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Education and Inspections Bill

Volume 684: debated on Wednesday 5 July 2006

House again in Committee on Clause 2.

Page 2, line 14, at end insert-

“( ) In exercising their functions under subsection (3A), a local education authority in England shall have regard to the need to provide sufficient special schools to enable parents to exercise choice in relation to a child for whom a statement is maintained under section 324.””

The noble Baroness said: I wish to speak to Amendments Nos. 17, 36, 84 and 163. These amendments seek to improve two areas of educational provision for special needs pupils.

Amendments Nos. 36 and 163 seek to ensure that the Bill does not miss a great opportunity finally to tackle the difficult allocation of places for special needs pupils. The amendments would ensure that both choice advisers and school improvement partners are given adequate training on existing special educational needs and disability legislation. This important point is supported by the Special Educational Consortium. The roles of choice adviser and school improvement partner provide links between parents, governors, teachers and local authorities in differing capacities. The role of choice adviser could affect parents’ choice of school. Likewise, the school improvement partner stands to influence a school’s direction and policy. While we shall debate the implication of these roles further in your Lordships’ House, the principle ties in directly with the duty in Clause 1(1)(c) of,

“promoting the fulfilment by every child…of his educational potential”.

I am highlighting this aspect of these roles in the light of a debate on attitudes towards special educational needs because I fear that without adequate awareness of special needs legislation, school improvement partners will not have appropriate knowledge of what a school ought to be achieving with regard to special educational and disability needs, as a result of which choice advisers will not be able to direct parents to schools which offer the very best for individual children. The Special Educational Consortium (SEC) has voiced its concerns that the absence of these requirements could result in inadvertent discrimination that could result in pupils with special needs missing out on the very best opportunities available to them. I am sure that any choice adviser or school improvement partner would wish to act with the greatest discretion, which is why I suggest that they are given all the information that they might need.

My other two amendments in this group, Amendments Nos. 17 and 84, address a very similar area. Amendment No. 17 would work in tandem with Amendment No. 84 to ensure that parents of children with a statement of special needs are provided with good information on all the special needs options open to them in their area and are given a real choice of schools. That point was raised by the noble Earl, Lord Listowel. In referring to statemented children only, I am making an important distinction that we shall come to in another debate. Suffice to say for now that statemented children make up a small proportion of the whole special needs register but are the children most in need. That is why my amendments on special needs focus only on them. Currently, parents of special needs pupils face a daunting task not only of obtaining a statement for their child but also of navigating their way through the complicated and varied special needs provision. Not only can they consider provision in their area but in others also. The pressure to make the right decision for the future well-being of their child is huge.

The Committee will be well aware of the current bias towards mainstream education for special needs pupils. That came about following the report of the noble Baroness, Lady Warnock, of the late 1970s, which was implemented in the 1981 legislation. I am sure that your Lordships recall the recent developments in that debate, led notably by the noble Baroness, who has stated publicly that in the light of modern educational thinking and practice, the bias towards integration does not work.

We have come a long way since the 1970s and 1980s, where “special educational needs” was an emergent phrase pushing away the now outdated references to “handicapped children”. Yet in the past nine years we have seen no major review of attitudes towards special needs education, and no review of the assumption that drives special educational needs provision in favour of inclusion in the mainstream. I can safely say that we have reached a stage where the debate reaches far beyond a simple question of inclusion and segregation. As the Minister in another place stated, the picture is one of shades of grey rather than black and white. The priority in choosing between special schools and mainstream schools must be the interests of the child and, by the same token, the wishes of the parent, considering that child’s best interests.

The amendments would ensure that the parents of special needs children would have a realistic choice of where to send their child to school. One-size-fits-all education has been proven not to work. Successful schools use streaming within the school; specialist schools select talented sportsmen and musicians by aptitude—or ability as we call it on these Benches. In the same way, special needs schools offer a specialist education that does not make a lesser provision for each child’s education, but enhances their potential. I can think of a wonderful example in Gosden House School in Bramley, Surrey, which is a maintained special needs school. It is into the fifth year of a collaboration with the Globe Theatre education department, where children with a wide range of special needs work together with their teachers and Globe actors to produce the works of Shakespeare in their complete, unabridged form. The productions form the bulk of their year’s work, with the end production as eloquent and finely tuned as any other school play. The children do not suffer by not attending a mainstream school; indeed, they flourish.

The problems with an automatic bias towards inclusion are well-documented. Noble Lords will be well aware that the resources necessary to meet the stated needs of children rarely follow them into mainstream schools. Teacher and assistant training leaves much to be desired on the special needs front, which has already been raised in this evening’s debate. At the same time, teachers are being stretched to cope with a wide variety of needs and abilities in one classroom. A recent report from the University of Cambridge, The Costs of Inclusion, charts the pitfalls of an automatic bias towards the mainstream. It describes how teachers in mainstream schools are forced to leave teaching to teaching assistants who are not qualified to teach, so that they can provide for children with SEN or vice versa. As schools exert themselves to raise standards, the report tells us that a tactical approach to ensuring the highest value-added score focuses teachers’ attention on demonstrable results, and special needs students may be “disapplied”.

The curriculum demands for children in the mainstream are often completely inappropriate for children with complex behavioural and learning needs. The report goes on to describe higher exclusion rates for statemented children in the mainstream. Those children are nine times more likely to be excluded than children without statements. A permanent exclusion is likely to result in social exclusion and, in the future, even more challenges for those children than they already face.

