed in quick succession. That is no reason for giving six month periods of grace. On the contrary, I believe that it is a reason for acting even more quickly.
On Amendment No. 49, in Committee the noble Lord, Lord Davies of Oldham, gave a most detailed response to a series of amendments which amounted to a concern that the reassessment of a child's statement should be made as quickly as possible following a request for that reassessment to be made. That response amounted to agreement that any reassessment needs to be made as quickly as possible in order that the provision for the child can be altered to meet the needs shown by the reassessment.
Our discussion at that time highlighted the frequent need for reassessment upon transfer, particularly from primary to secondary school. The noble Lord did not explain why in Clause 8 the LEA was given a full six months between a request for reassessment to be made and that reassessment having been made. Six months is too long. All the other provisions, guidelines and so on, requiring quick decisions, to which the noble Lord referred, can be overridden by the LEA in this simple requirement in Clause 8 to allow a full six months to pass before the assessment is made.
I ask again: why six months? Why not three months or less? Why not a statement within at least seven days of the request being made as to how and by whom the reassessment is to be made and with a clear schedule of the expected timescale for that reassessment? I beg to move.
Lord Lucas: My Lords, although Amendment No. 54 is not within this group, the Minister knows what it is about. If the noble Lord chooses to reply to the amendment so that I do not have to move it, he is welcome to do so.
Lord Davies of Oldham: My Lords, I shall indeed address my remarks also to Amendment No. 54. I begin with the amendments which the noble Baroness moved and to which she has spoken. We discussed the issues at length in Committee. We stated that the amendment is unnecessary because, as the noble Baroness well knows, Section 328 of the Education Act 1996 gives parents the right to request assessments for their children. Therefore if Amendment No. 48 is linked to Amendment No. 49, it would mean that the statutory interval between requests for assessment of children by schools and parents would be three months instead of six. The noble Baroness asserts strongly that three months is long enough. I do not believe that to be the case.
For children whose previous assessments had led to statements, the amendment would mean that their parents or school could request reassessments within two weeks of receiving the final statement. For children where the LEA had refused a request to assess, it would mean that the parents or school could make a new request within six weeks of the refusal, which would not be time enough for the child's needs or circumstances to have changed significantly. If three months were to be accepted, it would hold out the prospect—it was discussed in Committee—of a constantly revolving door of requests for reassessment with which LEAs would have to deal. We do not regard that as a sensible use of LEA officers' time.
Of course, parents can appeal to the tribunal if they feel that an LEA is wrong to refuse to assess their child's special educational needs. Surely that is the most sensible way forward rather than continuous requests for assessment.
Amendments Nos. 50, 52 and 53 would deprive LEAs of the right to refuse to carry out an assessment where a parent or a school requests it. We do not agree with the proposal. Not every request for assessment either from parents or schools is well founded.

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Although the majority are well founded, it is also possible for such requests to be ill founded. In consultation with parents and schools, LEAs can often show how a school working within its own budget can adequately meet a child's needs without going through the assessment and statementing process. Surely it is right that LEAs should continue to be allowed to exercise their judgment in deciding whether an assessment is necessary. When an LEA decides not to assess a child's special educational needs following a request from a parent, under Section 329 of the Education Act 1996 it is required to inform the parents of its decision. We intend to use the regulation-making powers in Schedule 7 to ensure that LEAs explain to parents why they have decided not to assess. The Bill imposes a similar duty in respect of decisions made following requests from schools.
Amendment No. 54, which the noble Lord, Lord Lucas, wants to degroup, would allow LEAs to decide whether to assess a child within the period specified for parents to make their representations. In Committee, on 29th January, we agreed to respond in due course to the issues that the noble Lord raised on Amendments Nos. 76 and 78. He referred to possible delays arising from the specified arrangements set out in Clause 8. He also raised the potential for LEAs to decide on whether to assess and to get on with it if parents were happy for the decision to be made before the end of the specified period.
We have carefully considered the noble Lord's comments and the amendment. I hope to clear up any misunderstanding about what LEAs can and cannot do during and after the specified period and any confusion that may have crept into our discussions about time limits in the regulations.
The noble Lord, Lord Lucas, painted a picture of LEAs being able to extend the specified period for as long as they liked—I think that he suggested that they might even take two years—and not being able to do anything about a request for assessment from the school until the specified period had finished. That is not so. LEAs will not be able to specify unreasonable periods. We shall impose a six-week time limit on LEAs to tell parents whether they have decided to go ahead with an assessment following a request from a school. That is the same time limit as for requests received from parents. We shall not make regulations directly to limit the specified period—this is where confusion may have crept in—but LEAs will not be able to make the specified period longer than six weeks because they will have to have taken parents' representations into account before informing them of their decision.
The specified period is not a period during which LEAs are unable to do anything about requests while they wait to see whether the parents are going to make representations. The only thing that LEAs are not allowed to do during the specified period is decide whether to assess. That ensures that the LEA is aware of any views that parents may wish to put forward before it makes its final decision. We expect LEAs to get on with requesting and taking advice from other
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sources than the parents during that period. That is what currently happens when LEAs are considering whether to make an assessment under Section 323 of the 1996 Act. That section also allows LEAs to specify a period of not less than 29 days for parents to make representations. LEAs would be unwise not to request and start considering advice during the specified period because they have to make sure that they are in a position to give the parents the decision within six weeks.
In Committee, the noble Lord, Lord Lucas, clearly expressed his dislike of unnecessary delay. I share that feeling and I hope that he will accept that we want to ensure that no such thing occurs.
Baroness Blatch: My Lords, when he began his response, the Minister almost ridiculed this group of serious amendments and insulted the mostly caring and sensitive parents. Let me give some evidence for that. First, he said that the amendments would allow parents to require reassessment within two days of receiving a statement. That is an absolute absurdity. In order to produce evidence for assessment the first thing a parent would require is a period of observation of their own child. They would have had to notice a discernible change in the condition of the child and the situation in which the child finds itself. That would require perhaps some modified provision which would also need to have been observed sufficiently for the parent to be able to present a case for re-assessment. It is ridiculous to say that a parent could do that within two days.
The noble Lord used two examples. He said two days and he also referred to six months. That is doing a great disservice to some very serious amendments and to situations which could be very real for the parents. The rest of the noble Lord's answer was predicated on what I thought was a monstrous caricature of the way in which parents would behave. I am singularly unimpressed by the noble Lord's response. These amendments are serious. The noble Lord, Lord Northbourne, is unable to be at present. He was also calling for a time limit. He will present his amendment on the next occasion. These amendments are so serious. I simply will not accept the tone and the wording of the reply that we have just received from the Minister. I shall certainly return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 to 54 not moved.]
10.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 55:
Page 8, line 13, leave out paragraph (b) and insert—
("(b) Any setting recognised by an early years development partnership set up by a local education authority under section 119 of the School Standards and Framework Act 1998.").
The noble Baroness said: My Lords, I note that the Chief Whip is in the House. I have been constantly asked this evening what the plans are for the House

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rising. No one seems to know and not even my "usual channels" appear to know. I ask this for four reasons. First, there has to be a concern for the staff of the House. We all know that the House will be sitting at 11 o'clock tomorrow. The Hansard writers will have to return tomorrow and we should at least have some concern for them.
Secondly, if we spend only five minutes on each of the amendments we have to deal with tonight, we would still be here for between three to four hours yet, with both the noble Baroness and myself involved in the first debate tomorrow.
Thirdly, there is a discourtesy to the noble Baroness, Lady Darcy de Knayth who has a late amendment. I ask this for information. If the House intends to rise any earlier than at the very end of this list of amendments, then it would be a courtesy to her to know whether she need to wait for her amendment. It would be helpful to many people throughout the House, including members of staff, to know what the plans are for the rest of the evening.
Lord Carter: My Lords, I have offered an arrangement with the Opposition by which we can go home at 11 o'clock and finish the Report stage of the Bill on Monday. The Third Reading would be on Thursday, which was the date agreed originally some time ago. In the planning of this Bill we have tried extremely hard to accommodate the diary commitments of the noble Baroness. Unfortunately, the Opposition have felt unable to accept that offer. They believe that the interval must be maintained. This Bill is already a week late, which I can live with if it is delivered to the Commons next Thursday. But I cannot have the Government's programme decided by the Opposition. I have offered an arrangement. I am very concerned about the staff. There is an arrangement which will enable the House to rise at 11 o'clock or soon after, finish Report stage on Monday and complete Third Reading on Thursday.
The noble Baroness is shaking her head. The reason why we are in this position—and I have the figures before me—is that 72 amendments have been brought at this stage by the noble Baroness. I understand that the Liberal Democrats brought back one and the noble Lord, Lord Baker, returned with two. The noble Lord, Lord Morris of Manchester, brought back one. There is no earthly reason why the Report stage of the Bill could not have been properly completed in a reasonable day's work today. The draft grouping presented to the noble Baroness yesterday had 49 groups. It was ungrouped by the noble Baroness and the noble Lord, Lord Lucas, who produced 65 groups. If we sit late tonight—I agree with the noble Baroness that if we do so, we shall sit very late—the responsibility will lie entirely with the Opposition.
Baroness Blatch: My Lords, I have several responses to that. First, I represent the official Opposition in the House and I am doing my job. The amendments that we have discussed today have been serious and some extremely serious points have been raised. Secondly, the noble Lord will be aware from our earlier exchange
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from the Dispatch Boxes that I was outside the loop that decided that the Bill's Committee stage should be held in the Moses Room. I do not know who decided that, but that decision meant that we were not allowed to bring any subject whatever to a resolution. Thirdly, the noble Lord, who has been in and out of the House all day, will know that many of the amendments were answered very unsatisfactorily in another place. We were promised that the Government would reflect on some amendments and return with different amendments on Report. Mostly, that has not happened. Fourthly, in relation to the statistics that the noble Lord quoted, the noble Lord, Lord Morris of Manchester, moved virtually no amendments during the Bill's Committee stage, and the Liberal Democrats brought forward very few amendments in Committee compared with the number of Liberal Democrat amendments that are before us now. We shall much later come to quite a number of Liberal Democrat amendments, many of which I shall support.
It was wrong of the noble Lord to use those statistics in the way that he did. I asked for the relevant information, and I will go through the night. Whether I come in tomorrow, I do not know. If there is a plan to rise any earlier than after our discussion of all of the amendments, it would be courteous to those who are waiting to speak to amendments that come much later in the Marshalled List, and it would certainly he courteous to the staff of the House, to inform us of that. Otherwise, I do not regard myself as culpable. I believe that I am doing my job as a member of the Opposition Front Bench.
Lord Henley: My Lords, I, too, am wary of having two Opposition Front Bench Members intervening on the same subject. We have—dare I say this to the noble Lord the Chief Whip—been totally and utterly co-operative in relation to the Bill the whole way through. We agreed that the Bill should go into the Moses Room. It then turned out that it was not a suitable Bill to go to the Moses Room; all those who took part in the Committee stage would agree with that. It would have been far better to have involved the Front Bench. We were trying to assist the Government, and we shall go on doing so because we believe that the Government should be allowed to secure their business; we always try to assist them in that goal.
Having said that, the Bill was considered for four days in the Moses Room. One would therefore have thought that we should have at least two days' debate on Report. The Government are trying to railroad the Bill through by allocating one day for our debate on Report, although there are about 70 groups of amendments before us. That is an awful lot of amendments to get through. At this stage—at nearly 10.30 p.m.—we have got through very few amendments.
No doubt the Government will respond by saying that we behaved differently when we were in government. That is not the case. The Government should be prepared to make a concession in relation to the Bill. There is no problem whatever with time. We do not know when the election will be—the noble Lord

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the Chief Whip does not know when it will be and—dare I say it—the Prime Minister does not know when the election will be. When it is called, some sort of deal will no doubt be done about the Bill's passage. Let us wait until that happens. For the moment, we should allow the House to do its job, and to do so properly; it should revise, as it has always properly done, legislation that comes before it.
I hope that the Government do not want to sit much later than 11 p.m., particularly because we will begin sitting at 11 a.m. tomorrow. I hope that the noble Lord the Chief Whip will take a reasonable approach in relation to the Bill, especially because we have been reasonable in the past.
Lord Carter: My Lords, I am sure that this debate is completely out of order. However, at this time of night, it is important to explain the facts. It is true that the Bill spent four days in the Moses Room. That amounts to about 16 hours, which is equivalent to one days' debate on the Floor of the House.
Noble Lords: Come on!
Lord Carter: My Lords, noble Lords say, "Come on". Well, four times four is 16; if one divides 16 by two, one gets eight, and eight hours amounts to one days' debate on the Floor of the House.
I have already offered an arrangement. Because of the number of amendments, I am quite prepared for the House to go up tonight around 11 o'clock or soon after—thinking of the staff of the House—and to finish the Bill on Monday. I will rearrange the Business on Monday, as long as we get the Second Reading of the Health Bill. I will take off the Second Reading of the Capital Allowances Bill. It is a perfectly reasonable arrangement. I will deliver the Bill to the Commons, already a week late, next Thursday, on Third Reading. For some reason, the noble Lord does not want to accept this. I cannot see why. If members of staff are kept late now, it is entirely the responsibility of the Opposition for refusing what I think is the very reasonable deal that I have offered them.
Lord Henley: My Lords, will the noble Lord the Government Chief Whip tell me what is the hurry? When is the election? We do not have to have an election for another year or so. We are not having an election in May, as far as I know, unless the Prime Minister has other ideas. There is no hurry about the Bill. We have any amount of time, and it is very important that the House discusses these Bills properly and does its job properly as a revising Chamber. This House will insist on doing that job. Why is there any hurry at all about the Bill?
Lord Carter: My Lords, I am sure that if the noble Lord had been at any time Chief Whip for the Government he would know that there is an arrangement between the two Houses by which business is managed, and we try to get Bills back to the Commons at a certain pace. I have already delayed this
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Bill by a week, and I am not going to have the Government's programme decided by the Opposition Chief Whip. I have offered a perfectly reasonable deal on this important Bill. I spent 10 years in Opposition and dealt with disability. I hate to personalise this. I have two handicapped children, as the House knows—
Noble Lords: Oh, come on!
Lord Carter: My Lords, I do not think that this is a Bill to play games with.
Lord Henley: My Lords, I am not going to play games. It is the noble Lord himself who is playing games. We are not trying to delay this Bill at all. We always accept that it is the duty of Her Majesty's Opposition to allow the Government to get their legislation, but we also accept that it is the duty of the Opposition to make sure, particularly in this House, that Bills are properly discussed.
I think the noble Lord should accept the fact that this Bill must be discussed properly in this place and it is not for us to say that this Bill should go through purely at the convenience of another place. If another place is desperate to have the Bill, the noble Lord must tell us why. Is it because they want to have an election on some particular date? I do not know. The noble Lord will no doubt tell us, as Chief Whip for the Government Benches. We want to know when we can discuss this Bill properly at a proper stage of the night. Are we to discuss it until two o'clock or three o'clock, or on another occasion?
The noble Lord has suggested an alternative; that we could have another day on Report, next Monday, and then we might have a Third Reading on a later occasion. I am prepared to agree to that, but I am not prepared to agree to any suspension of the usual intervals between different stages of the Bill.
Baroness Blatch Baroness Blatch moved Amendments No. 55:
Page 8, line 13, leave out paragraph (b) and insert—
("(b) An"y setting recognised by an early years development partnership set up by a local education authority under section 119 of the School Standards and Framework Act 1998.").
The noble Baroness said: My Lords, I beg to move Amendment No. 55 and speak also to Amendment No. 58. On both amendments, I am speaking for the Royal National Institute for the Blind as the purpose is to allow any setting recognised by an early years development and child care partnership to request a review or assessment of educational needs.
Earlier identification, intervention and support for young children with a range of special needs, and their families, play a high-profile role in current government initiatives and programmes which include Sure Start and Early Excellence Centres. Guidance and the draft code of practice, special educational needs and national standards for the regulation of day care places are the responsibility of practitioners in early years settings who are involved in the identification of a child with special educational needs. As severe sight

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loss is rare it can be easily missed. Those involved in day-care settings are in a key position to notice subtle changes or differences in a child's behaviour that may indicate a special need. Practitioners will need the support of local education authorities and health and social care specialists in the assessment of a child's needs if they are to be identified and if timely support is to be given.
In relation to these amendments, I speak specifically about children with sight impairments but, as my noble friend Lord Baker of Dorking said earlier, they would apply to children with all sort of difficulties that could lead to the need for a statement later on. I beg to move.
10.30 p.m.
Lord Davies of Oldham: My Lords, I respect the constructive way in which the noble Baroness has presented her argument on these amendments and I respect the group on whose behalf she has moved the amendment. We are sympathetic to Amendments Nos. 55 and 58. We do not believe, at this stage, that they are quite right, although they provide a useful avenue to ensure that we achieve the objectives that the noble Baroness has identified. We would like to consider the amendments and return to them at Third Reading. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Blatch: My Lords, I am grateful to the noble Lord for that response. Of course, I shall withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 56:
page 8, leave out lines 15 to 17 and insert—
("( ) an independent school,
( ) a school approved under section 342.").
The noble Lord said: My Lords, Amendment No. 56 fulfils the commitment that my noble friend Lady Blackstone gave to the noble Baroness, Lady Blatch, to consider adding independent schools to the list of relevant schools in Clause 8. Noble Lords will see that we intend to add independent schools and non-maintained special schools to the list. Those schools would, therefore, have the right to ask a local education authority to assess or to reassess the special educational needs of any of their registered pupils in the same way as maintained schools.
In the light of that, and as it achieves what the Opposition seek with Amendment No. 57, and more, I trust that the noble Baronesses, Lady Blatch, Lady Miller of Hendon and Lady Seccombe, will withdraw their amendment. I beg to move.
Baroness Blatch: My Lords, I would like to sound grateful for what the noble Lord has done. It is good news that he has included the independent schools. However, in speaking to the amendment, the Minister has given no reason whatever why, in adding "an independent school", the Government have removed "a city technology college", "a city college for the
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technology of the arts" and "a city academy". I believe that we are owed an explanation as to why "an independent school" has been added but three schools have been taken away.
Lord Davies of Oldham: My Lords, the issue that we believe that the noble Baroness raised in Committee has been covered by our approach on independent schools. We believed that that covered the points discussed in Committee. The other schools mentioned by her are legally independent schools, so they are within the framework of this provision. By indicating that we had covered independent schools I believed that we had covered the categories to which she referred.
Baroness Blatch: My Lords, this is very strange. Either the Government made a mistake when they produced this Bill or they did not. The Government had included "a maintained school", "a maintained nursery school", "a pupil referral unit", "a city technology college", "a city college for the technology of the arts" and "a city academy", but now they have included "an independent school" and left out three of the other schools. What is wrong with including all the schools?
The status of an independent city technology college, a city college for the technology of the arts and a city academy is different from an independent school. The way in which they are structured and the way in which they were set up are different. They are independent in one form but they are within the bosom of state-funded education. Therefore, it is important that they are not seen in the same category as totally independent schools that receive no funding whatever from the state. The city technology college, the city college for the technology of the arts and the city academy are entirely publicly funded. Therefore, I do not agree that they should be removed and replaced with "an independent school".
Lord Lucas: My Lords, this is a thoroughly confusing piece of nomenclature with which the Government, and indeed previous governments, have landed themselves. This long list of different types of school appears in several places in the Bill. Is there any kind of school which the Government have left out of the list or does the list include all schools?
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, Lord Lucas, because he has spoken the lines I was about to deliver. We thought that our amendment met the objectives contained in an amendment tabled by the noble Baroness, Lady Blatch, in Committee and which included independent schools. That covers all the categories. Nothing is left out. We thought that the noble Baroness would recognise the amendment as a concession on our part to the discussion in Committee. Accordingly, we have presented an amendment which covers all schools.

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Therefore, we hoped that she would be prepared to withdraw her amendment. I hope that that still is the case.
Baroness Blatch: My Lords, it does not cover all schools. The Government have put in one and then removed three. So it cannot possibly cover all schools. So far as concerns finance, the three categories which have been removed—the city technology college, the city college for the technology of the arts, and the city academy—are maintained wholly by public funds. They are within the bosom of state-funded education. They are not independent in the sense of an independent school which is not dependent on the Government for any funds whatsoever, other than the remnants of the assisted places scheme which the Government have abolished anyway. So it really is not good enough to say that "independent schools" covers all these other schools. It does not. There is a very strong argument for leaving them in. We shall certainly return to this matter at Third Reading.
On Question, amendment agreed to.
[Amendments Nos. 57 to 59 not moved.]
Clause 9 [Duty to specify named school]:
Baroness Blatch Baroness Blatch moved Amendment No. 60:
Page 8, line 27, leave out ("not").
The noble Baroness said: In moving Amendment No. 60, I shall speak also to Amendments Nos. 62 and 63. In Committee I fear that the Minister misunderstood our amendment. We do not intend to oblige local education authorities to fund places outside the maintained sector that they are not already obliged to either fund or part fund. We want to ensure two matters: first, that there will be no premature closures of special schools in the maintained sector; and, secondly, that local education authorities will continue to fund or part fund those educational places for children with statements appropriate to the child's needs.
It is acceptable if parents notify local education authorities that they do not require such a place. But I want to see provision for those parents caught in the "Catch 22" situation where they wait so long for either a statement or a placement that they resort to the private sector as a kind of stopgap until the LEA makes the necessary provision for their child. Under the terms of the Bill, there will be no way back into the maintained sector except by the withdrawal of their child from the independent school. In Committee, in response to my noble friend Lord Pearson of Rannoch, the Minister stated that:
"All I can say to the noble Lord is that this Bill does not in any way affect the current arrangements for the funding of places in the independent sector where the school is named in the statement".—[Official Report, 29/1/01; col. CWH 81.]
Will the Minister go further and say that not only will current arrangements continue to be funded, but that all the existing flexible packages that suit so many children will also remain available for children in similar circumstances in the future? If an LEA cannot provide an appropriate place to meet the requirements
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of a child with a statement, then it should be obliged to fund such a place elsewhere. We wish to ensure that existing funded or part-funded places and similar places in the future remain available to children and for parents who pay their taxes in this country.
There is some sympathy with local education authorities which hold open special educational needs places for pupils, only to see those places remain empty. The local authority is financially committed, while at the same time another child is prevented from benefiting from that place. That is why we have stipulated holding the place for half a term. That allows enough time for parents to decide whether to accept the place, but not so long that it would prevent another child from benefiting from it later. Should the Bill as drafted become law, local education authorities will have no incentive whatever to speed up their decision making, no incentive to meet parents part way in funding, no incentive to agree flexible packages for children and no need to ensure any additional special needs provision at all.
Where the parents of children with statements have private funds, they will be forced to pay for appropriate places in the private sector, whereas children with statements whose parents do not have the financial means will be forced into the mainstream sector by the gradual closure of many special schools. Until now, we did not believe that this was the original intention behind the Bill. I hope that, when the Minister comes to respond, we shall once again receive a reassurance on this point.
During our earlier debates in Committee, the noble Baroness stated at col. CWH 136 that it was not the intention of the Government to allow LEAs to avoid naming a school in a statement in a significant number of cases. Can we be told exactly what number of places would be regarded as "significant"? How will this number be calculated, both nationally and within LEAs" What is to be the cut-off point before the department or inspectors or tribunals on behalf of parents step in? Does not the fact that the point has been raised at all by the Minister indicate a serious flaw in the proposed clause as it stands without my amendment?
What is the purpose of an LEA undertaking to statement a child if it then does not have to nominate an appropriate place for that child's education? In Committee the Minister said that:
"If parents arrange their own provision for the child, we see no reason why the LEA should hold open a place at the school currently named in the statement pending the conclusion of the appeal".—[Official Report, 29/1/01; col. CWH 137.]
That misses the point I made in Committee and which I have repeated this evening. This goes to the nub of the matter. If parents are already satisfied with their own arrangements, they would not be taking the LEA to appeal. They would merely write to the LEA to say, "Thanks, but no thanks. We are happy with the arrangements we have made". There is no need for the LEA to hold open an empty place.
I believe that this clause goes too far in that it may even encourage local education authorities not to make enough special needs places available in the first

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place. My amendment seeks to ensure that local authority places are made available for those children who need them, but at the same time, local authorities need not hold open such places indefinitely. Again, if we refer back to the aims of the Bill, so far as concerns the Government, then the Minister ought to be sympathetic to my amendment. I beg to move.
Lord Lucas: My Lords, I am in sympathy with the amendment moved by my noble friend. Indeed, my own amendment in the next grouping, which we may not need to discuss, looks at the matter from much the same point of view. The Government made a good point when we discussed this matter in Committee. A local education authority should not be compelled to hold open a place for ever while a parent is swanning around an independent school and simply not stating that the place was not wanted. Nor, however, is it reasonable for a parent faced with looking after and educating a severely disadvantaged child to be able to do nothing for that child for a couple of years while the process of statementing grinds on, so that the local authority then has to make a statement.
Why should parents with the means and ability to provide for their child privately for a year or two while the local authority is making up its mind be prevented from doing that simply because, if they do that, then the local authority will not make a statement? Surely the right way to approach this is, while the local authority is making up its mind on what should be done for a child and while the appeals process is grinding its slow way through, parents should be free to make whatever provision they can for their child? That should not disadvantage the child's chance of securing a statement.
The right arrangement, if the parents can afford it, is to provide for the child privately; the statement arrives, it is agreed, and the child then moves to whichever school is specified in the statement. Under Clause 9 as presently drafted, that will no longer be possible. I do not understand why the Government are insisting that children should not be educated for a couple of years as the price of getting a statement.
10.45 p.m.
Lord Davies of Oldham: My Lords, perhaps I may deal first with the issue raised by the noble Baroness regarding independent schools and the arrangements that could be made by parents.
We value the role of the independent or non-maintained special school sectors. The Bill preserves parents' freedom to choose to send their children to these schools. Nothing in the Bill jeopardises existing packages of funding provision in non-maintained or independent schools. It will still be for LEAs to determine or for tribunals to order the decisions in that respect. Nothing in the Bill indicates anything other than a continuation of existing arrangements so far as concerns the independent sector.
The fact that parents educate their child privately does not mean that the child cannot get a statement. LEAs are under the same duty to assess a statement
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whatever kind of school the child is in. Therefore, there is no way in which the LEA can absolve itself from responsibility with regard to children with special educational needs and the question of a statement.
Amendment No. 60 is not required, because the effect of the clause as currently drafted is that if parents cease to make suitable alternative arrangements for their children, the LEA must then find a suitable alternative placement for them and include the placement in Part 4 of the statement. There is consequently no need to specify the name of a school or institution where parents are currently making suitable arrangements: if this situation changes and the parents cannot make their own arrangements, the LEA certainly cannot wash its hands of the child. I hope that noble Lords will recognise that it would not be right—and I think there have been indications to that effect in the contributions of both the noble Baroness and the noble Lord, Lord Lucas—to require LEAs to hold places open on the off-chance that they might be required by children educated at their parents' expense which are then denied to other pupils. That is why I am hopeful that the noble Baroness will withdraw her amendment.
On the further issues with regard to the importance of Clause 9 as drafted, there is no intention in the clause to allow LEAs to cut a child and its parents adrift simply because, for one reason or another, the parents have chosen to place the child at a fee-paying school. LEAs must arrange provision for pupils with statements of special educational needs whose parents are not making suitable arrangements for them. Amendment No. 62 would have the effect of making the clause unworkable in practice and could cause school places to be kept empty to the detriment of other pupils and require local education authorities to absorb the cost.
We also consider Amendment No. 63 to be unnecessary. LEAs are already required to arrange that the special educational provision set out in the statement is made unless they establish, following notification by the parents, that suitable alternative provision is being made. That is the obligation of the LEA. I recognise that this amendment is also intended to protect the position of parents who have placed their children at an independent school and are appealing to the tribunal to have that school named in the statement. They may be concerned that if they lose the appeal, the place in the LEA's choice of school will be lost. However, we do not think that this strikes the right balance.
LEAs should not be required to keep places open for children whose parents do not really want them. If the tribunal agrees with the parent about the school to be named in the statement, the child will continue to be educated there and the place kept open by these amendments will have been wasted. If the tribunal disagrees, the LEA will be required to name a school in the statement, possibly the school it originally wanted to name or another school suggested by the LEA, the parent or arrived at through agreement.

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On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Blatch: My Lords, I am sorry that the Minister was not at least sympathetic to the plight of the parents who, out of sheer frustration, buy a place that they can ill afford in an independent school pending the outcome of all the procedures which have to be gone through and, because they have done that, the LEA and the Government write them off. They say, "They have gone off to the independent sector. They can stay there now and the place can be given to somebody else".
If the parents' preference is for a maintained place and out of sheer frustration and wanting to make some provision for their child they go temporarily into the independent sector, then the small breathing space asked for by the amendment should be made available so that the child can have that preference honoured. The tone of the noble Lord's reply was that if they go to the independent school, whether or not they can afford it and whether or not they are sent there out of frustration in the interests of the child, tough! If that is the noble Lord's attitude, we shall have to return to this amendment at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 61:
Page 8, line 30, at end insert (", and the parent has failed to confirm his acceptance of the school named in the statement in the specified manner or within the specified time").
The noble Lord said: My Lords, in the course of the last amendment I found myself agreeing entirely with the Minister and entirely with my noble friend Lady Blatch. I agree with the Minister that it is unreasonable that local authorities should be made to hold open school places. I agree with my noble friend Lady Blatch that it is also unreasonable for parents to be forced to leave their child unprovided for if they can, on however temporary a basis, afford to have that child educated while the local education authority is making up its mind.
Perhaps I can put a scenario to the Minister. Suppose I have a child in the middle of her school years and, through some accident, she is suddenly made blind or deaf, or made nearly blind or deaf. I have £20,000 or £30,000 and my reaction in those circumstances is to use that money to help her as best it can to overcome the consequences of what happened to her. I cannot provide for a blind school or deaf school for long on that money. But I can do something while the local authority is getting into gear. It may take the local authority a year or, under current practice, a couple of years before my child is properly provided for, years which she could be spending with properly qualified people getting used to her new disability—learning Braille, lip-reading or whatever provision may be made for her.
Under Clause 9 I am faced with the position whereby, if I use my money to do anything for my child, I jeopardise her entire future because she will then not be statemented. I have to sit by and do nothing for her because, by doing something, I can cause her great harm.
Suppose I put her in an independent school so that she is cared for and helped through the trauma of the accident. Yes, when I run out of money she will again be available to be statemented. But it will then take the local authority a year or two before there is a place for her. She will therefore have an enormous hiatus in the middle of her education. Therefore I dare not buy a private place. That situation is utterly unreasonable. Surely the first duty we owe to our children is to do everything we can for them, particularly in the hardest circumstances.
Surely most of us, in those circumstances, would mortgage our house and do the best we can with all the money that we can make available to look after our child who suffered whatever the accident might be. Surely the state should support us in that action and say, "Yes, you make provision for the child for a year. We will move as fast as we can to bring her into the mainline system. When we get to the point where we know what the statement is to be, you will be given a limited time to decide whether or not you take the statement or continue with your present private provision".
That seems to me to be entirely reasonable. The state should not be left hanging. A parent choosing to make a sacrifice with whatever money he has to hand, to do something a bit faster or better for his child, only to have the state bite back and damage the child as a result is entirely unacceptable. I hope that the Minister will be able to give me some comfort on that. I beg to move.
Lord Davies of Oldham: My Lords, it will be recognised from my reply to a previous debate that I am sympathetic to the case which the noble Lord has outlined. As I said earlier, LEAs will not cut children adrift. Those who are being educated in the way in which the noble Lord described, for example, awaiting the possibility of a statement and being educated under a parent's decision, do not disqualify themselves or devalue their position in respect of the responsibilities of the local authority.
When a proposed statement is issued or reviewed, or an LEA proposes to change the name, type of school or provision specified in the statement, the LEA must not name a school in Part IV of the proposed statement. Parents have the right to express a preference. It may be that they would wish the local authority to support the student in the placement that the noble Lord outlined, and they may succeed in persuading the local authority that that is the best way in which a child's education should continue. The LEA is obliged to consider that parental position before naming the school. If parents have made their own suitable arrangements, no school will be named.

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If the amendment were accepted, LEAs, knowing that parents wanted to make their own alternative arrangements—home education, for example—would have to go through the process of naming the school in the statement, including consulting schools, so that the parent could then fail to take up the place, as everyone knew they would. Such parents would have chosen another strategy, and all the while the place that was available via the statement would have been denied to another child.
That is why we vest considerable responsibility in the LEA. Of course, I recognise the circumstances that the noble Lord outlined about parents taking an alternative course of action. I am seeking to reassure him that that does not reduce in any way the significance of the child's case. The local authority must consider it in the same way it would consider any other child with comparable needs. I hope that, given my assurance, the noble Lord may feel that he can withdraw his amendment.
Lord Lucas: I found the Minister saying everything that I hoped he would, except the final answer. Perhaps we can continue this discussion separately, as there must be some agreement somewhere. If the local authority does not have to name a school, and my child is in an independent school, awaiting the statement, how can I make the transition? There will be no school for my child to go to. How can I take her out of independent schooling? I may be desperately running out of money and waiting and waiting for the local authority to offer a school but it is under no obligation to do so. It does not even have to begin the process of naming a school until I have taken my child out of private education. Therefore, there must be a hiatus of six months, a year, two years, during which my child is not educated, between my money running out and her being found a school by the local education authority. That is not an acceptable way of doing things.
There must be some mechanism whereby I can declare to the local authority that I will accept a statement; whereby it is clear that what I am doing is only a temporary measure until the local authority makes the provision. Therefore, I can avoid my child being dropped into a position of not being properly looked after for a couple of years.
I understand everything that the Minister is saying but I am sure that he must agree that it is very unsatisfactory. The local authority does not escape the rest of its obligations but it does not have to provide a school. There is the statement but there is no school to go to. There is no place. There is nowhere my child can go. I must wait until my money runs out and then keep her at home for a couple of years until the local authority provides a place. That is not satisfactory. There must be a better way. Unless it is possible to resolve the issue, I shall return to it at Third Reading. But for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 62 and 63 not moved.]
11 p.m.
Baroness Blackstone Baroness Blackstone moved Amendment No. 64:
After Clause 9, insert the following new clause—
("Amendment of statement of special educational needs
AMENDMENT OF STATEMENT OF SPECIAL EDUCATIONAL NEEDS
. Schedule (Amendment to statement of special educational needs) makes further provision concerning the rights of parents and others where a statement of special educational needs is amended.").
The noble Baroness said: My Lords, the amendments in this group tabled in my name respond to amendments moved by the noble Baroness, Lady Darcy de Knayth, and substantially meet her concerns. They amend Schedule 27 to the Education Act 1996 to give parents the right to a meeting with the LEA to discuss proposed changes to their child's statement following any reassessment or periodic review—typically an annual review; require LEAs to make arrangements for parents to express a preference for a maintained school, including a maintained special school whenever changes are proposed to their child's statements following a reassessment and where changes are proposed in relation to the type of school or named school following a periodic review.
These amendments address the problem that the noble Baroness highlighted of parents of children who were assessed when they were very young having limited opportunities to express a preference for a maintained school. They greatly increase those opportunities. They will also ensure that maintained schools which LEAs are considering naming in a statement receive a copy of the proposed statement or proposed amended statement for that child as part of the consultation process.
We have consulted separately on a proposed change to the Education (Special Educational Needs) Regulations 1994 which would require LEAs to amend the statement for a child transferring schools by 15 February in the school year prior to the transfer. That will give parents time to express their preference for a maintained school and, if necessary, have an appeal heard by the SEN tribunal before their child is due to start at the new school.
Amendments Nos 162, 163 and 164 make minor technical amendments to Schedules 7 and 8 to the Bill as a consequences of the changes brought about by Amendment No. 152. I must make clear that we have overlooked making some consequential amendments necessary as a result of the changes proposed to Schedule 27 and we shall bring those forward at Third Reading.
At this point, since we are considering amendments moved in Committee by the noble Baroness, Lady Darcy de Knayth, I must point out that we have considered further an amendment moved by the noble Baroness in Committee concerning professional advice sought for statutory assessments. The amendment would have placed a duty on LEAs to seek advice for statutory assessments on the nature of a child's special educational needs and on the type and amount of special educational provision to meet them.
Having reflected on the points raised during the debate and discussed them further with the noble Baroness, we remain of the view that the current regulations governing LEAs' duties are clear and do not need to be amended. They already require that advice should relate to the educational, medical, psychological or other features relevant to a child's educational needs and the provision that is appropriate in the light of those features. Professionals giving advice can, therefore, already comment on the nature of a child's special educational needs and the amount, as well as the type, of provision that they consider appropriate.
We do not believe that it is right to go further and require every person giving advice for an assessment to state a recommended amount of provision in every case; that must depend upon individual circumstances. None the less, we understand the concerns expressed by noble Lords, and wish to offer reassurance. We shall enhance the guidance on assessments in the revised SEN code of practice by setting out specifically the statutory requirements that LEAs must follow when seeking the advice to which I referred. The revised code of practice will advise that LEAs should make those requirements clear when they seek advice. It will also make clear that those giving advice can comment on the amount of provision that they consider appropriate for a child.
During Grand Committee, the noble Lord, Lord Lucas, expressed concern that LEAs were preventing educational psychologists from producing independent and meaningful reports for assessments. We have no evidence to show that that is the case; nor did the research that we completed recently on The Current Role, Good Practice and Future Directions of Educational Psychology Services(England) reveal any concern about the integrity and independence of educational psychologists. To recognise noble Lords' concerns, we shall state in the revised code of practice that LEAs should not have blanket policies that prevent those giving advice for assessments from commenting on the amount of provision that they consider a child requires. I beg to move.
Baroness Darcy de Knayth: My Lords, I thought that the noble Lord, Lord Lucas, was going to speak to his amendment that seeks to amend the schedule—
Lord Lucas: My Lords, I was going to wait for my amendment to be called.
Baroness Darcy de Knayth: My Lords, I beg the noble Lord's pardon.
I should like to give a very big welcome for these government amendments, which, as the noble Baroness said, will greatly strengthen parents' rights to express a preference for the school. I have to say that
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IPSEA (the Independent Panel for Special Education Advice), of which I am a member, says that this will make a great difference to a large number of children with statements, and their parents.
Perhaps I may, prematurely, support Amendment No. 153, tabled in the name of the noble Lord, Lord Lucas. I supported his amendment in Grand Committee, although I believe that it is slightly changed in its present form. I hope that the Minister will look kindly upon it. Nevertheless, I trust that the noble Lord will not press it this evening because I believe that these government amendments are hugely welcome. I would hate to see them put at risk in any way.
I turn to the Minister's statement about professionals' reports, which, as she said, was in response to an amendment that I moved in Grand Committee. I am most grateful for the meeting that we had with Jacqui Smith. I know that the Minister intended to be present. It was an extremely useful meeting. I am very grateful that the Government have reflected, listened and gone a good long way towards meeting my concerns. As the noble Baroness said, professionals will know that they can include in their reports the type and amount of provision required. I understand that the Minister has to be cautious, but I also welcome her statement that it would be wrong for any LEA to prevent a professional from including that advice in a report. I am really delighted with the government amendments, which will make a huge difference to hundreds of children.
Lord Lucas: My Lords, I am not sure when my amendments will be called, so I shall leave their specific substance until that stage. In the meantime, I should like to comment on these general amendments. I am delighted that the noble Baroness has proposed to rewrite the schedule. I thank her very much for providing me with a copy of the revised schedule. I cannot say that I totally comprehend what it says.
I am also delighted that the noble Baroness has taken on board what I said previously about educational psychologists. I am sorry that the Government are not receiving the evidence in this respect. It is quite evident to practitioners what is going on; for example, there is a whole range of educational psychologists who will not take cases in front of a tribunal because they are so dependent on local education authorities for their money. This is one of the regular traps into which parents fall. They find themselves having to pay for two reports from educational psychologists because the first one to whom they spoke said that he would not apply to a tribunal. But what the noble Baroness has done is at least a step in the right direction and I welcome that.
Baroness Blackstone: My Lords, I am grateful for the welcome that these government amendments have received from the noble Baroness and from the noble Lord.
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 65:
After Clause 9, insert the following new clause—
EXERCISE OF RIGHTS BY CHILD
(". In section 576 of the 1996 Act (meaning of "parent"), after subsection (4) insert—
"(5) For the purposes of Part IV of this Act, a child may exercise the rights conferred on a parent in relation to the Special Educational Needs Tribunal if that Tribunal declares that he is capable of so doing."").
The noble Lord said: My Lords, the question raised in Amendment No. 65 is one that we raised in Committee. I think that there was widespread understanding of the underlying problem; namely, that for many children with special educational needs their parent is effectively the local authority because they find themselves in care or in other ways under the charge of the authority. Under those circumstances, however much one may praise local authorities and local education authorities, it is hard to impose on them a duty to be so critical of themselves as to take themselves to the tribunal to defend the rights of one of their clients against their own actions. In reality, a local authority and a local education authority are not really separate people.
Under those circumstances it is important that there is a separate right of action for the child. It clearly has to be a moderated right, which is why I propose that that right should be under the control of the tribunal and should only be exercisable if the tribunal says that it should be. There is a more general principle to which I think regard needs to be paid; namely, that children, by and large, should be given a voice where they have the competence to express a voice. That is something that is clearly recognised by the Government in actions that they are taking as regards guidance. But it does not seem that guidance extends to this part of the Bill. Indeed, without this kind of provision in the Bill, there is a prohibition on a child bringing an action in front of a tribunal. He or she can give evidence but they cannot bring the action. So a child who is not being properly provided for by his or her local education authority and who is in care has no way of obtaining proper provision.
Indeed, under Clause 1 of the Bill, as regards one of the basic fundamental decisions concerning whether a child should be educated in a mainstream school or in a special school, the only moderator is the wishes of the parent. The parent in the case I am describing is the local authority. Again, the child in that case has no access to that right and to that decision. I do not see a way round that. I think that under the Bill as it stands we have to trust to the good offices of the local education authority.
But I think that where we can deal in a reasonable way in offering a child access to justice and good treatment, we should do so. We should certainly recognise the potential for conflicts with children in care, many of whom have special educational needs and many of whom are quite difficult children in any event. We should not present the local education authority and the local authority with a conflict on the scale which we have now. We should offer the child an
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independent right of action in front of a tribunal as a way of allowing justice to be done and justice to be seen to be done for that child. I beg to move.
Baroness Blatch: My Lords, I support my noble friend. I believe that there was support for the measure on all sides of the Committee. I believe that there was support from the noble Lord, Lord Rix, from the Liberal Democrat Members and from other Cross-Benchers.
In Committee the Government did not give any comfort whatever as regards the plight of a child whose guardian is the local authority. In a predominant number of cases which go to the tribunal, the problem relates to the LEA and the type of provision made for the child. It seems unlikely that the LEA which is the technical guardian of the child will take itself to the tribunal. The noble Baroness split hairs, saying that the LEA is not the authority, or the authority is not the LEA. The truth is that the local authority is still responsible for the care of the young person. The housing authority may be responsible for accommodation; social services may be responsible for guardianship. Many people are involved.
However, those who are of an age to be capable of making a judgment as to whether their provision is appropriate should be given the facility to act on their own behalf if no parent can act for them. I have read carefully what the Government said in Committee. The Government offered no comfort to those of us who are concerned about the young person who has special needs but who, sadly, is not with a family, does not have parents or may have parents who are unable to care for him and is in local authority accommodation. That young person is bereft of an avenue to the tribunal. It would be helpful to have something more comforting from the Minister about what a young person in that position could do.
11.15 p.m.
Baroness Blackstone: My Lords, I am not sure that I am able to be more comforting than in Committee. The amendment would create dual rights of appeal for the parent and the child where the tribunal considers a child capable. I believe that this could be confusing and I do not think that it is necessary.
As I made clear during the debate in Committee, where a child is in care parental responsibility rests with the local authority. That is well established. What happens in practice in the case of a conflict between the social services department and the LEA about the special educational provision to be made for a child is that the child's social worker represents the interests of the child or a third party is appointed to do so. Sometimes, of course, foster parents will have a role to play.
I know that this happens in practice without the conflict of interest about which the noble Lord, Lord Lucas, and the noble Baroness have expressed concern. In any event, we are strengthening the arrangements for hearing the child's views at a tribunal. The new SEN tribunal regulations will entitle