A Times Educational Supplement study last year was discussed by my honourable friend in another place, John Hayes. It showed that two-thirds of teachers received less than one day’s training in special needs and disability teaching. Some 90 per cent of head teachers thought that their schools did not receive sufficient resources to fund integration. Yet, when I asked the noble Baroness, Lady Crawley, whether there could be a moratorium on the closure of special needs schools, her response was firmly negative. She had moments earlier stated:

“The Government do not believe that it is a case of either/or—of either special schools or mainstream schools”.—[Official Report, 14/6/06; col. 207.]

We on these Benches believe that children with special educational needs should be able to choose a special education and that they should have a real choice between schools. I am sad to say that the noble Baroness failed to go the extra mile to substantiate her statement. I hope that this Minister can inform the Committee precisely what was meant by that statement. Did the Minister mean that there was no either/or, because each child with a statement of special educational needs should be able to choose the school that was best for them, or did she mean that there was no either/or, because the system retains a bias towards mainstream schooling?

The noble Baroness, Lady Crawley, pointed out that special needs funding had risen in the past nine years—and that may well be the case. But I would refer to two statements: one by the Education Secretary yesterday, when he told head teachers that, in spite of an extra £58 billion of investment in schools, new Labour had not delivered; and another from the Cambridge University report, which emphasises that,

“resources on their own will not bring about change. The issues run deeper and challenge the very nature of current policy…It is time for a through review of policy and practice”.

As the reforms that the Bill introduces evidence, investment alone does not bring about change. That is why we support this Bill, which for mainstream education brings about changes that we on these Benches have considered necessary for the past 20 years. It is now time to think inclusively, but not coercively, about special needs education. I beg to move.

I shall speak to Amendment No. 183 in my name in this group. It has come to us from the Special Education Consortium, which wants to see a requirement that teachers at all levels of the service can demonstrate an understanding of special educational needs and disability.

When a similar amendment was tabled in another place, the Minister said that there was no need to set out specific standards in primary legislation and he assured Members that the current standards for teachers were under review. Well, so they need to be, because the Special Education Consortium has concerns about how well teachers are prepared to teach children with special needs and believes that a compulsory element at every level of teacher training is essential to ensure that all teachers are properly trained and prepared for their responsibilities.

There is evidence for that concern from Ofsted and the Audit Commission. Ofsted reports that,

“the quality of teaching seen on the visits for pupils with SEN was of varying quality, with a high proportion of lessons involving pupils with SEN having important shortcomings”.

In a significant proportion of lessons, Ofsted found that,

“teaching for the lowest-attaining pupils had weaknesses which prevented those pupils fully reaching their potential, even when the teaching for the rest of the class was good”.

That must change if every child is to fulfil their educational potential, as the early part of the Bill states.

In 2002, the Audit Commission reported:

“Many teachers feel under considerable pressure, on the one hand to meet the needs of individual pupils and on the other to deliver a demanding national curriculum and achieve ever-better test results; research suggests that many feel ill-equipped forthis task”.

Teachers are expected to be able to cope with a very wide range of abilities and challenges from their pupils and there is no substitute for specific and good quality training to help them to do that.

The special educational needs co-ordinators, interviewed as part of the Audit Commission research, identified curriculum differentiation and behaviour management as being among the topstaff training priorities. The Special Education Consortium regards it as crucial, therefore, that these issues are addressed during initial teacher training and that the development of those skills is fostered at every level of the service—probably through continuous professional development courses.

In addition to concerns about the core skills for enabling disabled pupils and those with SEN to learn and to progress, Ofsted found a lack of understanding of the requirements of the Disability Discrimination Act. In respect of the planning duties on schools, Ofsted reports:

“Schools are required by the Disability Discrimination Act 2001 to plan to increase access to education for disabled pupils. This planning duty applies to access to premises, the curriculum and to providing written information in alternative formats. Schools are required to produce their first accessibility plans by April 2003.

In four out of ten schools visited there was satisfactory planning for improved access to premises, particularly when this could be achieved with relatively small adaptations. A few schools had planned for increased access to the curriculum... However, over half of the schools had no disability access plans and, of those that did exist, the majority focused only on accommodation”.

So there seems to be a very great shortfall in access to the curriculum in particular.

The solution to ensuring improved outcomes for disabled pupils and for those with special educational needs depends on the improved skills, knowledge and understanding of those working with and for them. Training holds the key to that, and that is why we are promoting this amendment.

The noble Baroness has raised some very important issues and I realise that this is a complex matter. Of course, the welfare of the child is paramount, but I am under the impression that strategies are being put into place to address some of the issues raised.

I remember a debate in your Lordships' House some months ago about SEN in which many issues were raised and some clarification made. Prior to that debate, I talked to two local authorities to discuss how they went about their provision. I understand that the population of children with special needs is changing, that local provision is changing in response to that need and that management has improved under the inclusion framework.

The local authorities to which I talked said that many parents of SEN children were choosing mainstream schools because they felt that they provided a better situation for their children. I understand that a national audit has been carried out of specialist provision for children with the most severe needs to identify gaps and that regional centres of expertise are being developed. Perhaps, in his response, the Minister will update us on the work of the Education and Skills Select Committee, which is conducting an inquiry into special educational needs. Surely the measures that the committee recommends for implementation will indicate what choices parents are seeking and how that choice can be achieved.

I thank the noble Baroness, Lady Buscombe, for the opportunity to look again at this important issue. I see parallels with what happens to children who are taken into care. Those children are supposed to receive a full assessment on being taken into care but I understand that, when they are assessed and it is decided that they have such a need, often they are not given the appropriate placement. As a result, the chief inspector for Ofsted last year reported to this House that 40 per cent of looked-after children were in inappropriate placements. Some children are suited to the setting provided by children’s homes—particularly adolescents, as fewer foster carers want to take on teenagers or children who are particularly emotionally demanding. Yet it appears that often the cheapest option is tried first—that is, low-level supported fostering, followed by a higher level of supported fostering. At a recent meeting of the Associate Parliamentary Group for Children In and Leaving Care, one young man there had had 37 different placements. Therefore, I think that I recognise this problem of mainstreaming some young people too quickly.

There are also some very good residential schools for children with emotional behavioural difficulties, but they can be very expensive to run. I know that one with very good Ofsted results is currently suffering from a low occupancy rate. It needs people to take those places. I imagine that this problem is familiar to the noble Baroness.

I know that the Minister is trying to tackle this problem—for example, through schools within schools, by making schools more intimate andplaces where children can have a stronger sense of belonging, and through many other means. I remember his predecessor, the noble Baroness, Lady Ashton of Upholland, talking about strategy, for instance, to have special schools supporting mainstream schools. From the report to which the noble Baroness, Lady Buscombe, referred, it is clear that there is still a long way to go. I look forward to the report from the Select Committee, which will be produced tomorrow, and I am sure that it will be helpful for further debates in this area. I look forward to the Minister’s response and the reassurances that he can provide.

The crucial amendment is not in this group; it is Amendment No. 179 tabled by the noble Lord, Lord Dearing. Without it, there is no hope of my noble friend’s amendments, particularly Amendments Nos. 17 and 84, working. There is such disparity in the behaviour of local education authorities when it comes to statementing and inclusion.

By and large, kids are the same across the nation. There is a relationship between deprivation and special needs. Special needs are about 50 per cent more common in highly deprived areas, as opposed to basically middle-class areas, but the difference in statementing levels is 7:1 between the keenest authority and the most reluctant. That is just down to strange educational theories and particular fixations of individuals in local education authorities on what should be. In addition, to bring it back to the point of the amendment tabled by the noble Lord, Lord Dearing, it is down to the financial pressures on local authorities to try to control this, and to the temptations which many have given into to try to crunch special needs spending to stay within budget.

The good behaviour and bad behaviour is not a matter of political argument. It is extraordinary how it has spread. One of the best councils in terms of parental response to SEN problems is Islington, which does not have a school that I would ever recommend to anybody if they had a choice. Neighbouring Camden, which has a lot of good schools, is one of the worst authorities. It is not something that goes with the flow; it is the individual character of local authorities.

The way in which inclusion for SEN is handled, and the way in which children are given the designation of school action, or school action plus, varies enormously from authority to authority without any clear pattern. Again, we come back to the underlying inconsistency because we are dealing with conditions that should not differ from one local authority to another. The basic diagnosis or recipe for what should be done should be fairly constant. Without that constancy, I find it hard to know how Amendment No. 17 will operate. How can you tell what is a sufficient number of special schools when one authority will say that it is one, and the next will say, “No, you need seven”? We must get back to a rational system and away from the distortions present in the current one.

Given that, I very much applaud what my noble friend is aiming at, which is that the supply of schools should be in response to the real needs and concerns of the children involved and parental preferences. It should not be guided by some theoretical prejudice in the hearts of somebody in the local education authority.

One of the great difficulties, as others have pointed out, is the current state of inclusion. Inclusion is a wonderful thing when it works well, and in many schools it works brilliantly. But there is a collection of schools where being a special needs kid is a real disaster. Again, that varies from one local education authority to another.

If we look at kids who do not have SEN in primary schools, about 7 per cent of them score really badly on value added. When they come to take their key stage 2 they are way below where you would expect. For SEN kids, the figure is 22 per cent. Generally SEN kids on primary school value added do much worse than non-SEN kids. That should not be the case. The value-added measure should be pretty equivalent from one to the other, but it seems to be way worse. When you look at local education authorities, that disparity disappears with some of them. The best in the country is Windsor and Maidenhead, where SEN kids and kids without SEN do just as well as each other. The worst is Slough. The River Thames separates the two. There are no terrible differences in deprivation or any other indices which would suggest why the two are so different. But Windsor and Maidenhead has a wonderfully integrated, active LEA that really supports schools, gets involved in making sure that teachers are trained—coming on to the amendment of the noble Baroness, Lady Sharp—and that there is real activity in making sure that SEN is understood and supported. Slough clearly does not.

A great deal needs to be done—coming on to the last amendment in this group—to make sure that teachers are trained. That seems to me to be the sort of function which LEAs, as envisaged by us and the Government, should really be undertaking and major in. There are immense disparities here, which need to be sorted out. Certainly, as regards the sort of function a school improvement partner should perform, one thing they should be doing is spreading good practice. Again, that is one reason why I do not want these people to be confined within one LEA. I want them to be nominated by the Government and then chosen more widely than that. If you have bad practice in an LEA, you will not learn by just circulating within that LEA. Getting out to see how they do it in neighbouring counties is going to be an important experience for a school improvement partner.