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the child to attend the hearing of an appeal and to give evidence at the tribunal's discretion. The current regulations do not expressly entitle the child to attend hearings.
New SENT regulations will also require an LEA responding to an appeal to state the ascertainable views of the child. The amendment would require the tribunal to decide in advance of any appeal made to it by a child that the child was capable of making such an appeal. This would delay the resolution of the appeal to nobody's advantage.
In view of my reassurances I hope that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.
Lord Lucas: My Lords, I am disappointed by the answer but have to accept it. I suspect that the Government will see the issue arise again in a court case at some stage in the future. It cannot be acceptable that in a modern world a child does not have separate access to justice. That attitude is completely at variance with other actions the Government have taken, I think rightly, in relation to individual and children's rights. I am sorry that the Government do not see their way to extending principles they have applied elsewhere to this situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 66 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 67:
After Clause 9, insert the following new clause—
REQUIREMENT TO MAKE A STATEMENT OF EDUCATION NEED
(". Local Education Authorities are required to make a statement of education need for any child referred to them by a school medical officer within 6 months of the referral).
The noble Baroness said: My Lords, we are all aware how important it is for a child's special educational needs to be addressed as early as possible in the child's schooling. For that reason, I have tabled new Clause 10. A child's parents, a school medical officer or a school nurse is often the first person to see signs of physical or special needs in a pupil. Such people are experienced andqualified. Their professional opinion should carry particular weight when a request for a child to be statemented is made. When a request to an LEA for a statement is supported by a school medical officer or school nurse, the statement should be forthcoming within a reasonably short timescale.
All too often we hear of significant delays in obtaining a statement for a child. Sadly, special educational needs identified by professionals in primary school are not always picked up when the child transfers to secondary school. The secondary school may spend several school terms reinventing the wheel in noting the child's special educational needs and then find that it is unable to provide for that child, who then has to make another transfer to a more suitable school, having lost many months—and sometimes more—in the process.
I am particularly concerned about pupils about to make the transfer to secondary school. It is in the best interests of the child for a statement to be made before any transfer if a school medical officer or school nurse thinks that they have noted specific special needs. We may need to go further than the amendment and require local education authorities to provide a statement for such a child before they leave primary school, but before we consider strengthening the amendment I would welcome hearing the Minister's response. I beg to move.
Baroness Blackstone: My Lords, we do not believe that the amendment is appropriate. It is for the LEA to decide, in the light of appropriate advice, whether a child has special educational needs, and if so what action should be taken. The only requirement on health authorities is to provide for a medical and dental inspection at appropriate intervals for pupils at maintained schools, but that does not necessarily mean on school premises or by a school health service. Consequently, only some children may have access to a school medical officer. In such cases we expect the LEA to take into account the views expressed by the school medical officer, a designated medical officer for SEN as appointed by a health authority or a referring paediatrician. I hope that the noble Baroness accepts that suitable provision can be made without a statement. Not all the parents or children concerned will necessarily want one.
To require the making of a statement in all such instances may also lead to an extra layer of bureaucracy, which will mean less time and resources being devoted to move deserving cases. LEAs should be able to determine, on all the evidence available, which children need to be assessed and provided with statements. The amendment may lead to greater delays in the processing of statements and adverse effects on the provision for the children concerned.
As we pointed out in Committee, the current SEN code of practice offers clear advice to LEAs and others involved to ensure agreed procedures for referring a child to the LEA. However, we are certainly not complacent. I assure the noble Baroness that relevant practical guidance will be produced for health and social service professionals with a view to encouraging closer joint working between agencies. I confirm that we will reinforce the message that LEAs should pay full regard to the recommendations of school medical officers if the child has access to them. If such professionals have identified a possible need, LEAs should act on it, but acting on it may not necessarily require a statement.
A first round of consultation on the revised code of practice in 1999 proposed that health authorities could request an assessment. That idea met with a negative response from health respondents, including the Royal College of Paediatricians, on the grounds that, although they might identify special educational needs that required provision to be made, they did not feel that they had the expertise to identify the level of intervention needed—school-based or with a statement—and they did not want to raise parents'

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expectations inappropriately or to add to the LEA's workload. Under these circumstances it is unlikely that school medical officers or other doctors would want the responsibility of deciding that a child must have an assessment and statement.
Therefore, we are not convinced that this amendment is necessary, particularly since action can already be taken quickly where assessments are necessary. Fast-track arrangements are possible under the current code of practice. The existing code makes it clear that in exceptional cases it may be necessary to make an emergency placement for a child and that it should only be made when the LEA, the parents, the school and other professionals who would be involved in the statutory assessment all agreed that the child's need are such that action must be taken immediately and that an emergency placement is the best way forward.
We are committed to making sure that the needs of children are identified rapidly and that the LEA and the health authority develop consistently good links for the benefit of the children concerned. In the light of those remarks I hope that the noble Baroness will withdraw her amendment.
Baroness Blatch: My Lords, I am grateful for the sympathetic tone of the noble Baroness's response, but I believe there is also a misunderstanding between us about the amendment. Indeed, while the noble Baroness has been speaking I have found a way in which to re-word my amendment, which would meet the points she has made.
Of course, it is not for the medical staff to make the statement and my amendment does not suggest that. That is for the LEA, which my amendment recognises. It is the LEA's responsibility to provide the statement. The noble Baroness also made the point, which is true, that where a referral is made by medical staff of the kind I have referred to in speaking to this amendment, it will not necessarily result in a statement in each case. It may result in some provision for the child, but not necessarily a statement.
If I am more correct about what I want from the statement in the amendment I would word it to the effect that local education authorities are required to make an assessment and, where appropriate, produce a statement of educational need for any child referred to them by a school medical officer within six months of the referral. I say that because it is very often the avenue through which the school becomes aware that there is a problem. Either the health visitor or someone involved with the family medically discovers that one of the worries that the parent has is of a particular need which the child has. Inadvertently a particular is revealed. For many years I was chairman of my local play group. We picked up issues very often through the visiting health official. These were then processed into the system.
It seems to me that where a medical officer shows very real concern about the learning difficulties or the special needs of a child, those should not only be taken seriously but should also result in timely action. That
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is why my amendment refers to a six months' deadline from the particular request. Recognising some of the points that the noble Baroness made and picking up her sympathetic tone, I believe that it is important to put on the face of the Bill that where medical staff request that a child is assessed and, if appropriate, a statement produced, it should be done within a timescale. I shall seek to return at Third Reading with such an amendment. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 10. Discrimination against disabled pupils and prospective pupils]:
Baroness Blatch Baroness Blatch moved Amendment No. 68:
Page 9, line 12, at end insert ("on the grounds of the disability of that person").
The noble Baroness said: My Lords, this is a. large group of amendments including Amendments Nos. 68, 69, 71, 119, 120 and 161. It is important to clarify on the face of the Bill the definition of discrimination. This Bill is about discrimination on the grounds of a person's disability. For all other purposes there are other statutes which apply to all citizens of the United Kingdom and therefore they are outwith this Bill, which refers specifically to discrimination on the grounds of a person's disability.
All the points which I made individually in Committee are in a different context but make the same point. The amendments make clear that unlawful discrimination is discrimination on the grounds of disability. The different parts of the Bill need to be very carefully worded. It is an important issue if this measure is not to be abused, as I believe it could be. It is right that a disabled person should be protected against discrimination on the grounds of that person's disability. But fair discrimination applied to all pupils must include disabled pupils. It separates out all of the other forms of discrimination from the Bill's primary aim, which is to ensure that young people are not discriminated against on the grounds of their disability. I beg to move.
11.30 p.m.
Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness for the helpful way in which she expressed her objectives in the amendments. As she rightly said, we discussed these matters at some length in Committee.
The amendments seek to confine the duty on schools and post-16 institutions not to discriminate against disabled pupils, students and people who are enrolled on courses to discrimination on the grounds of disability only. I recognise the strength with which the noble Baroness stressed that point.
I am afraid that I must simply reiterate what was said in Committee. We do not consider the amendments, however worthy, to be necessary. The Bill is about outlawing discrimination on the grounds of disability. Part II of the Bill will amend the Disability Discrimination Act 1995, which, as its name suggests, is about discrimination on the grounds of disability.

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Clauses 11 and 26 make it entirely clear that discrimination will not take place unless there has been less favourable treatment of a disabled person for a reason relating to his disability, or a failure to make reasonable adjustments to ensure that disabled persons are not placed at a substantial disadvantage in comparison with non-disabled persons. I do not think that there is any danger of the Bill being misinterpreted on that point. That I why I hope that the noble Baroness, whose intentions are laudable, will recognise that the amendments are not entirely necessary.
Baroness Blatch: My Lords, I shall single out Clause 10 to make my point. As has been said so often in relation to previous amendments, I begin with what is stated in the Bill. I do not refer to other legislation, because there is not a cross-reference in this context to any other legislation. The Bill stands freely in relation to proposed new Section 28A, which states:
"It is unlawful for the body responsible for a school to discriminate against a disabled person".
It does not refer to doing so on any grounds whatever; it simply states that it is unlawful to discriminate against a disabled person, full stop.
It is important to make it explicit—this is the Bill's rationale—that the discrimination that is referred to should not take place in relation to a pupil's disability. I understand what the noble Lord said; it goes without saying that discrimination will of course be carried out in relation to a pupil's disability, but that is not what the Bill states. If a disabled person is discriminated against, he can literally invoke the Bill's provisions and simply say, "I am a disabled person and I have been discriminated against". However, if the discrimination is not specific to that person's disability—if he has simply been discriminated against and happens incidentally to be a person with disabilities—a confusion will arise. There are no qualifications in the Bill. My amendments attempt to deal with that situation. Will the noble Lord explain the situation more explicitly? The clause states:
"It is unlawful for the body responsible for a school to discriminate against a disabled person … in the arrangements it makes … in the terms on which it offers to admit him … or … by refusing or deliberately omitting to accept an application".
Lord Davies of Oldham: My Lords, we are not in Committee; we are on Report. I merely reiterate what I have already said. Discrimination is specifically defined in Clause 11. Proposed new Section 28A will become Section 28A of the Disability Discrimination Act 1995. Nothing could be more explicit in linking this Bill to the position on discrimination and disability: that is the basis on which we hope that the noble Baroness will withdraw her amendments.
Baroness Blatch: My Lords, may I say that I asked a question, and my understanding is that under the rules of this House that is allowed at Report stage. Indeed, I am grateful for the clarification that the noble Lord has given. I am also grateful for the way in
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which we can use the Pepper v Hart example, which is firmly on the record to the effect that discrimination is quite specifically on the grounds of that person's disability. That in itself could be invoked in any future cases. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 69 not moved.]
Lord Addington Lord Addington moved Amendment No. 70:
Page 9, line 23, at end insert—
("( ) For the purposes of subsections (1) and (2) above, it shall be a defence for the body responsible for the school to show that the pupil could be equally well provided for at less cost, or could be better provided for in another school of the same kind and in the same district because that school already has facilities and staff (or both) trained to cope with the kind of special educational provision that child requires.").
The noble Lord said: My Lords, the noble Lord, Lord Northbourne, has asked me to move his amendment. I believe that the amendment is self-explanatory, and I beg to move.
Lord Lucas: My Lords, I shall be very interested to hear how the Government react to this. I am mostly interested in the principle that lies behind it. There are, for instance, three very good secondary schools in Winchester. Do they all have to provide for every kind of disability, or can they agree among themselves that a particular group of disabilities will be dealt with by one school, another group by another, and that they will thereby specialise and improve the overall service that they provide? If they are allowed to do that, they have to be able to say, "We do not provide a service, but one of the other schools does". I look forward to the Government's reply with great interest.
Baroness Blatch: My Lords, I want to add just one more point to that. This is an issue which applies also to the further and higher education sector. It would help to have clarification from the Government. To give the example of loop systems for hearing-impaired people, taking it to the extreme, one could expect every building in the land to be provided with a loop system which could be fitted into every nook and cranny of every college and educational establishment. Alternatively, there could be arrangements where, for example, a school might have no people with hearing or sight impairment but there could be an institution within reach in a local area where people are well provided for physically. It seems to me that there has to be some flexibility and, like my noble friend Lord Lucas, I hope that we shall hear something encouraging from the Minister.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for the precision with which he moved the amendment, and even more grateful to the two subsequent speakers, who have provided the basis for my response. The noble Lord, Lord Northbourne, raised these issues in Committee. His amendment would allow schools to discriminate in admissions or the provision of education where a similar school in the same area could provide as well for a child, at less cost, or better, because it is already equipped to do so.

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I fully understand the intention behind this, which is to allow schools to specialise in catering for one particular type of disability, thereby avoiding having to cater for a whole range of children with disabilities when they do not have the facilities or resources so to do. It is not the intention of the Government that every school in the land should be able to provide for every type of disability or need, however profound. I think it is recognised that this would be impractical in the short term and probably in the longer term. Indeed, we are encouraging special schools, which by their very nature cater for a particular type of disability, to link with their local mainstream schools to pass on their expertise as a contribution.
This will mean that some mainstream schools will become expert and competent in one type of disability or special educational need. I also accept that under the planning duty LEAs and schools may focus on making schools accessible to children with a particular type of disability. With that response, I hope that it will be recognised that the Government fully understand the representations made in relation to this amendment and that the amendment will be withdrawn.
Lord Addington: My Lords, I thank the Minister for his reply. I hope that the noble Lord, Lord Northbourne, will be happy with that. That was a precise answer. I can think of many questions for another stage, although I may resist them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 71 not moved.]
Lord Addington Lord Addington moved Amendment No. 72:
Page 10, line 13, after ("know") insert ("(having given the opportunity for disclosure by parents, guardians or the child)").
The noble Lord said: My Lords, in relation to this amendment I am returning to a point raised at an earlier stage of the Bill. This group of amendments inserts the words "having given the opportunity" to disclose a disability when a pupil goes to a school or a college. I feel that we need to cater better for providing that opportunity as regards further and higher education. As the noble Lord said at an earlier stage, those methods and that power must be anticipatory. The fact is that if one does not know that one has to kick the methods into being, there will be delays and mistakes.
I appreciate that the Minister has said many helpful things, but I am concerned about the initial stage. People may well believe that they know what they are doing, because they have dealt with someone who is deaf before. If they need a different type of hearing aid or signing, as that was part of the person's previous education, they will not know what they are doing as everyone is different.
I have personal experience of just such a situation. Before the codes came into being, my own university thought that it knew how to deal with dyslexics because it had dealt with me, but someone else arrived who did not like dictating essays to a typist and wanted
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a few hours extra in which to write essays. They approached that person saying, "We know what we are doing", but they did not.
Blanket terms will always mean that an individual may not be dealt with properly. The amendments in this group merely allow a position in which to start a dialogue and to give some examples of what has taken place before. I hope that the Minister will be able to give me an answer that will show that such a dialogue will be given more opportunity.
I repeat that in further and higher education it is probably even more important for the simple reason that students are outside the mainstream of support. For the first time, and often after a break from education, students are studying without their parents' support. If somebody enters further education having had a bad experience of education in schools, I suggest that such assistance is even more appropriate. I hope that the Minister will be able to give me a positive assurance and take the matter further. I beg to move.
11.45 p.m.
Lord Davies of Oldham: My Lords, it goes without saying that I am sympathetic to the intention behind these amendments. The issue is whether they are necessary. I entirely understand the terms in which the noble Lord moved the amendment. It is aimed to ensure that a school or an institution has undertaken the responsibility before it can be deemed not to be liable under the less favourable treatment duty and the reasonable adjustments duty because it does not know and could not reasonably be expected to have known of a person's disability.
As I explained before, the duty on schools, as the noble Lord recognised, and post-16 institutions to make reasonable adjustments is anticipatory. Responsible bodies cannot, in general, simply wait until a disabled pupil or student arrives at the institution before considering making an adjustment. Nor can they claim that the fact that they did not know that a person was disabled excuses them from their duty to make reasonable adjustments to avoid substantial disadvantage to disabled students generally.
Under these duties, institutions and schools will have to anticipate and plan ahead. They must review their procedures and provision to ensure that they do not discriminate against potential disabled pupils or students.
Both Clauses 11 and 26 make provision for responsible bodies not to be liable in respect of both the less favourable treatment duty and the duty to make reasonable adjustments.
Most schools, colleges and universities should have, and indeed already do have, procedures in place to try and ascertain if a pupil or student or prospective pupil or student has any disabilities or special requirements. There are opportunities on the admissions form such as a tick-box, or at the admissions interview, to declare a disability or the need for any additional support. This self-identification can then form the basis for a discussion with a pupil or student to clarify their needs

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and how they will be met if that is required. I am happy to endorse such practices and to state our expectation that they should become universal. Indeed, I anticipate that this will be one of the effects of the Bill, if enacted. I am not convinced that we should make a specific provision on the face of the Bill, although of course we want the responsibility on the institution to be an active and not a passive one, which I believe was the burden of the representation of the noble Lord, Lord Addington.
I believe that the present drafting of the Bill provides for the right balance and will bring about the effect that we all want. We will be able to talk about resources in the later stages of the Bill. However, I believe that the noble Lord recognises that in schools, in further education and in higher education, significant sums have been allocated specifically to ensure that institutions meet their obligations. We all recognise that that cannot be done overnight. But, as I understood the representations by the noble Lord, it is important that there should be proactive and stimulus stages in relation to institutions. I maintain that the Bill as drafted will provide exactly this stimulus and demand.
Lord Addington: My Lords, that was an answer which said, "Yes, it is good practice" and "Yes, in previous amendments we have decided that certain schools should let people specialise in subjects", which must mean they must know they are the right people to specialise in them. It is good practice. It should happen. To sensible people it will happen. But I cannot help but feel that there will be cases, particularly in adult education and probably in further education colleges when there are not interviews, that this will not take place. Perhaps one fills in a form which does not have the question on it. Although the answer that the noble Lord has given, and presumably is in Hansard, saying that this would be good practice has gone some way to answering this concern, I am not altogether happy. I shall have to consider the matter further. At the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Disabled pupils not to be substantially disadvantaged]:
Baroness Blatch Baroness Blatch moved Amendment No. 73:
Page 11. line 1, leave out ("substantial").
The noble Baroness said: My Lords, when I moved the amendment in Committee I made clear that I accepted the need for the qualification "substantial" to apply to disadvantage to a disabled person once admitted to a school, or, in a parallel amendment, to a college.
Much as we try to ameliorate disadvantage to a disabled person, there will always be some disadvantage. It may be that doors open the wrong way, fire doors are too heavy, corridors are difficult to negotiate or ramps are too steep. One hopes that all those issues will be reduced over time. While there
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should not be substantial disadvantage once in the school or the college, there is likely to be minor or trivial disadvantage.
On admission to the school or college, the position is quite different. Yet the Bill uses the words "substantial disadvantage" for both admissions as well as participation in the school once admitted. Admissions means the procedure for being accepted into the school. Discrimination on the grounds of academic ability or other such specialism is permitted, so that everyone who does not have the required ability or aptitude is at a disadvantage. Discrimination on the grounds of age, single sex provision or religious denomination are all legitimate admissions criteria which schools can apply and which affect all applicants, disabled or not. There are no disadvantages in applying for and being accepted into the school which can or should apply to disabled applicants and not to all others; no disadvantages, not even minor or trivial examples.
It follows, therefore, that if in this clause we persist in qualifying the disadvantaged by referring to no "substantial disadvantage", that inevitably permits of less substantial disadvantage to the disabled when in fact there should not be any.
In searching for an example where a disabled applicant would have some disadvantage, when pressed in Committee by my noble friend Lord Lucas, the noble Baroness, Lady Blackstone, suggested that where the entrance examination to a selective school was set for a particular day of the week and where the disabled applicant already had a commitment for that day of the week to attend somewhere else in connection with their disability, then that would be a disadvantage, but not a substantial disadvantage. That was a poor example. Indeed, it was not an example at all because instances arise where an applicant who is not disabled may contract flu and cannot attend. Arrangements are then made for the applicant to sit the test on another day. The same would apply to the disabled applicant. The applicants are on all fours in that respect.
There should be no situation so far as concerns admissions criteria where any difficulty or disadvantage is greater for the disabled applicant than for an applicant with no disability. Both should be treated the same and both should be treated equally on application for admission. I should say that this amendment is grouped with Amendment No. 125. I beg to move.
Baroness Blackstone: My Lords, as I explained in Committee, "substantial disadvantage" is the trigger for the duty on schools and post-16 institutions to make reasonable adjustments for disabled pupils or students.
This amendment would remove "substantial" from the trigger in respect of reasonable adjustments to admission arrangements only. It would create a two-tier reasonable adjustment duty. The trigger for adjustments to the provision of associated services would be "substantial disadvantage" while the trigger

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for adjustments to admission arrangements would be merely "disadvantage". I suspect that this would cause no end of confusion for schools and post-16 providers.
The Disability Rights Task Force recommended that "substantial disadvantage" be the trigger for the reasonable adjustment duty. We accepted that recommendation and we do not wish to consider a new trigger, not even for the admissions part of the duty. Substantial disadvantage is already a relatively low level test. In the context of the Disability Discrimination Act, it means "more than minor or trivial". It is a trigger for the reasonable adjustment duty on employers and it is well understood and effective in that context. Admission to a school, college or university has similar characteristics to securing entry into employment such as selection tests, interviews and so forth. There is no reason to believe that "substantial disadvantage" would not work as well as in the admission arrangements in education just as it does in entry into employment.
In suggesting the removal of "substantial" in the trigger, the noble Baroness would create a situation where schools, FE and HE institutions would have to make reasonable adjustments to their admission arrangements, however slight or trivial was the disadvantage.
We are not legislating mere inconveniences. We are legislating to ensure that schools, colleges and universities help disabled pupils and students where there are real barriers to their participation in education; real difficulties beyond what any of us might be expected to put up with. Otherwise there would be no end to the potential for dispute and challenge. Schools and colleges would be dissipating their resources to deal with a myriad of minor difficulties instead of focusing on the bigger problems that really do need to he addressed.
I know that I have disappointed the noble Baroness on this issue. But we feel strongly about accepting the Disability Rights Task Force's recommendation that "substantial disadvantage" is the trigger for all of the reasonable adjustment duty. I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Blatch: My Lords, I am sorry that the noble Baroness does not feel able to go down the road of making life as equal as possible in terms of discrimination as regards gaining access to colleges and educational establishments.
The noble Baroness said that this could give way to "minor or trivial" disadvantages. But if they are minor or trivial, the adjustments required to overcome them must also be fairly minor or trivial. Therefore, it seems to me that it is possible to address the smaller matters, and to go as far as possible to make sure that people with or without disabilities are not subject to discrimination in terms of access. It is a very different kettle of fish once a pupil is in an establishment; one is talking about something more substantial.
I am sorry that the noble Baroness does not find it possible to resort to the words in relation to the arrangement made for determining the admission of
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pupils to a school—the provision would also apply to colleges later in the Bill—so that disabled persons are not placed at a disadvantage in comparison with persons who are not disabled. I believe that those aims are achievable; but clearly the Government have their face set against them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 74:
Page 11, leave out lines 9 to 14.
The noble Lord said: My Lords, in Committee, my amendment was moved by the noble Lord, Lord Morris of Manchester, because I was unwell. My noble friend kindly read my speech to the Committee. The amendment received a great deal of support from Members of the Committee, but not from my noble friend the Minister. In rejecting the amendment, she said:
"Children with statements of SEN have an enforceable right to provision … which may incur auxiliary aids".—[Official Report, 30/1/01; col. CWH 185.]
That is the nub of the amendment: the provision of auxiliary aids.
In replying, my noble friend the Minister said that she saw no need for the amendment. I think that she is badly mistaken. First, statements do not necessarily lead to satisfactory provision; and secondly, by no means all disabled children get statements. The Royal National Institute for the Blind has found that nearly 30 per cent of children with significant visual impairments progress through school without statements. Overall, one in three blind or partially sighted pupils do not receive test papers in their preferred format. Imagine that, my Lords—the wrong format, with children having to stand the test of examinations. That is the extent of the current failure to make proper provision. The objective of the amendment is to help non-statemented disabled children.
The amendment does not say that schools must provide aids and services for such children. But deleting the lines in question would change the atmosphere in a subtle but profound way. It would bring the provision back under the important, vital umbrella of "reasonable duty".
My noble friend said that she preferred a strategic arrangement with local educational authorities working in partnership with schools rather than seeking to require all 25,000 to make reasonable physical adjustments. No one said that we wanted to place this requirement on all 25,000 schools. I certainly did not say that and the amendment does not do so. So my noble friend is knocking down an Aunt Sally; something which in fact is not there and is a figment of her imagination. The amendment says no such thing. I have no theoretical objections to an LEA strategic approach so long as it is reasonable and gives disabled children an effective choice between schools that are not too far apart.
I hope my noble friend will recognise that in practice her approach will lead to inconsistencies and inequalities throughout the country. If one school caters for deafness and another for blindness, we will have segregation by yet another name. Amendment No. 74 provides better prospects for disabled children needing auxiliary aids. They need them and are entitled to them. My proposal will make it even better because it will be accompanied by a code of practice. I commend the amendment to the House and especially to my noble friend the Minister. I beg to move.
The Deputy Speaker (Baroness Cox): My Lords, if Amendment No. 74 is agreed to, I cannot call Amendment No. 75 because of pre-emption.
Midnight
The Earl of Mar and Kellie: My Lords, I too put my name to Amendment No. 74. I have been wondering for several hours whether I would be speaking to this amendment before or after midnight. The bells have just told me that it is after. As usual I shall be speaking in the Scottish context.
In response to a similar amendment in Grand Committee, the Minister emphasised the fact that this clause of the Bill was strategic in purpose. By that definition I believe the noble Baroness sought to explain that each education authority would lay in facilities appropriate for various disabilities somewhere in their schools' estate. I can see her point and it is a good argument in the limited context of a city or large borough. However, the argument runs into sand when we consider the school estate of some rural and remote area local authorities, and of course in the four island groups.
Clearly, the disabled pupil in, say, Kinlochbervie, cannot travel on a daily basis to appropriate facilities in Inverness—a journey of at least 100 miles—though it is well within the Highland council area. The requirement to board away from home is undesirable for most families. Without Amendment No. 74, rural and remote areas will not benefit from this extension of the DDA into schools. The argument about lack of resources will be supreme.
I hope the Minister will be able to explain how the Bill will deliver itself meaningfully in the rural and remote areas of Scotland and elsewhere.
Baroness Blatch: My Lords, I have an amendment coupled with Amendment No. 74 which refers to the defence,
"if to do so would incur unreasonable expenditure".
However, after listening to the noble Lord, Lord Ashley, and the noble Earl, Lord Mar and Kellie, I believe that what is required is some very real flexibility.
The example given by the noble Earl, Lord Mar and Kellie, was of a very isolated area. But sometimes in a not-so isolated area a placement in an appropriate school might be 15, 20, 30 or 40 miles away rather than
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across the sea and possibly even incurring an aeroplane journey, and would still present all sorts of difficulties. Taken in the round, which is why my amendment may need rethinking, it might be more economic and more effective for the provision of that child to make the modification, whatever the expenditure for that child in that remote situation, rather than to pay the cost of relocating the child, dislocating the child from his or her family and sending them to much more expensive provision.
If one moves from there to the urban situation or even, as in many parts of the country, to the suburban situation, it is possible that not every single educational building has a loop system and the facilities to meet the provision of autistic children or the needs of partially sighted or partially hearing children. It would not be physically possible for every school and college in the land to meet all disabilities of all people. There is an issue to resolve, and the Bill requires amendment. It will be interesting to hear what the Minister has to say about the problem. As it stands, the Bill does not meet the concerns of the noble Lord, Lord Ashley, the noble Earl, Lord Mar and Kellie, or even myself.
Baroness Blackstone: My Lords, we all want to ensure that disabled children are not disadvantaged in their access to education. However, I hope that noble Lords will not want to duplicate effort and create additional duties when there are already arrangements for providing auxiliary aids and services to meet children's special educational needs. We have already proposed a way in which schools will become more accessible to disabled children.
We have addressed the recommendations of the DRTF on these issues. I pointed out in Committee that the special educational provision, made under the SEN framework, includes the auxiliary aids and services needed to meet a child's special educational needs. The DRTF recognised this and, after considerable discussion, recommended that there should not be an additional duty to provide auxiliary aids and services under the disability duties.
The reasons that lay behind that recommendation were sound. It recognised that this duty would overlap with the SEN route and might lead to arguments about who was responsible for making the provision. Effort would go into resolving this dispute rather than providing for the needs of the child. In addition, the DRTF noted that not all aids and services are provided through the education service, so it would be unfair to expect the education provider to provide such items.
If noble Lords have concerns about how the SEN framework operates, we should focus on improving the framework. We are doing exactly that by implementing the SEN programme of action through this Bill and by revising the SEN code of practice. It is in no one's interest, especially not that of the disabled child, to duplicate provision or to make less clear how a child can get an aid or service.
I reassure noble Lords that we have undertaken to carry out a review of the SEN action programme in due course, to ensure that the needs of children with

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SEN and disabilities are being met in practice, including their access to auxiliary aids and services. On the point about making schools more accessible, again we listened to the DRTF. It recommended that the most effective way to make the greatest number of schools accessible to disabled pupils in the shortest time would be to place a strategic planning duty on LEAs and schools, and we have done this. The alternative, which is to make all schools consider making reasonable adjustments to remove or alter physical features, as implied in the amendment in the name of my noble friend Lord Ashley, would slow down the rate at which schools are being made accessible.
The resources that are likely to be available to an individual school may not as readily stretch to building works. If we approach this strategically, and encourage LEAs and schools to work together in their planning, we can be more confident that the substantial resources available can be used to best effect to benefit disabled pupils and prospective pupils.
I think that it is significant that the Special Educational Consortium has accepted the recommendations of the DRTF and has expressed no unhappiness with this part of the Bill. We should be reassured by that. Rural schools, except in Scotland, will be subject to the planning duty and can be made accessible. I am sure that LEAs will plan to do that. They have substantial new resources to help them—£220 million in England over the next three years. Of course, it is entirely up to the Scottish Executive to bring forward legislation for a planning duty, if it feels fit to do so.
In the light of my answer, I hope that my noble friend will feel able to withdraw his amendment.
Lord Ashley of Stoke: My Lords, I appreciate the tenor of my noble friend's remarks. She is obviously trying to be helpful but, I am afraid, she is not being quite helpful enough. The fact that the Special Educational Consortium may not agree with me does not worry me because it is not infallible. Although I agree broadly with the consortium, which has been very helpful on the Bill, like all of us, it can make mistakes. Therefore, if it does not support this amendment, it has made a mistake, as I believe my noble friend has in failing to accept it.
However, I welcome warmly the review that she mentioned. It is a step forward; it is a sign of good faith; and in the hope that I can persuade her even more before Third Reading, I thank her very much and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 75:
Page 11, line 9, leave out ("That") and insert ("Subsection (1)").
The noble Lord said: My Lords, I beg to move.
Baroness Blackstone: My Lords, it is perfectly clear what is meant by "That" in subsection 28C(2) in Clause 12. It does of course refer to the duty on schools to take such steps as are reasonable to ensure that
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disabled pupils or prospective pupils are not placed at a substantial disadvantage. I fail to see how it could possibly be interpreted in any other way.
We have already had a certain amount of debate during the passage of the Bill about the use of legislative language to reflect every-day language. This is an example of parliamentary counsel drafting in a more modern way. I should have thought that the noble Lord, Lord Lucas, might accept that and, therefore, I hope that he is able to withdraw the amendment.
Lord Lucas: My Lords, I shall not waste the time of the House with a Division at this hour. I sincerely hope that it is not an example of more modern drafting. It is inexact; it does not say what it means. Yes, it can be interpreted by the noble Baroness and I am delighted that she has done that so that someone in extremis can refer to Hansard. But why does not the Bill refer to subsection (1), as every other piece of legislation that I have ever read has, in a proper and exact fashion? If this is modern drafting, why is it not repeated in other places in the Bill? Why not dispense with all references to other subsections within a clause and just refer to "that", "this", "what has gone before" or "as I was saying last week" in the middle of it?
The reason for being exact is so that it is absolutely clear what is being said. All proper legislation that I have read before would have referred to subsection (1) at this point. It is sheer laziness on the part of the Government that they have not asked the parliamentary draftsman whether he would be happy with this change. I am disappointed by that attitude, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 76:
Page 11, leave out lines 14 to 25.
The noble Baroness said: My Lords, Clause 12 requires schools to take measures to prevent substantial disadvantage to the pupil. Clause 12(3) provides for those measures, those "reasonable steps" as the Bill would have it, to be prescribed by regulation. In other words, at some time in the future, officials would draw up a list of steps which should be taken, might be taken and which should never be taken. There are two major objections to such provisions being made in regulations. The first is the usual one: that powers to regulate should be kept to the very minimum. Primary legislation should be the norm; secondary legislation should be used as rarely as possible, although recent governments of both parties have not held too well to that dictum.
We have far too much bureaucracy as it is; indeed, any more needs to be avoided if at all possible. In the present case, it is not only possible, it is highly desirable by virtue of the second objection to this subsection. Without the subsection the school must take whatever steps it considers reasonable in the particular circumstances presented to it—circumstances as to the present premises and facilities available, and circumstances as to the nature of the disability of the

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pupil or pupils in question. It is worth remembering that such steps go way beyond simply providing for wheelchair disability.
In attempting during Committee to persuade me that the regulations were necessary, the noble Lord, Lord Davies, invoked right at the end of his response the need for flexibility in the operation of these powers. The dear noble Lord has made my case for me once again. That is just it: we do need flexibility. Far from increasing flexibility, regulations actually limit it. That is what regulations do. That is why they are produced. They limit everything to what is regulated: they limit freedom of action for those "reasonable steps" that the officials drawing up the regulations have devised as being of universal application throughout the country to some average school that they have in mind, and almost certainly will never have seen.
How much better it would be to require each school to decide for itself what steps it can take in the specific circumstances of that school, and leave it free to do so. Nothing in the response that we received in Committee removed the need for this amendment. Indeed, the reply of the noble Lord, Lord Davies, actually reinforced the case for the amendment. I beg to move.
12.15 a.m.
Baroness Blackstone: My Lords, as my noble friend explained in Committee, the regulation making powers in Clause 12 would allow us to prescribe circumstances in which it is reasonable and not reasonable for schools to have to make prescribed adjustments, and to prescribe adjustments that it is always reasonable and never reasonable for a school to have to make.
We have no plans to take up the regulation making powers upon commencement. We wish to keep the reasonable adjustment duty under review. These regulation making powers are about giving us flexibility to deal with any particular problem that might emerge which we cannot really anticipate prior to the duties being in operation. If it becomes apparent that there are certain adjustments being requested of schools that we think would always be reasonable or unreasonable, and that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation making powers.
It is possible that schools may not be making adjustments that we consider to be reasonable in all circumstances: for example, adapting a school uniform policy for pupils whose disabilities mean that they would be placed at a substantial disadvantage if they had to comply with the full uniform policy. In our view, it would always be reasonable for a school to have to adapt a school uniform if it placed a disabled child at a substantial disadvantage. I hope my explanation that these are no more than reserve powers to be used if it is necessary to do so will persuade the noble Baroness to withdraw her amendment.
Baroness Blatch: My Lords, the Minister's answer is pretty unconvincing. Indeed, it is no improvement on
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the response that we received in Committee. So we should just leave it to the school to determine such matters. Schools have been so emasculated by the Government in the School Standards and Framework Act, and by so many other measures. There is so much second guessing going on, and they have regulations coming out of their ears. They know what is reasonable. They want to co-operate. They also want to adopt and support an open-access policy. As for giving the example of a uniform policy, I can think of nothing more bizarre than having a regulation that provides a country-wide policy on uniform. If a school believes that a uniform, or a particular item of uniform, is preventing the reception of a child with special needs into the school, it will be a matter for the school to decide. The LEA will very quickly spot whether a school is being reasonable or unreasonable.
I find this provision both unnecessary and otiose. It is part of the mania to which I also fell victim when I was a Minister in the department. I have in mind the mania on the part of all departments to have regulating powers for that day over the hill when they may be needed. So often, given Parkinson's law, they will feel the need to pass regulations. We shall find ourselves passing inane regulations which tie the hands of schools. I am a free schools person. This is another point that I suspect we shall return to at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 77:
Page 11, leave out lines 21 to 25.
The noble Lord said: My Lords, my objections to subsection (3) of Clause 12 are more specific than those of my noble friend. I can understand how subsection (3)(a) and (b) might work to advantage if particular practices arise that the Government want to eradicate and where they want to make sure that schools generally do make certain kinds of adaptation. But I cannot imagine any circumstances under which the use of subsection (3)(c) and (d) would be reasonable. What the Government are imagining here is that practices are growing up among schools of making adaptations or making concessions or changes in policy in order to accommodate disabled people and the Government want to stop it. They want to make a rule which states, "You may not take these steps. All you schools have been widening your doors and now you are not to". Why do the Government want to say that?
Why do the Government require a power to stop schools moving towards making life easier for disabled people, because that is all that subsection (3)(c) and (d) can be used to do? What function does that play in the proper relationship between schools and disabled people and the Government? Why do the Government want to have the ability to look at what is happening in schools and to say, "We are very disturbed at this practice of accommodating blind people; you must stop it", or, "We wish to put restrictions on the way that you are adapting your premises to make them easier for people with wheelchairs"? How can the Government ever wish to do that? What possible needs can they see? Can the Minister illustrate any