I very much support the amendments, but they are at the periphery of what needs to be done.

I have three amendments in this area to be dealt with later, so I shall be brief.

I recall going to a large gathering of primary head teachers on the subject of children with special educational needs and whether they should go to special schools or whether we should pursue a policy of inclusion. There was a strong ethos: “Inclusion is right”. I was a coward; I did not object. But it occurred to me then that a primary school does not have the breadth of expertise to respond to the different requirements of children with special educational needs.

The Minister has a reputation for listening. I hope that he will take away the issues ventilated here tonight and reflect on them tomorrow in the context of the Select Committee’s report, which we have not yet seen. I suspect this is an area where we must think hard and do much.

I find myself in a slightly uncomfortable position in responding to points about the Select Committee report in another place, because I have seen it. An embargoed copy came to me today, but it is not published until tomorrow. I fear that a debate will ensue.

The noble Lord is generous. I understand that we have an agreement to carry on until half past ten, but not to one minute past midnight. If noble Lords take a different view, I am happy to stay here longer and give the core response. Indeed, I think I am giving the response on the “Today” programme at seven o’clock in the morning, so I could rehearse it with your Lordships before I have to deliver it to a rather larger audience. I say to the noble Lord, Lord Dearing, that we intend, as is our duty, to give serious consideration to the report. We will respond once we have done so. Some significant issues are raised.

On the specific amendments, we agree with the underlying principle of Amendments Nos. 17 and 84, moved by the noble Baroness, Lady Buscombe, that there should be a sufficient range of good quality provision available for children with special educational needs and disabilities to provide a choice for parents of children with SEN statements. Such provision should include sufficient provision of special schools and resourced special needs provision within and attached to special schools. Local authorities can arrange admission to non-maintained special schools and independent schools for children with statements where that is necessary, and can also collaborate to ensure that a range of provision is available.

The report to which my noble friend Lady Massey referred—the audit of low-incidence special educational needs—which was completed two months ago, refers in particular to the importance of collaboration between local authorities on a regional basis, especially small unitary local authorities that may not be able to make provision in all the key specialisms that are important to ensure that they have a sufficient range of provision. However, we believe it is for local authorities to take decisions about the range of provision they maintain. From my experience of local authorities, I like to think that they are not motivated in what I took the noble Lord, Lord Lucas, to think are almost perverse ways. That is not to say that there are not individuals in local authorities who have views that are not mainstream thinking in these areas, but local authorities have to take democratically accountable decisions in a proper fashion and I believe that most of them take their duties in this area immensely seriously and consider them properly.

The Bill will help local authorities develop a range of provision. It gives powers to local authorities so that they can propose specific requirements for special needs provision in new and existing schools within a school system that offers broader choice and more flexibility. Almost all local authorities already maintain special schools. For example, Newham, which is often referred to as one of the most pro-inclusive local authorities, maintains two community special schools. Under this amendment, Newham could have regard to the need to provide sufficient special schools and decide that two is enough. Rutland local education authority maintains a community special nursery school, but under Amendment No. 17 it would have to open up a primary and secondary special school. It would be a matter for debate how many special schools would have to open before the authority had a sufficient number to serve its very small population.

In practice, we think that these decisions are best left to individual local authorities, and that the caricature that is often made of local authorities is quite unfair. I know Newham well because it was an issue raised by the Education and Skills Committee when I appeared before it to give evidence. If one looks at what is happening there, it is very different from the caricature that often appears in the media. Not only does it have two special schools, although it is often claimed it has none, but it has a great deal of resourced provision—unit-type provision—attached to its schools. If one looks at the population of pupils with special educational needs who have specially resourced provision, one of the areas that is most neglected is the provision of units and resourced provision in mainstream schools, which is now a substantial part of the whole. There are about 80,000 children in special schools and 20,000 children in units attached to mainstream schools or in resourced provision in schools, and that number is rising. My view is that that type of provision is likely to increase over time, because it enables mainstream schools to perform their inclusive duties in respect of pupils with special educational needs much better, and to bring resourced provision, which is essential for those with more severe special needs, into a much closer relationship with mainstream schools. That will be part of the ongoing debate about how we can improve special educational needs.

Section 14 of the Education Act 1996, which this amendment would affect, fulfils the public policy goal we are seeking to achieve. It applies to all schools, including special schools, and places a duty on local authorities to secure sufficient schools for the provision of primary and secondary education. Section 14(6) states that in exercising their functions to secure sufficient primary and secondary education, local authorities must have regard to,

“the need for securing that special educational provision is made for pupils who have special educational needs”.

Those pupils will include children with statements who have needs which require specialist provision to be met, either in special schools or in units attached to mainstream schools.

In response to the noble Baroness, I emphasise what my noble friend Lady Crawley said: the Government have no policy whatever of seeking to close special schools. We believe that such decisions should be taken in the light of local circumstances and the needs of the parents at a local level. In fact, the proportion of pupils with statements in special schools has risen over the past five years, which demonstrates that there is no national policy of seeking to close special schools. There has also been a growth in the population of SEN pupils in units and other resourced provision attached to mainstream schools.