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circumstances in which subsection (3)(c) and (d) would come into operation that one might consider reasonable? I beg to move.
Baroness Blackstone: My Lords, I do not have much to acid to what I said in answer to the amendment of the noble Baroness, Lady Blatch. As I explained in speaking to that amendment, which is very similar, the regulation-making powers are reserve powers. We have no plans to take them up as soon as the reasonable adjustment duty comes into force. However, if it becomes apparent that there are certain adjustments being requested of schools that we are of the view would be unreasonable and we think that it is not appropriate for those matters to be dealt with purely by the reasonableness test, we shall take up the regulation-making powers.
I give one example of an adjustment we would not consider reasonable. Schools may come under pressure to change their class size practices if parents argue that their disabled child is prejudiced by the addition of, for instance, an extra five pupils. In our view it would never be reasonable for a class size to have to be reduced and we do not want schools to have to spend time justifying not making that adjustment. I hope that in the light of what I have said the noble Lord will withdraw his amendment.
Baroness Blatch: My Lords, before the noble Baroness sits down, even as regards the example she has given, you would not pass a regulation to say that no school must resist the pressure of reducing class sizes in order to accept a pupil with special educational needs. Some schools would be more than happy to do that. But as regards passing a regulation to say that it would not be reasonable for schools to reduce class sizes in order to receive a child with special educational needs, is the noble Baroness giving that as an example of something that the Government would say to all schools throughout England and Wales; that is, that it would not be reasonable to do that, especially where a school is entirely happy and able to accept a child with special needs by responding in that way?
Baroness Blackstone: My Lords, I did not say that. If a school is perfectly happy and has the resources and is able to reduce class sizes, that is fine. I said that the Government would not think it right that a parent of a disabled child could insist that a school had to reduce the size of the class of which the disabled child was a member. That is quite a different point.
Lord Lucas: My Lords, I am grateful to the noble Baroness for clarification of the kind of thing the Government seek to prevent. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 78 to 80:
Page 11, line 26, leave out ("determining") and insert ("considering").
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Page 11, line 26, leave out ("a responsible body") and insert ("it").
Page 11, line 28, leave out ("regard shall be had, in particular, to") and insert ("the factors to which a responsible body may have regard include").
The noble Baroness said: My Lords, during the debate in Committee about the inclusion of factors on the face of the Bill, I said that I would look again at the points made by the noble Baroness, Lady Blatch, and the strong feelings expressed by others and that I would reflect on them. I have done so. I have also had discussions with interested parties on this issue.
The amendments in my name respond, I believe positively, to the strength of feeling expressed in the debate. I recognise that for some we may not have gone far enough and Amendments Nos. 81 and 129, which we shall discuss later and which seek to remove the factors from the face of the Bill, reflect that view. However, I have sought to take account of the range of views on this point and this includes a number of responses to the consultation exercise held last spring which requested that such a steer be given on the face of the Bill.
Earlier this week, I received a letter of support from the noble Baroness, Lady Warwick, in her capacity as chief executive of Universities UK. In this letter the noble Baroness highlights the need to strike a balance between the considerations of disabled students and those of higher education institutions to ensure that expectations and practical considerations are matched. The noble Baroness says:
"Clause 27 helps to provide for this balance and so will make the Bill more workable in practice and for that reason we believe that it should stand part of the Bill".
I thank the noble Baroness for her support and that of Universities UK.
The government amendments will remove any suggestion that there is a duty on schools and post-16 providers to take account of the factors in determining whether it is reasonable to have to make an adjustment. Instead there will be a discretion for the institution to take any of the factors into account when it considers it appropriate. This is a more permissive approach.
Some may ask why we did not go further and leave such matters to the codes. However, we remain of the view that it is important that there are factors on the face of the Bill in relation to the duties to make reasonable adjustments. The factors give clarity to providers about the sorts of matters they can bear in mind when considering what is reasonable. The factors reassure providers that they can take such matters into account when considering what is reasonable. The factors make clear to the DRC what needs to be covered in writing the codes. They also give clarity to tribunals and courts about what we consider that providers can legitimately take into account when considering making reasonable adjustments. These are important benefits which would either be lost or diluted if the factors were removed entirely. The government amendments provide a helpful balance in maintaining the factors but softening the approach to them.
Amendment No. 100 is a technical amendment which simply removes a repetitious definition of "accessibility strategy" and "accessibility plan" already contained in Clause 24. I beg to move.
Baroness Blatch: My Lords, I am grateful for the positive response to what was said in Committee. I admit that I am still seeking to incorporate all the amendments into the Bill to judge how far they go and the degree to which they fall short. Nevertheless, I am grateful for what has been done.
On Question, amendments agreed to.
12.30 a.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 81:
Page 11, line 29, leave out from ("had") to end of line 44 and insert ("to the code of practice under section 53A").
The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendment No. 129. The amendments relate again to the question of what are reasonable steps. The Minister mentioned that her amendment softens the words on the face of the Bill. Nevertheless, they are still there and I think that there are grounds for objection. In our lengthy discussion in Grand Committee, I pointed out that in many senses the stipulation made under the provisions put something of a coach and horses through the inclusion provisions. I still believe that.
The Minister has reiterated the argument that she made in Committee. She said:
"We decided that it was right to set out on the face of the Bill the factors that schools and post-16 institutions should take into account when considering reasonable adjustments. That provides absolute clarity on the issues that institutions have to bear in mind and reassures providers that important matters are relevant when determining what is reasonable.—[Official Report, 30/1/01; col. CWH 195.]
Absolute clarity? We are talking about the extent to which a particular step is practicable and about health and safety requirements. There is anything but absolute clarity. The issues remain extremely vague.
We are also concerned about the lack of logic in what the Government are saying. Whenever we are confronted by the words, "reasonable steps" and try to write in some illustrations of what might be reasonable, we are told that that would be too inflexible, because times change. However, now we have an example of the Government wanting to write illustrations into the Bill. They tell us that it is essential to illustrate what they want to do. That is not logical. We have been told many times that the code of practice is the right place for such detail. If reasonable steps are to be defined in the code of practice, it is appropriate to put them there in this case.
The Disability Rights Task Force's report,From Exclusion to Inclusion,said:
"To ensure that the new civil rights recommended are fully understood and providers of school education address the barriers that disabled children face, a Code of Practice will be essential. This should explain the new rights, the factors to be taken into account in assessing whether an adjustment or steps to provide
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education by alternative means are reasonable, and examples of when less favourable treatment of a disabled child may be unavoidable".
The DRTF was clear about the fact that the code of practice was the place for such detail. It is not logical for the Government on the one hand to argue that it is too inflexible to write illustrations on the face of the Bill when we want them, and yet on the other hand not to refer this issue to the code of practice. I recognise that there is a balance to be drawn. The Minister lectured us about that in Grand Committee and said how useful it was to have illustrations in the code of practice because of the need to draw that balance.
I say to the noble Baroness, Lady Warwick, of course Universities UK would say that, wouldn't it? We have told the Minister time and again that not enough resources are being put into the system to meet the requirements of the Bill. Universities UK and the further education colleges are very worried about the resource implications of the Bill and do not feel that the department has yet remotely understood the depth of those implications. However, the right place in both cases is the code of practice. I beg to move.
Baroness Darcy de Knayth: My Lords, I support the noble Baroness in her plea. She has been very eloquent. I hope that the Minister might think again about putting this matter into the code of practice.
Baroness Blackstone: My Lords, I am sorry that the noble Baroness, Lady Sharp, does not believe that the Government amendments go far enough. We believe that they provide the right balance. Perhaps I may also say to her that I believe in circumstances of this kind we should take seriously what bodies representing institutions have to say. Universities UK has made it absolutely clear to us that it prefers to have these factors on the face of the Bill. Schools have also argued for extra clarity and knowing that these are the kinds of factors they can take into account. This is, as amended, permissive. I would have thought that it goes a long way towards meeting the requirements of the noble Baroness.
There appears to be some misunderstanding that the factors will limit the reasonable adjustment duty on schools and post-16 providers. I emphasise that that will not be the case. They will help both schools and post-16 institutions to find whether a particular adjustment for a disabled pupil or student would be reasonable. These institutions may have to consider issues such as costs, as the noble Baroness has already said, available resources and the effects on other pupils or students. If they could not take account of such factors the reasonable adjustment duty would become almost unworkable.
I also challenge the assumption that schools and post-16 providers might be trying to avoid making adjustments for disabled learners. It is well understood in the debates we have had that most schools and post-16 providers are already educating pupils and students with disabilities and using their best endeavours to ensure that the children receive a good education

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alongside their peers. In the light of what I have said I hope that the noble Baroness will withdraw her amendment.
Baroness Blatch: My Lords, it is deeply unfortunate. I was giving way to the noble Lord, Lord Rix; he was giving way to me and the noble Baroness came between us. Therefore, I shall have to put the point I wish to make in the form of a question before the noble Baroness sits down.
As regards the further and higher education sector, this matter is a particular worry. Certainly, I know that the Association of Colleges is concerned about the judgment as to what is and what is not reasonable. One suggestion is that at the end of the day they are judged after the event as to whether they have been reasonable and whether they are acting in good faith. I take it that the point also applies to schools. A third person, body or adviser is involved to test whether they are being reasonable in their attempts to fulfil their obligations under the Act so when they come to be judged, possibly by a tribunal or some other body, they can at least say that in their attempts to fulfil their obligations under the law they had taken proper advice, which is what they are minded to do. Therefore, they will be considered at the end of the day as having taken all reasonable steps.
They are in no-man's land on this issue. They do not know at the end of the day how they are going to be judged or who they will be judged by.
Baroness Blackstone: My Lords, may I apologise for intervening. I did not realise that the noble Baroness wanted to speak and neither did I realise that the noble Lord, Lord Rix, also wanted to. I shall wait to hear what he has to say.
Lord Rix: My Lords, I am very grateful to the Minister. As the time of night is late and I agree with everything that was said by the noble Baroness, Lady Sharp of Guildford, it would be better if I shut up and sit down, but offer my entire support for her amendment.
Baroness Sharp of Guildford: My Lords, I continue to believe that it is odd that subsection (3) states that regulations will lay down what steps are reasonable. Then we have the detail set out. I remind the Minister I am not arguing in my amendment that these issues should not be dealt with, but that they should be dealt with in a code of practice which is the right place for them to be set down rather than on the face of the Bill. I have repeated arguments which the noble Baroness has put to us on previous occasions when we have suggested putting detail on the face of the Bill. I continue to believe that that proposed step is illogical and I do not think that there are advantages in dealing with the matter in the Bill rather than in regulations. I am sure that we shall return to the matter at Third Reading but, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 82:
Page 11, leave out lines 30 and 31.
The noble Lord said: My Lords, the amendment would delete subsection (4)(a) in Clause 12, which refers to,
"the need to maintain academic, musical, sporting and other standards".
I want that paragraph out because of the suggestion that there is something about academic, musical and sporting standards that is not already covered in paragraph (g), which refers to,
"the interests of other pupils and persons who may be admitted to the school as pupils".
That provision seems to me to be admirable. It should certainly be taken into account when making an adjustment. To take an early example discussed by the noble Baroness, if one reduces class sizes in which there happen to be a disabled person, one increases class sizes elsewhere, and the provisions in paragraph (g) will come into effect.
We might also consider the two examples that the noble Baroness instanced in her letter to me, in which she discussed this amendment when I moved it in Committee. Her first example was of a school orchestra that wanted to enter a competition. It would require its performers to be of a certain standard. That, too, would be covered by the provisions in paragraph (g). Unless the disabled person who could not play music properly or who could not hold a tune was excluded, the other pupils would be disadvantaged. Her second example was of a sporting team that wanted to enter a competition. Again, paragraph (g) would come into force, because other pupils would be disadvantaged if the disabled person was not disadvantaged.
That seems to me to be entirely reasonable. I cannot see any circumstances in which the decision not to take a particular step involving discrimination in relation to paragraph (a) should apply when the provisions in paragraph (g) do not apply. Why should an educational institution not be allowed to say, "We will not do that because it would threaten academic standards", when that would not affect the interests of pupils? What interest would it affect that would justify it being used as an excuse not to take steps in favour of a disabled person?
Again, the matter comes down to examples. The examples that have been given so far today and in the noble Baroness's letter all come under the provisions in paragraph (g). What is paragraph (a) for? Will the Minister give some examples that fall under the provisions of paragraph (a) but not those of paragraph (g)? I beg to move.
Lord Davies of Oldham: My Lords, we discussed this matter in Committee; that is why I wrote to the noble Lord responding to his points. I appreciate the reasonable way in which he presented his case.
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In Committee, I gave the noble Lord an example of the relevant factors and explained why they were needed in the Bill. Subsection (4)(a) refers to,
"the need to maintain academic, musical, sporting and other standards".
That will enable schools to preserve particular standards where there is a need to do so and only where there is a need to do so. Schools will have to decide whether there is a need to maintain a particular standard or whether a standard should in fact be adjusted. One case, which we discussed in Committee but which I shall present again to the noble Lord in the hope that I can do so with greater conviction, involves a school that enters a sporting competition with the aim of winning it. The school should be free to select a team with the greatest likelihood of winning.
If a school has a reputation for success in this area, that factor would come into play, not to exclude disabled pupils but to ensure that schools thought carefully about their activities and the way in which they choose pupils to take part in particular activities. Obviously we would be concerned if schools were making decisions on the choice for particular activities which looked in any way to be discriminating against disabled students, but not in circumstances where it looked perfectly reasonable that the qualification for success in that area would mean that a disabled person could not take part successfully.
The important thing is that (g) is there for those factors which affect other pupils in a general way. Individual factors do not necessarily affect general pupils in quite the same way: that is why the factors are listed separately and we have already discussed on previous amendments the desirability of the factors being on the face of the Bill. I recognise that some noble Lords disagree with the Government's position on this, but there is advantage in having a specific group of factors on the face of the Bill which clearly identify where a school could operate to preserve its reputation or enhance its standards without falling foul of any discrimination against a disabled student within the school. That is the basis of it.
I recognise what the noble Lord is saying and the reasonableness of his presentation. I am prepared to look at the matter again, because we are here on a somewhat delicate point—the noble Baroness referred in an earlier debate to "dancing on the head of a pin". There is no substantial difference between us and I will look at the matter. However, the obvious point to establish is that the schools have to decide whether there is a need to maintain their standards. That may, in certain specific categories, lead to the necessity of discriminating, though this is done in such a way that they are not discriminating against the disabled but seeking to enhance the standard for which they have a reputation.
12.45 a.m.
Lord Lucas: My Lords, I understand entirely what the Minister is saying, but it still disturbs me. He is saying that a school can have a quality of academic standards and can refuse to admit a disabled person because the academic standing of the school might be

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threatened even though no potential pupil at that school would be disadvantaged. Suppose there is a young lad with cerebral palsy who wants to go to a particular school and the school, though comprehensive in nature, might have a high academic reputation. I can think of a Catholic school in Hammersmith which would satisfy those criteria. It might say, "if we admit this lad he will be way below our usual standard; our ratings in the league table will fall and this will threaten our academic standards, so we will tell him to go away."
Actually, having a kid with cerebral palsy at the London Oratory would probably be welcomed anyway. It would not do the school or its pupils any harm, having a kid like that there. There would be no detriment under subsection (4)(g). Why is a school allowed to have a quality and to maintain this abstract quality which would allow it to turn disabled pupils away and deny them access to particular facilities at the school in order to maintain some ethereal quality of academic, musical, sporting or other excellence, when disabled kids would be disadvantaged by doing that and it would offer no advantage to other children at the school? I do not see that it is consistent with the Government's attitude to the difference between comprehensive and grammar schools. I tend to agree with them. I know my Front Bench does not, but I do not see the consistency. Surely it is the pupils who matter and not the school.
A school's reputation for musical standards may be threatened by having deaf people in the school who will not be able to sing in the school choir, but how will that disadvantage other pupils? Why should schools be allowed to discriminate on that basis? I do not understand the reasoning of the Government in that regard. I hope that they will think again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 83:
Page 11, line 37, leave out ("or services") and insert (", services or finance").
The noble Baroness said: In moving Amendment No. 83 I shall speak also to Amendments Nos. 84, 130 and 131. These amendments concern proportionality. The amendments to Clause 12 relate to provisions requiring disabled children not to be substantially disadvantaged in respect of a school's admissions policy or where they are in the school in respect of their education. Similar provisions in Clause 27 relate to disabled students in higher education and they are covered by Amendments Nos. 130 and 131.
In summary we welcome and support the policy embodied in this part of this Bill, which is to protect disabled children from discrimination at school. We also endorse the Government's recognition in this clause that the anti-discrimination requirements need to be tempered by reasonableness having regard, among other things, to the interests of the non-disabled schoolchildren.
My amendments are designed to give specific practical effect to the principle in one important respect. By way of background, Clause 12 is designed
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to extend the scope of the Disability Discrimination Act 1995 by inserting into it a new provision, the proposed new Section 28C. That proposed new section would extend the anti-discrimination rules to the sphere of school education, in particular under the proposed subsection (1) which states that:
"The responsible body for a school",
generally the local education authority, or for a private school the proprietor, is obliged to take such steps as is reasonable to ensure that disabled children are not placed at a substantial disadvantage compared with non-disabled children, both in its policy for determining school admissions and, once children are in school, in respect of their education and associated services.
The proposed subsection (4) is intended to clarify what is meant by "reasonable" in this context; in other words, what is the extent of the duty to take such steps as is reasonable. The proposed subsection (4) lists seven factors which we have just been discussing, paragraphs (a) to (g), to which regard shall he had in determining reasonableness. Paragraph (g) says that regard must be had to,
"the interests of other pupils and persons who may he admitted to the school as pupils".
The word "other" means non-disabled pupils and applicants.
We support that principle. It seems to us right that in determining the rights of disabled children not to be discriminated against, one must also take into account the rights of the rest of the children, including the right to be educated properly and effectively at school. Our amendment aims to give practical effect to the Government's principle. We propose that the principle in paragraph (g) of the proposed subsection (4) should be expressly stated to include the consideration that the interests of those other non-disabled children,
"will depend in part on the proportion that disabled pupils constitute of the total number of pupils in any one lesson or class or school".
What I am saying is no more than common sense. If a disproportionate number of disabled pupils is concentrated in any one particular class or in any one particular lesson or in any one particular school—rather than being spread relatively evenly among classes and schools—the interests of the other, non-disabled pupils in that class or school are more likely to be disadvantaged. The teachers would have to devote an excessive amount of time and attention to dealing with the relatively high number of disabled children in the class or the school, increasing the disruption for the rest of the pupils. It is only sensible that the obligation in the Bill to have regard to the interests of other, non-disabled pupils should expressly include an obligation to have regard to the issue of numbers. The proper balance between the interests of disabled and other children is most likely to be achieved when the numbers are broadly proportionate.
We know that there are schools that are equipped and have the expertise to take more young people with disabilities than would be considered normal. That is

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where their expertise lies. But there are other schools where the whole balance of the school would be upset if they were pressed into taking a disproportionate number of young people for whom they were not equipped and did not have the expertise and where there would be disadvantage to other young people.
We hope that Ministers agree with our proposal. We support the compassionate objectives of the Government's provision. It is right that disabled children should not be discriminated against. But it would be a form of dogmatic political correctness if that were allowed to result in disproportionate numbers of disabled children being concentrated in any one class, lesson or school. We would not support that. The amendments advocate a practical balance which is within the realms of being achieved by our schools. I beg to move.
Lord Lucas: My Lords, I rise to support, in particular, Amendment No. 84. There is one good school that tries to have at least one severely disabled child in each class. But the number is kept at one. That is manageable and can be contained within a teacher's capacity to look after the class as a whole. I should not like the Bill to make the organisation of that and that balance impossible to maintain. There are factors, such as those mentioned in Amendment No. 84, which are important for a school to take into account. I hope the Minister will confirm that a school may act in accordance with Amendment No. 84 even if the amendment does not get on the face of the Bill.
Lord Davies of Oldham: My Lords, both noble Lords have emphasised the issue of proportionality. That is at the heart of the amendments proposed by the noble Baroness, Lady Blatch. We acknowledge that there might be occasional circumstances whereby admitting more disabled children or students into a class or onto a particular course may not be conducive to effective teaching for all. As I previously mentioned, the factors already allow for some consideration of proportions. However, in the vast majority of cases surely, schools and post-16 institutions will not have to consider the issue. As schools and post-16 institutions become more accessible it will become even less of an issue. We are strongly of the view that proportionality should not be added to the factors on the face of the Bill. But we recognise the concepts behind the amendments.
The factors are, after all, not an exhaustive list. There will be other considerations that a school or a post-16 institution may be able to take into account in deciding whether to make a particular adjustment to prevent disabled children or students being substantially disadvantaged.
That is the general position underpinning the way in which the clause is drafted. Perhaps I may now deal with the specific amendments. In Committee we contended that Amendment No. 83 was unnecessary. The funding provided under the SEN framework for auxiliary aids and services will already be covered either under that factor or more generally. It will form part of the resources available to a responsible body.
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Amendment No. 130 seeks to add another factor to the list in Clause 27. We do not consider that amendment to be necessary. I merely reiterate what I said in Committee. The factors already allow institutions to have regard to the financial resources that are available to them and the anticipated cost of taking a particular step in deciding what reasonable adjustments to make. We do not want post-16 institutions or schools to focus only on taking particular steps where there are specific grants available. That would be contrary to our whole approach.
Under the Bill, the duties to make reasonable adjustments are anticipatory. This means that providers should look at all the resources that are available to them and not only at any specific grants which they might receive. As I have said before, we want institutions to take an altogether holistic approach to improving access for disabled students. I believe that this amendment would have a negative impact on this intention and would encourage institutions to make reasonable adjustments only where they had been given specific grants to aid them in so doing.
Amendments Nos. 84 and 131 seek to make schools or post-16 institutions consider the proportion of disabled pupils or students in a class when considering what reasonable adjustments should be made. As I sought to identify, the issue of proportionality is important, but it is contained elsewhere in the Bill.
In many cases, the proportion of disabled children or students in a class will have no relevance to the question of whether any particular reasonable adjustment will affect the interests of other children. For example, when deciding whether it is reasonable for a university lecturer to have to wear a clip-on microphone, it would be irrelevant to look at the proportion of disabled students with hearing impairment to non-disabled students when considering the effect of the adjustment on other students. However, obviously it would be something that we would wish to see happen in order to aid a disabled student to participate in a university group. The interests of other children or students in a class are not always going to depend even in part on the proportion of disabled individuals in that class.
On the basis of the general position that I have put forward and given that I recognise that issues of proportionality are important in relation to the Bill, I hope that I have given a sufficient explanation to persuade the noble Baroness of the wisdom of being able to withdraw her amendment.
1 a.m.
Baroness Blatch: My Lords, the noble Lord has provided a long response to this group of amendments and I shall want to read it carefully. The issue of proportionality will be a real and practical one for schools, in particular if the Government achieve their primary aim in the Bill; that is, to move substantial numbers of young people out of specialist education and into mainstream schools. Proportionality will then emerge as a real and practical issue.

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In the light of the unsatisfactory discussions that we have had as regards ensuring that, if young people are moved into mainstream provision, adequate support is put in place for them in terms of equipment, staffing and finance, it is my view that this will loom as a major issue following implementation of the Bill.
As I have said, I shall read carefully the Minister's response, but it would be helpful if some recognition could be made that this problem will be understood and accommodated. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 85:
Page 12, leave out lines I to 6.
The noble Baroness said: My Lords, in order to make my point, I shall have to read out this paragraph in the Bill:
"In determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall he had to the extent to which taking the step in question is consistent with compliance with that request".
That is the best example of gobbledegook that I have yet read. Recently I spoke to a friend who is a lawyer. I asked him to look at this paragraph and let me know whether anything in it caused it to be essential to any Bill, in particular the one we are considering.
If this paragraph were removed, it would make no difference to the Bill. It is entirely otiose and merely states the obvious; namely, that if a body is,
"determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty",
then of course it will have regard to the extent to which it meets its obligations under the law and the degree to which it has complied with that request. The paragraph seems to me to be absurd. It is repeated in Clause 27, on page 28 of the Bill. I hope that this time the Minister will not feel duty bound, simply because it has been written up in the briefing notes, to defend what I believe is indefensible. I beg to move.
Baroness Blackstone: My Lords, I am afraid that I shall not satisfy the noble Baroness. Amendments Nos. 85 and 132 would remove from the face of the Bill the scope for institutions to take into account the wishes of a disabled student, or of the parent of a disabled pupil, to have his or her disability treated as confidential in determining whether or not to make a reasonable adjustment.
In Committee, I tried to set out as clearly as possible what effect these provisions deliver, and each of the subsections that these amendments delete are closely related to the subsections which directly precede and follow them. I have also written to the noble Baroness, Lady Blatch, on these points.
I repeat: we want to make it completely clear to schools and institutions that in discharging their duties under Clauses 12 and 27 to make reasonable adjustments they should take into account any request
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that has been made by a student or parent to maintain confidentiality. The provisions in question deliver this effect. In the light of that, I hope that the noble Baroness feels able to withdraw her amendment.
Baroness Blatch: No, my Lords, I do not feel able to do so. The explanation is bizarre. It leaves absolutely nothing to the people who have to do the,
"determining whether it is reasonable for the responsible body to have to take a particular step in relation to that person in order to comply with its duty under subsection (1), regard shall be had to the extent to which taking the step in question is consistent with compliance with that request".
Especially in the light of my next amendment, on which I know I shall be stone-walled, it makes no sense; it adds nothing to the Bill. Removing this subsection from Clause 12 and from Clause 27 would improve the Bill. The answer given by the noble Baroness has no intellectual validity whatsoever. I am afraid that the noble Baroness, backed up by her advisers, will continue to defend the indefensible. We shall return with some gusto to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 86:
Page 12, line 8, after ("person") insert ("or by the disabled person himself").
The noble Baroness said: My Lords, this is a serious amendment. We had an extensive debate on this issue in Committee. I am pleased to say that several noble Lords across all parties spoke in support of the amendment—so much so that the noble Lord, Lord Davies, promised that he would look at the matter again. I am taking the noble Lord at his word. I believe that he has done nothing but keep the towel round his head in considering these amendments. I hope that at this late hour he will give me a promise to bring forward an amendment on behalf of the Government to accede to the request.
The issue is simple. In working out what reasonable steps to take in order to limit and avoid disadvantage for a disabled pupil, a school will need to take into account the nature of the pupil's disability. The full details of that disability will need to be made known to the governors. In so doing, it may well be that the disabled person will wish for those details to be kept confidential. This applies to both schools and colleges. Provision is made in this clause for such a request for confidentiality to be made and to be respected. But under the clause as drafted that request is only to be made by the parents of a disabled pupil.
It is my contention and that of many noble Lords that the pupil himself should also have the right to make a request for confidentiality; and that request should be respected. That applies particularly if the pupil is an older pupil, a teenager perhaps, but also one as young as 10 or 11. There are young people of that age who do not really want to talk to their parents about these matters. It could be that a self-confident child would much rather that a request were made on his own account, even if his parents were willing to make it for him. It could be that an embarrassed child

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with disabilities wants confidentiality while his parents see no need for it. It may be that the parents take little interest or have little sympathy and regard it as a sort of neurosis on the part of the child. But, for whatever reason, there will be many occasions when the pupil should be able to make the request for confidentiality.
In Committee, the noble Lord, in defence of his arguments to oppose the amendment, cited that young people do not have the capacity to make such an application. I have to say that that statement came 24 hours after the Government supported the notion of children as young as 11 being allowed to have their request for the morning-after pill kept confidential not only from the people around them, but also from their parents. Therefore it will not do today for the noble Lord to say that young people are not capable of knowing whether or not they want confidentiality.
This is a serious amendment because this is probably the most sensitive area for young people, not only those of secondary school age and those going through puberty, but also the older ones going through further and higher education colleges. If they wish for confidentiality, then up to the age of 16, when parental consent would be needed, that request should be acceded to. I beg to move.
Baroness Blackstone: My Lords, the noble Baroness is a pessimist. I shall surprise her. I shall not say what she anticipated.
We discussed this issue at length in Committee. My noble friend agreed to look at the issue again. We have done so. We remain firm on the principle that the parents act in the best interests of their children. However, we believe it is right that account be taken of disabled children's requests to keep their disability confidential, provided the child making the request is of sufficient age, maturity and understanding.
We accept in principle the spirit of the amendment tabled by the noble Baroness and will therefore come back at Third Reading to make it possible. In the light of those remarks I hope the noble Baroness will withdraw her amendment.
Baroness Blatch: My Lords, I shall do so with pleasure. Perhaps it has all been worth waiting for.
It was a serious amendment. I am grateful for the support we received in Committee. I believe the weight of that support was probably the most influential because the Government had clearly thought about this matter before I spoke this evening. I am deeply grateful. I beg leave to withdraw the amendment in eager anticipation that I shall see an even more effective one at the next stage of this Bill.
Amendment, by leave, withdrawn.
Clause 13 [Accessibility strategies and plans]:
Lord Lucas Lord Lucas moved Amendment No. 87:
Page 12, line 18, after ("environment") insert ("(including the equipment and facilities)").
The noble Lord said: My Lords, Amendment No. 87 has been degrouped from Amendment No. 88. My understanding is that the groups will now run:
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Amendment No. 87 on its own, Amendment No. 88 with Amendment No. 92, and then Amendment No. 89.
Amendment No. 87 merely picks up a discussion we had in Committee on the meaning of "environment". Various comments were made by the Minister to the effect that "environment" was intended to include various bits and pieces of equipment that may be lying around, like systems to help deaf people understand what was being said and possibly other systems to support other kinds of disabled people. It seemed to me at the time that "environment" did not include everything that the Minister intended it should. This is merely a helpful suggestion as to how that definition can be expanded in the Bill. I beg to move.
Lord Davies of Oldham: My Lords, the amendment seeks to extend the coverage of the planning duty and to guarantee total accessibility of schools within a prescribed period. Amendment No. 87 is unnecessary, as the provision of some equipment will already be covered by the planning duty. For instance, LEAs may decide to plan for the provision of specialist furniture, such as sloping desks, special seats, variable height desks or the installation of a soundfield system. For children with SEN, special educational provision will include auxiliary aids and equipment.
Planning to improve access to facilities for educational purposes is at the heart of planning duty. In order to improve access to facilities, an LEA may decide to install appropriate lighting or blinds for visually impaired pupils or lay appropriate carpeting to improve the acoustics of a room for pupils with hearing impairments. For those reasons, Amendment No. 87 is unnecessary. On Amendment No. 88—
Lord Lucas: We have regrouped the amendments.
Lord Davies of Oldham: I apologise for not having recognised the importance of that regrouping. I await the presentation of the arguments on Amendment No. 88, and hope that I may be sympathetic to them.
I have given my position on Amendment No. 87, which I hope the noble Lord will find satisfactory. I hope that he may feel able to withdraw his amendment.
1.15 a.m.
Lord Lucas: My Lords, that was a satisfactory response, and I shall withdraw my amendment. I am delighted that the Minister has consented to give the noble Lord, Lord Rix, top billing for his group of amendments, which is what he deserves.
Amendment, by leave, withdrawn.
Lord Rix Lord Rix moved Amendment No. 88:
Page 12, line 18, at end insert ("and the teaching and learning arrangements at.).
The noble Lord said: My Lords, top billing seems rather appropriate for this midnight matinee. Having reflected on the debate at Committee stage, I must return to my Amendments Nos. 88 and 92 regarding

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the content of accessibility strategies and plans. I am joined in this compulsion by my noble friend Lady Darcy de Knayth.
Clause 13 is in general terms an excellent facet of the legislation. It is absolutely right for LEAs and schools to plan for greater accessibility, but I cannot accept a planning duty which covers only physical access and ignores access to teaching and learning arrangements. It is out of keeping with both the spirit and the letter of this legislation. The definition of disability used in this Bill does not relate exclusively to children with physical or sensory disabilities. It covers those with learning disabilities too. So why plan to provide access only for a subset of disabled children? Those who are excluded are in fact the largest group of children with disabilities. There are hundreds of thousands of children with learning disabilities who have a right to be properly considered along with all other children.
During the Committee stage, the noble Lord, Lord Davies, told the House that the Government's drafting of Clause 13 was based on their acceptance of a Disability Rights Task Force recommendation. As he referred to the task force, I hope that the House will permit me to read a little further into that recommendation, numbered 4.10, which says:
"This duty should cover both adjustments for physical access, including those for children with sensory impairments and for access to the curriculum".
Furthermore, in March 2000 the consultation document of the Department for Education and Employment signalled that there would be a duty on schools to,
"plan to increase systematically the access of their premises and of the curriculum to disabled pupils".
What has changed since March to make the Government curtail their original plans and take a very partial view of the recommendations of the task force? I look again to answers offered at the Committee stage. I was told that accessibility plans were not the right vehicle for planning for extra teaching, learning support assistants, curriculum adaptations and so on. It was suggested that they might be a burden. I believe that a comprehensive strategic planning duty will positively help and support schools and LEAs in meeting their obligations. It should also help them to provide families with better information about support available both now and in the future.
It has also been suggested to me that I need not worry because planning for access to the curriculum is already covered by existing duties on schools and LEAs. However, I believe that there should be absolute parity in planning to support those with physical, sensory and learning disabilities and that schools and LEAs should be accountable to the Secretary of State in that respect.
Last week, I was fortunate enough to have an opportunity to discuss these amendments with the Minister in another place. We had a characteristically co-operative exchange for which I am most grateful. But during our conversations, I suggested that if planning for access to the curriculum is already
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covered by pre-existing statutory obligations, it should say so here on the face of the Bill, in this clause, so that appropriate links are made.
If the Minister can convince me this morning that there is a statutory duty on schools and LEAs to plan for access to teaching and learning and that can be successfully linked to duties in this clause, then I shall happily withdraw my amendment pending a government amendment at Third Reading. Such reassurance is absolutely critical if we are to accelerate progress in realising the rights of disabled children. I beg to move.
Lord Addington: My Lords, the noble Lord is absolutely right. If you are going to put in the physical environment without the teaching arrangements, you are putting the cart before the horse, or any other cliché in relation to lack of movement that you can come up with. It is more important to have this sort of arrangement in relation to the teaching curriculum. When all is said and done, it is easier to put ramps and make adaptations and so on than it is to arrange a timetable. That is a one-off thing which can be done and then forgotten about. If that degree of flexibility is not built in, a series of Chinese walls will be constructed which will keep people out.
This amendment goes to the heart of the matter. If we have to choose between the two, the physical environment is the factor which should not appear on the face of the Bill but should appear in secondary legislation. The noble Lord is absolutely right.
Lord Davies of Oldham: My Lords, I apologise to the House for being somewhat pre-emptive in attempting to reply before I heard what both noble Lords had to say on the amendment. I have benefited greatly from their contributions.
I have some sympathy with the nature of the amendment. I want to establish quite clearly that, of course, schools must provide for the needs of all children, including the full range of disabilities—physical, sensory and the learning disabled.
I know that there is concern that the planning duty appears to be too restrictive because it appears to apply to the physical environment. There is concern that those pupils with learning disabilities will not benefit as fully as they might from the particular message, since physical accessibility to a building is not relevant to their particular disability.
But the planning duty should not be seen in a vacuum. Rather, it needs to be seen alongside other provisions for protecting the rights of disabled children in the existing SEN framework. The planning duty is part of a wider picture.
Within that wider picture, it is clear that the issues with regard to the curriculum are important. First, I want to emphasise that teachers already plan their lessons. We do not want to impose additional administrative burdens on them when they are already conditioned by the framework of the national curriculum and the statement on inclusion which schools must follow. The foreword states that:

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"An entitlement to learning must be an entitlement for all pupils. This National Curriculum includes for the first time a detailed, overarching statement on inclusion which makes clear the principles schools must follow in their teaching right across the curriculum, to ensure that all pupils have the chance to succeed, whatever their individual needs and potential barriers to their learning may be".
So it is crystal clear that schools already have to think about the needs of disabled pupils in their teaching. I am confident that the framework with regard to this Bill—the rights and duties contained in it—will provide for disabled children in a practical and pragmatic way.
Although I cannot accept the amendment as drafted, I am very much in favour of the sentiments and the concept behind it. I shall indeed do what the noble Lord suggested. He said that if I could not accept his amendment, we ought to look towards bringing forward a government amendment on Third Reading that would embrace the ideas behind his amendment. That is what I undertake to do.
Lord Rix: My Lords, I am extremely grateful for that response from the Minister. Unfortunately, I am off on the road to Morocco next week. Therefore, I shall not be present at Third Reading to welcome the government amendment. However, I hope that we can discuss the matter before I depart from these shores in the knowledge that, when it comes to the next stage, I shall have a most elegant and effective understudy in my noble friend Lady Darcy de Knayth. I am sure that she will graciously accept the amendment as proffered by the Government. With those few words of thanks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris of Manchester Lord Morris of Manchester moved Amendment No. 89:
Page 12. line 23, leave out from ("schools") to end of line 25 and insert ("so that within the time period prescribed all mainstream schools within the area of the local education authority will be capable of providing for disabled pupils; and
(b) in preparing their accessibility strategy, must have regard to the requirement to ensure that, over a prescribed period, mainstream schools in the area are accessible for disabled children in terms of their policies, practices, procedures, curriculum, and availability of auxiliary aids and adaptations.").
The noble Lord said: My Lords, the intention of this amendment is to require education authorities and mainstream schools to work towards the goal of properly supported inclusion for disabled pupils within a fixed timescale. Its aim is to strengthen the planning duty to require LEAs and schools to move towards the goal of mainstream education for children, whatever their needs and abilities.
As I said on an earlier amendment, quoting Linda Shaw of the Centre for Studies on Inclusive Education (CSIE), we are discussing here one of the most important anti-discrimination measures ever to be considered by your Lordships' House. That is why the CSIE's call for full and meaningful inclusion is entitled to be heard again in this debate. A human rights
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approach to disability policymaking requires not the setting by schools of their own agendas, but agreement to a common goal of entitlement to properly supported mainstream placements.
It is also vital for the achievement of equal opportunities that a planned timetable for supporting the full diversity of pupils in mainstream must cover the accessibility of teaching and learning arrangements, for which the amendment provides, as well as physical access. Inclusion without proper and adequate support for such access—I most strongly emphasise the importance of adequacy of support—is not inclusion, but dumping. We cannot rely on education policy alone to make the necessary changes towards an inclusive curriculum. We also need legislation that guarantees all children's rights to properly supported mainstream placements and safeguards against discrimination. This is the human rights approach to disability. It is at the heart of this amendment.
In 1997, a review of research on inclusion conducted by Judy Sebba for Barnardo's found that,
"Pupils with identified difficulties or disabilities appear to benefit educationally from schools developing inclusive education by making significant gains in reading, language, work study skills and living skills. Pupils who do not have identified difficulties or disabilities appear to attain as good or better standards and make the same or more progress in classrooms developing inclusive education as they do in traditional mainstream classes".
There is also growing evidence that schools can develop the capacity to support the full diversity of pupils by adopting a flexible approach to teaching and learning that adapts activities and curricula to pupils' needs and interests. A major study of inclusion in the United States in 1995, undertaken by the National Centre on Educational Restructuring and Inclusion, found that students representing all legal categories of disability, at all levels of severity, were being effectively included in mainstream education. Here in the UK two recent Channel 4 programmes entitled "Count Me In" featured a number of primary and secondary schools actively engaged in increasing their capabilities of catering for a wide diversity of pupils.
At one of the schools featured, Cleves Primary, a differentiated approach to learning enables the school to include children with profound learning difficulties while at the same time working to raise the standards of achievement of all pupils. CSIE's case study of Cleves gives examples of how schemes of work can be adapted so that the full diversity of children can be included. The CSIE has also provided examples from other schools of how curriculum adaptation works in individual cases. Cleves is in the London borough of Newham where the local education authority has a policy commitment to recognise the rights of all children to learn together and aims to make it possible for every child, whatever special educational needs they may have, to attend their neighbourhood school.
The Index for Inclusion, published by CSIE, is a planning tool designed to help schools to become more inclusive through a process of self-review and development. The index involves schools in

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restructuring their cultures, policies and practices so as to be able effectively to respond to the diversity of needs in their locality.
Thus there is no lack of evidence to demonstrate the potential of inclusive education. Yet both research and experience show that whether disabled children benefit from mainstream education depends not on any objective assessment of their needs and potential but on how schools develop their capacity to respond to diversity. It is just not true that so-called inherent problems and "deficits" make it impossible for many children to be included.
Much to their credit, parents of such children continue to struggle for inclusion with LEAs and schools which are unwilling or unprepared to welcome them. Cases documented by CSIE—and which, as she will confirm, I made available to my noble friend Lady Blackstone—demonstrate the stress and emotional strain involved for families in achieving what many of us believe should be theirs by right. A stronger planning duty—as suggested in this amendment—would seek to ensure every child's right to a properly supported mainstream placement, rather than making inclusion dependent on parental struggle and commitment or the goodwill and good practice of particular schools and LEAs. In order to work towards a situation of mainstream entitlement for all it is reasonable and responsible now to require all schools to plan, within a specified period of time, for disabled children and young people of school age to become a part of, instead of being cast apart from, the local communities in which they live. I beg to move.
1.30 a.m.
Lord Davies of Oldham: My Lords, I am sure that we all admire the way in which my noble friend presented the case for the amendment and the strength of his conviction as regards how much needs to be done. We also admire his identification of strategies to achieve that. I immediately respond by saying that of course his objectives are shared by the Government, as is shown by measures that are in hand.
The problem with regard to the amendment, however, as I think he might recognise, is that it presents a number of obvious difficulties. The prescribed period might be two years or 20, whatever would be practical. I am sure that a period of 20 years would so disappoint my noble friend that he would not regard that as a satisfactory response. We have difficulty with the vagueness and the geographical dimensions. I recognise that my noble friend seeks to be modest in his demands that one school and LEA should be able to admit a particular disability. However, if there were, for example, a school in Bude in eastern Cornwall able to cope with a disability but the student who wished to take advantage of it lived close to Land's End, that would scarcely be a practical solution. So there are difficulties with regard to the amendment but not with the sentiments underlying it.
I emphasise again—my noble friend will have heard the earlier debate—that teachers already have to think about how to adapt the curriculum to disabled pupils.
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And we have had an extensive debate about the provision of auxiliary aids and changes to physical features, both of which are exempted from the duty to make reasonable adjustments for very good reason, as we discussed earlier in our debate on Clause 12.
I respect fully the arguments that my noble friend has presented. I recognise the strength of conviction behind them. The objectives underlying them are the objectives behind the amendment. However, the amendment raises sufficient difficulties for us to ask my noble friend to withdraw the amendment confident in the fact that the Government will seek to hit those objectives by a slightly different route.
Lord Morris of Manchester: My Lords, while I am grateful for my noble friend's reply, as I was for my noble friend Lady Blackstone's response to my amendments on inclusive education in Grand Committee, I should like others interested in the amendment to have an opportunity to consider what my noble friend has said and to reflect on the remaining opportunities still open to them to press their case further. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 90:
Page 12, line 25, at end insert—
("( ) In preparing their accessibility strategy, each local education authority must include the estimated costs, at current prices, of the implementation of such improvements, and must if the cost cannot be found locally forward to the Secretary of State these estimated costs with a request for capital grant to cover those costs for the years in question.").
The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 93, 96, 147, 148 and 149.
In Committee, we grouped together a large number of amendments for which the central theme was that measures taken in the implementation of the requirements of the Bill need to be costed. Those costs have to be met before implementation can be effected. That still seems to me an eminently sensible approach to the Bill but one which the Government Front Bench dismiss as being totally unnecessary. I hope that the Ministers have reread our deliberations in Committee, as I have, and will now conclude that those amendments contain the key to the effectiveness of the whole Bill and cannot be so lightly brushed aside.
The specific requirements of the Bill must be properly costed. That is all the amendments ask for: transparency and some realism so that everyone knows what the challenge is. Having been costed, if they are to be materially developed, they must be properly funded. In practice, the Bill will take us no further forward in helping children and young persons with disability or learning difficulties. It will merely lie on the statute book, no more than aspirational.
Much has already been done as a result of previous legislation. I know that those actively concerned for these young people welcome the progress made since the early 1980s. Clearly those people will expect that

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progress will be maintained. Their hopes will have been raised by the introduction of this Bill and their hopes will be dashed if nothing practical comes from it.
The first group of the amendments seek to amend the provisions whereby local education authorities, maintained schools and independent schools must in future lay down and publish plans as to measures they will take to improve still further access to and provision within these schools and institutions for pupils with learning difficulties and/or disability. Such plans have to be forward plans and updated each year.
Amendment No. 90 says:
"In preparing their accessibility strategy, each local education authority must include the estimated costs, at current prices, of the implementation of such improvements, and must if the cost cannot be found locally"—
I stress those words—
"forward to the Secretary of State these estimated costs with a request for capital grant to cover those costs for the years in question".
Other amendments relevant to schools were similarly phrased, except that in the Bill the plans are called accessibility strategies when done by an LEA and accessibility plans when done by a school.
I have also suggested that the provision that the costings for the plan or strategy for maintained schools should be covered by a request for grant from the Secretary of State should also apply to independent schools, except that seeking a grant from the Secretary of State would be optional. In either case, the LEAs and the schools would be exempt from implementing the plans if they had no funds to do so.
At one point in Committee, the noble Lord, Lord Davies, seemed to think that we were asking for money merely to prepare the plans. He is right that the preparation of the plans—the surveys, the architect's fees and so on—will be costly, but that will be as nothing compared with the cost of implementing them. We have sought to focus on the implementation of the plans.
It is pointless for a local authority to go to the expense every year of preparing detailed plans of what needs to be done in all its schools and institutions if the much greater expense of putting those plans into effect is not likely to be forthcoming in the near future. Similarly, the legal obligation on independent schools to prepare annual plans—it is not just an option in the Bill—will be costly. Again, it would be a pointless exercise unless the schools had access to the finance needed to implement them.
Although Ministers will refer to the vast sums already made available to LEAs and schools, the financial appraisal in the Bill is still unrealistic. In Committee, the noble Lord, Lord Davies, tossed in the figure of £220 million available to schools in England through the schools access initiative, but even that is over three years, so it amounts to about £70 million per year, spread over 25,000 schools. It looks slightly different in that light.
We also need to bear in mind that local authorities are already saying that they do not have enough money even to implement the recent teachers' pay award. They certainly have no spare cash waiting to be spent on the Bill.
We have tabled further amendments to provide that all proposed capital works, extra staffing or extra facilities need to be properly costed and funded.
Clause 40, which is entitled, "Expenses of the Secretary of State", says:
"There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums so payable under any other enactment".
As the noble Lord, Lord Davies, kindly said in Committee:
"The Bill currently makes no provision for expenditure".—[Official Report, 6/2/01; col. CWH 213.]
That puts the issue in a nutshell. Without provision for expenditure in the Bill, what are we to believe? I do not mind how the Government choose to put teeth into Clause 40, but teeth it must have. Amendments Nos. 147, 148 and 149 would alter Clause 40 to read:
"There shall be paid out of money provided by Parliament the increases in expenditure"—
not just any increases—
"attributable to this Act".
Deleting the final words of the clause, which provide that the money, if any, will come out of provisions made under Acts of Parliament, will ensure that Parliament will have to provide money for the costs of this particular Act. Leaving the money to be squeezed out of other existing allocations will result in no money at all. If there is nothing left, nothing can be squeezed out.
The Act will have to be funded, if it is funded at all, by both direct capital and revenue grants specifically designated for the implementation of the provisions of the Act. The Secretary of State cannot do that until he knows how much it will all cost and until each school and local authority costs its forward plans, both capital and revenue expenditure, and forwards the costs to the Secretary of State. All of this depends at the very start on a clear and specific commitment from the Government that the Bill can, and will be, specifically funded.
I say that because the day-to-day core funding of education authorities and cascading down into schools, does not at present allow flexibility for substantial extra spending on a new Bill which is about to become a legal obligation for both LEAs and their schools. Therefore, it is a question of injecting some realism.
I am sure that whoever responds to this amendment will find it difficult to respond to the financial side of my request for putting these matters on the face of the Bill. I have some sympathy with any response which is made in that regard. However, I believe it is important to at least meet the requirement for costing and to have some understanding of where and how those resources will be met so that local authorities and schools are enabled to make the Bill a reality. I beg to move.
1.45 a.m.
Lord Davies of Oldham: My Lords, I fear that the effect of these amendments would be to erect barriers to increasing the accessibility of schools to pupils with disabilities. As I said before in Committee, these amendments are unnecessary and potentially burdensome. In preparing their strategies and plans LEAs and schools must take into account the anticipated resources which will be available to them over the planning period. The duty is to plan within the resources available to the responsible body. That is implicit in the Bill. It does not require spelling out, but I am happy to confirm that that is the case.
The proposal that responsible bodies should forward their estimates to the Secretary of State creates another burden. It seeks to take away the initiative from LEAs and schools to plan locally from the resources available to them and to make their planning decisions dependent on the central government's decisions. We fear that it might give some of them the excuse for doing very little.
The noble Baroness, Lady Blatch, suggested in Committee that we are raising the hopes of people only to dash them. We are doing nothing of the sort. We are creating a new duty and applying it in a commonsense way which reflects the reality of the schools. That will reassure people that we are creating a sustainable duty which will continue over time to increase the accessibility of schools to disabled people.
As the noble Baroness indicated, we are making substantial additional resources available to the Schools Access Initiative. I know that she derided it as an insignificant amount. Next year it will be five times the amount available in 1996, so the Government are serious about ensuring that schools receive additional resources. Support for capital over the next three years is increasing substantially. Those are some of the resources that are available to the LEAs and schools.
These are not just aspirational plans, but plans which the schools and the LEAs must implement. We have properly considered the questions of cost. The duty of the local authorities and the schools is to plan to increase accessibility over time. None of us expects vast improvements to be achieved overnight or even in one year. We require that responsible bodies should have plans consistent with the available resources.
The noble Baroness raised again the question of the ability of independent schools to make plans and to implement them without new resources. We of course maintain that disabled pupils should benefit from the planning duty in whatever school they are educated. There can be no exceptions. Our proposals are reasonable in terms of resource implications for all schools.
In preparing their plans, independent schools will need to take into account anticipated resources that will be available to them. We do not assume, as the noble Baroness suggested in Committee, that independent schools will have a pot of gold to spend on improvements to improve access, but we think it fair to require them to plan within the resources available to them.
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The Government maintain that the planning requirements are obligatory on all educational institutions. We recognise that planning over a period is involved, but we have given a clear earnest of our intent about how to develop the Bill's policies.
Baroness Blatch: My Lords, I am slightly bewildered by the noble Lord's opening statement that the amendment would erect harriers. Having plans costed does not erect barriers; it helps to make it known what the plans are and what they would cost. That will give people an idea about how the plans could properly be met. The suggestion is extraordinary. He also suggested that the amendments are unnecessary and burdensome. Making the plans will be burdensome -we have already made that point. Are the amendments unnecessary? I do not know. The plans have to be made anyway, and my proposal involves only one more step. Architects, surveyors and all the other people who have to carry out survey work to bring the plans to fruition will have done their work. All that remains is the need to quantify the costs and make that known to the relevant bodies. Schools, LEAs and, for grant purposes, the Government will wish to know about that.
The noble Lord seemed to confuse the plans with local authority funding. As I understand the Bill, the plans are forward-looking; they are not today's plans. Very few local authorities, even with the so-called three-year funding, know at this time of year what their grant will be and what latitude there will be beyond the core funding of their services in relation to additional duties. The Bill will impose such a requirement on them. The idea that they will have all of that information to hand is not true.
I did not deride the sums of money that have been made available. I simply stated, as a matter of fact—the noble Lord said that I did so with a flourish—that the money was for a three-year period and involved 25,000 schools. That is an obvious point.
The noble Lord went on to say that disabled pupils will benefit from the planning duty. They will do so only if the plans are materially delivered and properly validated. Those pupils will not benefit from the plans, although the plans will raise expectations and create aspirations. However, unless the plans are realised, no one will benefit. Planning in itself is not a virtue, but it is a sensible way to ensure that those funds that are spent are spent effectively and that that is done in the interests of young people with disabilities.
I shall read the Minister's comments carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 91:
Page 12, line 42, at end insert—
("(d) any setting recognised by an early years development partnership established by a local education authority under section 119 of the School Standards and Framework Act 1998").
The noble Baroness said: My Lords, the amendment returns us to early years settings and again I speak on behalf of the RNIB. The amendment would require all

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early years settings to be recognised by an early years development and child care partnership and for them to have an accessibility strategy. I use the jargon of the Bill for the purposes of the amendments, and I am speaking to Amendments Nos. 91 and 155.
First of all, we welcome the fact that all early years and child care partnerships are required, by guidance issued under the School Standards and Framework Act 1998, to have a clear strategy to allow children equal access to child care and early educational services regardless of their special educational needs or disability. The strategy will perform a similar role to the accessibility plan which local educational authorities will be required to produce for their schools.
However, with the exception of state-run nursery schools, there will be no duty for individual settings—private voluntary sector nurseries, child minders and after-school holiday child care schemes—to have their own plans. These local accessibility plans allow for the detailed planning necessary to turn the strategic plans into reality. The RNIB argues that a requirement on individual early years and child care settings to produce plans would be beneficial for the following reasons. It would be consistent for early years settings to be under a similar duty to plan for making their services more accessible to young people with disabilities. Early year settings other than state-run nurseries already have duties as service providers under Part III of the Disability Discrimination Act, but there is little guidance as to how to fulfil those responsibilities, and requiring all settings to plan for accessibility would reduce the number of disputes because the settings would anticipate the issues before they arose.
An accessibility plan would also be a defence before a tribunal or at a county court. One hopes that it does not go that far. Requiring those settings providing after-school and holiday care to have accessibility plans would help the Government make their policy of encouraging parents, and especially single parents, to work. If after-school and holiday care settings have no duty to plan for accessibility, there is a danger that parents will be limited to working school hours during term-time only if there is no accessible after-school holiday provision for the disabled child. I know that a good deal of work has been done in that respect. I beg to move.
Lord Davies of Oldham: My Lords, I very much appreciate the way in which the noble Baroness has proposed these amendments and I appreciate the significance of the outside body on whose behalf she spoke. I shall seek to give as much reassurance as I can on these important issues which she has identified.
Early year providers will be covered either by Part III of the Disability Discrimination Act or the new disability duties in this Bill. Most private and voluntary providers of early years education have been
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covered by the Part III provisions of the DDA since December 1996, and the Bill will bring all these providers under the DDA. Providers who are covered by Part III of the DDA have to comply with the reasonable adjustment duty. The duty under Part III of the DDA includes provision for making changes to physical features and providing auxiliary aids and services. These are anticipatory duties which of themselves entail an element of planning.
We do not want to place an additional duty on them to plan. That would be confusing and impractical. Early years provision in maintained schools, independent schools and non-maintained special schools will be covered by the new duties in the Bill, including the duty to plan to increase physical accessibility. I hope, with the explanation that I have given, that the noble Baroness will be prepared to withdraw the amendment.
Baroness Blatch: My Lords, I will read carefully what the noble Lord the Minister said and will also discuss with the NRIB between now and the next stage of the Bill to get their response to what has been said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 and 93 not moved.]
2 a.m.
Baroness Blatch Baroness Blatch moved Amendment No. 94:
Page 13, leave out lines 18 to 22.
The noble Baroness said: My Lords, I seek to remove yet another provision for regulations to be made. Law by what is, effectively, government diktat is bad law. Nevertheless, there are, as I have to accept, changing circumstances where the provisions in primary legislation need updating or modifying through secondary legislation, but this is not one of them.
I also find deeply depressing the pressure on us to complete this Bill tonight, only to see it severely guillotined in another place. We know that the plan in another place is for the Bill to be shoved through in a day. There will be almost no debate and once again the only scrutiny that the Bill will receive will be that carried out by this House. If that can be denied no one will be more pleased than me to know that it will receive a proper Committee stage and full debate in another place.
It follows that the Government must already know what they intend by the use of the terms "education" and "an associated service" in the Bill. Those terms will not change their meaning from year to year and so there is no need for regulations. Let us now see the Government's interpretation of the two terms which are on the face of the Bill. If we do not believe that such

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a definition is accurate enough or clear enough or is just plain wrong, let Parliament have an opportunity to consider, discuss and determine the matter.
Perhaps in reply the Minister can tell us what is meant by "education" and by "an associated service" within the context of the Bill. If the noble Baroness or noble Lord is able to give a definition, that would be a good reason why they should appear on the face of the Bill. I beg to move.
Lord Davies of Oldham: My Lords, we debated this amendment in Committee. These regulations are about clarifying the coverage of the planning duty; they underpin the planning duty. They will ensure that LEAs and schools are clear about what the planning duty entails.
Clearly the duty needs to embrace education offered to disabled pupils and disabled prospective pupils at a school. It will do that. It would be unrealistic and unreasonable to expect schools and LEAs to plan for activities which take place away from school premises and over which they have no control, so we need to be clear that it is about education offered at a school.
When speaking to the amendment in Committee the noble Baroness said that education is more than just the teaching of English, mathematics and science. I agree with her. The regulations will provide clarity in particular for those areas not traditionally seen as education, but which form part of a school's life; for instance, the playground or the dining hall, so that disabled students can feel part of the total school community.
Whether a particular activity is offered as education or as an associated service for those purposes is largely irrelevant. The key point is that everything so described will be covered by the planning duty. In the absence of such regulations, the issue of whether any particular service is caught by the planning duty will be entirely a matter of interpretation. We want to ensure that schools and LEAs are clear about what their duties involve. In the light of that explanation, I hope that the noble Baroness will withdraw her amendment.
Baroness Blatch: My Lords, I do not believe that schools or LEAs will be in any doubt as to what they need to do to accommodate young people with disabilities in their schools. I certainly do not believe that they need another raft of legislation with explanatory notes accompanied by another box of papers, especially as the Government have a mission to reduce such information to schools. It does not do the schools or the staff of those schools any service to believe that they can meet their obligations under the Bill only if yet more regulation comes down to them.
In answering the amendment, the noble Lord spoke of the terms "education" or "an associated service" as
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being irrelevant. They are not irrelevant because they are actually the words on the face of the Bill. The Bill states:
"Regulations may prescribe services which are, or services which are not, to be regarded for the purposes of this section"—
that is the planning duty—
"as being (a) education: or (b) an associated service".
I despair if there is to be regulation which states that the dining-hall must be prepared to receive young people with disabilities. I regard teachers as being far more intelligent than that. They certainly do not need vast tracts of legislation. But, I suppose that we cannot stop this great leviathan. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 95:
Page 13, line 37 leave out from ("to") to end of line 45 and insert, ("the arrangements and facilities available and planned for the assistance of disabled pupils").
The noble Baroness said: My Lords, if one lists some items that one expects to find in a report, by implication one considers other items not so listed to be less important or even unimportant. It follows that if one lists four areas of activity that one wants to see in the Government's annual report, those four areas will quickly become the only areas reported upon. If, on the other hand, one says that one wants to know all about the arrangements and facilities both existing and planned, then everything is covered, not just those four areas. That leaves the schools to use their professional minds and judgment about what in fact is applicable and pertinent to those reports.
The amendment greatly simplifies the clause. It makes it fully encompass what is needed. In Committee, the noble Baroness, Lady Blackstone, in her reply claimed that changing the wording would probably cause confusion for maintained schools.
They are not infant children; they are professional people. They know what their obligations are under the Bill. They know what should go into reports. They do not need an ABC guide for absolutely everything. And they must be free to use their professional judgment.
Again the noble Baroness in her reply said that being vague about the information to be included in the annual report will probably be unhelpful to schools. Indeed it would be, but the amendment is far from being vague, whereas a limited list of what is to be included becomes the only item that will be included. I press the Government again to trust in our professionals to do the job that they were trained to do. I beg to move.
Lord Davies of Oldham: My Lords, of course there is a balance to be struck between placing duties on schools and reducing burdens on them. We recognise that. Maintained schools are already required to include certain information as to what they have done in relation to disabled pupils. We are not adding extra

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burdens. They will simply now have to include their accessibility plans in their governors' reports too, and the plan will obviously have been drawn up.
The noble Baroness, when speaking to this amendment in Committee, said that she wanted to make the requirement more understandable. We are confident that the provision is entirely clear as it stands. It is specific and sets out precisely what information maintained schools are required to provide. It also ensures consistency, as all maintained schools are required to provide the same information.
Changing the wording will simply cause confusion for these schools. Being vague about what information is required to be included in the governors' annual report will not help maintained schools. We would not want a position where schools were interpreting what is required in different ways. That does not promote consistency. We do not want to end up with schools producing different information depending on how they interpret the provision.
It also takes away the explicit requirement on maintained schools to publish information as to their accessibility plan in their governor's annual report. It is right that parents of disabled pupils and disabled prospective pupils have the information that they need, especially when choosing potential schools. That makes it even more important that schools are clear about what information to provide.
I should like to reassure the noble Baroness that I consider her concerns to be unfounded. I cannot see what is achieved by the amendment. I believe that the specifications in the Bill are clear.
Baroness Blatch: My Lords, one matter on which I do agree with the noble Lord is that the number of regulations released only today will certainly place burdens on schools. As for the policy of what appears to be dull uniformity, perhaps I may say this to the noble Lord. Schools are different, areas are different and children's needs are different. Those differences would be reflected in the plans. If we leave it to schools to determine for themselves what they need to plan for in their reports on receiving young people with special needs, it will be done well.
The notion of putting in place a completely uniform set of rules and regulations and sending that information down to schools to ensure that they all do the same thing is not helpful. Armies of people in the department will then pore over the plans. We should set schools free to use their professional judgment. They will do the job far more effectively than will the man in Whitehall.
We shall return to this matter, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Accessibility strategies and plans: procedure]
[Amendments Nos. 96 to 99 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 100:
Page 15, leave out lines 8 and 9.
On Question, amendment agreed to.
[Amendment No. 101 not moved.]
Baroness Wilkins Baroness Wilkins moved Amendment No. 102:
After Clause 14, insert the following new clause—
ACCESSIBLE INFORMATION POLICIES (NO. 2)
(". In the 1995 Act, insert the following section—
"ACCESSIBLE INFORMATION POLICIES
Accessible information policies.
28EA.—(1) Each local education authority must prepare in writing and in accessible formats a policy (their"accessible information policy") for improving the extent to which all written information available to non-disabled children and parents is available to disabled children and disabled parents in their preferred, accessible format, at the time they need it.
(2) Each local education authority must nominate a named officer to be responsible for implementing and monitoring the accessible information policy including planning localised production of information in accessible formats and disseminating advice and information to schools, disabled parents and disabled pupils.
(3) It is the duty of each local education authority to implement their accessible information policy.
(4) It is the duty of each local education authority to publicise their accessible information policy to disabled children and parents.
(5) Each school must prepare in writing and in alternative formats a policy (their "accessible information policy") for improving the extent to which all written information available to non-disabled children and parents is available to disabled children and disabled parents in their preferred, accessible format, at the time they need it.
(6) It is the duty of each school to implement their accessible information policy.
(7) It is the duty of each school to publicise their accessible information policy to disabled children and parents.
(8) Guidance under subsections (1) to (7) may be issued—

(a) for England, by the Secretary of State; and

(b) for Wales by the National Assembly.

(9) "Written information" includes correspondence, curriculum information, reading materials required to support a child's learning and any other type of information which is otherwise made available to pupils or parents.
(10) "Accessible formats" means information in large print, in braille, in Moon, on tape, on disc or in another electronic format, on video, in easy English or in any other format designed to be accessible to disabled people who have difficulty reading standard print.
(11) "School" means—

(a) a maintained school or a maintained nursery school,

(b) a pupil referral unit,

(c) a city technology college, a city college for the technology of the arts or a city academy,

(d) an independent school.

(e) a special school not maintained by a local education authority."").

The noble Baroness said: My Lords, Amendments Nos. 101 and 102 seek to achieve the same end. In order not to take up the time of your Lordships' House, my noble friend Lord Ashley of Stoke has agreed not to move his Amendment No. 101. I shall move Amendment No. 102.
The purpose of the amendment is to ensure that there is an established system to enable sensory impaired and other print-disabled pupils and parents to have access to the same written information as their non-disabled peers. In order for these pupils to have real educational equality, this is essential.
This amendment received strong support from other noble Lords in Grand Committee and in order to meet the Minister's concerns, an alternative and less absolute form of wording has been proposed.
The reason for seeking a statutory duty to be placed on LEAs and schools to have accessible information policies is that there is hard evidence that visually impaired children and parents and those with learning difficulties currently do not receive information in their preferred format at the time they need it. In Grand Committee, the Minister argued that such a statutory duty was unnecessary because all blind and partially sighted children have statements setting out their needs for accessible formats. Sadly, this is not the case. As my noble friend Lord Ashley of Stoke has already pointed out, nearly 30 per cent of visually impaired children do not have statements. Moreover, a statement is no guarantee of adequate support, as there are still visually impaired children with statements who are not getting information in their preferred format at the time they need it.
Far from placing a significant additional burden on schools and LEAs, which was the concern of my noble friend the Minister, this amendment would ensure that teachers are not left floundering and unsupported, taking up their precious time in searching out accessible materials for their print impaired pupils. It is the experience of voluntary organisations in this field that teachers are frequently at a loss as to how to provide accessible information. This amendment would ensure that schools and LEAs have clear guidance and procedures in place for teachers. This will use the available resources to best effect and save time and money in the long run, thereby improving the educational opportunities of a great many children.
The role of the "named officer" in this is the clear source of reference for help. His role would be to coordinate, plan and advise. To meet the Minister's concerns that this would entail LEAs having to create a new post, the wording of the amendment has been altered to propose that a named officer be "nominated" rather than "appointed".
It is not only disabled children but print-impaired parents whose needs would be met by ensuring that LEAs and schools had an accessible information policy. In Grand Committee, the Minister referred to parents having a right to accessible information about services under Part III of the Disability Discrimination Act, suggesting that this meant that disabled parents are fully catered for. Unfortunately, once again it is the experience of the RNIB that this is not the case. It is all too aware that most blind and partially sighted parents have incredibly low expectations of their needs being
780
met and they simply do not request or demand accessible information. Those that do often feel worn down by constantly having to ask.
This amendment would ensure that schools and LEAs meet the information needs of print-impaired pupils and parents in a proactive way, ensuring that teachers are well supported and that resources are used efficiently and to best effect. I beg to move.
2.15 a.m.
Baroness Darcy de Knayth: My Lords, I warmly support the cogent arguments advanced by the noble Baroness, Lady Wilkins. I should like to reiterate what she said about the low expectations of parents who may be blind or partially sighted or dyslexic. That is hardly surprising, because they are excluded from a great deal of information in all other aspects of their lives. If they do not know that it exists, how can they demand information in a format appropriate to their needs? I hope that the Minister will be able to give a positive response in relation to parents as well as children.
Lord Addington: My Lords, I support the noble Baroness, Lady Wilkins, in this amendment. It is important that we establish that people should be able to obtain information in a format in which they can understand it. That is essential for pupils if they are to have meaningful education. There must also be a means of knowing where they can obtain some form of enforcement and guidance to ensure that they obtain the information. I very much hope that the Minister will have something positive to say about the matter.
Baroness Blatch: My Lords, again, this amendment is about information being timely and being obtained in an appropriate form. I strongly support the noble Baroness.
Baroness Blackstone: My Lords, I have reflected on this issue since Committee stage. I sympathise with the outcome that noble Lords seek, but these particular amendments would create more bureaucracy without improving delivery in the classroom to the children who need support.
However, I believe that there is a way to make it possible for disabled pupils to gain access to information in a number of different formats without burdening our schools unnecessarily. Noble Lords want a more strategic and less ad hoc approach to the provision of materials in accessible formats. I agree. Therefore, I propose to bring forward at Third Reading an amendment to include within the planning duty a duty to plan to improve the extent to which information is made available to disabled pupils in accessible formats. That, I believe, will go a long way to meeting the objectives of these amendments.

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Non-educational services to parents are already covered by Part III of the DDA. This means that information about the services provided by the school or its performance may have to be provided to parents in alternative formats, where it is reasonable for the school to have to do so. It is not necessary to create a new and overlapping duty. In the light of my assurances, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Wilkins: My Lords, first, I warmly thank noble Lords for their support and I am grateful to the Minister for her response, which I shall read carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Residual duty of education authorities]:
[Amendment No. 103 not moved.]
Clause 16 [Special Educational Needs and Disability Tribunal]:
[Amendment No. 104 had been withdrawn from the Marshalled List.]
Clause 17 [Jurisdiction and powers of the Tribunal]:
Baroness Sharp of Guildford Baroness Sharp of Guildford moved Amendment No. 105:
Page 17, line 18, leave out ("may") and insert ("shall").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 106 and 111.
Amendment No. 105 is a brief amendment. I do not want to spend much time on it. Amendments Nos. 106 and 111 both deal again with the question of the representation of the child in relation to its parents. Amendment No. 106 preserves the primary role of the parent and would give the child the right to proceed only with the leave of the court. It gives the child standing in the SEN tribunal to take cases under the DDA. At present, the Bill gives that right only to the parent. Some cases could even involve a 19 year-old who, in the jurisdictions of other courts, has full adult status.
Another reason for tabling the amendment is that it is also important that an effective remedy be granted for discrimination in order to comply with the Human Rights Act and Article 13 of the European Convention on Human Rights that there should be an effective remedy for breaches of the convention rights: in this case the right to an education—Protocol 1, Article 2—and the right to be free of discrimination in exercising the right to education, Article 14. Article 14 might also be involved because a disabled claimant should not be put in a weaker position than a person discriminated against on grounds of race or gender.
Amendment No. 111 would empower the tribunal to decide in what circumstances the child should be entitled to proceed and in what manner. Under the Children Act leave may only be given when the court is satisfied that the child has sufficient understanding to take the case. But the tribunal may wish to impose extra restrictions through regulations; for instance,
782
when the parent is unwilling to proceed. The tribunal would also need to decide whether to allow the child to proceed alone or through a litigation friend. I beg to move.
Baroness Blackstone: My Lords, Amendment No. 105 would compel parents to bring claims of disability discrimination to the tribunal. At present parents have the discretion whether or not to bring those cases. We would not want parents to be forced to bring appeals because an appeal might not always be in the child's best interests. It may be that the matter has been resolved, perhaps through conciliation. Parents and LEAs will have access to the DRC conciliation service in those cases. There is little point in having such a service if an appeal would have to be brought in any case. Even if we could agree to such a duty, and we cannot, how could it be enforced? There is no provision in the Bill for this and it is difficult to envisage what a reasonable sanction might be in those cases.
I turn to Amendments Nos. 106 and 111, which would allow children to bring their own cases to the tribunal in prescribed circumstances and were the subject of considerable debate during Committee. As I explained then, we believe that the parents' right to bring disability discrimination cases in relation to school education is the best way to secure effective determination of a child's rights. Parents will have a better chance than a child of identifying discrimination and challenging it, and if there is a difference of opinion between the child and parent, it would be unhelpful to exacerbate it. The parents' right to bring an appeal reflects the situation across school education generally where parents act on their children's behalf.
I recognise that Amendment No. 111 would give a regulation-making power to prescribe the circumstances in which a child might be able to bring an appeal. But even allowing that to happen in specified or limited circumstances risks adding significantly to the length, cost and complexity of hearings. That would undermine some of the positive features of the tribunal which we want to preserve.
However, we do not and will never underestimate the importance of seeking and listening to the views of children and young people. This commitment has led us to propose important changes in relation to the procedure of the tribunal and the SEN code of practice. Under existing arrangements children can and do attend hearings at the tribunal. However, revised special educational needs tribunal regulations, which will be laid before Parliament later this year, will strengthen the rights of the child in relation to hearings and formalise the tribunal's established procedure whereby it already accepts evidence from the child.
It is our intention that the equivalent regulations for disability cases at the reconstituted tribunal should reflect those for SEN cases so that they can benefit from the practical experiences of the operation of the SEN regulations and facilitate the hearing of joint SEN and disability cases where that is appropriate.

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I hope that those reassurances persuade the noble Baroness to withdraw her amendment.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for her response and am encouraged by what she said. I shall read it carefully in the record and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(Amendment No. 106 not moved.)
Lord Addington Lord Addington moved Amendment No. 107:
Page 17, line 31, leave out from ("relates;") to end of line 33 and insert—
("(b) includes the ability to order appropriate compensation in relation to the scale and type of discrimination proven."").
The noble Lord said: My Lords, the amendment will correct an anomaly in the Bill. It was inspired by the fact that one is not allowed to receive financial compensation if one has been discriminated against in the field of education, whereas one can do so in other fields.
I have heard some odd arguments at various times, such as that it would take money away from other people in the sector. I cannot follow that argument. If something goes wrong, or there is malpractice in a public service—the National Health Service comes to mind immediately—one receives compensation.
My amendment differs from the one tabled by the noble Lord, Lord Ashley, which refers to "exceptional circumstances". If one has been discriminated against, one should receive financial compensation. Educational remedies may be just too late. If someone has received the wrong education throughout his entire career, and at the age of 25, he wins a case in court, which is not an unreasonable scenario, he should receive some compensation. I await the Minister's response with interest. I beg to move.
The Earl of Mar and Kellie: My Lords, my Amendments Nos. 116, 117 and 118 are grouped with Amendment No. 107. These amendments to the enforcement provisions in Scotland have the purpose of ensuring that the sheriff, when determining a case of discrimination, will have the full armoury of disposals to hand.
In Grand Committee, the Minister argued that the intention is to retain the friendly context of the existing SEN tribunal, to avoid financial penalties. Clearly, the Minister believes that an educational remedy will always be round the corner.
In the Scottish context, it is hoped that the dialogue in front of the sheriff in chambers will also have such a constructive and happy ending. However, there will be circumstances when this is not practical. The best scenario is one in which a child has been so nastily treated by the staff or fellow pupils that he has been withdrawn from the school and placed into another. Clearly, no redress will be available from the former school, without a financial penalty.
784
That scenario is similar to one of constructive dismissal in employment legislation. It will not take too long for an education provider to realise that once discrimination issues begin to loom, the best approach is to push hard for a child's removal from the school, away from the tentacles of this legislation.
I hope that the Minister will explain that I am wrong in my analogy.
Baroness Wilkins: My Lords, because of the lateness of the hour, my noble friend Lord Ashley has had to leave as he has been unwell over the past two weeks. I wish to speak to Amendment No. 108 on his behalf, and shall read from his notes.
The amendment would permit compensation in "exceptional circumstances", such as when provision for educational need is not possible. The arguments and counter arguments on compensation in general were presented in Committee, but the present amendment limits the possibility of compensation to "exceptional circumstances". There is no doubt that the amendment is principled, logical and reasonable.
My noble friend repeats that we all accept that an educational remedy is the ideal. The Minister recounted long lists of possible remedies, but I hope that she will admit that there will be some situations when an educational remedy is not possible. If so, and if the amendment is not accepted, the child will be denied any remedy. The amendment would ensure some measure of justice for all.
If discrimination can arise for a further education student, for which no educational remedy is possible, it can also arise for a school child. The Minister's reply in Committee about this was noticeably weak. She said that the circumstances are rather different, I see no significant difference between a 17 year-old in a school sixth form and a 17 year-old at a further education college.
The Minister claimed that if the sex and race discrimination Acts were being enacted now, they might consider a different forum for compensation. We are not talking about a forum but about whether or not financial compensation is allowed. It is inconceivable that any revision of the sex and race Acts would remove the power to compensate.
Voluntary organisations believe that this particular clause is incompatible with the Human Rights Act. We are now asking for compensation to be payable only in exceptional circumstances. That implies serious discrimination with no educational remedy. But Article 13 of the convention says that there must be a remedy for a breach of convention rights. Article 2 prescribes a right to education. Although Article 13 is not included in the Human Rights Act, the Government stated at the time that it could still be relied on. If this amendment is not accepted, the Government are laying themselves open to a well-publicised test case.

785
In Committee, the Minister claimed that paying compensation would damage the tribunal's ability to base decisions on what is best for children in educational terms. But the tribunal should be considering what is best for children without qualification, although in most, but not all, cases it will be in educational terms.
I believe to be totally misguided the argument that the change proposed by my amendment would make tribunals formal, acrimonious and adversarial. Employment tribunals cope very satisfactorily with awarding compensation and still remain informal. The SEN tribunal will inevitably change a little when it becomes SENDIST, with new powers of enforcement against LEAs. As the Minister pointed out, the ability to require an educational remedy will put costs on LEAs and that could lead to acrimony. However, there is no reason at all why the tribunal proceedings should become more acrimonious and legally based by the addition of making payments of compensation possible, particularly as the cost could be less than for educational remedies.
I have no doubt that publicly recorded payments of compensation would cause LEAs to think again, and that will be a powerful protection for disabled children. If the Government continue to deny financial compensation, they will be deliberately weakening the rights of all disabled children. I urge the Minister to think again.
2.30 a.m.
Baroness Blackstone: My Lords, we believe that allowing for the possibility of financial compensation, even to the limited extent now proposed by my noble friend Lady Wilkins, would fatally undermine the ability of the tribunal to operate as successfully in disability cases as it has done in SEN cases. If financial compensation were available in addition to other remedies, the tendency would be to focus on the financial rather than the educational remedy and make less likely any positive change in the child's educational experience.
The tribunal has done a good job in making itself accessible to parents from all walks of life. It currently receives about 2,500 appeals each year and parents feel the need for legal representation in only one in five cases. We want to ensure that that relative informality and user friendliness of the tribunal is preserved so that parents will feel confident that they can bring disability cases without incurring great expense and that they will not be disadvantaged by not having any legal or other representation.
We must remember that the DRTF recommended that those cases should be heard by a reconstituted tribunal. Allowing the tribunal to award financial compensation would, I am afraid, in spite of what my noble friend has just said, undermine those positive features of which the DRTF approved and make it less likely that children will receive the educational remedy which is so crucial to shaping their future prospects. There will be very few cases where no educational
786
remedy for the individual child is possible. But even in those cases, the tribunal can direct an apology and a change to policies, practices and procedures to make sure that the school or LEA does not discriminate in that way again.
I should point out to the noble Lord, Lord Addington, that we have never said that the reason for not paying financial compensation is that the money might be better spent elsewhere in the education system. On the contrary, we have always been clear that being found to discriminate will cost both LEAs and schools. The difference is that the money they spend will go to benefit the child in the best possible way by improving his or her educational experience.
I turn to the noble Earl's amendments about redress for disability discrimination in Scotland. I have already set out the reasons why we do not believe that financial compensation is appropriate. This applies wherever in Great Britain such discrimination has occurred. It is important that the rights of disabled children should be the same throughout the United Kingdom.
As I said in Committee, the situation in Scotland on the rights of redress is, of course, not exactly the same as that in England and Wales. Scotland does not have a tribunal, and cases of alleged discrimination will be heard in the sheriff court. None the less, the sheriff will have a range of remedies at his disposal, including the power to order a responsible body to refrain from discriminatory practices. The sheriff will also be able to order positive measures to be set in place to rectify shortcomings in the educational provision made for a disabled child. These are strong measures. We believe that they are an appropriate means of redress.
The noble Earl would like to see damages awarded for hurt feelings, but I find it hard to accept that money could ever properly compensate for hurt feelings. Surely it is better to focus on a change in the discriminatory behaviour. A financial award would not remove the fact that a child had suffered discrimination. Making a payment does not require the discriminator to change his or her behaviour, or even to say, "I'm sorry". However, the educational remedy will ensure that a real difference is made to the quality of the child's educational experience. From the discriminator's point of view, it may be easier to give money to get rid of a problem than tackle its root causes; for example, it would be easier for a school to pay a few hundred pounds' compensation to a disabled child than to arrange additional "catch-up" tuition for a child who has been unfairly excluded from lessons.
I know that this is an issue on which there are strong and sincerely held views. However, I hope that what I have said will persuade noble Lords not to press their amendments.
Lord Addington: My Lords, the Minister does not seem to have moved very far from her previous position. It is possible that I slightly over-stated one or two matters. However, financial compensation should be available if all other remedies have failed. There are certain people who will simply be outside the

787
education system when this happens, or, indeed, who will not want to go back into it. If you have had an incredibly bad educational experience and you happen to be 17 or 18 when this is offered, I suggest that that may not be the way forward. Indeed, you may not want to go back into an educational establishment.
I propose to withdraw my amendment at this stage, but I shall consider what might be done at a later stage in the Bill's proceedings. I believe that we on these Benches are bumping very hard into a matter of principle. This is probably not the first time that we have done so, but it is certainly one of the few times that we have hit hard in this respect. The idea that the issue might be dealt with somewhere else does not take away from the fact that this provision should at least be a back-stop. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Wilkins Baroness Wilkins had given notice of her intention to move Amendment No. 108:
Page 17, line 31, leave out from ("relates;") to end of line 33 and insert—
("(b) includes power to order the payment of compensation in exceptional circumstances, such as when provision for an educational need is not possible.").
The noble Baroness said: My Lords, I, too, am disappointed with the Minister's response. I should like to reserve the position of the noble Lord, Lord Ashley, on the matter. I shall not move the amendment.
[Amendment No. 108 not moved.]
Baroness Wilkins Baroness Wilkins moved Amendment No. 109:
Page 17, line 31, after ("relates") insert—
("( ) may in particular take account of—

(i) any personal hurt experienced by the person concerned;

(ii) any experience denied the person concerned because of unlawful discrimination; and

(iii) any necessary changes to accessibility strategies and plans to ensure that the unlawful discrimination does not happen again;").