Turning to Amendments Nos. 36, 163 and 183, which seek to ensure that those undertaking certain roles have an understanding of SEN and disability legislation, I shall first set out the way in which school improvement partners are accredited and the nature of the SIP role in relation to children with special educational needs. The initial training, development, assessment and accreditation of school improvement partners is undertaken by the National College for School Leadership. This is a non-departmental public body of the Department for Education and Skills, working to a remit set by the Government. Included in its key objectives up to 2008 is a commitment to deliver a range of programmes that enable leaders of the school system to transform the quality of learning for all pupils. It is certainly not the role of SIPs just to focus on the academic achievement of the successful.

The training and accreditation of SIPs focuses on data analyses of the performance of groups of pupils in schools—in particular, in identifying inequitable outcomes that might be occurring in the school, the factors which contribute to them, and the action the school should take. This is supplemented by detailed guidance on how the SIP should focus with theschool on issues that might affect vulnerable or disadvantaged groups of pupils. This guidance is in the public domain and I will send it to Members of the Committee after the debate.

The guidance includes advice that SIPs should consider about special educational needs, and how they should address barriers to learning and to issues regarding behavioural and emotional difficulties. They should consider whether systems can be used to design appropriate curriculum and pastoral support, monitor success and respond to changing needs, and focus on whether there are effective links with other support agencies to ensure that integrated support structures are in place for pupils with additional needs.

The training and development of SIPs doesnot stop with the initial session provided for accreditation. SIPs take part in four days of professional development a year, provided in part by the national strategies and in part by local authorities deploying SIPs.

School self-evaluation is a key starting point for the school improvement partner in the process of offering challenge and support to the school. There are special educational needs sections in the school self-evaluation form. The SEN evaluation framework will form part of the continuing professional development for SIPs. In carrying out their duties, school improvement partners will, of course, have to be aware of all the statutory duties that schools have. In the area of special educational needs and disabilities, schools must have regard to the special educational needs code of practice and use their best endeavours to make the provision that a child's learning difficulties call for. Under the Disability Discrimination Act schools must not discriminate against children with disabilities, and must make reasonable adjustments to prevent such discrimination. From December this year, schoolswill also be under a duty to promote equality of opportunity between disabled and non-disabled children.

I turn to Amendment No. 163 on choice advice, tabled by the noble Baroness, Lady Buscombe. Clause 40 will ensure that local authorities provide advice to parents to help them make decisions about the choice of school for their child. Some parents find it difficult to navigate through the admissions process. That means that some children, often the most vulnerable, do not get the best from the choices available to them.

The department’s guidance to local authorities on the provision of this advice to parents, issued at the start of April, covers the specific issues raised in the amendment, stating that advisers will need to know about special needs policy and provision for children with special educational needs, drawing on the knowledge and expertise of local parent partnership services, which I know has been welcomed. We will update the guidance to ensure that choice advisers can demonstrate, in addition to knowledge of SEN law and best practice, an understanding of disability legislation.

Amendment No. 183 on professional standards for teachers was tabled by the noble Baroness, Lady Walmsley. The new clause relates to professional standards. It is of course very important that teachers are properly prepared for working with children with special educational needs and disabilities. There is no issue of law here. The Secretary of State and the National Assembly for Wales already have the power to set professional standards for teachers, and currently do so in secondary legislation and associated guidance. As the noble Baroness recognised, we are currently revising those standards and working closely with the teacher training and development agency on seeking to improve them.

There is no need to set out specific standards in primary legislation, which by its nature is inflexible and does not easily allow for changes to reflect developing awareness and the importance of such issues. Revised standards for qualified teacher status, induction, threshold, excellent and advanced skills teachers were, as I said, recently issued for consultation in England. They offer for the first time a progressive framework for expectations of teachers at different points in their careers.

Once revised, it is proposed that the new standards will include one which requires teachers to know and comply with current legislation on the well-being of children and young people, one that requires teachers to know and understand the role of others when dealing with children who have special educational needs and/or disabilities, and one that requires teachers to communicate effectively with parents and carers. Taken together, those requirements will be stronger than the requirement in the amendment to demonstrate an understanding of SEN and disability legislation.

We are also working with the TDA to strengthen the training that teachers receive in SEN and disability, which we recognise is an ongoing challenge to improve. We have commissioned the agency to take forward a £1.1 million programme of practical measures aimed at strengthening delivery for teachers in initial teacher training, those undergoing induction, and enhancing continuous professional development opportunities for those already in post.

The SEN and disability populations overlap, but we recognise that they also raise separate issues.My department is developing an ambitious new training resource on implementing the Disability Discrimination Act in schools and early years settings, which will be made available to teacher training providers.

Amendment No. 183 also refers to head teachers. The National College for School Leadership addresses issues relating to special needs and disability through its various programmes and activities, including special focus events. In accord with the NCSL's declared goal of ensuring the well-being and achievement of all children, the National Professional Qualification for Headteachers is currently being redesigned and will equip future school leaders to fulfil their responsibilities for the education of children with a variety of special educational needs and disabilities in a range of different contexts.

In light of those assurances, I hope that the Committee will feel that the Government are alive to the issues being raised. We have further to go; we will respond in full to the report of the Select Committee in another place; but we are making progress.