The noble Baroness said: My Lords, this is the same amendment to which I spoke in Committee. It is designed to probe the extent of educational remedy in cases of discrimination. I speak to the amendment again in the hope of probing a little further. The amendment seeks to determine whether changes could be made to accessibility strategies and plans in order to ensure that,
"unlawful discrimination does not happen again".
I am grateful to my noble friend Lord Davies for the reassurances that he gave in Committee in regard to personal hurt, and the experiences denied to the child. In particular he made clear that a number of remedies might be included such as making up for lost tuition and giving a formal apology. However, the Minister was not forthcoming on the third and most significant issue; that is, how to ensure that the discrimination does not happen again. In his reply he rejected this part of the amendment on the grounds that accessibility
788
strategies and plans are the responsibility of the Secretary of State, and so the SEN and disability tribunal would not have powers in relation to them. Furthermore, he argued that there were pragmatic grounds because it would add to the length, formality and complexity of the tribunal hearings.
I would be most grateful if my noble friend the Minister would reconsider. Surely it is possible to find a mechanism to make sure that unlawful discrimination cannot be repeated. If the SEN and Disability Rights Tribunal cannot order a change to accessibility plans and strategies to ensure that unlawful discrimination does not happen again, then who can? Could the tribunal refer the case to Ofsted, who will be inspecting the plans? And if so, could Ofsted do anything more than comment critically?
As the Minister has pointed out, the Secretary of State has responsibility for these strategies and plans. In that case can he order them to be redrawn if it is shown that the plan or strategy will continue to discriminate? Lastly, could the Minister indicate whether the powers of the Disability Rights Commission would enable it to investigate in such situations? I hope that my noble friend the Minister will be able to add to the reassurance which he has already given by pointing to a mechanism to ensure that unlawful discrimination will not be repeated. I beg to move.
Lord Rix: My Lords, I add my voice to that of the noble Baroness, Lady Wilkins. There has to be some effective form of redress.
Baroness Blackstone: My Lords, the Bill gives the tribunal wide powers to order appropriate remedies. When we discussed the amendment of my noble friend Lady Wilkins in Committee, I offered reassurance that the first two factors which the amendment seeks to insert are things which the Bill already provides for.
As I explained during Committee, the third factor is different. The tribunal will not have the power to order LEAs or schools to make changes to their strategies and plans. Enforcement of the duty to plan will, in the first instance, be by the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. The Secretary of State or the National Assembly will have the power to call in an LEA's strategy or a school's plan and will ultimately direct it to take the necessary action if it is acting unreasonably or has not carried out its duties. If necessary, they will be able to apply to the court for a mandatory order to enforce their directions.
The tribunal operates in a very child-centred and relatively informal way and asking it to review the operation of a strategic duty, such as the duty to plan, would sit badly with this. However, there are other strands to the monitoring and enforcement of the planning duty which I did not mention in Committee. I can confirm that Ofsted is one strand and the DRC is another. The commission will have a role in monitoring the operation of the planning duty. It could, if it thought fit, conduct a general investigation into the operation of this duty which could lead to

789
recommendations for change. So, for example, the DRC could look at a range of LEA plans and offer recommendations as to how LEAs might change them. The DRC is under a duty to keep the working of the entire DDA under review and can, of its own volition, give advice and make recommendations on its operation to Ministers, government agencies and public authorities. I very much hope that my explanation will enable my noble friend to withdraw the amendment.
Baroness Wilkins: My Lords, I am most grateful to the Minister for filling out her response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Procedure]:
[Amendments Nos. 109A to 113 not moved.]
Clause 21 [Roles of the Secretary of State and the National Assembly]:
2.45 a.m.
Lord Lucas Lord Lucas moved Amendment No. 114:
Page 20, line 44, leave out from ("in") to ("the") in line 45.
The noble Lord said: My Lords, the amendment deletes the words at the bottom of page 20 of the Bill,
"in the exercise of a power conferred … under section 28D or 28E".
No powers are conferred under these sections. The words are entirely unnecessary. I beg to move.
Lord Davies of Oldham: My Lords, perhaps I may express my enthusiasm at seeing the noble Lord, Lord Lucas, in his place. I should have felt deprived if I could not take this moment to congratulate him on his amendment. We do not accept it entirely because there is a defect. But we accept the amendment entirely in principle and will bring forward an amendment at Third Reading to follow exactly what he says.
Lord Lucas: My Lords, I feel quite chuffed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 115:
Page 21, line 24, leave out ("appear to it to be expedient") and insert ("are reasonable in all the circumstances").
The noble Lord said: My Lords, I hope for similar luck on this amendment but it is perhaps a more difficult question.
The noble Baroness was kind enough to write to me after our discussions in Committee on this part of the Bill. The amendment concerns the way in which the Minister, in the case of England, has the right to enforce on a school the performance of its obligations under the need to plan for provision for people with disabilities. I understand that effectively at the end of the day the Minister can impose her own will and all that is left for the school is judicial review. For independent schools in particular substantial liabilities could be imposed. A lot of building work may be required. I believe that the provision should be more
790
equitable. Rather than appearing expedient to the Minister, the noble Baroness should have to show that what she demands of the school is reasonable in all the circumstances. That would be a better balance. The school could effectively challenge the Minister's judgment on a more equal footing if that were seen to be the correct thing to do.
Schools do not often sue. It costs them a lot of money and they do not have it to spare. It would have to be a pretty tough ministerial demand to justify a school going to court over it. However, if a school felt that it was placed in that position by the Minister, then it should have a more equal playing field than is provided by a judicial review style of combat. I beg to move.
Lord Davies of Oldham: My Lords, I cannot be quite so positive on this amendment. The noble Lord will recognise that we want the planning duty to make a difference. To do that, it needs to be properly enforced. But we do not envisage that the Secretary of State or the National Assembly for Wales will use their powers to direct in a frivolous way. They will not make directions without allowing the school to make representations first. When a school has not complied with its duties, or has acted unreasonably in complying with them, it is right that an appropriate direction can be issued.
I merely add that the wording replicates that used in the Education Act 1996 and therefore provides consistency.
Lord Lucas: My Lords, on that last point, I suspect that I shall have to give in. I am afraid that I had failed to spot that this was the old wording that we had lived under for a while. I thank the Minister for pointing it out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Enforcement procedure: Scotland]:
[Amendments Nos. 116 to 118 not moved.]
Clause 25 [Discrimination against disabled students and prospective students]:
[Amendments Nos. 119 and 120 not moved.]
Clause 26 [Meaning of "discrimination"]:
[Amendment No. 121 not moved.]
Baroness Darcy de Knayth Baroness Darcy de Knayth moved Amendment No. 122:
Page 27. leave out lines 10 to 14.
The noble Baroness said: My Lords, this is a probing amendment on an issue that concerns SKILL—the National Bureau for Students with Disabilities—of which I am the president. The issue has cropped up since the Committee stage. The amendment would remove the defence of ignorance of an individual's disability when treating disabled people less favourably. I shall try to explain coherently.
As we know, the Bill provides a defence for discrimination when a responsible body or institution does not know and could not reasonably have known that an individual was disabled. It is important that that defence is available to protect institutions from being found in breach of the law when their actions arise out of a genuine lack of knowledge.
Under Clause 26(3), an institution's failure to make reasonable adjustments is defensible if it could not have known that an individual was disabled and if the failure to make that adjustment was due to that knowledge. We all agree on that. However, the defence in Clause 26(4) to justify less favourable treatment is much more comprehensive than that provided for the failure to make reasonable adjustments. It provides a blanket justification for less favourable treatment if the institution can prove that it did not know and could not reasonably have known that the individual was disabled. It does not require the less favourable treatment to relate in any way to that knowledge.
That means that it would be possible for an institution to act in a discriminatory fashion as long as it could argue successfully that it could not know about the individual's disabilities. That is particularly dangerous in relation to potential students. For example, an institution recently responded to a request for information from SKILL by saying that it was not in a position to accept disabled students. If that information were made public, it might well act as a discouragement to an individual seeking admission. That potential student might feel with some justification that the institution was acting in a discriminatory fashion. However, because the potential student is unknown to the institution and therefore his disability could not be known, the institution could claim a defence.
I stress that this is a probing amendment and I very much look forward to the Minister's reply, which I hope will be more understandable than my comments. I beg to move.
Lord Rix: My Lords, I was under the impression that it was I who came from the world of farce, but not even in my day could I have envisaged a "responsible body" being adjudged to be a responsible body if it had not even bothered to find out whether a person was disabled. Even the Marx brothers would have had problems with that double entendre. Normally, double entendres are intended to get laughs, but they are out of place in this Bill.
Baroness Blackstone: My Lords, I thank the noble Baroness, Lady Darcy de Knayth, for highlighting this concern. I am aware that this section of the Bill is complex, although I hope that it is not farcical. I welcome the opportunity to clear up any misunderstandings.
Subsections (3) and (4) provide defences to protect institutions from being found in breach of the law when their actions or inactions arise out of a genuine lack of knowledge. Subsection (3) provides that defence in relation to the duty to make reasonable adjustments in anticipation of the needs of disabled
792
students generally, as set out in Section 28T of the amended DDA. Subsection (4) provides that defence in relation to the duty to avoid less favourable treatment of individual disabled students, as set out in Section 28S of the amended DDA.
This amendment seeks to delete subsection (4) on the grounds that since it does not require the discrimination in question to relate to the institution's lack of knowledge, it would provide a blanket justification for discrimination of any sort against a disabled person if the institution could reasonably claim that it did not know, or could not be expected to know, about an individual's disability at the time. The amendment is based on the view that subsection (4) is flawed compared with subsection (3), which provides that the failure to act where there is a lack of knowledge is defensible only if that failure was attributable to the lack of knowledge.
However, this view seriously underestimates the limited circumstances in which we would expect an institution to be able to claim both that it did not know and that it could not reasonably have been expected to know about an individual's disability.
I understand that SKILL may be concerned about the position of potential students who have not yet applied and about whom the institution may reasonably know nothing or next to nothing. The concern is that institutions may discriminate against them with impunity, for example, in relation to admissions arrangements.
Perhaps I may try to explain the position. Under Section 28R institutions must not discriminate against disabled people in their admission arrangements. If a student tried to apply and was turned down because of his disability, that would be discrimination against that individual. In the same vein, if a prospective student asked the institution if he could apply, mentioned that he was disabled and was told that it would not accept disabled students, that would be discrimination against that individual. However, if a prospective student had found out that an institution did not accept disabled students and had decided that he would therefore not apply to that college, he would probably be unable to prove that the college had discriminated against him as an individual. In those circumstances he probably would have no basis for a claim under the less favourable treatment provisions which concern discrimination against an individual. Therefore removing or somehow amending the knowledge requirement in relation to the less favourable treatment duty, which this amendment seeks to do, would not help that student.
Where, then, is the provision to prevent discrimination of this type? It lies in Section 28T, not in Section 28S. Under Section 28T the institution has to take reasonable steps to ensure that its admission arrangements, among other things, do not place disabled students at a substantial disadvantage in comparison with persons who are not disabled. This duty operates to disabled students at large, unlike the less favourable treatment duty in Section 28S, and is anticipatory. Using Section 28T, a student who has

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been put off applying to a college by finding out that it had a policy of not admitting disabled students would almost certainly be able to prove discrimination.
In summary, prospective students who are unknown to an institution will get a remedy through the anticipatory nature of the reasonable adjustments duty, which is a more appropriate approach for this type of blanket discrimination. I am confident, therefore, that this Bill, if enacted, will require any college which may have a policy of not enrolling disabled students to review and revise that policy and that the Bill is not in fact flawed in the way that some may have feared.
I hope that I have cleared up any misunderstandings which may have prompted this amendment and that the noble Baroness feels able to withdraw it.
Baroness Darcy de Knayth: My Lords, I thank the noble Baroness for that careful and lengthy reply. I shall certainly withdraw the amendment for the moment. I believe that she has covered every circumstance. But I shall go back to SKILL and check. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 123 not moved.]
Baroness Sharp of Guildford Baroness Sharp of Guildford had given notice of her intention to move Amendment No. 124:
Page 27, leave out lines 24 to 28.
The noble Baroness said: My Lords, the next three blocks of amendments are all in my name. They are all probing amendments. In view of the lateness of the hour, I shall not move them but perhaps have a word with the Minister outside the Chamber. I may bring them back at Third Reading.
[Amendment No. 124 not moved.]
Clause 27 [Disabled students not to be substantially disadvantaged]:
[Amendment No. 125 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 126:
Page 28, line 8, leave out ("determining") and insert ("considering").
On Question, amendment agreed to.
3 a.m.
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 127 and 128:
Page 28, line 8, leave out ("a responsible body") and insert ("it").
Page 28, line 10, leave out ("regard shall be had, in particular, to") and insert ("the factors to which a responsible body may have regard include").
On Question, amendments agreed to.
[Amendments Nos. 129 to 133 not moved.]
Clause 29 [Right of redress]:
[Amendments Nos. 134 and 135 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 136:
Page 29, line 38, leave out ("injury to feelings") and insert ("any personal offence caused").
The noble Baroness said: My Lords, Clause 29 deals with the right of redress by amending the Disability Discrimination Act 1995. Proposed new subsection (2) states:
"For the avoidance of doubt it is hereby declared that damages in respect of discrimination in a way which is unlawful under this Chapter may include compensation for injury to feelings whether or not they include compensation under any other head".
I must press the Minister on this matter even at this late hour on the grounds that I believe that injury to feeling is a difficult concept. When personal offence is caused, it would be more measurable and easier to assess. For that reason, I hope that the Minister, having reflected on the matter since the Bill's Committee stage, will be more accommodating in his response. I beg to move.
Lord Davies of Oldham: My Lords, as the noble Baroness said, we had a substantive debate on this issue in Committee.
Clause 29 allows for damages where discrimination has taken place under this chapter to include compensation for "injury to feelings". As we said in Committee, that exactly mirrors the provisions for compensation for "injury to feelings" under Parts II and III of the Disability Discrimination Act. The amendment substitutes the words "any personal offence caused" for "injury to feelings", presumably in pursuit of clarity. However, we still contend that, far from contributing to clarity, the amendment would introduce a difference in wording between identical provisions in the Bill and the rest of the Disability Discrimination Act, and thus introduce confusion.
Furthermore, the concept of "injury to feelings" is common not only to the Disability Discrimination Act but also to the Sex Discrimination Act and the Race Relations Act. The Government's argument is not, as has been suggested, simply that "injury to feelings" has been used before; it is that that concept has been successfully used and that the argument that it cannot be measured or assessed by courts or tribunals is not borne out by the evidence.
The main cases about the meaning of "injury to feelings" have arisen in the employment context. In that context, the Employment Appeals Tribunal has given general guidance on the need to be just to both parties. Such awards should compensate fully without punishing the person who has discriminated. The principle is that the victim should be compensated in a way that is broadly similar to personal injury cases.
Employment tribunals have wide discretion in deciding what amount to award for injury to feelings, but assess the degree of hurt, humiliation and distress that the discrimination has caused to the person. They have a good record for taking injury to feelings into account and in assessing different degrees of injury to feelings. For example, in 1999 compensation for injury to feelings accounted for just over one-third of the

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total compensation awarded in disability cases. The awards ranged from £200 to £15,000, depending on the assessment of injury caused. Awards for injury to feelings also accounted for around half of the total compensation awarded in sex and race cases. Compensation for injury to feelings is thus a significant remedy in discrimination cases generally, and it has a good track record in practice. That is why we defend its use in the Bill. I hope that the noble Baroness may be persuaded on this occasion to withdraw the amendment.
Baroness Blatch: My Lords, at this late hour I will of course accept the Minister's comments. I am not in a posit ion to counter some of his arguments other than to say that the situation is not quite as rosy as he suggested. There is quite a lot of anecdotal evidence about some very messy attempts to prove injury to feelings. If the matter is offensive personally to the person, it is more measurable. Of course, we are back to the old argument that it has been done since the year dot, and therefore there is no question that the language can be changed. But there comes a time when there has to be a break with old language because times do change. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 137 and 138 not moved.]
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 139:
Page 30, line 3, at end insert—
("( ) The fact that a person who brings proceedings under this Part against a responsible body may also be entitled to bring proceedings against that body under Part II is not to affect the proceedings under this Part.").
The noble Lord said: My Lords, I beg to move this amendment, and to speak to Amendments Nos. 141, 143 and 145. Amendments Nos. 139 and 141 are in direct response to concerns raised by the noble Baroness, Lady Sharp of Guildford, at Committee stage, with particular regard to research students. As I said at the time, these were helpful amendments, and prompted us to look again at the definition of a student.
Amendment No. 141 amends the definition of "student" to make it clear that all students undertaking a course of study at an educational institution will be covered, even if they are also employed part-time by the institution, for example, to do some teaching or some research.
Linked to this is Amendment No. 139. Where a disabled person studies at an institution part of the time and works for it part of the time they will now have rights both under the employment provisions of the DDA and under the provisions of this Bill. Duties under Part II of the DDA, the employment provisions, are enforced through an employment tribunal and the new provisions under this Bill will be enforced at the county courts.
It is very clear that we do not want any disabled person who has been discriminated against to be unsure of where they should bring their case. Neither would we want an institution to be able to defend or delay a case by saying that it had been brought under the wrong part and therefore to the wrong forum. For example, if a person is made to sit at an unobtrusive table in the canteen because he has a severe disfigurement and other people claim to be made to feel uncomfortable by his presence, we do not want him to have to waste time and money considering whether he is eating his lunch as a student or as an employee. The amendment would allow this person to bring a case to the county court under the new Part IV without the risk of being frustrated by the defence that they should have brought the case under Part II.
Whilst on the subject of definition, I will take the opportunity to make a commitment to the House in response to concerns raised by a number of noble Lords in Committee regarding work experience placements. We intend to use the regulation-making power under Clause 25 to make clear that an institution's role as regards work experience placements is a student service. Where an institution provides support to all students in terms of work experience placements, it will be under a duty not to treat a disabled student any less favourably than a non-disabled student for a reason relating to a student's disability unless it can show that that treatment is justified.
It will also be under a duty to make reasonable adjustments to its work experience arrangements to ensure that disabled students are not placed at a substantial disadvantage in comparison to students without disabilities in relation to the support that they receive. However, I recognise that there is much to do to improve the experience of disabled students on work experience placements. We should not rely on this Bill as the only means of improving matters. We have held discussions with the noble Baroness, Lady Darcy, today and with SKILL on this point. We have agreed that officials within my department will work in partnership with SKILL and the National Bureau for Students with Disabilities on a statement of good practice in terms of the practical steps we think institutions should take to help disabled students gain access to suitable places and to gain successful experience in these places.
We will also make it available to the Quality Assurance Agency for HE, to inform the further development of their existing guidance for HE institutions on these matters. There is no similar guidance available for FE institutions, and that is a gap which we intend to fill. We will therefore work together with the AOC, the Learning and Skills Development Agency and the Learning and Skills Council to develop good practice guidance to FE institutions on work experience placements, which we aim to see published in the late spring, in time to influence action to arrange placements for students who are this autumn starting their college courses.
Amendments Nos. 143 and 145 are technical amendments to correct a drafting error and to ensure that the Disability Rights Commission has the same powers to prepare codes of practice in relation to the new schools duties as it has in relation to other parts of the DDA. I hope that noble Lords will welcome these amendments.
Baroness Darcy de Knayth: My Lords, I thank the noble Lord for his statement in relation to work placements. As he said, we had discussions with Jacqui Smith which were very useful. I feel that this is very much half a loaf and I know that SKILL would have liked the obligation to be placed on the provider of the work experience and not on the institution. However, I welcome the fact that the regulations will define what the educational providers do in relation to work experience and what he says in relation to working with SKILL to produce a statement of good practice, but I believe that still relates to the institutions and not to the providers of the work placement. I hope that he will continue to hold discussions on how one can ensure that the provider of the work placement behaves well.
Lord Davies of Oldham: My Lords, I am grateful for those remarks. I emphasise that the education institution takes prime responsibility for the successful placement of the student in the work experience. I respect the point that she makes and no doubt the discussions will continue.
On Question, amendment agreed to.
Clause 30 [Occupation of premises by educational institutions]:
Baroness Blatch Baroness Blatch moved Amendment No. 140:
Page 30. line 10, leave out Clause 30.
The noble Baroness said: My Lords, in Committee the noble Baroness and I had a series of exchanges on the rights and wrongs of Clause 30 from which I emerged even more opposed to the clause than I was before. The essence of Clause 30 is that if some or all of an institution's buildings are rented or leased, the college may make alterations to those buildings to comply with the provisions under the Bill, even though the college does not own them and even though the owner may object.
Provision is made for consultation with the owner and for negotiations, but if after all that the college still wishes to make alterations to the buildings that are opposed by the owners, Clause 30 gives the go-ahead for the college to do so, even though the normal laws governing leasehold and ownership do not allow the tenant to ride roughshod over the owner.
If we were talking about some small alteration such as putting in ramps instead of steps, such a minor alteration could be reversed. In any case, that is probably obligatory because the premises may be regarded as "in public use". Putting in ramps, handrails and the like is not the issue. Clause 30 will come into play when something major is proposed. In some cities, including London, institutions of further
798
and higher education use a multitude of buildings, some freehold, some leasehold. Some of those leasehold properties are likely to be of historic and/or architectural importance.
Supposing a series of lift shafts were proposed to improve access, suppose the construction of such lift shafts in a Victorian building required major strengthening of the floors and the removal of architectural features, and suppose that also required the erection of the top wheelhouse where a beautiful decorated cupola now stands, under Clause 30 the owner could object. But the college could get planning permission on the grounds that the lift shafts complied with the demands under the Bill. Under Clause 30, as the noble Baroness, Lady Blackstone, pointed out in Committee, the owner could impose conditions. However, what possible conditions could the owner impose that would not destroy the Victorian architectural features inside the building, and possibly on the roof as well? There is none. The clause would still override the owner and the work would go ahead.
What is the alternative if, as I request, Clause 30 is deleted? What can the college do? The answer is still initially that it can attempt to negotiate with the owner, but if at the end of such discussions the proposed alterations or additions are wholly unacceptable to the owner, the owner should have the right to say no, as the work is outside the terms of the lease into which the college has freely entered.
The college could then do one of two things. It could attempt to renegotiate the lease by tempting the owner to accept the changes in return for a much higher rent; in effect, providing compensation for the damage done. If that proved unacceptable to the owner, the college would pull out of the lease altogether and of the building and go elsewhere. Already many of the departments of many of the London colleges are to be found dotted around a maze of streets, and from time to time they change buildings. The college would have to give up the building and find another one.
The noble Baroness, Lady Blackstone, suggested on the previous occasion that if it could be shown that the proposed alterations would destroy the character of the building, that might be sufficient defence to sustain the owner's objection. At the moment Clause 30 does not provide for that matter. But in any case any such provision would only be a crumb of comfort. It does not meet the real objection to the clause.
It should not be for the Government—for any government, and I include the previous one—or for this Parliament to ride roughshod over an owner's legitimate rights over his own property. This is not wartime when emergency powers were taken. There is no case for taking such draconian powers today.
In defence of the measure, the noble Baroness, Lady Blackstone, said that the provision was taken from the earlier Disability Discrimination Act. In other words, if it was done once before, it can be done again whether or not it is right. Too often in our debates in

799
Committee—we have certainly had a great deal of it today—the Government's defence has been to quote earlier legislation in justification. Such legislation is no defence at all. Even if the circumstances of the two pieces of legislation are exactly the same, that does not justify making the same wrong provision twice.
The provisions in the DDA covered only minor alterations—ramps and so on. As I said earlier, that would not be the problem. That is probably why the noble Baroness said on the previous occasion that no serious difficulties have yet arisen from it. Even so, I am uncomfortable about overriding an owner's legitimate rights where he has a legitimate objection. There might even be a case for revisiting that earlier legislation. I beg to move.
3.15 a.m.
Baroness Blackstone: My Lords, I appreciate that the noble Baroness has concerns that Clause 30 might result in forcing a landlord to allow alterations to be made that could destroy the character of a building. I therefore sought to allay those concerns in my letter to her in which I made it clear that this was neither the intention behind the clause nor its effect. But I clearly failed.
Clause 30 and the associated schedule are needed to ensure that a provider of post-16 education cannot use the fact that a building is leased as an excuse not to make reasonable adjustments to the premises. Without the clause, the physical adjustment duty would be weakened because disabled people would, in the case of leased premises, be left without a way to challenge the provider or the landlord. There would be one law for disabled people attending courses held at premises owned by the provider and another for those attending courses at leasehold properties.
As I explained before, the provision is not new. I believe that the noble Baroness understands that. It mirrors provisions set out in the DDA which apply to employers and other organisations. The code of practice under Part II gives examples of when it might be unreasonable for a landlord to withhold his consent and when it might be reasonable. For example, it would probably be unreasonable for consent to be withheld where a particular adjustment helps to make a public building more accessible generally and is therefore likely to benefit the landlord. On the other hand, where a particular adjustment is likely to result in a substantial permanent reduction in the value of the landlord's interest in the premises—the noble Baroness expressed concern about that in Committee—the landlord would almost certainly be acting reasonably in withholding consent.
Regulations under Part II also include reasonable conditions for the landlord to set when giving consent. These are obtaining planning permission and other statutory consents; submitting any plans to the landlord for approval; allowing the landlord a reasonable opportunity to inspect the work when completed; reimbursing the landlord's reasonable costs in connection with the consent that he has given; and reinstating the altered part of the premises to its
800
former state when the lease expires, but only if it would have been reasonable for the landlord to have refused consent in the first place. We would expect to make regulations under Part IV that broadly reflect those under Part II. We would also expect the DR C to want to follow the provisions of the earlier codes in the codes prepared under Part IV, building on the experience of the operation of the DDA to date.
I hope that the information that I have provided here and that contained in my letter will enable the noble Baroness to withdraw her amendment.
Baroness Blatch: My Lords, is it correct that the comparable measures contained in the DDA cover only minor alterations? The noble Baroness referred to the parts of the code of practice referring to what is reasonable and what is not. If that is the case, I would be much assuaged if some form of protection were put on to the face of the Bill. However, I must ask the noble Baroness once again: if the character of a building is put at risk by an alteration, the noble Baroness has said that that would prevent the alteration from being made. That assurance has not been put on the face of the Bill. Nothing in Clause 30 protects the character of a building. The noble Baroness may have said that, but such an assurance is not contained in the legislation. Can the noble Baroness help me on that point?
Baroness Blackstone: My Lords, the Bill does provide for the landlord reasonably to withhold consent. That is contained in new Section 28W and subsection (2)(c). I hope that that provides some reassurance to the noble Baroness.
I cannot answer her question about whether the DDA refers only to minor alterations. However, I shall certainly write to let her know the answer to that question.
Baroness Blatch: My Lords, I shall be grateful to receive a letter covering all the points that I raised in the course of moving this amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Interpretation]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 141:
Page 31, leave out lines 16 to 22 and insert—
("(3) "Student" means a person who is attending, or undertaking a course of study at, an educational institution.").
On Question, amendment agreed to.
Clause 35 [Codes of practice]:
[Amendment No. 142 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 143:
Page 32, line 10, after ("guidance") insert ("on how to avoid discrimination, or on any other matter relating to the operation of any provision of Part II, III or IV,").
On Question, amendment agreed to.
[Amendment No. 144 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 145:
Page 32, leave out lines 17 and 18.
On Question, amendment agreed to.
[Amendment No. 146 not moved.]
Clause 40 [Expenses of Secretary of State]:
[Amendments Nos. 147 to 149 not moved.]
Clause 42 [Short title, interpretation, commencement and extent]:
[Amendments Nos. 150 and 151 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 152:
Before Schedule 1, insert the following new schedule—
("SCHEDULE
AMENDMENT TO STATEMENT OF SPECIAL EDUCATIONAL NEEDS
PART I
PROCEDURE FOR MAKING AMENDMENT TO STATEMENT OF SPECIAL EDUCATIONAL NEEDS
1. Schedule 27 to the 1996 Act (making and maintenance of statement of special educational needs) is amended as follows.
For paragraph 1 substitute—
"1.—(1) In this Schedule—

"statement" means a statement under section 324; and

"statutory review" means a re-assessment review or a periodic review.

(2) In this Schedule—

"periodic review" means a review conducted in accordance with section 328(5)(b); and

"re-assessment review" means a review conducted in accordance with section 328(5)(a)."

3. For paragraph 2 substitute—
"2.—(1) Before making a statement, a local education authority shall serve on the parent of the child concerned a copy of the proposed statement.
(2) If, following a statutory review, a local education authority propose to amend a statement, they shall serve on the parent of the child concerned a copy of the proposed amended statement.
(3) But sub-paragraphs (1) and (2) are subject to sub-paragraphs (4) and (5).
(4) The copy of the proposed statement or amended statement shall not specify any prescribed matter.
(5) The copy of—

(a) the proposed statement, or

(b) if an amendment is proposed about any of the matters mentioned in subsection (4) of section 324, the amended statement,

shall not specify any matter in pursuance of that subsection.
802
(6) When they serve a copy of the proposed statement or amended statement, the local education authority shall also serve on the parent a written notice explaining (to the extent that they are applicable)—

(a) the arrangements under paragraph 3,

(b) the effect of paragraph 4, and

(c) the right to appeal under section 326.

(7) A notice under sub-paragraph (6) must contain such other information as may be prescribed."
4. In paragraph 3, in sub-paragraph (1), for the words from "a parent" to "paragraph 2" substitute "a parent—

(a) on whom a copy of a proposed statement has been served under paragraph 2, or

(b) on whom a copy of a proposed amended statement has been served under that paragraph

(i) following a re-assessment review, or

(ii) which contains a proposed amendment about the name of a school to be specified in the statement,"

5. In that paragraph, in sub-paragraph (2), for "paragraph 2(b)" substitute "paragraph 2(6)".
6. In that paragraph omit sub-paragraph (4).
7. After that paragraph, insert—
"Consultation on specifying name of school in statement
3A.—(1) Sub-paragraph (2) applies if a local education authority are considering—

(a) specifying the name of a maintained school in a statement, or

(b) amending a statement—

(i) if no school was specified in the statement before the amendment, so that a maintained school will be specified in it,

(ii) if a school was specified in the statement before the amendment, so that a different school, which is a maintained school, will be specified in it.

(2) The local education authority shall—

(a) serve a copy of the proposed statement or amended statement on each affected body, and

(b) consult each affected body.

(3) "Affected body" means—

(a) the governing body of any school which the local education authority are considering specifying; and

(b) if a school which the local education authority are considering specifying is maintained by another local education authority, that authority."

8. In paragraph 4, in sub-paragraph (1)—

(a) after "proposed statement" insert "or amended statement";

(b) in paragraphs (a) and (b), for "statement" substitute "proposed statement or amended statement".

9. In that paragraph, in sub-paragraph (2), after "sub-paragraph (1)(b)" insert "in relation to—

(a) a proposed statement, or

(b) an amendment proposed following a re-assessment review,".

10. In that paragraph, in sub-paragraphs (4)(a) and (5), for "paragraph 2(b)" substitute "paragraph 2(6)".
11. In paragraph 5, in sub-paragraph (1), after "make" insert "or amend".
12. In that paragraph, in sub-paragraph (2), for "The statement" substitute "If a local education authority make a statement, it".
13. After that sub-paragraph insert—
"(2A) If a local education authority amend a statement, the amended statement made may be in the form proposed or in a form modified in the light of the representations."
14. For paragraph 6, substitute—
"6.—(1) Where a local education authority make or amend a statement they shall serve a copy of the statement, or the amended statement, on the parent of the child concerned.
(2) They shall, at the same time, give the parent written notice of his right to appeal under section 326(1) against—

(a) the description in the statement of the authority's assessment of the child's special educational needs,

(b) the special educational provision specified in the statement (including the name of a school specified in the statement), or

(c) if no school is named in the statement, that fact.

(3) A notice under sub-paragraph (2) must contain such other information as may be prescribed."
15. In paragraph 8(1)(b)—

(a) in sub-paragraph (ii), after "statement" insert "or amended statement"; and

(b) omit sub-paragraph (iii)

16. In paragraph 9—

(a) in sub-paragraph (1), omit "amend or" and "10 or"; and

(b) in sub-paragraph (2)—

(i) after paragraph (a), insert "or"

(ii) omit paragraph (b), the word "or after paragraph (c) and paragraph (d).

17. Omit paragraph 10.
PART II
APPEALS AGAINST AMENDMENTS TO STATEMENTOF SPECIAL EDUCATIONAL NEEDS
18. Section 326 of the 1996 Act is amended as follows.
19. For subsection (1) substitute—
"(1) The parent of a child for whom a local education authority maintain a statement under section 324 may appeal to the Tribunal—

(a) when the statement is first made,

(b) if an amendment is made to the statement, or

804

(c) if, after conducting an assessment under section 323, the local education authority determine not to amend the statement.

(1A) An appeal under this section may be against any of the following—

(a) the description in the statement of the local education authority's assessment of the child's special educational needs,

(b) the special educational provision specified in the statement (including the name of a school so specified),

(c) if no school is specified in the statement, that fact."

20. In subsection (2), for "paragraph 10" substitute "paragraph 2(2)".").
Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 152, Amendment No. 153:
Line 73, after inserted sub-paragraph (2)(b) insert (", and
(c) refrain from implementing any amendment while Tribunal proceedings are pending.").
The noble Lord said: My Lords, this amendment would ensure that if a local education authority proposed to amend a statement to the extent of changing the school specified in that statement, it would not be able to put that into effect until the parent had had an opportunity to take an appeal through the tribunal.
Changing schools is a major disruption for a child, in particular if it takes places in circumstances where arguments are raging between the LEA and the parent, possibly resulting in the child then being reinstated in the same school a year later. That is the kind of disruption which we should seek to avoid.
I entirely take the point made by the noble Lord in Committee that a right to suspend the application of a change should not apply in trivial circumstances. For that reason, I have made it apply only to the most serious circumstances. I beg to move.
Baroness Blackstone: My Lords, Amendment No. 153 would put on hold any amendments to a statement while an appeal is heard. That would not be right. Putting an amended provision on hold until an appeal is heard by a tribunal and a decision is reached would delay the implementation of sensible decisions.
Amendments can be as small as, say, altering the number of hours of support provided by a learning support assistant from three to four. Putting on hold the provision of an extra hour of help for the child or the withdrawal of an extra hour which, in the opinion of the child's school and the LEA, the child no longer needs and which could be deployed elsewhere would not be sensible or in the interests of children with SEN.

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I am sympathetic to the point made by the noble Lord, Lord Lucas, about the cases where the amendment being proposed is to change the school named on the statement. Where there is the possibility that a child will be taken out of one school, placed in another and then taken back to the original school if the parents' appeal to the tribunal is upheld, there is a stronger case for the placement section of the statement to remain unamended until the tribunal has decided.
But, equally, there are other cases where the LEA wishes to amend the statement to name a different school simply because the child's needs can no longer be met by his or her current school. In those circumstances it is right that the LEA should name a more appropriate school and that the child should get the help that he or she needs at that school without undue delay.
It is important to remember that where the LEA makes the provision in an amended statement pending an appeal, parents will have the reassurance that if the tribunal agrees with them that the LEA has got it wrong, then the provision that they want will be made quickly after the tribunal's decision without an extended interruption. In the light of my remarks, I hope the noble Lord will feel able to withdraw his amendment.
Lord Lucas: My Lords, I hope that my amendment as drafted does what I said and not what the noble Baroness began by saying it did. So far as I can see, it sits under sub-paragraph (3)(a), which has only to do with a change of school. So far as I can see, it relates only to a change of school.
I listened to what the noble Baroness said about circumstances under which local authorities should be able to impose a rapid change of school. I shall consider that and read her response in Hansard. We may well return to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment No. 153, as an amendment to Amendment No. 152, by leave, withdrawn.
Lord Lucas Lord Lucas moved, as an amendment to Amendment No. 152, Amendment No. 154:
Line 79, after paragraph 7, insert—
(". After that paragraph, insert—
Application of duty to another local education authority
3B. The duty imposed under sub-paragraph (3) in relation to a preference expressed in accordance with arrangements made under sub-paragraph (1) shall apply also in relation to a school maintained by another local education authority.").
The noble Lord said: My Lords, this is a further attempt to do what I failed to do properly in Committee. There is a provision for mainstream schools that effectively says that if parents are living at the edge of one borough they can choose a school in the neighbouring borough, and that just because they are in the wrong borough they cannot be discriminated against in applying for that school.
Circumstances appear to be arising whereby some local authorities will refuse to allow parents who wish to do so to send their statemented child to a school in another borough. The authority is putting difficulties in their way, saying that it will only name a school in its own borough because the rights in Section 411 of the 1996 Act do not extend to special educational needs. This amendment is simply an attempt to lift the sub-paragraph from Section 411 which allows parents the right to cross boundaries and include it in the SEN section, so that parents of SEN children have the same rights as the parents of children who are not so affected. I beg to move.
Baroness Blackstone: My Lords, Amendment No. 154 appears to be designed to secure for parents a right to express a preference for a maintained school in another LEA, and for that preference to be considered on the same basis as if it related to a school in their home LEA. If that is so, then the amendment is unnecessary.
Under the current arrangements, parents can already express a preference for a maintained school in another LEA's area and the home LEA must consider it on the same basis as a preference for one of its own schools. The home LEA must consult any school it is considering specifying in the statement before naming that school in the child's statement. If the parents' preferred school happens to be in the area of another LEA, the home LEA must also consult the other LEA.
Amendment No. 152 tabled in my name would ensure that the other LEA would receive a copy of the proposed statement or proposed amended statement to ensure full and informed consideration of whether the school could make the provision in the statement, which would include any provision to be arranged by the home LEA.
The home LEA should give full and careful consideration to the views expressed by the school and the other LEA, but the decision as to whether or not to name the school rests with the home LEA, which must specify the parents' preferred maintained school in a child's statement in accordance with paragraph 3 of Schedule 27 to the 1996 Act, unless it is unsuitable to the child's age, ability or aptitude or to his special educational needs, or the child's attendance at the school is incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.
In the light of what I have said, I hope that the noble Lord, Lord Lucas, will feel able to withdraw his amendment.
Lord Lucas: My Lords, I am told that my amendments are unnecessary. I shall read what the noble Baroness said and check it with the difficulties that have been brought to my attention to make sure that there is no lacuna which needs to be filled. For the moment, I beg leave to withdraw the amendment.
Amendment No. 154, as an amendment to Amendment No. 152, by leave, withdrawn.
On Question, Amendment No. 152 agreed to.
Schedule 1 [Responsible Bodies for Schools]:
[Amendments Nos. 155 to 158 not moved.]
Schedule 2 [Amendment of Schedule 3 to the 1995 Act]:
[Amen83dments Nos. 159 and 160 not moved.]
Schedule 4 [Modifications of Chapter II of Part IV of the 1995 Act]:
[Amendment No. 161 not moved.]
Schedule 7 [Minor and Consequential Amendments]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 162 and 163:
Page 48, line 8, leave out paragraph 9.
Page 48, line 21, leave out paragraph 11.
On Question, amendments agreed to.
Schedule 8 [Repeals]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 164:
Page 51, line 26, column 3, leave out from ("27") to end of line 28 and insert (", paragraph 3(4), paragraph 8(1)(b)(iii), in paragraph 9(1), the words "amend, or" and "10 or", and paragraph 10").
On Question, amendment agreed to.
House adjourned at twenty-eight minutes before four o'clock.

Official Report of the Grand Committee on the Commonhold and Leasehold Reform Bill [H.L.]
Tuesday, 20th February 2001.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes
Title postponed.
Clause 1 agreed to.
Clause 2 [Application]:
On Question, Whether Clause 2 shall stand part of the Bill?
Baroness Hamwee: Perhaps I may take this opportunity to ask the Government whether they have managed to make progress on the question of stamp duty. I raised that point at Second Reading. I confess that it occurred to me only late during the debate. The Minister said then that he believed that there would be no stamp duty on transfer from freehold to commonhold. I raise the point now because, as I understand the structure of the Bill, there will be a conversion from freehold. The consultation paper, at which I looked again after Second Reading, states that it would be possible to convert from some other status. Given the importance of the structure of what is proposed and the devastating effect that stamp duty would have on the transfer, it would be helpful if the Government were able to confirm that no stamp duty will apply.
The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach): We are not able to settle this issue yet but we have it in mind and we expect to reply
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by the Report stage of the Bill. The noble Baroness's formal objection to Clause 2 standing part of the Bill has taken us slightly by surprise. That is why I cannot give a more satisfactory answer at this stage. However, I do not believe that she has much to fear.
Clause 2 agreed to.
Schedule 1 agreed to.
Clause 3 [Consent]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 1:
Page 2, line 16, leave out ("anyone who") and insert ("at least 80 per cent. of the following classes of person").
The noble Lord said: This amendment stands in my name and that of the noble Earl, Lord Caithness. It may be for the convenience of the Committee if I speak also to Amendments Nos. 2 to 12, 18, 23 and 41. Other Members of the Committee will no doubt wish to have their own say on their amendments. The amendments to which I am speaking address the problems that other Members of the Committee are seeking to address in the same group of amendments, which is why the amendments have been grouped.
The problem that the Committee will wish to address is whether commonhold as set out in the Bill as drafted is meant to be a substitute for leasehold or is meant to be something in the far distant future to which we may never come. In order to go from leasehold to commonhold, there is no doubt that the freehold of the property has to be in the ownership of those who wish to form a commonhold association. In order to do that, a group of people will either get together and say this is what we want to do, or they will convert into commonhold from the present arrangements of an owned freehold and leaseholds subject to that freehold. It is the latter point that this amendment starts to address. It is quite clear that leasehold enfranchisement is the only way to get to ownership of a freehold.
The provisions of leasehold enfranchisement have up to now been very difficult. The record has not been widely accepted but, nevertheless, it is there and, to a certain extent, the Bill as drafted eases the progress towards leasehold enfranchisement.
Nevertheless, the criteria for leasehold enfranchisement are much less strict than the criteria for going from there to commonhold. If you ask for 100 per cent agreement for going to commonhold from all unit-holders, you will never get it. I would therefore argue with my noble friend that this measure, as it is presently drafted, is not only impractical but also defeats the Government's objective of trying to ensure that commonhold becomes, in the course of time, a substitute for leasehold; that we move out of what I hope my noble friend would agree is an out-of-date procedure—as many people have said of leasehold—and move on to something which is rather more up-to-date and internationally accepted, as was said on Second Reading.
My amendment, which is supported by the noble Earl, simply addresses the problem of what happens if you cannot achieve 100 per cent agreement of leasehold units for conversion to commonhold even

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where, under the leasehold enfranchisement rules, you have the freehold. You could have absentee leaseholders and all kinds of people who may or may not be around when the decision is made. I hope that my noble friend will be able to respond quite positively to the argument I have made and which I think the noble Earl supports. I beg to move.
3.45 p.m.
Lord Goodhart: My Amendment No. 3 is the next in this group but, as it raises a somewhat different point, perhaps I may leave it until the end. It is an amendment that I would have de-grouped had it not been for the fact that I understand that it is likely to be accepted by the Government.
I should start by making a declaration of interest—or, perhaps, a declaration of a rather peculiar reason why I do not have an interest. I am the leaseholder of a flat—which is not irrelevant—in one of the Regent's Park terraces. The Crown Estates Commission are the freeholders and I have a long lease at a fairly modest ground rent.
Lord Williams of Elvel: Am I right to understand that if we declared our interests at Second Reading that would carry through to the end of the Bill; that we do not need to repeat it?
Lord Goodhart: What I have to say is something that I did not appreciate at Second Reading. At Second Reading, I thought I had an interest. The Bill does not bind the Crown; none of this legislation binds the Crown. The Crown has given an undertaking that it will voluntarily agree to grant the same rights to leaseholders as would have applied if the Act had applied to the Crown. Unfortunately, there is an exemption from this which applies to certain particularly sensitive buildings—such as the terraces in Regent's Park—and I therefore have no possibility of deriving any benefit from the Bill.
I turn to the amendment moved by the noble Lord, Lord Williams of Elvel. Although I entirely sympathise with the reasons behind it, I have very serious difficulties in seeing how it can be practicable to achieve its aims. Quite plainly, it would not be possible to have a block of flats split up into some kind of checkerboard pattern, with some of the flats being commonhold and some being ordinary leasehold. In this respect, it is different from collective enfranchisement because you can and do have some leaseholders acquiring the freehold and becoming the landlords of those who remain leaseholders, but that does not in any way change the status and position of the leaseholders. The only way forward, therefore, would be to convert a whole block in commonhold over the heads of the existing leaseholders and require them to convert their own flats into commonhold. Otherwise, what is to be done with a leaseholder who does not want to convert? We cannot compel them to convert because that may cost them money that they cannot afford. For instance, they would have to
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participate in any collective enfranchisement. They cannot, therefore, be compelled to join the commonhold association.
Where there is a very large majority in favour of conversion to commonhold it may be possible to treat the flats of dissenters as if those flats were common parts with the commonhold association as the landlord. The rent under the lease could then be paid to the commonhold association and when the lease fell in the commonhold association could sell the flats as commonhold units. That might be workable, but it would be fairly complicated. It would mean elaborate drafting, and I do not see it as a practicable possibility in the Bill. It may be that we should get commonhold going on a relatively straightforward basis and, when it has proved itself, we can proceed to allow conversion without unanimity on the basis that I have mentioned; namely, that the dissenting leaseholders would simply be treated as though their flats were common parts that had been leased to them.
Amendment No. 3 raises a technical point: why on earth is it necessary to get the consent of a registered proprietor of an interest over the land if that interest is not affected? The notes refer to an easement; for example, the easement of a neighbouring owner who has a right to use a drain across the commonhold land. The commonhold association would not have legal rights to stop the use of the drain by the neighbour, and it is wholly immaterial to the neighbour whether the land through which the drain runs is commonhold or freehold. In that situation I see no possible reason why the consent of the neighbour should be necessary simply by reason of the fact that he has an easement over the land which is not likely to be affected.
Baroness Gardner of Parkes: I support the amendment moved by the noble Lord, Lord Williams. It would be quite impossible to get 100 per cent agreement and it is, therefore, an unnecessary obstacle put in the way of commonhold. I do not agree with the noble Lord, Lord Goodhart, that the property of such people can be treated as common parts, and so on. If the 80 per cent rule were implemented surely the position of the other 20 per cent who did not wish to be involved in any way would not be changed; they would continue to hold leases that would be part of the commonhold until such time as they ran out. I cannot see this as anything other than a major difficulty being created out of nothing, and I agree with the noble Lord, Lord Williams, that 100 per cent is not required.
Baroness Hanham: I support my noble friend Lady Gardner. I am concerned that if the amendment of the noble Lord, Lord Williams, is not accepted commonhold will just fall. I do not believe there is any possibility that any block of flats will ever achieve 100 per cent support for commonhold, not simply because the people in those flats will not vote for it but, as so often, particularly in London, they are not in them; they are owned by companies, overseas investors and the original landlords. There are a number of reasons why people would not join the commonhold. If this amendment, or the following amendment in the name of the noble Lord, Lord

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Richard, is not accepted, we must find some way to ensure that 100 per cent sign-up to commonhold is not required. Otherwise, the Committee may as well join in the Report stage of the Special Educational Needs and Disability Bill in the Chamber—in a great deal more comfort than we have here—because the whole thing will he a non-starter.
Lord Richard: First, I should like to say a few words about the amendment moved by my noble friend Lord Williams. Secondly, I should like to speak to my Amendment No. 5.
The noble Lord, Lord Goodhart, said that it would be very difficult to have a system in which fewer than 100 per cent of the leaseholders consented. I agree that it may be difficult and that there may be problems, but there would also be problems on the other side if you insisted upon 100 per cent. I agree with what my noble friend said and what has been said from the other side of the Committee; that is, that it would indeed be almost impossible to get 100 per cent of the tenants in a block of flats to agree upon a particular course of action. My concern, both in regard to Amendment No. 5 and my own amendment, Amendment No. 12, is to try to remove unnecessary vetoes on the process of conversion to a commonhold. If you insist on 100 per cent, you have a massive veto. I agree with those who say that, in those circumstances, it is very unlikely that that will happen.
Turning to my own amendment, Amendment No. 12, the Committee will notice that it is not entirely on all fours with the amendment of my noble friend Lord Williams. He wants 80 per cent; I want 75 per cent and 10 per cent of the tenants. This is an issue which could, no doubt, be resolved between the various protagonists who want 80 per cent and those who want 75 per cent. That is not a major issue; the principle is the same. I therefore support what my noble friend said and I support his amendment.
My Amendment No. 5 covers exactly the same principle; that is, the removal of a veto. Clause 3, on page 2, states:
"(1) An application … may not be made in respect of a freehold estate … without the consent of anyone who—…
(c) is the registered proprietor of a charge over the whole or part of the land"
Do we really want to give every mortgagor or chargeholder the right of veto on a process to commonhold? That in itself is quite a massive veto as well. I do not see why it is felt that this process of conversion from leasehold to commonhold should be held up by any one person who happens to hold a charge on one flat in a particular block. It is too much. It might be possible to have some kind of qualified majority—I do not know—but that seems a veto too far. It is too strong; it would unduly cripple the process of developing commonhold. In due course, I shall beg to move my amendments.
The Earl of Caithness: I apologise to the Minister and to the Committee for not being able to speak at Second Reading. I had my name down but I was stuck in Scotland and it seemed wrong to join the
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proceedings halfway through. Perhaps I may now declare my interest. I am a surveyor and a consultant to an estate agency, which I set up in London some five years ago. I have been a leaseholder; I have run management companies; I have advised management companies; I have advised people on buying their freeholds under enfranchisement; I have seen the whole gamut of the residential property world. I hope that I have declared enough interests and that I need not say that again.
I totally agree with the noble Lord, Lord Williams of Elvel, who asked whether the Government do or do not want this Bill to work. Do they want commonhold to take over from leasehold? If not, that is fine. We will have three systems—freehold, leasehold and commonhold—and commonhold will wither on the vine after perhaps a gentle start. Putting a 100 per cent requirement into the Bill will effectively negate any chance of commonhold taking over as a rival form of occupation to freehold.
Having been involved with management companies, I was a lessee of a flat in Pimlico. There were five of us. We were all shareholders of the property; we owned the freehold and ran the management company. That was purgatory—and there were only five of us. We were all friends and we all got on. One person did all the work—who happened to be me at one stage until I managed to palm it off to somebody else. Those involved were enthusiastic until it came to arranging a meeting and making a decision, and until it came to paying the management charges. I know how difficult it is to get a small number of people to agree, to make a decision to do the repairs and to carry out all necessary work. To transfer this to blocks of flats, particularly where there is a commercial element, and to ask for 100 per cent is asking the impossible.
I would like the Bill to work—it is a good idea—I would have supported it had it been introduced by own party. Indeed, all the amendments to which I have put my name are designed to make the Bill work; they are not designed to frustrate it. They are positive attempts to make it work.
The Minister is making a rod for his own back by requiring 100 per cent. There are real difficulties leading to considerable frustration which will boil up in various ways. People will have expectations from the Bill that will be unfulfilled and we shall be stuck with a leasehold system to which many people object.
4 p.m.
Lord Jacobs: I must begin by apologising to the Committee for being unable to attend the Second Reading. My poor excuse is that I was in the United States at the time. However, I am not making a good start on this occasion as it is the first time I have participated in any depth in a Bill. I understand the point made by my noble friend Lord Goodhart, but from my experience of the previous Act I know that making the existing legislation work better should be the prime objective of the Bill. Therefore, I support the principle—whether it is 80 per cent or 75 per cent is not material—and in that respect the noble Lord, Lord Williams, made an excellent point.

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Although I agree with the point made by my noble friend Lord Goodhart that legally the provision may present some problems, I believe that the Government and their team can see the problems and find a way around them. The previous government's Bill was a success, except to the limited extent to which it did not always work. It needed a high degree of either unanimity or a number of people to agree to leasehold enfranchisement and so on. Therefore, we have to try to make the wheels turn more smoothly.
Finally, I must declare an interest. I hold a lease in a block of 12 flats in central London. My lease is extendable under the previous government's legislation. Three of the other flats are rented under rental terms of less than nine years, and the remaining eight flats are on 20-year leases. There is not a cat in hell's chance that I shall be enabled to enfranchise. Leasehold extension is all I can expect.
Lord Selsdon: It seems that everyone is agreed with the principles of the Bill. It is the only Bill I have ever come across which as it stands is totally unworkable. Speaking as a banker, I can say that there are so many ingredients in this. However, we have forgotten that there are groups of people in the property world who deliberately seek to frustrate. Perhaps the Minister can tell us who cannot do something rather than who can. In the attempt to frustrate, people use many devious and cunning guises.
It is no good requiring 50, 70 or 80 per cent; we are talking about people's rights. If an amendment similar to those tabled by the noble Lords, Lord Williams and Lord Richard, is not agreed to, this part of the Bill will not work. When redevelopment rights come out, people will be looking for a new lease and perhaps more brown land will come in. If groups or individuals do not wish to exercise their rights, is there a way whereby those rights could still be within their hands and be passed on to their successors in title should someone wish that at a future date? The conversion period could be many, many years—longer even than a lease. The point should be addressed. I am sure the Minister will realise that there is no division in the Committee. We are just looking at technical issues where one is trying to interpose something that took place after the event.
Baroness Hamwee: My contribution cannot be as imaginative as that of the noble Lord, Lord Selsdon. I am very attracted to his lateral thinking. On a narrow point, can the Minister explain why, if the commonhold community statement may not restrict the grant of a charge, or mortgage, over a unit, it should be open to the mortgagee of that unit before it becomes a commonhold unit—while it is leasehold—to restrict the transfer? To contemplate the possibility of different policies between the different building societies and lending institutions, with the Nationwide taking one view and the Halifax taking another, and so on, could create quite a nightmare.
Lord Kingsland: I rise to reflect on Amendments Nos. 1 to 9 and Amendment No. 12 and to speak to my Amendments Nos. 10, 11, 18, 23 and 41.
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As the Committee will be well aware, Clause 3 requires that anyone with an interest in the land, including mortgagors, and anyone who has any other form of charge or caution over the land, must approve the application to convert the land from freehold to commonhold. The effect of this provision is that, in order for an existing block of leasehold flats to convert to commonhold, all the leaseholders would have to agree that this should happen, and they would have to secure the approval both of the freeholder and any intermediate leaseholders.
During the Second Reading debate, the noble Lords, Lord Goodhart and Lord Richard, my noble friend Lady Hanham, the noble Lord, Lord Williams of Elvel, my noble friend Lord Courtown and myself all expressed doubts about the requirement for 100 per cent to convert to commonhold. The noble Lord, Lord Bach, for the Government, sought to justify it on the ground that otherwise one would have anonymous leaseholders remaining.
Clause 3 as drafted is somewhat Delphic about this point. Subsection (1) lays down the requirement for 100 per cent consent, but subsection (2) states that regulations may provide, inter alia, for consent to be deemed to have been given in specified circumstances—I refer to paragraph (e)—and enabling a court to dispense with a requirement for consent in specified circumstances—I refer to paragraph (f).
These provisions are clearly intended to allow the 100 per cent requirement to be circumvented in certain circumstances. Those circumstances are nowhere specified in the Bill; nor are they dealt with in the Explanatory Notes. I pause here and turn to the Minister to thank him very much indeed for distributing the draft commonhold association memorandum and the draft CCS at the end of last week. Alas, I have not yet had the opportunity to subject them to the textual exegesis that I would have wished. I hope that we will be given an opportunity later in the Committee stage to table amendments to these documents. I am sure the Minister will agree that they go to the heart of what commonhold will be in practice. As the noble Lord knows, I would have preferred the text of both these documents to form part of schedules to the Bill and indeed I shall continue to press for that. Nevertheless, I do not see how Members of the Committee can come to grips with Part I of the Bill without a clear understanding of what will ultimately feature in these stipulations.
To return to the main theme, it seems to all Members of the Committee at least to take account of the criticism of the 100 per cent requirement, particularly in respect of larger developments and, in clear terms, to reduce it in the text to something of the order of 80 per cent. That raises the question, 80 per cent of what? The individual units which comprise the proposed commonhold may vary widely in size and value, and the assortment of estates, interests, claims and rights mentioned in Clause 3(1) may not necessarily coincide with the units of accommodation. They could, for example, include rights over parts of a unit, or parts of several units, or the common parts of

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a building. The total floor area comprised in the proposed commonhold may be an easier and fairer yardstick to use.
The requirement for 80 per cent has been suggested because that would mean, in practice, that a majority consent could not prevail in the case of a small development—such as a house converted into two, three or four units, it being obviously desirable and reasonable that the decision to convert should be unanimous in such cases—while not being unduly repressive in the case of larger developments.
I turn now to Amendments Nos. 18 and 23. The amendments were intended merely as probing amendments, to understand the intentions underlying the provisions for extinguishing existing leases in commonhold and the provisions for compensation of the holders of underleases for the loss of their interest. We appreciate that, in the circumstances envisioned by the Bill, the superior leaseholder would have given his consent to convert to commonhold and so should accept that the consequence of his decision would be to compensate those who lost out through no fault of their own.
But there is the risk that one recalcitrant sub-tenant might hold the conversion of an entire block to ransom for an extortionate sum, however unlikely the prospect of his actually receiving his demand. The likelihood of going to court would undoubtedly delay the conversion process, if not deter some of those who had previously committed to it. In my view, it would be extremely useful to know how the Government expect these situations to be resolved. Is there to be a formula to fix compensation? Must the underleaseholder accept what is offered, or can he negotiate?
I turn now to Amendment No. 41. Subsections (3) and (4) of Clause 27 provide for the extinguishment of existing charges over commonhold land in so far as they relate to the common part. There is no provision to compensate a chargee for his loss. It might have been felt unnecessary if consent to an application to register a freehold estate in commonhold land had to be 100 per cent, including that of all proprietor's charges. That matter is dealt with in Clause 3(1)(c). Such a provision, however, seems necessary if consent is to be based on less than 100 per cent, as proposed in the relevant amendment, or if in some cases consent is deemed to have been given under Clause 3(2)(e), or if consent is dispensed with under Clause 3(2)(f). It would seem only just and consistent with Article 1 of the First Protocol to the European Convention on Human Rights that a chargee can get fair compensation or adequate substituted security before his charge over common parts is extinguished.
4.15 p.m.
Lord Bach: Before I attempt to answer the amendments that have been moved and spoken to, may I first of all agree—perhaps taking him slightly out of context—with the noble Earl, Lord Selsdon, in his comment that everyone agrees with the principle of the Bill. The Government are confident that this Committee stage will take place in a non-partisan
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atmosphere and that the Bill will gain as a result of our discussions. We, for our part, will listen carefully—as will, I am sure, those who move amendments—but we will not always agree. Indeed, in a few minutes' time, the Committee may hear that we do not necessarily agree with all that has been said in this first group of amendments. However, when we do agree, we will say so and act accordingly. We are sure that the Bill will leave this committee room—however uncomfortable it may be to the noble Baroness, Lady Hanham—in a more satisfactory state than it entered it.
Each of Amendments Nos. 1, 2, 4 and 6 to 12 relates to the rule that we asked for, which requires 100 per cent of those with specified interests in the land to consent before it can be come commonhold land. We believe that there are drafting difficulties with Amendments Nos. 1, 2, 4 and 6 to 9 but those drafting difficulties are not of prime importance today in Committee. We do not believe that, as drafted, they will produce the end sought by the noble Lords who proposed them, and I will deal with that in due course. What this is really about is the principle behind the 100 per cent rule. I want to take that head-on, if I may.
The Government—and I am sure previous governments—have thought long and hard about whether it would be appropriate to allow commonholds to be developed in which there were what we have called anomalous leaseholders. We have come to the firm view that it would not. We are also aware that there will be circumstances in which a proportion of long leaseholders wish to buy out the landlord's interest; receive an interest pretty much in perpetuity in their unit; and a significant say in the management of the development by way of voting membership of the company which controls that, leaving those who do not wish to participate living under the terms of their existing leases. That is exactly what enfranchisement under Part II of the Bill will give and, as it happens, at a lower hurdle than the 80 per cent agreement referred to in some of these amendments.
On the other hand, commonhold is specifically designed with equality of interest in mind. The anomalous leaseholder in a commonhold would be anomalous indeed, and we echo what the noble Lord, Lord Goodhart, had to say. First, who would be the landlord? In an RTE company, there is no doubt it would be the company itself, but a common hold association owns only the common parts. It has no interest in the units of the anomalous leaseholders, who have not participated in the conversion and will still be sitting in units under their old leases. The units occupied by the anomalous leaseholders will be commonhold units occupied on long leases bought for a premium; but long leases let at a premium will not be allowed. That is another anomaly.
Perhaps the interest in the leasehold reversion will have been purchased by one or more of the members of the commonhold association in their individual capacities. Would they have to set up a separate company to own and manage the freehold interest in the leaseholder-occupied units, even though the units themselves must be commonhold land? All this

CWH 11
assumes that no steps are to be taken to change the leaseholder status of those anomalous leaseholders. Perhaps it is envisaged that they should be forced into the commonhold as unit owners. Should they then be compensated for that overbearing of their will? Or is the change of a leasehold flat into a commonhold unit a benefit for which they should be required to pay? Or will they receive a windfall?
Perhaps, on the other hand, what is envisaged is compulsorily buying them out, effectively expropriating their property and forcing them out of the development altogether. Who should assess the compensation in that event and who should pay it—those who voted for conversion? What should happen if some of them balk at paying an additional sum for their share of the compensation after agreeing to conversion on a particular assessment of the cost? I do not believe that any of the Members of the Committee who spoke to these amendments had any such draconian measures in mind.
We believe the practical difficulties of fitting the upto-20 per cent of non-commonholders into a commonhold are out of all proportion to the benefits a commonhold can give to long leaseholders who take advantage of Part II of this Bill. Whatever the resulting organisation might be, it would not be commonhold as the Bill conceives it.
I shall be entirely realistic with the Committee. It may be that relatively few leaseholders will wish to take the final step of converting to commonhold once they see the extent to which Part II of the Bill will satisfy their needs, and how very far towards the ideal of commonhold that will get them. It may also be that commonhold, being an excellent alternative to leasehold for developers starting from scratch, will become the standard for new developments and its desirability will be proved in practice such that units will trade at a premium compared to their leasehold equivalents. In such circumstances, is it not reasonable to assume that taking the final step will become so much more attractive as to make 100 per cent consent an entirely realistic proposition?
I think that I have made the position clear. Admirable though the proposal might be, the Government do not see existing blocks of leaseholders agreeing to become part of a commonhold. We see it working in the way that new developers starting from scratch will want to deal with their property. We think that is a realistic way of looking at how it might work, and we turn on its head the argument that commonhold cannot work if it is 100 per cent. We believe it can probably work only if it is 100 per cent.
I turn as briefly as I can to the terms of the proposed amendments, but this is an important debate and it needs to be discussed fully. Amendments Nos. 1 and 9 insert the words
"at least 80 per cent. of the following classes of person".
There are five such classes of person set out in Clause 3(1). I am sure that the noble Lords proposing this amendment did not mean to suggest that, provided that four out of five of those classes were in
CWH 12
favour—and by what majority?—the vote would pass. Neither did they mean that an average of 80 per cent in favour in each of the five classes would do, as that might mean that one class with 90 per cent out-voted another with only 70 per cent. Did they mean to weight the votes of the members of classes so that the vote of a participating leaseholder would be of greater value than the proprietor of an easement?
Or perhaps they meant no more than that a minimum of 80 per cent of the members of each of the classes specified should agree? I do not know the answer to those queries, and on the simple meaning of the words in the amendment we do not think anyone can.
I draw the Committee's attention briefly to Amendment No. 9. Passing over what I have just said, we are confronted with the proposition that the votes of the 20 per cent who either did not vote or who voted against conversion shall be overturned by a tribunal decision. We believe that this is the edge of a slippery slope. We are perfectly sure that the noble Lords concerned do not invite us to tread too close to its edge, but we do not believe that a tribunal or court in this jurisdiction would welcome legislation that directed it to come to a particular decision, presumably regardless of any pertinent evidence.
Amendments Nos. 10 and 11 would derogate from our policy to require 100 per cent consents. It may be said that we are being asked to say that might is right and the loudest voice wins. I ask the Committee to consider the following example. A freeholder owns a substantial country house in four acres of attractive parkland. His substantial country house is divided into leasehold flats, the aggregate floor area of which is a good deal less than 20 per cent of four acres; indeed, the surface area, if calculated by aggregating the surfaces of floor, walls and ceilings, would still be far short of 20 per cent of four acres. Can the freeholder dispense with their consents, deprive them of their leases and take them into a commonhold without as much as a by your leave?
If that example is objected to, I ask the Committee to consider another. The freeholder lives in the main part of the house and has let one wing as leasehold flats, the surface area of which amounts to less than 20 per cent of the total of the house. Can the tenants be dragged into commonhold in that situation? Will they find themselves suddenly faced with a part, however small, of the upkeep of the park and perhaps the stables as common parts because their consent is not required to register and the landlord has effectively extinguished their leases and substituted a CCS in the construction of which they have had no part?
It is planned that the proposed regulations would overcome those difficulties and, should they fail to do so, the courts would be left to pick up the pieces. The amendments to which I have just spoken fly in the face of our intention to require 100 per cent consent. We believe that that adds layers of uncertainty to an otherwise clear and straightforward process to no good purpose, and it does nothing to address what should be done with the 20 per cent of dissenters.

CWH 13
Amendment No. 12 in the name of my noble friend Lord Richard, which deals with conversion from an RTE company to commonhold, runs into the same kind of problem. Reasonable though it appears on the face of it and when described by my noble friend, when the process is complete anomalous leaseholders will remain.
I turn briefly to Amendments Nos. 18, 23 and 41, all of which have been spoken to by the noble Lord, Lord Kingsland. Those would have the effect of amending later clauses, unnecessarily in our view, because in each case the end that it wishes to guard against has been dealt with already by the fact that the relevant interested person must have consented to registration of the commonhold or been bought out.
Amendment No. 18 would omit from Clause 7(3)(d) the provision relating to the extinguishment of leases, but it is not necessary to do so. The owner of the interest will have consented or sold out. Clause 7(3)(d) merely sets the time at which the inevitable and agreed extinguishment will occur. The same applies to Amendment No. 23 which would omit paragraph (f) from Clause 9(3). Amendment No. 41 adds to Clause 27 words about consent to extinguishment of charges and allows for compensation or substitute security. None of this is necessary because consent would have to be given before the registration process could begin.
Amendment No. 5 would omit proprietors of a charge as a class of person from the list of those whose consent would be necessary before registration. I must also resist that amendment. A charge secured on property relies on the value of the property for its validity. It is our view that the value of property which becomes commonhold land will be much enhanced, but it would be unreasonable to take such fundamental action in relation to land without chargees at least having an opportunity to object.
The noble Lord, Lord Kingsland, asked about deemed consent as it appears in Clause 3. The regulations might deem consent where a number of notices have been served but not responded to. In other circumstances, not as clear cut as that, the regulations might not deem consent but enable a court to dispense with it.
In reply to the question raised by the noble Baroness, Lady Hamwee, a mortgagee has to consent to commonhold because it could affect the value of his or her security. Once a block has become commonhold, there is no need to prevent new mortgages because both mortgagor and mortgagee will know precisely what the security is. That is one of the advantages of commonhold.
Having been so ungracious as not to agree with any of the amendments so far put forward, I turn finally to Amendment No. 3. We accept this amendment. It removes what the Government now believe to be surplusage. We are grateful to the noble Lord, Lord Good hart, for having pointed that out to us at Second Reading and in meetings before the Second Reading debate.
CWH 14
Clause 3 is about ensuring that all those with legitimate interests in the land which it is proposed to register as commonhold consent to the change of status. This must include those directly affected such as those living in existing units, and some third parties; for example, their mortgagees. However, there are some third parties, the existence of whose interests would not interfere with the operation of the commonhold. We can all think of examples of that. I do not need to go into them now.
We feel it would be safe to omit Clause 3(1)(b) and to ensure by careful drafting of the regulations under Clause 3(1)(e) that any classes of third party who would presently fall to be dealt with under the subsection to be omitted are swept up. For that reason we shall be happy to accept the amendment in due course.
4.30 p.m.
Lord Jacobs: Before the Minister sits down, on the understanding that the Government are not prepared to accept either the amendment of the noble Lord, Lord Williams, or the amendment of the noble Lord, Lord Richard, 100 per cent agreement will be required. Does the Minister agree that the likelihood of more than a handful of properties being converted to commonhold is low?
Lord Bach: I would not agree with the way in which the noble Lord puts that question. There may well be some conversions, particularly where there are a small number of leaseholders. But the Government believe, as I think I made clear in what I said in discussing the amendments, that the future for commonhold will be more in new developments than it is in converting existing leaseholds. I have to make that clear so that there is no misunderstanding about it. It is certainly not to preclude it from happening where it does.
Lord Williams of Elvel: I am grateful to my noble friend the Minister for his extended reply. I have only two or three comments. First, I invite my noble friend in future discussions in the Committee not to go into too much detail on the drafting of amendments. We are not parliamentary draftsmen. If he could cut down that section on his brief which refers to the drafting, I am sure the Committee would be grateful.
Secondly, the Minister made clear that the object of the exercise is for new builds. He made it clear that he expected limited, if any, conversions. I would expect no conversions on existing properties. If that is the Government's intention, why do they not say so in the Bill, rather than wrapping it up with the idea of having to have the consent of this, that and other. Why not simply say that this is for new builds? We would then be much clearer. My noble friend had an uncharacteristic failure of logic. He said that it is question of new builds but that he was responding to questions of old builds and existing properties. That seemed to be an odd stance for my noble friend to take.
It has been a good debate. Together with other Members of the Committee, I shall have to study my noble friend's response rather carefully. In response to

CWH 15
the noble Lord, Lord Goodhart, and to my noble friend, I do not see a particular problem about leaseholders who have not joined in commonhold being leaseholders under commonhold. Nevertheless, we will leave that aside for a moment and we will all have to look at this carefully before Report stage. I am not entirely convinced by my noble friend's argument; nor are my advisers likely to be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 3:
Page 2, line 19, leave out paragraph (b).
On Question, amendment agreed to.
[Amendments Nos. 4 to 12 not moved.]
Clause 3, as amended, agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 13:
After Clause 3, insert the following new clause—
FLYING COMMONHOLD
(".—(1) Commonhold land may consist of, or include, a building, or part of a building, which is above or below other land.
(2) Where subsection (1) applies, a positive covenant relating to the commonhold or the other land entered into between the commonhold association and the registered proprietor of an estate in the whole or part of the other land shall be enforceable by and against their successors in title if the covenant so provides.").
The noble Lord said: In moving Amendment No. 13, I ask the leave of the Committee to speak also to Amendment No. 14. With these two amendments, I have grouped Amendments Nos. 196 and 220, which are from a later part of the Bill and cover more or less the same subject. They relate to the question of the flying freehold.
Having been somewhat sceptical on the subject of anything less than 100 per cent agreement for conversion to commonhold, I am happy that on this occasion I am proposing a group of amendments which should facilitate the conversion or development of properties as commonhold. Briefly, a flying freehold is a part of a building in freehold ownership that is above another part of the same building in different freehold ownership. Flying freeholds exist but are notoriously unsatisfactory, particularly because of the inability of one freeholder to enforce positive covenants against another.
To some extent, albeit limited, the role of positive covenants can be replaced by easements. Flying freeholds can offer the benefit of a right of support—an easement of support—from the freehold underneath them. In this way, the lower freeholder cannot knock down the walls and leave the upper part of the building to float in the air. Unfortunately, however, there is no corresponding easement of shelter which would entitle the owner of the lower part of the property to insist that the owner of the upper part maintains the roof and stops the water dripping through.
At present, it is not possible to use the powers of collective enfranchisement to create flying freeholds, because you can enfranchise part of a building only if it is a self-contained, vertical part thereof, as provided by Section 3 of the Leasehold Reform Act 1993. It is intended that it should not be possible to have a flying commonhold because of paragraph 1 of Schedule 2.
Perhaps rather curiously, however, it seems possible to have a commonhold situated below someone else's flying freehold. Provided the problem of positive covenants can be overcome, I can see no reason why there should not be a flying commonhold of a self-contained part of a building. For example, in a new development such as a block of flats with shops at street level and a separate entrance for flats, so that no common parts are shared between shops and flats, it should be possible to have the flats forming part of the commonhold. There could, of course, be a mixed commonhold to include both the shops and the flats but that is likely to be difficult to run and to lead to continuous tensions between the shop units and the residential units. It seems to me, therefore, that it is a better solution to have a commonhold for the flats and a separate freehold ownership for the shops.
The same principle applies to the collective enfranchisement and that is why I have tabled Amendments Nos. 196 and 220, which are intended to give a right of collective enfranchisement to what could be called a flying freehold. Why does the building have to be vertically divided into separate parts in order to enfranchise that part? Collective enfranchisement and commonhold are closely linked, because, as we have already discussed, in existing properties collective enfranchisement is almost certainly going to be a necessary prelude to conversion to commonhold. However, I accept that those two must operate in tandem.
The key feature in ensuring that you can have a flying commonhold or flying collective enfranchised property is to ensure enforceability between the upper and lower owners of the kind of positive covenants for repairs and maintenance that are normally contained in leases. Amendment No. 13 provides for the enforceability of covenants that are entered into by agreement. That can apply in a number of circumstances. New build developers may want to sell the flats as commonhold but to retain the commercial premises or sell them on separately.
Amendment No. 14 removes from Schedule 2 the legal prohibition on flying commonholds. Amendment No. 196 allows collective enfranchisement on the basis of acquiring a flying freehold, and Amendment No. 220 adopts a different and perhaps better solution to the problem of covenants by allowing positive covenants to be prescribed by regulation and then made enforceable between the parties.
I believe there is no great difficulty in prescribing standard forms of covenant as between the upper and lower parts of the property. Something very like it, for example, is set out in Part IV of Schedule 9 to the 1993 Act. I believe that this is a useful, though perhaps not

CWH 17
central, addition to the ways in which it will be possible to create commonholds. As I have already made clear, we strongly support that objective. I beg to move.
Baroness Gardner of Parkes: As my Amendment No. 15 is grouped with the amendments tabled by the noble Lord, Lord Goodhart, I shall speak briefly to it now. I presume that it is in this group because I, too, support the idea of flying freeholds, or commonholds, above other property. While I agree with many of the points made by the noble Lord, Lord Goodhart, in particular his comment about enforcing the positive covenants, there seems to be a failure to understand the way commonhold works in Australia.
The commonhold title of a building which has, say, shops, commercial premises, a restaurant on the ground floor and residential commonhold above would have two separate management companies. The noble Lord, Lord Goodhart, said how difficult that would be to manage but the residents would not be managing the commercial element, and the commercial element would not be managing the residential element. Indeed, it would be very unfair to the residents to burden them with the management of the commercial element where there were very high costs of fire insurance, particularly if there is a restaurant or premises of that type. It could be quite beyond the means of the residents, particularly if the moment came when the shop or restaurant was producing an unfavourable rent.
The way in which this system operates is that the strata title holders, the bodies corporate, own and manage the residential unit and the commercial element manages the other unit. There is an overall joint management company which controls both the commercial and the residential side of it. Each group accounts separately and then jointly to the strata title, that being the equivalent of commonhold. That system would work well.
There are other situations where the shop at the bottom may remain freehold. It may be leasehold or just let, or it may be the commonhold to which I have just referred. But that is a way of giving the people in the residential element every right to their commonhold, irrespective of the property below them. For that reason, I support the idea of a flying freehold which is covered by Amendment No. 15.
4.45 p.m.
Lord Selsdon: At Second Reading I raised the problem that, as the 1993 Act currently applies, it is possible to end up with a house that is not a house—because it includes part of another building—and a flat which is not a flat. These amendments help to solve that problem. We should remember that sometimes in inner cities there are groups of dwellings that in the past may have been individual houses in the ownership of grand noble Lords but have been converted laterally. In some lateral conversions it is not possible to have all from heaven above to hell beneath, and therefore I support these amendments. This is an anomaly which can be corrected very simply.
Lord Lea of Crondall: There is a good deal of merit in at least considering the amendment at this stage because many of the points to do with RTM and RTE raise very similar questions about mixed developments and residential parts above shops. Can the Minister indicate whether the joint management company referred to by the noble Baroness, Lady Gardner of Parkes, is an inherent necessity in this kind of proposition? If that is the logic of the position, how would the Bill address the question of a joint management company?
Lord Kingsland: I have added my name to Amendment No. 14. As Members of the Committee are aware, the Bill permits commonhold to be created only if it is grounded; that is, commonhold above ground level must have beneath it commonhold land down to the ground. In a mixed use development of flats above shop premises it would not be possible to retain the commercial element as freehold/leasehold and sell the flats as commonhold.
I understand that flying commonholds are relatively common in the United States. Since commonhold is a new tenure, as yet untried in this country, it seems sensible for the legislation to provide maximum flexibility within its structure to ease and encourage its use. Ungrounded commonhold should be permitted where there is no requirement for rights of support or egress or ingress from adjoining property, and there should not be any problem as a result.
Even where there might be issues as to rights of support or egress or ingress, we believe that the legislation should permit commonhold to be developed ungrounded for reasons of flexibility. That might encourage developers of mixed use buildings to consider using commonhold. It is reported that many are reluctant to consider developing the whole building as a commonhold because they are concerned that it might be perceived as limiting the investment value of the commercial element. To permit flying commonholds would enable the residential elements to be sold on a commonhold basis, while the commercial elements would be retained on a freehold/leasehold basis. We believe there is a strong case for limiting to the absolute minimum the number of instances of land which may not be commonhold.
Lord McIntosh of Haringey: I admire the "Gordian knot" approach of these amendments. They attempt to solve a problem which has been present in our law for very many years; namely, that positive covenants do not run with freehold. With the commonhold provisions of this Bill we are attempting to ameliorate that problem but within severe boundaries.
The amendments would allow a commonhold to be developed above non-commonhold land, bringing exactly that problem of covenants into play. The second subsection of Amendment No. 13 would make it possible for covenants to be entered into between the commonhold association and the proprietor of what I might call the "supporting land", which would be enforceable by and against the successors of the commonhold association and the

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supporting land—although, perhaps a little oddly, they would only be enforceable if the covenant so provided. By giving the discretion to apply or not apply that covenant leaves open the possibility that a flying commonhold could still be built, even without the special protection of a new covenant.
I am very uncomfortable about these amendments. The Government are open-minded as to the extent to which it would be appropriate to impose positive covenants more widely on freehold land than is provided for in this Bill, which, of course, applies only within the boundaries of commonhold development. I do not believe that this is the way to achieve it.
In his Second Reading speech, the noble and learned Lord the Lord Chancellor said:
"It is our intention to leave open the wider question of whether and to what extent it should be possible to make the burden of positive covenants binding on buyers of freehold land more generally. That question was first considered in 1965 when the Committee on Positive Covenants Affecting Land, chaired by the noble and learned Lord, Lord Wilberforce"—
who we are delighted to have with us today—
"reported to Parliament. It is presently under review by the Law Commission".—[Official Report, 29/1/01: col. 455.]
You might say that 36 years is rather a long time for a matter to be under review by the Law Commission. The noble Lord, Lord Wilberforce, in particular, would be fully entitled to say that. In some defence, it is a pity that the previous Government did not react more favourably to the Law Commission report on land obligations in 1984. The Committee should be aware that the noble and learned Lord the Lord Chancellor is a doughty champion of the commission when legislative programmes are being prepared. The recommendations which are produced by the commission in due course will be consulted on widely and will be treated with the utmost seriousness by the Government when they are formally presented.
I would urge the Committee that, in a matter of such technical complexity, it is the kind of matter best suited to the painstaking and expert work of the Law Commission. It is considering it at the moment. It is better if we leave it that way rather than introduce it into the more restricted scope of the Bill.
I am supported in that view by what the noble Lord, Lord Kingsland, said when he proposed—I am sure not off the cuff but after careful consideration—a more restricted view of the kind of cases when ungrounded commonhold would be possible.
Amendment No. 15, the amendment of the noble Baroness, Lady Gardner, would deprive commonholds in densely built-up areas from expanding their developments by building upwards. I am assured by those who know that many buildings are capable of being extended upwards by a floor or so. I thought she was going to refer to her Westminster experience of this rather than her Australian experience. She certainly raises a point about the difficulties of a joint management company. My noble friend Lord Lea raised the same point and suggested a
CWH 20
strata title—if I have the wording correct—type of development, with which the noble Baroness is familiar in Australia.
Our intention is that the developments should all be subject to one commonhold development for the present time, but it is possible for the two types of occupier to have differential interests and for different managers to manage different parts. Clearly, land obligations should clear the problem in due course and commercial units could be let on long leases, as one commercial unit is now. The matter of strata title deserves further consideration. We would be glad to discuss it with noble Lords at any time between now and Report stage.
I turn to the two amendments tabled by the noble Lord, Lord Goodhart, to Part II. I can understand that he has proposed the amendments to help leaseholders who are unable to qualify for the right of collective enfranchisement for their building as a whole. I reiterate that the Government are reluctant to attempt to deal in this Bill with the broader issue of positive covenants which run with the land. Without provision for enforceable obligations on all parties, horizontal separation of ownership will not work. Here again, the issue of mixed use buildings arises as it does in Part I. We appreciate the concerns of leaseholders who are unable to enfranchise or exercise the new rights to manage. However, in all the legislation that has taken place on these issues over many years, there are no easy solutions to this problem; nor are they provided by these amendments, though we would all like them to be.
Baroness Gardner of Parkes: Perhaps I may briefly intervene. My Amendment No. 60 covers the point about restricting building additional amounts, so I shall come to that point later on.
Lord Kingsland: Perhaps I may refer to one point made by the Minister. He referred to my taking a more restrictive view as to the number of commonholds. If I understood that correctly, it was clearly a slip of the tongue on my part.
Lord McIntosh of Haringey: I may have summarised too brutally. The noble Lord, Lord Kingsland, appeared to be seeking examples where the nature of the positive covenants which would be necessary would be simpler or more restricted and cause fewer problems than might arise from some more complicated ones.
Lord Kingsland: I was concerned that the Minister did not hear my final remark regarding limiting to the absolute minimum the number of instances of land which may not be commonhold.
Lord McIntosh of Haringey: I heard it but did not hear the solution to the problem.
Lord Goodhart: I am disappointed by the Minister's response. First, mixed commonholds seem likely to be very unattractive to most people on both sides of the fence, as it were. There are unlikely to be more than a

CWH 21
handful of those, either existing or new build. It seems better to accept the need for flying commonholds. As regards the covenants, the possible extent of positive covenants between different kinds or pieces of property is very wide. We are not looking, however, at anything like the whole field but simply the kind of mutual covenants between landlord and leaseholder that are found generally in leaseholds of property on different floors. In fact, there is a useful precedent in existence already in the form of the list of covenants in Part IV of Schedule 9 to the 1993 Act. Admittedly, those relate to the covenant attached to the grant-back of a 999-year lease of parts of property. They could, however, easily be transformed into covenants as between different freehold owners of the same property, which would not seem to present any difficulty even if one did not go as far as generally making positive covenants enforceable.
Finally, even if this is a matter requiring further consideration by the Law Commission, I should have thought that there would be considerable advantages in introducing into the Bill the possibility of having flying commonholds on the basis that the new clause which makes it possible to do so is not brought into force until such time as the Law Commission has had a chance to look at the matter in more detail and recommend what covenants should be made mutually enforceable between the upper and lower parts of a building.
5 p.m.
Lord McIntosh of Haringey: That suggestion makes me even more nervous. As the noble Lords, Lord Goodhart and Lord Kingsland, know, during consideration of the Leasehold Reform Bill, which has just left this House, I was under fire as regards the possibility of administrations engaging in provisional or slapdash legislation anticipating that it can be put right later by a regulatory or reform order. The same criticism would apply to a legislation that would only come into force if the Law Commission subsequently approved it.
[The Sitting was suspended for a Division in the House from 5.1 to 5.11 p.m.]
Lord Goodhart: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Schedule 2 [Land which may not be commonhold land]:
[Amendments Nos. 14 and 15 not moved.]
Schedule 2 agreed to.
Clause 5 agreed to.
Clause 6 [Registration in error]:
Lord Kingsland Lord Kingsland moved Amendment No. 16:
Page 3, line 24, leave out subsection (2) and insert—
("(2) The register may be rectified by the Registrar if—

(a) he is satisfied that the error is a minor matter; or

(b) if all relevant parties consent to the rectification.").