Can the Minister confirm tonight that the system no longer contains a bias towards mainstream schooling? Is that what he wants me to feel assured about concerning SEN and mainstream schools?

Our bias is towards the needs of the individual child. The provision that should be made is the provision that meets those needs and reflects, as far as it is possible to do so, the preferences of parents.

Whatever the Minister says about LEAs, there is still far too much disparity between behaviour in one LEA and another to suggest that they are merely variations around some agreed and benevolent mean. The differences to which parents are being subjected are, to my mind, not the result of some rational, reasonable process of thought and consideration. When we come to AmendmentNo. 179, we will consider that further.

The Minister said that there was a move to units. Indeed there is in some parts, but other LEAs are abolishing units. I can think of one LEA that is clearing out all its units in favour of something called resourced provision. I think that that is the Nottingham model, which may already exist in Nottinghamshire, but I am thinking of another part of the country. It is crunching provision which, only a few months ago, was in receipt of glowing letters from the Minister himself for its undoubted quality. I agree; it is very high-quality provision. That is an LEA imposing a blanket model of SEN provision on all its schools.

That eccentricity is unwarranted and should be brought under some form of informed guidance, because having one authority favouring units and building them up—saying that that is the right division between inclusion and special schools and working well at that—while having the neighbouring authority abolishing them cannot be a rational state of affairs. We return again to the second part of Amendment No. 179. The money needs to follow the child and, perhaps under trust status, the school must have the ability to maintain its units in the face of whatever the LEA decides to do to allow us to get into a pattern of provision that can truly respond to parent demand rather than being—I say this advisedly—subject to the whims of individuals and individual local authorities.

I thank the Minister for his helpful reply, because we are all very concerned about children with special needs being well cared for in schools. I understand from the Cambridge University report that has been referred to that, quite often, the child with special educational needs is passed to the classroom assistant and is very much looked after by that one person. It would be interesting to hear at some point what level of training classroom assistants receive. But the principal concern in the report is that teachers should take more responsibility for children with SEN, and that those children should not be left alone with the classroom assistant in a motherly rather than a teaching relationship. There is also a concern in the report that some SENCOs are not qualified teachers. Again, perhaps the Minister will comment on that in due course and say how that works and whether it is desirable.

The Minister, for whom I have great respect, responded rather elegantly to the noble Baroness, Lady Buscombe, when she asked him directly and appropriately whether there was any move away from an earlier move towards getting SEN children into mainstream schools, that his bias was in favour of the parents’ wishes. May I press him a little further? My recollection goes back quite a long time, and I recall that some 20 years ago the practice was very frequently for almost any children who were severely affected with SEN to be in special schools.

The mood in the education world then changed quite sharply in the late 1970s and early 1980s towards the adoption of mainstream education, with more and more children who were statemented—it would not have been called that at the time but it was the same thing—being moved into mainstream education. The Minister will know very well that the crucial question is whether the additional resources of teaching and teaching assistants can be brought to bear. In some cases—I shall give the example of autistic children—that demand is very considerable if the other children in the class are not to suffer from a lack of the attention that the autistic children crave and need, to advance at all educationally.

Is the Minister therefore persuaded that—because of the admittedly beneficial increase in the number of classroom assistants, for which the Government have every right to take credit, and the greater training of teachers in the concept of special educational needs—not only will mainstream schools cope even with children who have a major need for attention for their particular problem, but that it will not affect the other children in the class? I add one other thing. Understandably, most parents, if asked to choose, will assume that their children should go into mainstream education, even though that may not be quite right because of the impact on other children of such demands being made on teachers by a very small number of children. I ask the Minister to respondto that.

As it happens, I can answer that question by telling the story of my morning. I visited TreeHouse School, a special school for pupils with severe conditions on the autistic spectrum. Its chairman is the noble Lord, Lord Clement-Jones, and it does the most outstanding work with children with severe autistic conditions. The view of the parents whom I met—I met a good number of them there—and of the support staff is that it would not have been appropriate for those pupils to have been in mainstream provision, certainly not all the time, but, again, it is difficult to make bold generalisations.

As a way of dealing with the complexities of the issue, I draw to the attention of the noble Baroness three facts that came out of my visit. First, most of the children at TreeHouse got there without needing to go through a battle on statementing and having to go to the tribunal. It was a consensual decision reached between the parents, the local authorities and the schools on the best provision for their children. There was no bias in the system that they should be obliged to go down an inappropriate mainstream route.

Secondly, a number of the children and their parents share the provision between TreeHouse, a school with a special focus on severe autism, and a mainstream school. The children take the support that they have at TreeHouse into the mainstream school as a way of ensuring that they are better socialised and able to develop the skills and experiences that will be vital as they develop. I thought that that was a very interesting line of work from TreeHouse, which is also developing a training centre to enable more teachers to be trained, so that it has more interaction with the wider community of special schools and mainstream schools.

Thirdly, the expense is striking. I was informed this morning that a place in TreeHouse cost £53,000 a year, which is a very large allocation of public resources. Therefore, when the noble Baroness, Lady Buscombe, asks whether we mean that parents should have an unfettered choice, we do not. It has to be a process of engagement by parents with local authorities as part of the statementing process to determine the best form of support and the right and efficient use of resources for their children. Equally, if parents express a preference for a school and the child has a statement that the local authority does not meet, they have every right to go to the Special Educational Needs and Disability Tribunal, which routinely enables parents to access those rights.