The noble Lord said: This time I shall be mercifully telegraphic. Clause 6 effectively provides a new mechanism to rectify any errors in the registration of a commonhold. We believe that this is an unnecessary complication. The amendment would permit the registrar to correct minor errors which all the concerned parties are agreed should be rectified.
The chief land registrar already has wide powers to rectify errors and we see no reason why these are not thought to be adequate. They would ensure that minor or uncontested errors were quickly resolved. If he does not consider the matter to be minor, or if the parties do not agree, it is appropriate to refer the question to the courts to decide.
I shall speak also to Amendment No. 17. This amendment would enable anyone who thought that he might be adversely affected by an error at some time in the future to seek rectification. A person may be aware that he might be adversely affected by an error in registration, but may not be directly affected at present. The amendment would enable him in those circumstances to seek rectification. I beg to move.
Lord Bach: The two amendments would weaken a control which we believe would help to prevent fraudulent or reckless applications for the registration of commonhold. Perhaps I may remind the Committee that under the clause as it stands the three circumstances in Clause 6(1) which would trigger the use of the court to make a declaration are, first, that the application did not accord with Clause 2; secondly, that the certificate to be given by the directors of the commonhold association was incorrect; or, thirdly, that the registration itself contravenes some provisions of Part I of the Bill. Our case is that none of those possibilities is a trivial matter and we believe that none of them is easily likely to happen by accident. That is why we have specified that it should not be possible to rectify the register, but that the courts should be invited to declare that the estate should not have been registered as commonhold with all that flows from that.
Amendment No. 16 would allow rectification if either the registrar was satisfied that the matter was a minor one, or that the affected parties consented. In our view, that weakens the protection against possible malpractice, or very serious carelessness. If the parties have to come within Clause (6)(1), the circumstances cannot be trivial. The parties, if they have gone so far as to formulate an application that would deal with those circumstances, are unlikely to consent.
Amendment No. 17 would allow the courts to hear the application not only from someone who was affected by the erroneous registration but from someone who might reasonably expect themselves to be adversely affected in the future. I have tried to explain why we believe that the first amendment should not be made. The second would invite the court to speculate about future circumstances. Under the present provision, you would have to be satisfied that the applicant was adversely affected by the registration before considering making a declaration.

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Amendment No. 17 would allow the courts to consider the possibility that the applicant might be so affected at some presumably unspecified time in the future. We do not believe that that would be a proper application to allow in the circumstances. I invite the noble Lord to withdraw the amendment.
5.15 p.m.
Lord Kingsland: I am obliged for the noble Lord's response. I have some sympathy with his views on my Amendment No. 17 but none with his views on my Amendment No. 16. Were we able to vote in the august surroundings of the Moses Room, I would call a Division but, as it is, I shall have to rely on the Regulatory Reform Bill of the noble Lord, Lord McIntosh, some years down the line in order for justice finally to be done. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
Clause 6 agreed to.
Clause 7 [Registration without unit-holders]:
[Amendment No. 18 not moved.]
Clause 7 agreed to.
Clause 8 [Transitional period]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 19:
Page 4, line 32, after ("Part") insert (""the first").
The noble Earl said: In moving Amendment No. 19, I shall speak also to Amendments Nos. 20 to 22. We move on to the transitional period and I hope that my comments on this amendment will receive greater favour from the Minister, because we are now talking about a new build or a redevelopment of a property.
As it stands, Clause 8 provides for a transitional period between registration of the estate as commonhold and registration of the first unit-holder as proprietor. During this period the Bill provides that commonhold regulations may be disapplied or modified but—and here we come to the difficult part—the Bill makes no mention of who the members of the commonhold association will be during the time from the sale of the first unit and the end of the construction and the selling period. I believe that clarification is needed for this just as clarification is needed for the responsibilities during this time.
In a good property market, buildings can be sold almost before the development is complete. In a bad property market—we all know bad property markets—it can take some time. What happens during the period where there are units that are unsold, that have not been taken up, and repairs need to be done? Where does the commonhold stand on that? Where does the individual unit-holder stand? If, as a result of a storm, major repairs are needed to save the roof, and three flats have gone in the building and there are 17 still to go, is it right that the three flats should bear the responsibility? It is not clear in the Bill who should
CWH 24
take the responsibility. How will it be apportioned'? Clarity will be
necessary to save a lot of wrangling and disputes later. I beg to move.
Lord McIntosh of Haringey: As the Committee will know, these four amendments, if I may take them together, will add to the Bill a new concept of a second transitional period during which further regulations would introduce a special regime to govern the actions and responsibilities of the commonhold association between the sale of the first unit and the sale of the last. I understand the problem raised by the noble Earl, Lord Caithness, but our intention is that the commonhold community statement should come into force as soon as the first unit is sold and govern the management of the commonhold from that time.
Let us take the example of a 20-unit block, three of which have been sold. From that moment the members of the commonhold association are the three owners of the commonhold units together with the developer. They have proportionate financial responsibilities: one-twentieth, not 25 per cent, for each of the three who are in occupation and the remainder for the developer on his own behalf and on behalf of the units that he has not sold. That is the limit of their responsibility.
As to whether the roof is damaged in a storm, or it is part of the development and, therefore, the responsibility of the developer, the commonhold community statement, which will already be in effect and govern it, will protect the first three commonholders against being drawn in to pay the developer's costs. That is the fundamental concern which has been expressed by the noble Earl, Lord Caithness. The responsibility for paying commonhold assessments will apply to all unit-holders in the proportions laid down in the statement based on a budget.
It is not likely that a developer will find himself in a position where one unit is sold and many others are on his hands, although I recognise that property markets go up and down. However, we believe that the provisions of the Bill will act as a real incentive to a developer to move quickly, sell units and fully establish the commonhold, because the responsibility of maintaining the unsold units is his and will become more onerous as time passes.
Baroness Hamwee: Before the noble Earl responds, can the Minister direct the Committee to the commonhold community statement? I have not had time to familiarise myself with the details, but the insurance provision states that if there is a default by any unit-holder the commonhold association shall arrange for and maintain insurance on the common parts. That does not appear to provide for the scenario which the Minister explained, unless for these purposes the developer himself is regarded as a unit-holder. I may be reading the wrong passage, but the Committee may be assisted if it is directed to the correct part later.
Lord McIntosh of Haringey: The common parts are distinct from the unlet commonhold units. In the

CWH 25
example of the noble Earl, Lord Caithness, the developer is regarded as 17 commonhold unit-holders and. therefore, is responsible for seventeen-twentieths of those matters which are properly the concern of the commonhold association.
Baroness Gardner of Parkes: It is unfortunate that most Members of the Committee have not seen the commonhold statement. I wondered why it had been received by only a few people. I was informed that it had been placed in the Library yesterday, but neither I nor my colleagues have seen it.
Lord Bach: We sent it in the normal way to Opposition spokesmen on the Bill as appropriate. We placed copies in the Library and copies were also supplied to the Printed Paper Office. We said that we would try to produce these documents before Committee stage. Although they were not produced a long time before Committee stage, we have been as good as our word. I am very sorry that the noble Baroness has not had an opportunity to read them.
The Earl of Caithness: I am grateful for the Minister's observation. The Committee might have been assisted if each Member had had a copy. Looking round the Committee, except for the two Front Benches I do not believe that anyone has seen what is available. That will handicap all our debates this afternoon. I might have been able to save a little time had I been aware that the regulations were available and had read them.
I am grateful for the response of the noble Lord, Lord McIntosh of Haringey, which to some extent has eased my concern. Will the noble Lord confirm that what he has said is in the regulations and therefore will affect all the proposed developments that it is to be hoped will he commonhold.
Lord McIntosh of Haringey: These are not regulations; the memorandum and articles and the commonhold community statement are model documents. I am not sure that I am prepared to give chapter and verse for this. My understanding is that the position that I have stated is in the model statement. I shall write to all members of the Committee who did not have an opportunity to read the statement before today's proceedings and confirm that to them.
I should add that the model statement and the memorandum and articles are only the best draft that we have at the moment. They could change as a result of consultation between now and a later stage; they could change as a result of representations made in the course of this Committee. After all, that is one of the purposes of having legislative scrutiny. I shall write to all noble Lords who have taken part to confirm the position as we understand it.
Lord Williams of Elvel: Will my noble friend accept that that will take a large correspondence? Not many of us have received those documents.
Lord McIntosh of Haringey: I have said that I shall write to everyone who has taken part in the
CWH 26
proceedings, both those who were at Second Reading and those who are present in the Committee today. It will be the same letter and it will go to a great many people.
The Earl of Caithness: I am grateful to the Minister for that. Can he confirm that the model agreement will be the agreement that all developers and potential unit holders will have to enter into? So far as concerns the structure of the building and the common parts, will these be the same for every single commonhold situation? Unless there is clarity on this, there could be a huge number of disputes in the future.
Lord McIntosh of Haringey: Yes. They will be minimum requirements. In other words, if people want to add anything else, they are perfectly free to do so. That is why it is not in the form of a schedule to the Bill, or even in the form of regulations. It is important for people to be able to add things, but they cannot take away.
The Earl of Caithness: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 to 22 not moved.]
Clause 8 agreed to.
Clause 9 [Registration with unit-holders]:
[Amendment No. 23 not moved.]
Clause 9 agreed to.
Clause 10 agreed to.
5.30 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 24:
After Clause 10, insert the following new clause—

Official Report of the Grand Committee on the Commonhold and Leasehold Reform Bill [H.L.]

  PLANNING PERMISSION
  (". After section 66 of the Town and Country Planning Act 1990, there is inserted—
  "Planning permission: commonhold.
  66A. A local planning authority shall not enterain any application for planning permission for a building for multiple residential occupancy unless the land to be developed has hem or is to be registered as a freehold estate in commonhold under section 2 of the Commonhold and Leasehold Reform Act 2001."").
  The noble Baroness said: This is a very draconian and sweeping amendment. I am bringing it forward quite deliberately because I believe that the whole Bill is—what is the English expression?—a damp squib. It is a great disappointment. The other day, I went to the British Property Federation lunch and I heard people sitting around the table saying, "It does not seem very interesting. What would make us want to do this?" These were people who would be in a position to influence and develop properties. I found it extremely disappointing.
  When I say the amendment is draconian, even I. having looked at it, believe that the period indicated is too long; it indicates forever. That would not be necessary. However, a provision of this kind which required that for five years anyone wanting to build

  CWH 27
  anything would have to build commonhold would be of sufficient severity. It would be an attraction, too, because, if people did not comply, they would not be building anything—and no one can tell me that people wanting to develop property will sit and do nothing for five years.
  Such a condition could not be enforced on people who already had their planning permission, who had perhaps agreed a building lease and were far advanced in such matters. Therefore, if such a condition were brought in, and for five years, it could not be enforced against people who already had their planning permission and had perhaps agreed a building lease and fire prevention measures. People who are now going for planning permission are in a position to be able to negotiate the terms of the ground on which they are building and they would then get commonhold. In Australia, it has been clearly established that the price people are prepared to pay for a commonhold unit—in Australia it is called strata title—is so far above what anyone would otherwise pay for a flat that no-one would consider building anything else now. Interestingly, some leasehold is creeping into Australia. Local authorities do not want to part with their land and so they are creating 99-year leases, which have never existed there before. Thus, the swing is slightly the other way.
  For residential accommodation to be occupied by people who wish to own and control their destiny, commonhold is the only thing. That is why I have put forward the amendment. Unless there is an element of compulsion even for a limited period of time, it will not get off the ground. Although I probably will not be alive to see it, in another 10 or 20 years it will be considered a great pity that this opportunity was missed in 2001. This is a new century. It is time for this country to be looking at new ways of people owning property and having their rights in perpetuity. I beg to move.
  Lord Goodhart: I asked for my amendment, Amendment No. 236, to be grouped with this amendment. Although our amendment seeks to amend an entirely different part of the Bill, both amendments are in fact directed at the same objective—that is, preventing a grant of new leases in a form which would recreate the problems dealt with by this Bill and its predecessors. The noble Baroness, Lady Gardner of Parkes, attacks this objective through the planning process. In one respect at least, her amendment goes too far, as it would prevent not only the erection of buildings for long leases but also that of buildings for short leases at a market rent. There is a substantial demand for leases of that kind. Our version would prohibit the grant of leases at a premium. Therefore, it does not apply to a lease for no premium at a market rent. Our amendment would not prohibit new build leaseholds altogether but would require a minimum term for the lease, if granted at a premium, of 150 years. That would defer the problem for a long time, by which time entirely different problems would no doubt have arisen and this problem might well have ceased to exist.
  CWH 28
  This is to some extent a probing amendment, to see the Government's reaction. There has been a great deal of pressure from some leaseholder groups to ban the grant of new leases altogether. The noble Baroness's amendment would not achieve that because it would apply only to new build. However, I am also concerned that the commonhold system is untried. It may well succeed and I suspect that what the noble Baroness, Lady Gardner of Parkes, says about Australia will probably happen in this country; namely, that commonhold flats will sell for substantially more than leasehold flats. Market forces will thus mean that commonhold will drive out leasehold. However, I would ask the Government to consider these issues because there is at least something to be said for restricting the grant of new leaseholds in order to give commonhold a fair start.
  Lord Selsdon: What we are discussing here is how to give people an incentive in order to introduce something that we would all like to see introduced. Governments and parliaments throughout history have had incentive departments. Some are called corrupt departments—as carrot and stick. I would like the Government to look at any way they can find to introduce an incentive for this system. We can run through the whole tax gambit of enterprise loans or granting roll-over relief to those who build commonhold. I do not support the details of my noble friend's amendment but, as always, I support her spirit.
  Lord Monson: I should perhaps explain that, although I must have spoken on three or four leasehold Bills over the years, I did not take part in the Second Reading of this Bill because it took place on a Monday and train services from the North are not yet fully reliable. However, I did attend the greater part of the debate. I have no interest to declare as regards commonhold or leasehold, although as an owner of a straightforward rented property, I am naturally concerned that the principle of confiscation or partial confiscation of property rights should not become too widely established.
  I believe this pair of amendments are too paternalistic. In addition, the amendment tabled by the noble Baroness, Lady Gardner, as the noble Lord, Lord Goodhart, said, would also affect blocks of flats built specifically for rack renting.
  The late Lord Brook, Henry Brook, the eminent former Cabinet Minister, once told the House of Commons that leasehold had been enormously beneficial for him and his family. It had enabled them to live in a much larger and better house in a much better area than would have been possible had only more expensive freehold houses been available. Why should not people nowadays have the right to opt for a spacious and well designed house or flat in a nice area, albeit a slightly wasting asset, in preference to a much smaller property in a less salubrious area which holds its value in real terms in perpetuity? Surely it should be up to them to decide which they want to do.
  Lord Bridges: I make a brief intervention on this point. I am a leaseholder of a London flat but my

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  interests do not arise on this clause. We all hope that the commonhold system will work and be a success, and I hope that we can copy the Australian experience, but is it right to introduce a restriction and a degree of compulsion that seems to apply to both these amendments? I would much rather see the commonhold system gain affection among the occupants of property in this country on its own merit, and that is what should happen. I do not like the thought that we shall use the manipulation of the state to force it in one direction or another.
  There might still be a certain market for leasehold properties in this country, even after the introduction of commonhold, because it is familiar. People know what it is and they might be able to buy a leasehold property more cheaply than a commonhold property. I do not feel able to support these amendments.
  Lord Jacobs: I am very happy to support both amendments, although I agree that the amendment of the noble Baroness, Lady Gardner, is somewhat restrictive. It would not be a difficult matter to have a clause which provides that properties for rent could be excluded. That would be a very straightforward provision to make.
  I would not be speaking out of turn for probably 2 million leaseholders in this country in saying that those who know about it are utterly astonished to learn two rather sad facts. Firstly, that their chances of getting into commonhold for existing leases are very small indeed. The discussion that has already taken place confirms that. Secondly, that new developments will take place across the country and they may not be commonhold. It is almost impossible to explain to them why, if the Government are bringing in this quite complex legislation, all new properties should not be commonhold.
  I have asked those on my own Benches who from a legal point of view know more about this than I do. They have explained that the Government recognise that it is quite difficult legislation and that they want to field trial it and not compel everybody to develop under commonhold. That may be the case, and it may even be quite reasonable, but if they do not develop under commonhold they can develop on 75-year or 99-year leases. That is why I support the amendment of my noble friend Lord Goodhart, who has suggested 150 years. In discussion with him, I put forward the idea that 900 years would be more appropriate. At least then the developers would recognise that there was no reversionary gain to be sought by not going into commonhold. If we could discourage developers from considering any more leasehold, the Government's objective would be achieved.
  Lord Bach: I would not seek to describe anything that the noble Baroness, Lady Gardner of Parkes, does as draconian; in the same way, I am not entirely happy about being associated with something that is a damp squib or a great disappointment. However, there is no doubt that radicalism of an extreme nature exists and is alive in the House of Lords, and it is very good to see
  CWH 30
  it in her amendment. I would not describe the amendment as draconian; I would describe it as an ingenious attempt to arrive at a position in which future developments of leasehold flats would he forbidden.
  The Government have been clear, rightly so—the noble Lords, Lord Selsdon and Lord Bridges, made the point—that the development of commonhold offers an alternative to leasehold. It has been clear that we have no intention of cutting off the possibility of leasehold development if that is what developers and the market still want. Indeed, to suggest anything else and to go down the road of compulsion would be something for which we would be attacked as quickly as we suggested it.
  Of course we want to see that there are no significant, unforeseen problems with the new system. The opposition parties—and my own—would be the first to criticise any actual or arguable fault which the new system of commonhold put up. What we ask is that the market should be left to make up its mind.
  If, in due course, it seems proper to come to some decision about the continuation of leasehold, no doubt that can be looked at and taken, but we do not think that that is likely to happen in the very short term. To prevent leaseholds altogether, we fear, would be a prohibition and an interference with an owner's use of property and might—I use the word "might"—potentially be a source of problems in relation to the first protocol to the European Convention on Human Rights.
  I know why the noble Baroness has raised this issue in the way that she has; she wants to draw attention to it. I can see her point of view; it would, in a way, be something that was agreeable.
  However, I have to point out to the noble Baroness that if in Australia they are beginning slowly to construct leaseholds again—even if in a small way—there cannot be any prohibition there of the kind she is suggesting should be imposed here. But I do not believe she is absolutely serious in suggesting that there should be a prohibition.
  What the noble Lord, Lord Selsdon, said attracts us. We shall look carefully at ways in which we can, to coin a phrase, "market" the commonhold system. There is no reason why there should not be some marketable incentives towards encouraging people to move to commonhold, provided the playing field remains even. However, I say with confidence that we believe that commonhold will be a success. It will be a success on its own merits and not because we are, as it were, abolishing some other form of land tenure. I ask the noble Baroness not to press her amendment and to withdraw it.
  As far as concerns the amendment of the noble Lord, Lord Goodhart, we see the reasoning behind it. However, at this stage—I do not wish to give any false hopes—we are not convinced that it would be effective in solving the problems faced by leaseholders and might create some very real, practical problems. I shall deal with these shortly.

  CWH 31
  In many cases, developers may be able to acquire land only on a leasehold basis. They will be unable to offer leases for a longer term than the term granted to them. Land subject to a lease of less than 150 years could not be utilised for residential development unless the developer could persuade the landowner to grant a new lease of an appropriate term. That may distort the market and prevent the sensible use of land. There may be difficulties in redeveloping existing leasehold property which has reached the end of its life if those concerned are unable to acquire the freehold or to do so on reasonable terms. In addition, council tenants have the right to buy a long lease on the flat in which they live. Local authorities may hold the land on which the flats are built only on leasehold.
  The amendment, if carried out to the letter, would remove consumer choice in prohibiting the grant of any lease below 150 years for a premium. We are advised that it would, therefore, apply to an assured shorthold tenancy where the rent was payable as a lump sum in advance. Where willing parties wish to agree to such an arrangement, such as a company requiring temporary accommodation for an employee, it would be wrong to interfere. The amendment does not deal with the fundamental problem, as the noble Lord sees it, of leasehold tenure. It would not prevent leasehold abuse nor prevent the lease depreciating over time, albeit a long period of time. It would probably merely postpone the latter problem. However, the noble Lord raises a serious issue and we shall look at it again.
  Lord Jacobs: Is the Minister aware of his department's own consultation paper Residential Leasehold Reform in England and Wales? The introduction deals with the fundamental point under discussion: existing and new leaseholds. I read briefly the first two paragraphs:
  "The leasehold tenure is almost unique in England and Wales. It has its roots in the feudal system and gives great powers and privileges to landowners. It is totally unsuited to the society of the twentieth—let alone the twenty-first—century …
  "The Government believes the leasehold system is fundamentally flawed. It is committed to introducing a new form of tenure for flats—commonhold—which in future will enable the individual flat-owners in a block to own and manage the whole building collectively from the outset. We see commonhold as the best way to tackle the problems faced by many existing"—
  I emphasise that word—
  "residential leaseholders".
  Does the Minister agree that what he said about the earlier amendments and the likelihood that very few existing leaseholders would be able to change to commonhold—the noble Lord now says that the Government want to keep leasehold going even when the commonhold legislation is enacted—does not tie up with any of the aspirations of his party from the very beginning?
  5.45 p.m.
  Lord Bach: The noble Lord is wrong. Naturally, our aspiration is that eventually there will be no leasehold, but it is a question of how that is arrived at. In a free
  CWH 32
  society people cannot be compelled to lose a tenure that has existed, rightly or wrongly, for centuries. We want to persuade people that with the new commonhold system there is no need for leasehold, and that will take time. People cannot be compelled to do that. In time commonhold will assert itself, but any government would be highly irresponsible if they took any course other than the one that we have taken.
  Lord Richard: The noble Baroness, Lady Gardner of Parkes, said that this looked like a damp squib. The longer the Committee stage goes on, the damper the squib appears to become; indeed, it is rapidly becoming sodden. I am disappointed by the attitude and approach of the Government in this matter. I am grateful to the noble Lord, Lord Jacobs, for referring to the consultation paper, which is not the kind of thing that a loyal supporter of the Government would wish to do in public. However, since he has done so I am glad of it. With great respect to the Government, we have oversold this to the general public if the concept is as seems to be emerging this afternoon. That concept appears to be based on no compulsion in terms of whether one moves to commonhold; and it must be 100 per cent and no less, on which I have already expressed my views.
  We are now told that the amendments tabled by the noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Goodhart, are not acceptable to the Government because there is an element of compulsion or quasi direction which the Government do not like. I say with all goodwill to the Minister that if he takes that attitude, he has to do something else. He has to say how commonhold will be encouraged if there is no legal framework within which people are being pushed into commonhold. The Minister indicated that the Government might have in mind other incentives. With great respect, he should spell them out. If he does not spell them out, the general public will be left suspended between a flying freehold and the possibility of a commonhold. What are they to make of it?
  We have been selling commonhold. We have all said what a splendid idea it is and people are still saying what a splendid idea it is. But from something which was designed to replace leasehold, it has now become an additional option. The Government will have to face up to that and spell the position out.
  Baroness Hanham: I am much indebted to the noble Lord for having mentioned the consultation paper. The Minister was not too clear when responding on the question of the existing premises, which were clearly marked out in the consultation paper. The impression that has been given is that existing leaseholders will not want to or be able to change to commonhold, but that is not what the consultation paper was about, and it is not what everyone thought commonhold was about. There has always been an aspiration that people with leasehold can change to commonhold. I am sure the Minister meant to reply to that point. I am just giving him another opportunity to do so.
  Lord Monson: In contrast to the noble Lord, Lord Richard, I congratulate the Government on having

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  second thoughts, on adopting a more libertarian attitude and on allowing willing buyers of the leaseholder properties to acquire them from willing sellers.
  Lord Bach: Having been attacked on all sides, I am beginning to think that I may be in just about the correct position now. As far as concerns marketing for commonhold, my department has a budget for raising awareness by training and education and carefully placed advertising among developers, managers and other professionals, and especially among leaseholders, for over the 12 months after Royal Assent. We have already given some thought to that, and we would like to give more thought to it.
  Lord Williams of Elvel: I am grateful to the Minister for giving way. He has already said that existing leaseholders would normally not qualify for commonhold—they would not want to go in for it. What is the point of a marketing programme for existing leaseholders when they have no rights therein whatever?
  Lord Bach: If the noble Lord will forgive me, it was he, not I, who said that it had absolutely no relevance to existing leaseholders. In fact, I said the opposite. I said that we hoped that existing leaseholders might, in some cases, take advantage of commonhold. I did not pretend for a moment that it would happen in a large number of cases. I do not think that it will and the Government do not think that it will. But we do hope that it happens in some cases. I mentioned leases where there were just a couple of leaseholders. I am certainly not saying that there will be never be a case where there will be some conversion from existing leasehold to commonhold; I think that there will. That is why we will be trying to persuade leaseholders or talking to leaseholders about changing to commonhold. But we are realistic about it. We know that it cannot be done overnight.
  Commonhold has to prove itself. We have enough confidence in commonhold to believe that it will prove itself. That is the best way I can respond to my noble friend Lord Richard. We have not changed our stance in any particular way. We want eventually to see the end of leasehold. We do not believe that the proper way to do it is just to abolish it. That would not have the desired effect. By establishing an alternative leasehold such as commonhold, we believe we will get a much better system of tenure in due course.
  Lord Jacobs: The Minister said that the Government had not changed their policy in any way. I did not intend to raise this matter but, having heard that statement, I feel I must. I discussed this paper with the Minister in another place and asked him how he squared the direction that the policy was clearly taking with this ministerial foreword. He thought for some moments and said, "I did not write the foreword". That was the only response he could give.
  The Minister is aware, as are we all, that there has been a change of direction. I do not know why and I do not know anyone else who does. The Government
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  came forward with the position that they were going to support existing leaseholders in trying to get out of their present situation and into commonhold; and. as we understood it, they were going to bring in commonhold for new developments in replacement of leasehold. So clearly there has been a change of policy, which the Minister in another place recognised.
  Baroness Hanham: I wonder whether the Minister will accept from me—I was so impressed by it that I wrote it down—that he did say in his earlier remarks that he did not see commonhold being developed from leasehold.
  Baroness Maddock: Perhaps I may press the Minister a little further on the issues of advertising and getting people on board, a point that I raised at Second Reading, particularly with reference to builders and new developers. Given the disquiet in the Committee today, can the Minister enlarge on what discussions have taken place with builders and developers? We have been told by various sources—the Minister will be aware that we are inundated with letters and information from people—that builders and developers are not taking much interest in this. I should be grateful if the Minister could expand a little.
  Lord Bach: I am not in a position to give the noble Baroness many details but, from what we have heard—and also from what we have read in the same journals that she has no doubt been able to read—there is considerable interest among developers in commonhold development. That is our understanding. I shall go back to the department, find out what inquiries have been made and write to the noble Baroness.
  Baroness Gardner of Parkes: I thank those who have supported me in my unreasonable amendment. When the Minister talks about raising awareness, that is going in quite the wrong direction. The public are already very aware of this issue. The Government promised them that they would be given this solution, which would make life better and fairer for them and give them the right to have their own property. Instead, it is getting nowhere.
  The Minister implied the need to raise awareness among developers as well as the public. There is only one way to interest the developers; that is, to follow my noble friend's suggestion of providing incentives for them. The only time I saw anyone perk up with interest at the British Property Federation lunch was when I said that properties attracted much higher prices if they were sold commonhold. Suddenly, someone looked quite alert and said, "Oh really! Is that so?"
  You need to take this kind of line when you are talking to developers. You have to prove to them that it will be financially wise to do this. In that way, you might provide incentives for them. Perhaps the Chancellor's forthcoming Budget will contain some incentives.
  Anything that will get this system going will be a very important factor. Once this is established in London—I shall not refer to the case that someone is

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  going to do something in Northampton, which is quoted all the time; I am talking about something being done in London—it will be under a magnifying glass. It does not matter which part of London; everyone will be aware of what happens in the capital. If you can provide the incentive for someone to do it here, it will speak for itself. People will be so pleased with it that, once one developer sees it is a success, it will go on.
  This matter is not to be taken lightly. It would be a terrible let down for people if nothing happened. In the meantime, I beg leave to withdraw.
  Amendment, by leave, withdrawn.
  Clauses 11 to 13 agreed to.
  Clause 14 [Use and maintenance]:
  6 p.m.
  Lord Kingsland Lord Kingsland moved Amendment No. 25:
  Page 7, line 24, leave out ("and maintenance") and insert (", maintenance and regular upgrading").
  The noble Lord said: This amendment would require the commonhold community statement to impose a duty to ensure that the unit was regularly upgraded. One of the long-standing problems with leasehold management occurs where leases make no provision for the improvements of buildings. This prevents the cost of improvements being recovered through the service charge. It can lead to services in the building not being modernised because they will count as an improvement rather than a repair or maintenance. The problem has been acknowledged in the Bill. Schedule 9 includes amendments to the existing legislation to add improvements to the standard definition of a service charge.
  We believe that similar provisions in commonhold legislation should be inserted to ensure that these problems are prevented from the start. We propose that the statement should require regular upgrading rather than improvement. This is because we recognise that there can be disputes over what constitutes improvement. In any block there will be spenders and savers as well as those who can afford to pay and those who cannot afford to pay. It is important to ensure that the rights of the minority are protected, and that the spenders and better off members of the commonhold community do not railroad the savers and less well off into an obligation to pay for top-of-the-range improvements.
  We have therefore used regular upgrading to signify the intention for progressive modernisation of the building over time, although we do recognise that there is as much scope for argument as to what constitutes "regular" and "upgrading" as there might be in "improvement". Amendment No. 39 makes similar provision for the regular upgrading of the common part. I beg to move.
  Baroness Gardner of Parkes: I have views on this regular upgrading. It worries me in the same way as an upward-only rent review. Having had property in Australia, I saw very clearly that there was a huge
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  division between those who lived in the block and wanted the luxury entrance, and those who perhaps because they were working away or for some other reason had sub-let their property. Those people were barely getting a return on the service charge and the upgrading that was envisaged. Maintenance is very important, but definition of upgrading is the most difficult feature.
  Baroness Hamwee: Although I understand what underlies the noble Lord's amendment, and his concerns and those of the British Property Federation, I, too, find difficulty with the words. "Regular upgrading" sounds a little like estate-agent speak. When I first read it, it suggested a new kitchen every 10 years. I am sure that that is not what is meant, but I find difficulty in construing the words of the legislative term.
  Lord Selsdon: I, too, have some difficulty with this. There is not a great problem with the new buildings but as regards many existing buildings some have reserve funds included in the service charge but others do not. Most service charges were based on original rateable values but there are now awful argument about the lifts. It often happens that the people who do not pay for the lifts do not want them to be upgraded. They must be maintained annually under a maintenance contract and have the appropriate insurance. In some areas, normal external redecoration is required every five years and internally every seven years.
  Upgrading causes a major problem when some parts of a building are falling down and it is protected by English Heritage. Other buildings may have little foundation and suffer from hump and heave and cracks. There will be those who would like to have a roof which did not leak but who are required to replace it with old tiles which will always leak. It is the term "upgrading" that I do not like. Neither do I like the term often used by the noble Lord opposite, "modernization", which seems to be things spelt with a zee.
  Lord Lea of Crondall: Does the Minister intend to cover the following point? I have not read the new memorandum of association of commonhold which we have just received from the Printed Paper Office, but presumably in secondary legislation or in some other way there will have to be a benchmarking of the standards of maintenance. If not, all the problems of company law, imposing the liability on the two or three residents who do not want to pay and so forth will be a nightmare. I speak as the chairman of a residents' association, as I mentioned at Second Reading. The problem of ensuring that we facilitate the necessary legal structures is very important. It arises in a number of places in the Bill and it certainly arises here.
  Lord Bach: Yes, we will try to make clear what my noble friend Lord Lea asks for. As he knows, we accept that the memorandum that is in existence at the moment is a draft only. The three amendments would all reduce a degree of certainty dictated by our policy

  CWH 37
  and provided for us by the draftsmen by adding words and phrases which would bring no discernible advantage if they were employed in the Bill.
  Amendments Nos. 25 and 39 would both introduce a duty regularly to upgrade. We agree with what the noble Baroness, Lady Gardner, said and we are not quite sure what it means. We are not aware that it is a term of art among developers. It is not a term regularly used in leases or other contracts. Furthermore, it has the distinct disadvantage of being impossible to define accurately, as the noble Lord, Lord Kingsland, admitted, in both its parts; "regularly" and "upgrade". The duties with which it would be allied are all well understood and readily ascertainable; in other words, to insure, to repair and to maintain. In any event, regular upgrading, even if it were possible to say what it exactly what it means, is not something that one would expect to impose on freeholders.
  Commonhold brings with it certain duties and responsibilities. It is a concept of freehold in itself and we have no desire to impose further on the freehold concept, thus risking making commonhold less easy to sell as a unit than might have been the case. We are therefore not in favour of those amendments.
  Amendment No. 82 to Clause 66 would add the words "where practicable". Practicability seems to us to be a predefinition of decisions relating to rebuilding and reinstatement and therefore it would add nothing to the clause. We therefore ask the noble Lord to withdraw the amendment.
  Baroness Hamwee: When the Minister responds to the points made by the noble Lord, Lord Lea, will he distinguish between the obligations that relate to the whole building and those that relate to individual units? I had intended to say that one of my concerns about the first of the amendments related to the duty that would be imposed on the individual unit-holder as regards what he did within his own unit which may not affect the structure of the building. It would be helpful to have that distinction.
  Lord Bach: We will make that distinction in our reply.
  Lord Bridges: The phrase "regular upgrading" might well mean that if a building held in commonhold had an aerial on top for reception of television, a new aerial would be required when digital television was introduced. I am not sure that such provision needs to be in a community statement but occupants of the building would clearly want to discuss that question and decide whether they wanted to pay for it before it appeared in their budget. That is one way in which I imagine it would be handled in practice.
  Lord Kingsland: It might be said that the amendments have received a very moderate "hello" from your Lordships. My amendment has received a very moderate greeting from the Committee. In those circumstances, I shall of course withdraw my amendment and, in so doing, reflect upon some new
  CWH 38
  formula that I may table at Report stage to meet what I still believe to be a desirable need. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Earl of Caithness The Earl of Caithness moved Amendment No. 26:
  Page 7, line 27, at end insert—
  ("( ) Notwithstanding these duties, the commonhold association shall always be responsible for the structure of the building, including repairs and insurance of the structure on a full reinstatement basis.").
  The noble Earl said: In moving Amendment No. 26 I should like to speak at the same time to Amendments Nos. 38, 40 and 61. We return to a point that I and the noble Lord, Lord McIntosh of Haringey, debated earlier: the standardisation of the commonhold association statement. Since we debated this matter in a previous amendment my noble friend Lord Selsdon has hurried to the Printed Paper Office and provided me with a copy, for which I thank him. However, I do not believe that my problem is yet solved, since in the brief time that I have had to read through it I do not see an obligation on the commonhold association to maintain the structure and internal walls of the building. The statement refers to common parts but does not define them. I hope that the Minister will be able to clarify the situation.
  Amendment No. 26 refers to insurance of the structure of the building. Although insurance is dealt with in paragraph 49 of the draft statement, it refers to,
  "insurance, including public liability insurance in respect of the common parts".
  Does that refer to the structure of the building? That is the principal point which underlies the four amendments.
  When I moved Amendment No. 19 the noble Lord, Lord McIntosh, said that it would not be possible to contract out of what would be in the model association statement. Yet in Clause 14(2) it is provided that,
  "A commonhold community statement must make provision imposing duties in respect of insurance, repair and maintenance of each commonhold unit".
  If that statement is binding on both parties, what is the purpose of having it in the Bill? I beg to move.
  Lord Williams of Elvel: There is a distinction between the structure of the building and its contents. I agree with the noble Earl that obligatory insurance of the structure of the building should be imposed only on the commonhold association and that unit-holders' fixtures, fittings and contents can be insured by the unit-holders themselves. That clear distinction goes to the heart of a commonhold association. It is also sensible that a single body should be responsible for the integrity of the building as far as concerns insurance. I support the noble Earl's amendment.
  6.15 p.m.
  Lord Bach: These amendments appear to have been tabled as a result of a misunderstanding. If passed Amendment No. 26 would give rise to an unfortunate unintended consequence and duplicate a provision already in the Bill that is designed to fulfil the

  CWH 39
  presumed intention of the noble Earl. In its present form the amendment would make the commonhold association responsible for the insurance and maintenance of commonhold houses, detached or otherwise, and other independent buildings such as detached business units. It may be that the noble Earl intends to restrict the force of the amendment to flatted properties, in which case he will find that the provisions of Clause 25 already require the commonhold association to insure and maintain the common parts. In the case of flats, but not necessarily houses, that includes the structure of the building. If I am right in what I have said, I hope that that also deals with the other amendments in this group.
  Lord Williams of Elvel: Does maintenance include insurance?
  Lord Bach: Clause 25 states:
  "A commonhold community statement must make provision—

  (a) regulating the use of the common parts;

  (b) requiring the commonhold association to insure the common parts".

  That may well be the structure of flatted properties.
  The Earl of Caithness: My problem still remains that there is no definition, as I see it, of what common parts are in the draft statement at which I have just glanced. Although the Minister has kindly confirmed that the structural part of the building is involved in the common parts, I hope that this can be made clear in the association statement.
  I ask the Minister to consider the second point that I made. We have various statements in paragraph 14 about how commonhold statements must include certain provisions. The noble Lord has just mentioned Clause 25. However, given what the noble Lord, Lord McIntosh of Haringey, said—that everything in the statement is binding on both parties—is it necessary to have it in the Bill as well as in the statement? Can there not be a subsection in the Bill providing that there will be a model commonhold statement from which neither party may contract out but to which they can add? That would cover it. Everyone would know after that.
  Lord Bach: I shall certainly consider what the noble Earl has said. Perhaps I may refer him to a definition of common parts in Clause 24(1) of the Bill. It states:
  "In this Part 'common parts' in relation to a commonhold means every part of the commonhold which is not for the time being a commonhold unit in accordance with the commonhold community statement".
  The Earl of Caithness: I am grateful to the Minister for that clarification, which goes some way to reassure me. However, I would like to read what he has said and give it further thought. I am also grateful that the noble Lord has agreed to look at the other question that I raised. I believe there is something in that which would make the Bill and the statement much more intelligible to both parties. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 14 agreed to.
  Clause 15 [Transfer]:
  The Earl of Caithness The Earl of Caithness moved Amendment No. 27:
  Page 7, line 42, at end insert—
  ("( ) Outstanding debts and arrears due to the commonhold association must be paid upon transfer of the unit.").
  The noble Earl said: Those Members of the Committee who have been involved with leasehold properties will know how difficult things become when a property is transferred and debts or moneys are owed from that lessee. The amendment seeks to ensure that when there is a transfer of a commonhold property all debts and arrears are paid. That will ease the commonhold association's liabilities and problems and will make the whole administration of running the building a great deal easier. I beg to move.
  Lord Williams of Elvel: The noble Earl is right. There is a problem with how one transfers the obligations of units and, in particular—I raise this point because Amendment No. 58 is grouped with Amendment No. 27—how one enforces that and what kind of penalties should be imposed. There is a serious problem here which I am sure my noble friend will wish to address.
  Lord McIntosh of Haringey: There is certainly a serious problem and I am grateful to the noble Earl and to the noble Lord for the way in which they have introduced it. The trouble is that Amendments Nos. 57 and 58 would close down the range of options available to the commonhold association to collect debt. We doubt whether there should be specific mention on the face of the Bill of a power for the commonhold association to take a first charge on the unit to recover unpaid debts. Under the current law, that is one way in which a creditor may attempt to recover what is owed by a debtor, but it is only one, and it is not the only one.
  I do not believe that to take a first charge to recover a debt in the commonhold would never be appropriate, but specifying it as "the" way to recover money owed under Clause 36 regulations or otherwise is to close down the options unnecessarily.
  Presumably, we would only be considering a charge to enforce a debt when the various forms of alternative dispute resolution, which we will require, have failed, but charges seem to represent jam tomorrow, whereas a commonhold association will want to recoup its losses as soon as possible after they arise. If, as I suspect, they have had to get to court to get this far, the charging order is available to them, but so are execution against goods orders, attachment of earnings orders and garnishee orders, all of which might have a more immediate effect in regaining outstanding money than a charge.
  The flexibility of enforcement available to judgment creditors under the present system is valuable and ought to be available to commonhold associations.
  Amendment No. 27 might have made more sense if it required a particular party to settle the outstanding debts. As it is, the burden might fall on either party,

  CWH 41
  and it is rather strange to think that a buyer might be expected to sign two cheques, one to the seller, and one to the commonhold association to settle the seller's debts.
  Baroness Gardner of Parkes: Amendment No. 27 is an important one. Amendment No. 58 goes too far—that is where the Minister referred to putting on a charge, and so on. Amendment No. 27 would mean that, for anyone buying a unit, his or her solicitor would automatically have to check that there was money outstanding to the commonhold group. We should bear in mind that if someone is not paying their share, all the other commonholders will suffer as a result. I support the amendment of the noble Earl, Lord Caithness.
  Lord Selsdon: We can learn some things from existing leasehold arrangements. In general, if a tenant wishes to sell a flat or a property, the buyer has to have obtained the consent of the landlord, and that consent must not be unreasonably withheld. Usually, those searches are on what amounts of money are outstanding and due. If one takes over a lease from someone else, one takes over all of his obligations. I do not see why it is not possible to give commonhold associations the right to refuse transfer until and unless all outstanding debts are settled.
  Lord McIntosh of Haringey: Then it would not be commonhold. Clause 15(2) states:
  "A commonhold community statement may not prevent or restrict the transfer of a commonhold unit".
  The benefit of commonhold is that it applies the conditions of freehold to multiple occupation properties. If we did not have that transfer, we would not have commonhold at all. I am not saying that there is not a problem of people selling on their property and being unavailable to pay their outstanding debt. We have already had the answer to that—outstanding debts to the commonhold association ought to be revealed on a solicitor's search, and that ought to be settled before the transfer takes place.
  Lord Jacobs: Is the Minister saying that it is not possible to devise a system so that somebody cannot transfer their commonhold until they have settled their debts to the association; or is he saying that he has tried to devise a system but has not been able to come up with one? Will he look at this again?
  Lord McIntosh of Haringey: I am not saying that at all. I am not saying either of those things. I am saying that there is a whole series of procedures in the courts for the recovery of debts. To restrict it in this way would be to weaken rather than strengthen the position of the commonhold association.
  Lord Jacobs: Surely, the difficulty is that perhaps the owner is from abroad and leaves outstanding debts. He takes his money from the sale of the commonhold and has not paid his debts to the association. In any reasonable equity situation one
  CWH 42
  would have to discharge one's debts before one obtained title, in this case to the commonhold. The vendor would have to discharge the debt.
  I understand the point that the Minister makes but, taking into account what may happen on occasions where the previous owner disappears, or perhaps just goes abroad, are the Government unable to find any way to put a stop in the system to prevent people completing a transfer before they have settled their debts?
  Lord McIntosh of Haringey: The problem of recovery of debts has been endemic in human society since the time of cave-dwellers. What is proposed in the amendment, and is at issue here, is that commonhold should somehow be weakened so that transfer of the ownership of a commonhold unit should be made subject to the settlement of debts to the commonhold association. I am not keen to have any restriction on the use of the courts to recover debt. I am very nervous about reducing the quality of commonhold ownership by saying that it is in effect up to the incoming owner to take some responsibility for the outgoing owner's debts.
  Lord Jacobs: Does the Minister agree that in reality there is no way that one can receive the proceeds of sale of a freehold without being obliged, I believe by the lawyers—I do not know how it is done—to deduct any outstanding liabilities? Everyone accepts that that is reasonable. Nobody would regard it as unreasonable that one cannot transfer one's commonhold while one owes a big debt for work that has been done, or money is owing to the commonhold association. All I am asking is whether at least the sale of a commonhold can be in parity with the sale of a freehold.
  Lord Richard: As I understand the argument, I believe that the Government are absolutely right and, with great respect to the noble Lord opposite, he is wrong. Assuming that I am a commonhold unit-holder and I want to sell it to the noble Lord opposite, if I have not paid my debts and he finds out about it—the chances are that he will—he need not sign the contract. If he signs the contract for the sale of the unit obviously he is bound, and I am bound if I sign it. This is a question of how one recovers debts, rather than how to stop the transfer of property. I am not in favour of this amendment.
  The Earl of Caithness: I am grateful to all those who have taken part in this short debate. I am particularly grateful for the support that I have received. I disagree with the noble Lord, Lord McIntosh, that to insert something like Amendment No. 27 would weaken commonhold. Far from it; it would strengthen commonhold. To run property is not an easy business; it requires a good deal of effort by a number of people if it is to be done successfully. I know many people who for many years have longed to run their flats and to be part of a management company but, when they have achieved that position, have regretted it because of the effort and commitment required.

  CWH 43
  I am simply trying to make commonhold work better. As the noble Lord, Lord Richard said, it is a question of collecting debt. But why not use this opportunity to strengthen the hand of the commonhold association and all the other commonholders who have units? I agree that if a particularly troublesome person is constantly in arrears with monies due to the commonhold association there is a range of flexible measures which the commonhold association can take to deal with that individual. However, when it comes to the transfer of the unit there is a golden opportunity to get that situation up to date for the benefit of all the other commonholders in the association. It is that one person, or perhaps two people, who are holding back the regular maintenance; holding back the upkeep of the building. Here is a chance to say, "Right. You cannot transfer your commonhold unit until all the debts have been paid. When you have paid your debts, that is great. You go ahead and transfer it". Surely that is a sensible approach. I hope that the Minister will think again on this issue. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.30 p.m.
  Clause 15 agreed to.
  Clause 16 agreed to.
  Clause 17 [Leasing: residential]:
  The Deputy Chairman of Committees (Lord Lyell): I should advise the Committee that if Amendment No. 28 is agreed to, I shall not be able to call Amendment No. 28A on the supplementary sheet.
  Lord Goodhart Lord Goodhart moved Amendment No. 28:
  Page 8, line 20, leave out subsections (1) and (2) and insert—
  ("(1) No term of years absolute may be created in a residential commonhold unit—

  (a) for a term exceeding 7 years;

  (b) in consideration of the payment of a premium or other lump sum;

  (c) which does not comply with such other conditions as may be prescribed.").

  The noble Lord said: The viability of commonhold depends on the unit-holder having a satisfactory degree of flexibility for the way in which he or she deals with the unit. The unit-holders will not all be permanent residents: some may buy a unit, be posted abroad and want to come back; some may buy a unit for retirement in advance of retiring and taking up residence; and some may buy a unit for investment, and there is no reason why they should not. Unit-holders must have a power to rent out their flats. If they were not able to do so, commonhold would lose a good deal of its attraction because it would be much more difficult to deal with than a leasehold property.
  At the same time, it is reasonable to say that unit-holders should not be allowed to create long leases at a premium. That would simply recreate the leasehold problems and complicate management. In addition,
  CWH 44
  members of commonhold associations should regard themselves as members of a co-operative body and have a real and personal interest in the commonhold property.
  The Bill seeks to leave these issues to regulations. We think that some issues are fundamental to the viability of commonhold schemes and are too important to be left to regulations; they should be on the face of the Bill. We need commercial certainty. It is necessary that vital matters should not be left to regulations, which could always be changed at short notice.
  In our view, two matters are essential and should be on the face of the Bill. One is the maximum length of the lease; the other is the exclusion of the premiums. Our amendment proposes a seven-year maximum for the lease, which we think is the right length of time. Of course, there is nothing to prevent the unit-holder renewing the lease by agreement when the original seven years are coming to an end if at that point he does not want it for his own residence or for leasing to someone else. Less than seven years would not give enough flexibility; if you have more than seven years you begin to get into long leasehold issues and the unit-holder ceases to have any real personal interest in the unit.
  Seven years is recognised by existing legislation as the point at which, for example, certain maintenance and repair responsibilities shift from the landlord to the tenant. We think that 15 years, as proposed by the noble Lord, Lord Kingsland, is somewhat too long. We believe it is appropriate to use the same dividing point for commonhold purposes as is used, for example, for the shift of responsibilities for maintenance and repair. I repeat that this is a matter of such importance that it should be placed on the face of the Bill and not be left simply to regulations. I beg to move.
  Baroness Gardner of Parkes: Grouped with this amendment is the debate whether Clause 17 shall stand part of the Bill. I am opposed to Clause 17, but I am equally opposed to the amendment. There should be no restrictions whatever. Once you own your unit of commonhold, it should be entirely up to you what you do with it. If you want to let it for ever, that is up to you; if you want to let it for a short time or a long time, that is also up to you. I do not know where the provision comes in about seven years and the liability for repairs. It is not something I have ever thought about. I am not familiar with it and I do not understand it. I have known of people owning units and living abroad for 20 years. That does not apply to me—I have lived abroad for 40 or 50 years. The whole essence of commonhold is for it to be free. The noble Minister told us just a moment ago that he did not want that last restriction about transferring title, nor any restriction on commonhold. He referred to the value of the freedom of commonhold; that it is yours,

  CWH 45
  to do with as you wish. Then we come to this clause and see that we are going to restrict what you can do with it, in terms of having a tenant or anyone else.
  Lord Goodhart: I am grateful to the noble Baroness for giving way. However, would she allow a unit-holder to grant a 99-year lease at a premium?
  Baroness Gardner of Parkes: I probably would, but I doubt whether anyone would want to do that. It would seem most extraordinary for anyone to have such an aim. However, if you own a unit, it is entirely up to you what you do with it. That is how the Australian system works and it is the right way. There should be no unnecessary restrictions. In response to the previous amendment, the Government said that they did not wish to impose that degree of restriction with regard to people settling their debts. So why should they wish to make this one?
  Lord Selsdon: I am sorry to intervene again. However, this is a perfect example of where we can find incentives. One of the biggest growth markets in this country among the retired and semi-retired should be buying to let. The same is the case with expatriates around the world. If you have the protection of buying a commonhold unit with the intention of letting it, that is better than handing over the money from your pension to a government who will give you a useless annuity over a period of time. That same kind of mood is prevalent around the world. You are providing accommodation for rent, for which there is a demand. I think that my noble friend is wrong and that the noble Lord, Lord Goodhart, is wrong. Somewhere in this is the need to encourage not necessarily owner occupiers but investors.
  Lord Lea of Crondall: Is this not another issue which relates to the commonhold association memorandum? I would be surprised if one could restrict the right of the commonhold association to put in a covenant about sub-letting or other matters along those lines. Will there not be issues to clarify at that stage? There will be a need to clarify what is the scope for restrictive covenants on this document.
  Baroness Gardner of Parkes: Perhaps I may come back on that point. At Second Reading, I made it clear that there had been two forms of title in Australia. The first was called company title, where you had to get consent of other people for whatever you did in your property. The second one—the strata title—is what we were aiming to produce in this country as commonhold. In the latter case, you were totally unrestricted, even on the point about repairs, which came up on an earlier amendment. Certainly, you were liable to ensure that the building as a whole stayed up, but if you allowed your unit, internally, to become a pig sty, that was entirely your choice. No one in the commonhold could enforce any improvement in that, unless it became noxious or was spreading some
  CWH 46
  terrible infection to other unit-holders. The whole point about the commonhold is that it is your little piece of freehold in that big building.
  Lord Lea of Crondall: My question is not really answered in that way. I am asking whether it is not within the scope of the commonhold association to agree restrictive covenants about various things that people can do. Is that right?
  Baroness Gardner of Parkes: No.
  Lord Kingsland: Clause 17 imposes restrictions on a residential unit-holder's right to create a lease of his unit. According to the Explanatory Notes, the intention is that regulations made under Clause 17(1) set down that no premium should be payable for a lease, and that it should be at a rack rent, and also that the maximum period for a single term of lease should be restricted to seven years.
  As Members of the Committee are well aware, criticism was made of this clause at Second Reading. The noble Lord, Lord Goodhart, and the noble Lord, Lord Richard, thought that some restriction would be appropriate but that the present proposals were too restrictive. My noble friend Lady Gardner of Parkes, as we have just heard, drawing on her own immense experience of strata titles in New South Wales, strongly and persuasively opposed any restriction as she has done today. The noble Baroness, Lady Hamwee, suggested that tight restrictions would hamper the reinvigoration of the rental market.
  Since the principal intent behind the proposal for commonhold is to place unit-holders as nearly as possible into the same position as though they were outright freeholders—that is, with as few restrictions as possible on their powers of disposition and alienation—the presumption should be against any restriction unless clearly justified. As far as I am aware, no such justification has been given; hence this clause should be omitted in its entirety.
  If the concern is that problems may arise if some unit-holders are absentee landlords, those problems are more properly to be treated as problems of management to be dealt with in accordance with the CCS or the M&A rather than by regulation. However, in the case of a new development, the intending purchaser for a commonhold unit would know before he contracted to buy the unit just what restrictions on his powers of disposition and alienation are imposed by the CCS and/or the memorandum of association and will be able to take those into account when deciding whether or not to buy the unit and, if so, at what price.
  In case of a conversion from leasehold, the question of whether or not there should be any such restrictions would have to be debated and agreed upon before an individual leaseholder decided whether or not to consent to the proposed application.
  In any event, the proposed restrictions are far more restrictive than those imposed by, for example, Section 41 of the Settled Land Act 1925, where the basic maximum term for a lease by a tenant for life is

  CWH 47
  50 years, with longer terms being allowed in special cases. The Trusts of Land and Appointment of Trustees Act 1996, which replaced the Settled Land Act and the later provisions in the Law of Property Act 1925 providing for modern trusts of land, specifically provides that trustees of land shall have all the powers of an absolute owner.
  The Bill does not deal with the leasing powers of trustees of land, nor does it spell out the consequences of granting an invalid lease for an instant purchaser. If it be intended that such matters shall be dealt with by regulation to be made under Section 19, these are all matters of fundamental importance which should be debated and form part of the primary legislation and not left to delegated legislation.
  Lord McIntosh of Haringey: I was going to wait until the disputes on the other side of the room had died down and hoped to pick up the pieces with the maximum disagreement of those who were proposing these amendments. I cannot quite do that, so let me remind Members of the Committee from the Explanatory Notes what we are doing in Clause 17.
  Clause 17 places one of the few restrictions that the commonhold scheme requires on the ability of a unit-holder to treat his unit as though freehold. It is government policy that residential commonhold units should not be let for long, unbroken periods. The only purpose of that is that we should not be returning to long leaseholds by the back door. That is why Clause 17(1) provides that,
  "It shall not be possible to create a term of years absolute in a residential commonhold unit unless the term satisfies prescribed conditions",
  relating to length, the circumstances in which it is granted or any other matter.
  Amendment No. 28 seeks to bring some of those matters onto the face of the Bill by prescribing a period not exceeding seven years and eliminating the possibility of the payment of a premium or other lump sum. It is legitimate to bring matters onto the face of the Bill. After all, the whole of this part of the Bill contains matters that may or may not, or must or must not, be included in the memorandum and articles or the CCS. We believe that it is necessary to give statutory force to the CCS to ensure that commonhold is as close as is humanly possible to freehold and that we do not slip back to long leasehold.
  As a member of the Delegated Powers and Deregulation Committee, the noble Lord, Lord Goodhart, has failed to recognise that that committee did not object to this degree of delegation to regulation. Although I was not privy to its debate, I hope and believe that it recognised that our intention here was to do only the absolute minimum to stop commonhold being frustrated and slipping back into the creation of long leasehold. We do not wish to interfere any more than is necessary with the use to which unit-holders put their units, but we want to ensure that long leasehold cannot be reintroduced.
  CWH 48
  The amendment would put on the face of the Bill the terms on which the Government intend to allow letting. I reiterate the need for flexibility, and I believe that this is a good example of that need. I acknowledge that our original intention was to impose very tight controls on the letting of residential units. It was impressed on us from a number of quarters that tight regulation would tend to make commonhold developments unpopular as buy to let would be next to impossible. We were told that a significant part of the market in flatted properties was buy to let. We have considered that advice and decided to take it. The amendment sets out the terms at which we have arrived on that advice.
  This is a matter of reacting to the market. If in due course there is a change in circumstances and it is necessary to alter the regulations—perhaps there is a new attack on commonhold from those who wish to weaken it as a concept—we need to be able to react. That is why it is dealt with in regulation.
  6.45 p.m.
  Baroness Hamwee: Before my noble friend responds, does the Minister really mean that in a system that he supports as being as close to freehold as possible, regulations to react to the market, not on a day-to-day but certainly on a fairly frequent basis, are appropriate?
  Lord McIntosh of Haringey: Yes. The regulations might be too restrictive and take us further away from the freehold concept, and we might want to change them to preserve the proximity to freehold.
  Baroness Hamwee: It would also allow the possibility of making the position more restrictive.
  Lord McIntosh of Haringey: On that view there would never be regulations and everything would be on the face of the Bill.
  Lord Goodhart: I am not sure that I should disclose what happened in the Delegated Powers and Deregulation Committee. Owing to the timescale the committee had very little time to consider this matter. I was deputed to have a look at it and make recommendations. I am afraid that in the time available I was unable to spot what I subsequently thought were all the possible points that might be made. So it is my fault.
  On the substantive question, it seems that there is a fundamental difference, particularly between the noble Baroness, Lady Gardner, and myself, as to what commonhold is really for. The noble Baroness sees it as dividing up a block of flats into what are basically a number of completely separate freeholds, with unit holders having complete freedom to do pretty much what they like with them. I hope I speak for my noble friends as well as for myself, but we feel that it is much

  CWH 49
  more of a co-operative than that. I can see enormous problems if you say that there are no restrictions on what you can do with your little freehold.
  Lord McIntosh of Haringey: If we talk in New York terms, surely it is more like a condominium than a cooperative. A co-operative is extremely restrictive.
  Lord Goodhart: Yes. I agree it is not as restrictive as a co-operative. I am not suggesting that we should go the way of New York co-operatives, where all the members have to agree and where you can say that you do not want Bill Clinton coming in as a tenant because you do not like him.
  If you have the freehold with power to create long leases, you will end up with a separation between the management and the people who are really interested in maintenance. For example, let us say that someone does let a unit off as a leasehold, for a premium, over a long period of time. It will be the landlord who will be the member of the commonhold association and it will be the landlord who decides what is to be done. However, if the lease has been granted at a relatively low rent and a substantial premium, the landlord or unit holder will have no particular interest in having the building properly looked after.
  If this system is to work, unit holders must have a real interest in the building as a place in which to live. Perhaps they may not wish to live there immediately—I can quite imagine that some people may not wish to live there for some years; they may go abroad for some years—in which case they could let it on a tenancy, which could be renewed from time to time.
  There is no reason why a seven-year tenancy could not he renewed and then renewed again. However, there seems to be a philosophical problem here. In a sense, as this debate has shown, what matters more than whether it goes into regulations or on the face of the Bill is that there should be restrictions which—while giving flexibility to enable people to derive an income from the building while they are not living there—will ensure that the tenants are not simply investors who let their units off for long periods, with no right of recovery, and who therefore have no interest in the building at all. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 28A not moved.]
  Clause 17 agreed to.
  Clause 18 [Leasing: non-residential]:
  [Amendment No. 29 not moved.]
  Clause 18 agreed to.
  Clause 19 agreed to.
  Clause 20 [Other transactions]:
  [Amendment No. 30 not moved.]
  Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 31:
  Page 9, line 32, leave out subsection (3).
  The noble Baroness said: I tabled this amendment because I did not understand exactly what was meant in the Bill. The words that I am seeking to delete are:
  "It shall not be possible to create an interest in a commonhold unit unless the commonhold association … is a party to the creation of the interest, or … consents in writing to the creation of the interest".
  I tabled the amendment because the provision sounded to me like a company title or co-operative. I wanted to seek the Minister's assurance that that was not the case and that you would be able freely to sell your unit to someone else. I did not know exactly what was meant, and even the Explanatory Notes did not clarify for me what was meant by "interest". I beg to move.
  Lord McIntosh of Haringey: I entirely agree.
  Lord Kingsland: I also have an amendment in this group, Amendment No. 32, which I can deal with very briefly. This is another restriction on the right of a unit-holder to deal with his unit. No explanation or justification for it has been given in the Explanatory Notes. Any such restriction as may be justified is more properly to be imposed by the CCS so that, in the case of a new development, a unit-holder will know and accept the proposed restriction before he contracts to purchase his unit. In the case of a conversion from leasehold, a unit-holder will have been able to consider and discuss it before giving his consent to the application to register the commonhold. Therefore, subsections (3) to (6) should be omitted altogether.
  Lord Goodhart: I support these amendments, particularly that of the noble Lord, Lord Kingsland. The question is: what do the Government have in mind here? Why is the consent of the commonhold association needed? "Interest" is not defined, but I assume that it broadly means an equitable interest in the property of the kind which is familiar to property lawyers. The Explanatory Notes mentioned easements. It is most unlikely that a unit-holder will want to create an easement over the unit, but the most relevant form of interest is the estate contract; that is, the contract to grant a lease or tenancy. The short-term tenancies are more often created by a contract for a lease than by a lease which is formally granted.
  Clause 20 as it now stands appears to mean that a contract to grant a tenancy will be void unless the commonhold association consents in writing by a unanimous resolution. That must be wrong. I believe that these subsections should be deleted and that Clause 17 may need amendment to make it clear that it applies to an agreement for a lease as well as to a lease itself.
  Lord McIntosh of Haringey: I sympathise with the difficulty which noble Lords have in understanding this part of the Bill—I had exactly the same difficulty. I think the answer is that the Bill is not defective. A lease is not the same as a mortgage. A mortgage is a charge and Clause 21(1) distinguishes between them. It states:
  "It shall not be possible to create an interest or charge in or over … part only of a commonhold unit".

  CWH 51
  That makes it clear that we are not talking about a mortgage. The definition of "interest" is to be found in the Land Registration Act.
  Amendment No. 31 would remove a necessary form of control on the operation of a commonhold, and I say that in the context of having said that we want as few controls as possible. Clause 23(3) requires that the commonhold association should either be a party to the creation of an interest or consent to it. The idea is to control the possibility of a unit owner granting, for instance, a right of way or some other right over land which, although it is his commonhold unit, might nonetheless affect the lives and surroundings of other members. That seems to us to be a necessary control. It is only in those circumstances that we would envisage these provisions being used.
  7 p.m.
  Lord Richard: If that is right, perhaps I may ask my noble friend the Minister why we do not confine the definition of interest in subsection (3). It should not be possible to create an interest that affects the interests of other commonhold unit-holders; otherwise, the provision will be extraordinarily wide. Under the clause the commonhold community statement cannot prevent the unit-holder from creating his interest, but the commonhold association can. In those circumstances it might be desirable for the commonhold association to be restricted. However, with great respect, I think that this is too wide and ought to be spelt out.
  Lord McIntosh of Haringey: That is helpful. It reflects the puzzlement that I had about these provisions. Perhaps I may think about the matter between now and Report stage.
  Baroness Hamwee: Clause 26(2) provides that
  "'inerest' does not include … a charge".
  Therefore, unless one provides that in this clause, the provision suggests that it does.
  Lord McIntosh of Haringey: No. It is separate in Clause 20(1).
  Lord Goodhart: I ask the Minister to look again at the estate contract point. I would be very surprised if that were not a interest within the meaning of the Land Registration Act. If so, then clearly Clause 20 would great cause complications. If one is free to create a tenancy of any kind, then equally one must be free to enter into a contract. An interest under a contract is not a mistake—that is plain—but it must be an interest. It is certainly something that we can protect by a notice on the register. I ask the Minister to have a look at that point.
  Lord McIntosh of Haringey: I do not see how I can look at the point made by the noble Lord, Lord Richard, without covering that as well.
  Baroness Gardner of Parkes: It is very satisfactory that the Minister is to examine the point. Certainly, in
  CWH 52
  my own experience, I had a unit in a building where we had the offer of putting a television aerial on the top of it. It saved us a great deal of money. We paid a set amount each year which came off our service charge. That is certainly the kind of issue on which every unit-holder would have wanted to have an opinion. However, other matters might be unnecessarily restrictive. I am grateful that the Minister has agreed to look at the point. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 32 and 32A not moved.]
  Lord Goodhart Lord Goodhart moved Amendment No. 33:
  Page 9, line 37, leave out ("resolution which is passed unanimously") and insert ("special resolution").
  The noble Lord said: With Amendment No. 33 I wish to speak also to Amendments Nos. 68 and 69. These amendments and others in the group deal with circumstances where the build requires a unanimous resolution by the commonhold association. That does not mean that every member of the association must consent. It means that those who vote on the resolution must vote in favour of it.
  We have just debated the question of what consent should be necessary under Clause 20. It is therefore inappropriate for me to discuss that point again. It will need to be looked at carefully.
  Amendment No. 42, which stands in the name of the noble Baroness, Lady Gardner, is also part of the group. The amendment deals with a unanimous resolution giving a charge over the common parts. That is an unusual step. There can be occasions where it is justified; for instance, in the case of charge of a garden or something else which may be of value to someone other than the holders of the units. Normally, however, common parts are an essential part of the property and enforcement of a charge over them could have serious consequences for members of the commonhold association. There, I would consider unanimity to be justified and I have not put down an amendment to do that.
  Amendments Nos. 68 and 69 deal with the addition of new land to commonhold, which is an important issue. I would accept that the vote of a bare majority would not be sufficient to justify it. Equally, the addition of land could have great benefits for the unit holders and one objector alone should not necessarily be able to block it. Our amendments use the well-known concept of the special resolution under company law, which requires a 75 per cent majority of members voting. In fact, it is very much along the lines of the amendment of the noble Lord, Lord Kingsland, but it is slightly easier to achieve the necessary 75 per cent rather than his proposed 90 per cent. I beg to move.
  Baroness Gardner of Parkes: Amendment No. 42 is linked with this and follows the earlier argument about the word "unanimous", of which I am not in favour.
  Lord Kingsland: I also support the amendment of my noble friend Lady Gardner of Parkes. I would like to take this opportunity of thanking the noble Lord, Lord Goodhart, for drawing the attention of the Committee to my Amendment No. 70, about which I need say no more.
  Lord Bach: In dealing with this group as a whole, certain actions of the commonhold association are of sufficient seriousness that they should be supported by a significant majority in favour of them among the members. We are only too well aware of the difficulties inherent in requiring unanimity—it could not be otherwise after our earlier rather long discussion on Clause 3. The process for reaching unanimity, which we have prescribed in Clause 35, requires all members of the commonhold association to be given the opportunity to vote and to cast that vote in any manner provided for under the governing documents. To achieve unanimity, it is therefore necessary for all those who cast a vote to vote in favour. That is a tough but fair target to aim for in important matters.
  The amendments that have been moved and spoken to would displace our definition of "unanimity" in some of the places of the Bill where it applies and replace it with a special resolution which, as the noble Lord, Lord Goodhart, says, is a well-known concept in this field. We know that the amendment now intends to do no more than replace one term with another, leaving the process intact. Our view is that the term, "unanimity" ought not to be changed in any event.
  Even for the matter to which Amendment No. 33 refers, the use of the term emphasises the importance of what is in hand. To use another term would be to rob the action of some of its significance. "Unanimity" is best for all the places where it appears in the Bill, including also Amendment No. 42 in the name of the noble Baroness, Lady Gardner of Parkes. Our principal unanimity is a better solution for most purposes in the setting of particular limits, as the noble Baroness does in her amendment. It deals with those, first, who cannot be found; notice will go to the last known address on the commonhold association's register for everyone entitled to vote.
  It is the business of the unit-holder to keep that up to date. If he or she loses touch and fails to receive the notice, the failure will not hamstring the commonhold. The same considerations apply if he or she receives the notice but chooses not to vote by post or to appoint a proxy. However, because borrowing on the security of the common parts is potentially a serious step, carrying as it does the risk of losing the land on which the loan is secured, all those who take sufficient interest to vote should be persuaded of its wisdom. That is why we are for unanimity in this case.
  As the noble Baroness suggests, the setting of the limit at 80 per cent is prone to the difficulties to which high absolute limits are prey. Those who are lost to the system, or who abstain in these circumstances, vote against any proposition and that may well serve to hamper the management of the commonhold. It is perfectly possible, for example, that all of the 75 per
  CWH 54
  cent who vote in such a ballot are in favour but the proportion of non-voters stymies the process. We believe that the scheme we have put forward contains sufficient safeguards yet allows important decisions to be taken by the people who are active and interested in their community. No-one is disenfranchised by the scheme. Those who lose touch, or choose not to vote, are either not interested or content to leave matters to others. We believe it is reasonable that their views should not unduly impact on the active management of the commonhold.
  As far as concerns Amendment No. 90 which has been spoken to very briefly, in this case not only is there likely to be capital expenditure from the funds of the commonhold association, or a need to borrow, but there will be the associated costs of servicing any loan and the ongoing costs of managing and maintaining the new land. We believe, therefore, that here again unanimity is not an unreasonable hurdle for those who make the proposal. We find it a little difficult to grasp what advantage there is in reducing that hurdle by just 10 per cent to 90 per cent. On that basis we ask the noble Lord to withdraw his amendment.
  Baroness Gardner of Parkes: Perhaps I may ask the Minister to clarify something. I believe the noble Lord said that my 80 per cent would be higher than the number of people required. He said that there would be a much lower number of people, provided that everyone who took part in the ballot voted unanimously for it. If that is correct, what is the lowest number that can qualify to vote? Perhaps the noble Lord is able to clarify whether a very small number—just one or two—can make such a tremendously important decision in the absence of all the others.
  Lord Bach: As always, the noble Baroness asks a good question, the answer to which will not come as a complete surprise. The number required to make the vote valid will be set out in the memorandum and articles. I say straight away that that is not a satisfactory response to the question, and a better answer is needed before we deal with the matter at Report.
  Lord Goodhart: I am not sure that that answer is correct. The position is that the resolution must be moved at a meeting of the association which has to be quorate, but I do not believe that in any ordinary memorandum and articles there is any requirement for a minimum number of people to vote on the resolution, and I do not see any in these particular ones.
  Lord Bach: The minimum would be the quorum but at this stage we have not said what the quorum should be. That will be set in the memorandum and articles.
  Lord Goodhart: That will indeed be set in the memorandum but, provided the meeting is quorate and some of the members at the meeting decide to abstain, the resolution will still be valid.
  Lord Jacobs: Is the Minister aware that the statement appears to provide that the quorum for proceedings at general meetings should be 20 per cent of the members? Is it proposed that there should be a different quorum?
  Baroness Gardner of Parkes: My noble friend refers to the document that we have just received from the Printed Paper Office.
  Lord Bach: That is the figure in the draft document which the noble Lord has. There is as yet no concluded view.
  Lord Goodhart: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 20 agreed to.
  7.15 p.m.
  Clause 21 [Part-units]:
  Lord Kingsland Lord Kingsland moved Amendment No. 34:
  Page 10, line 1, leave out subsections (1) and (2) and insert—
  ("( ) An instrument or agreement which creates an interest or charge in or over—

  (a) part only of a commonhold unit, or

  (b) part only of an interest in a commercial unit, shall have effect subject to any provision of the commonhold community statement.").

  The noble Lord said: I rise to move Amendment No. 34 and also to speak to Amendments Nos. 35 and 36. These amendments enable the creation of an interest or charge over part of a unit, as long as that is permitted by the commonhold community statement.
  Clause 21 imposes yet another restriction on unit-holders. The intention as stated in the Explanatory Notes is
  "to preserve the integrity of the unit and also to ensure that no event takes place that would require a change to the commonhold community statement which is not in the control of the commonhold association".
  However, there may be circumstances where it is convenient or financially necessary for a unit-holder to deal with only part of his unit; for example, if he wishes to accommodate an aged parent in a granny flat to which she has contributed her own money. For the same reasons as have been given already in relation to the omission of other such restrictions, in our view any such restriction as may be justified is more appropriately to be imposed by the CCS. I beg to move.
  Lord Bach: The amendment, and the others spoken to, would change the policy of the Government to restrict the creation of charges or interests over parts of units. The reason why we arrived at our policy is not difficult to understand, and I try to explain it by way of example. Consider a small estate of very up-market houses, each in its own plot of half an acre with a large garage. The unit-holder wishes to build—to coin the noble Lord's phrase—a granny flat over his garage. He wants to borrow to build it and offers as security the
  CWH 56
  half acre of garden in this prime location. For the sake of the example, let us assume that a lender is rash enough to lend on that security.
  When in due course—and this is a sad tale—the unit-holder defaults on his repayments and the lender forecloses, what happens then? The land now owned by the lender is commonhold land and is surrounded by commonhold land. If it is to be taken out of the commonhold, how will this work? If it is to stay within the commonhold, what effect will that have on the commonhold community statement and the payment of commonhold assessments? And how will it be registered? Is the new owner to be a member of the commonhold association, and on what terms? If the charge sits over the whole property, none of these problems arise. The difficulty occurs with the bits that have to be carved out of the commonhold.
  A significant argument for commonhold, and part of the system, is the generally standard terms of the CCS. The tenor of the amendments is to allow for wide-ranging variations in matters of central importance, to be subject only to the terms of the CCS which, to do the job, as the noble Lord seems to see it, will become less and less standard. One of the biggest headaches facing those moving from leasehold property to leasehold property is the wide variation in terms of leases. That is something from which we are trying to distance ourselves. The Bill which his government produced in 1996 was more prescriptive than this Bill. We believe that we have struck the right balance between prescription and freedom of choice, and we have prescribed only what seems genuinely necessary for the benefit of those concerned.
  If carried to its conclusion, these amendments would have the potential to make the management of the commonhold desperately difficult, and perhaps eventually to bring it down.
  Lord Kingsland: I am not at all happy with what the Minister has said but I shall not press him on it. In any event, it would be futile to do so because we cannot vote. I shall simply lick my wounds, remind myself that I must return to this matter at the Report stage, and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 35 to 36 not moved.]
  Clause 21 agreed to.
  Clause 22 [Changing size]:
  [Amendment No. 36A not moved.]
  Clause 22 agreed to.
  Clause 23 [Changing size: charged unit]:
  [Amendment No. 36B not moved.]
  Clause 23 agreed to.
  [The Sitting was suspended for a Division in the House from 7.21 to 7.31 p.m.]
  Clause 24 [Definition]:
  Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 37:
  Page 11, line 5, at end insert—
  ("( ) Where a statement under subsection (2) above relates to a parking space, such space shall be deemed part of the commonhold unit.").
  The noble Baroness said: I feel strongly about this. People are very aware of the importance of a parking space in their lives. If a parking space is just provided in a unit, it will not have the same appeal as if it were on the title and registered with the commonhold. That has certainly been the case with any unit I have ever had.
  It has the disadvantage that some people might have two car parking spaces and although others may wish they also had two, they cannot because the spaces are an integral part of the commonhold title. It is a good thing, however, as well as a commercial consideration, as more attractive car parking spaces add more to the value of the unit. By that, I mean that if there is a low beam in the car parking area so that only a small car can fit underneath it, that unit will have a lower price because it cannot accommodate a four-wheel drive, which lots of people may wish to fit in. It is an important point, therefore, in the selling of the commonhold units to those people wishing to buy them. It should be clearly set out that it would be part of the commonhold title. I beg to move.
  Lord McIntosh of Haringey: I can assure the noble Baroness, Lady Gardner, that nothing in the Bill prevents units being sold with the benefit of a reserved space. They would be part of the commonhold of the unit and they would change hands with the unit. Thus, there is no problem with what she wants, nor is there a problem in a case where somebody wants more than one space; he could have two. The problem would be if there were not enough car parking spaces and there were, for example, a waiting list. Somebody would then get a space only when it became available. There is also the problem of transfer. For those reasons, we do not need the amendment.
  Baroness Gardner of Parkes: I thank the Minister for his reply and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 24 agreed to.
  Clause 25 [Use and maintenance]:
  [Amendments Nos. 38 to 40 not moved.]
  Clause 25 agreed to.
  Clause 26 agreed to.
  Clause 27 [Charges: general prohibition]:
  [Amendment No. 41 not moved.]
  Clause 27 agreed to.
  Clause 28 [New legal mortgages]:
  [Amendment No. 42 not moved.]
  Clause 28 agreed to.
  Clause 29 agreed to.
  Clause 30 [Form and content: general]:
  Lord Kingsland Lord Kingsland moved Amendment No. 43:
  Page 12, line 39, at end insert ("otherwise than in accordance with, and subject to, the provisions of the commonhold community statement").
  The noble Lord said: I can deal with this very briefly. This amendment is consequent upon and consistent with other proposed amendments which have been discussed earlier, in particular with the proposed omission of Clause 17 and the proposed amendments to Clauses 20 and 21. I beg to move.
  Lord McIntosh of Haringey: I shall be equally telegraphic, to use the phrase of the noble Lord, Lord Kingsland. Clause 30(5) provides that inter alia the duty in Clause 30(3)(b) may include in particular subsection 5(e) a duty to
  "refrain from entering into transactions of a specified kind in relation to a commonhold unit".
  The amendment would add the words,
  "otherwise than in accordance with, and subject to, the provisions of the commonhold community statement".
  That is already provided for. You can prevent it happening. If you can prevent someone from doing something completely, as you can under the Bill, you do not need to add conditions as to how he does it.
  Lord Kingsland: I am obliged to the Minister and in the circumstances I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Kingsland Lord Kingsland moved Amendment No. 44:
  Page 13, line 8, after ("interest") insert ("and costs of recovery").
  The noble Lord said: The amendment would enable the commonhold association to recover the costs of pursuing a late payer as well as charge interest on the late payment. There does not appear to be any provision elsewhere in the Bill to ensure that the commonhold association is not bound to bear its own costs if it is forced to pursue one of the unit holders for payment. It is surely unfair that the common hold community as a whole should have to pay the extra cost involved when one of its number refuses to meet his obligations. I beg to move.
  Baroness Gardner of Parkes: In supporting my noble friend Lord Kingsland, I wish to speak also to Amendment No. 65, which I have tabled. It is extremely unfair that there are always some people who are late payers, whether it be in leasehold property or in commonhold. It is unfair on others that that should be the case. I certainly believe that interest payments should be claimable.
  Lord Monson: This is very sensible pair of amendments. Most of us know from our business experience how incredibly time consuming and expensive it can be to recover money—often quite small sums—from people who for the most part are well able to pay but are simply too lazy to do so.
  Baroness Hamwee: I am sorry to disrupt the harmony of the Committee, but I am afraid that we do

  CWH 59
  not support the amendment. We feel that it is not appropriate to change on a piecemeal basis broad provisions of the law such as those dealing with the pursuit of debts. There are well understood provisions for recovering debts and they should apply in the usual way.
  Lord McIntosh of Haringey: The first amendment, Amendment No. 44, would add to the existing provision for the collection of interest in the case of late payment of money owing under a provision of the CCS a provision to collect the costs of recovery. That is not necessary. Clause 36(2)(d) provides that where work is carried out in consequence of the failure to perform a duty, the costs of that work may be recovered. As the calculating and the collection of interest would be work, the new words are unnecessary.
  A similar answer applies to Amendment No. 65. Clause 36(2)(b) provides for provision to be made requiring compensation to be paid when a duty arising under the CCS is not complied with. We had in mind
  CWH 60
  non-payment or late payment of money due from the unit holder to the commonhold association as one of the types of duty to which this provision would apply. My view is that it is not necessary to provide for it specifically in this place.
  Lord Kingsland: I am most grateful to the Minister for accepting the principle of the amendment. I shall look at the other parts of the Bill to which he referred me to make sure that they cover the problem that sought to address. Meanwhile, I beg to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bach: This may be a convenient time for the Committee to adjourn until Tuesday, 27th February at 3.30 p.m.
  The Deputy Chairman of Committees: The Committee stands adjourned until Tuesday, 27th February at 3.30 p.m.
  The Committee adjourned at twenty-two minutes before eight o'clock.

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