I cannot give a straight yes or no answer to the noble Baroness. A lot depends on the provision available in the school that the child wants to attend and whether the parents are satisfied that it will meet the needs of their children. For many pupils who are at the severe end of the autistic or other special educational needs spectrum, I believe that in very many cases it would be appropriate for them to go to special schools. They therefore have an important, ongoing role. Our policy is to ensure that those schools are available to them.

Before the noble Baroness, Lady Buscombe, speaks finally, I thank the Minister for his response, on which I should like to say something more. Perhaps I may first pick up the point made by the noble Lord, Lord Lucas, about the importance of the money following the specific child and his or her needs when in a mainstream school. We think that that is a very important matter. The noble Earl, Lord Listowel, was concerned about teaching assistants being put in charge of children with special educational needs. I do not think that that happens too much now, but I suggest that, where it happens, it is an indication of the lack of confidence of the teacher in the classroom to deal with that child. That is the result of a feeling that they have not been adequately trained, which brings me to Amendment No. 183 on training.

I accept what the Minister said about the fact that we do not really need to be so specific in the Bill and that this sort of thing should be in regulations and guidance. Our amendment of course was probingin order to put some upward pressure on the Government on training. I was pleased to hear about the review of standards and course content for initial teacher training and right through the spectrum up to what the National College for School Leadership is doing for head teachers. There is no doubt that, although the individual skills and understanding of classroom teachers are very important, the leadership of head teachers in a school and an understandingof what children with special needs need are also important, if they are not specialist schools. They should also understand the additional training that their teaching staff will need in the form of CPD in order to build up their skills to the right level. School leaders who have that commitment find themselves in charge of the schools that are the most successful in including special educational needs children and seeing them thrive comfortably and happily in that environment. I thank the Minister for his comments because the thing seems to be moving in the right direction.

This has been an excellent debate, but sadly perhaps a little premature because of the embargo on the report of the Select Committee that will be coming out tomorrow. Notwithstanding the late hour, I shall make sure that I am up in time to listen to the Minister on the “Today” programme in the morning. This is a crucially important but difficult area to tackle. I have written lots of notes, but I am a little shy of saying too much tonight because it is important that we read the report of the Select Committee. I feel that there is much agreementand consensus in your Lordships’ House on the underlying principles, although there is a real concern on the part of noble Lords on these Benches that there is a retained bias. However, I take on board what the Minister has been able to say this evening, and I appreciate his remarks about financial constraints and the need for local authorities to retain their role as decision makers.

We need to continue to probe in this area. As the noble Lord, Lord Dearing, pointed out, he has observed that primary schools do not necessarily have the breadth of skills and experience to give children with special educational needs the best opportunities. The point should be taken together with that made rather courageously by the noble Baroness, Lady Williams, to the effect that it is probable in many cases that the mothers and fathers of children with special educational needs are themselves going to be biased towards the mainstream because they want their child, particularly at the primary stage, to be in what they might perceive as a normal environment, even though it might not be the best one for their child.

Again, I am pleased that we have had this debate tonight. I shall certainly think more about what we have said and about the amendments with which we have probed, along with what the Minister has said in his response and the results of the report from the Select Committee. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

Clause 2, as amended, agreed to.

After Clause 2, insert the following new clause-


(1) Section 10 of the Children Act 2004 (c. 31) is amended as follows.

(2) In subsection (1) (co-operation to improve well-being) after paragraph (b) insert-

“(bb) each relevant schools provider for the area of the authority;”. (3) After subsection (5) insert-

“(5A) For the purposes of this section, each of the following is a relevant schools provider for the area of a children's services authority in England-

(a) the appropriate diocesan authority for any Church of England school and any Roman Catholic Church school in the area of the authority; and (b) such other bodies as may be designated by the Secretary of State. (5B) In subsection (5A) “appropriate diocesan authority”, “Church of England school” and “Roman Catholic Church school” have the meanings assigned by section 142(1) of the School Standards and Framework Act 1998.””

The right reverend Prelate said: In moving the amendment standing in the name of my good friend the right reverend Prelate the Bishop of Peterborough and myself, I would say that although the Churches pioneered the provision of schools in England and Wales, the so-called “dual system” has operated since governments began providing schools in 1870 and the creation of local education authorities in 1902. Church schools coexist happily with schools provided by the local authority, and I believe that that is part of the genius of the British system of education. It has on the whole worked pretty well, though at times dioceses have regretted that local authorities have seemed not to support church schools as actively as they would like, and no doubt there have been similar tensions on the other side.

Until the changes in local government following the 2000 Act, the dioceses were represented on education committees by a member or members with voting rights as well as speaking rights. These committees disappeared with the creation of cabinet government. Diocesan representation on overview and scrutiny committees dealing with education has not effectively filled the gap. This has put at risk the political and strategic level of engagement between the dioceses and local authorities. The good news is that the operational level contacts usually remain very effective.

We are not opposing the abolition of theschool organisation committee—proposed in Clause 28—created in 1998 to decide locally on school opening and closing and enlargements, even though that is where the strategic partnership between the Church of England, the Roman Catholic dioceses and local authorities has been most apparent in recent years. But we are concerned to maintain a political and strategic relationship between the diocese and the local authority as well as the operational relationship.

We would like to see a duty in law on the local authority to co-operate with the diocese. The amendment would impose as a duty co-operation with the Church of England and Roman Catholic dioceses and with other such bodies as the Secretary of State decides, which we would expect to include the Methodists where they have local schools—that will gladden the heart of the noble Lord, Lord Roberts of Llandudno—but also other faith school providing bodies. I beg to move.

The amendment addresses the concerns that diocesan authorities are fully involved in the strategic decision-making of local partnerships, a concern that, as the right reverend Prelate said, has arisen with the removal of the requirement to produce a school organisation plan that accompanied the introduction of the children and young people's plan in the Children Act 2004 and the abolition of school organisation committees in Clause 28 of this Bill.

The Government share the objective that the right reverend Prelate has set out, and indeed my right honourable friend the Secretary of State made that clear in his recent meeting with the right reverend Prelate the Bishop of Portsmouth in one of the last meetings that the right reverend Prelate was able to have before he was sadly readmitted to hospital. As my right honourable friend made clear, we want diocesan authorities to continue to play an active role in the strategic decision-making of the local authority area, and we believe that that is fully provided for in existing legislation, of course provided that local authorities are of a will to carry out their obligations in that respect. We believe that they overwhelming are; and where they are not they can be held to account for it.

Diocesan authorities and other school providers are already included in Section 10(1)(c) of the Children Act 2004 under which there is a requirement on local authorities to promote co-operation including among,

“such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority’s area”.

Furthermore, Regulation 7 of the Children and Young People’s Plan (England) Regulations 2005 requires:

“During the preparation of each plan”—

that is, each children and young people's plan, which now has an important role in the development of local services—

“the authority shall consult…the appropriate diocesan authority for any foundation or voluntary school situated in the authority's area which is a Church of England or Roman Catholic Church school”.

The need for the active involvement of partners in the development of the children and young people’s plan is emphasised in supporting guidance which my department has issued which states:

“It will be important to involve all the groups listed above”,

which includes diocesan authorities,

“at a formative stage, and give enough time for a full discussion”.

We emphasise both elements of that—that diocesan authorities should be consulted at a formative stage and with enough time for full discussion.

The department is planning to issue further guidance in the autumn. It will cover the annual review of the CYPP and restate the need for the genuine early involvement of all partners. I can undertake that it will refer once again to the important role that diocesan authorities have as major providers of schools in their areas.

In addition to those requirements, statutory guidance on who should be consulted about changes to schools will continue to include the diocesan authorities, and in Clause 22(4) of the Bill they will continue to be able to refer proposals from local decision makers to the adjudicator for decision. We want diocesan authorities to engage with local authorities and children's trusts. We believe that the Bill will do nothing to weaken their positive ongoing role and influence. We therefore hope that the right reverend Prelate will be happy with the assurances that I am able to give.

Without being unduly pedantic, perhaps I may press the Minister. He referred to the dioceses and to the Roman Catholic Church. Does that also include other faith school providing bodies?

My understanding is that that is the case when they are local providers of schools—they would then come within those requirements. I am happy to write on that specific point, but that is my understanding.

I am most grateful to the Minister for his understanding and the fact that he listens and collaborates so freely. We are grateful for that. I suppose that everybody who puts an amendment down has this dream that their amendment will be in the Bill—but that is a dream that is shattered regularly in this Chamber. I look forward to reading the Minister’s tight response in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Duty to consider parental representations]:

Page 2, line 32, at end insert-

“( ) Where the representations concern the education of the qualifying child, the local education authority shall whenever possible ensure that the views of the child himself are taken into account.”

The noble Baroness said: In moving Amendment No. 20, I shall speak also to Amendments Nos. 52 and 217 in my name in this group and support the amendment tabled by the noble Lord, Lord Dearing, Amendment No. 127.

This group is all about the voice of the child. Like the right reverend Prelate and Martin Luther King,I, too, had a dream. During the passage of the Childcare Bill that dream was fulfilled, because the Minister kindly tabled a government amendment—but I do not hold it against him that it was a government amendment—to put in a reference to the voice of the child. I think that it was in Clause 3, towards the end of the Bill’s passage through this House. If we can put consultation with very young children on issues such as planning childcare services into the Childcare Bill, surely we can put the voice of older children in appropriate places in this Bill.

Amendment No. 20 says:

“Where the representations concern the education of the qualifying child, the local education authority shall whenever possible ensure that the views of the child himself are taken into account”.

That is perfectly reasonable, and I hardly feel that it is necessary to say any more—because it seems so obvious that it should be done. I know that the Minister has the right attitude with regard to consulting children, especially because of his enthusiasm for school councils. I shall not say anything about Amendment No. 127 on school councils. I shall leave that to the noble Lord, Lord Dearing, but he has my enthusiastic support on that amendment.

Amendment No. 52 to Clause 6 ensures that the views of children are fully explored and considered in providing recreational facilities—and not just a few token children, but a proper representative sample. It is essential that children and young people are able to access high quality and sufficient facilities for such recreational activities for the improvement of their well-being, which is what we all want to happen, irrespective of their parents’ or carers’ financial circumstances or background. That is particularly important for children who are socially excludedfor any reason. To support the Youth Matters consultation, the NSPCC organised 10 focus groups of young people on behalf of the DfES to ensure that their views were heard. I give some quotes from those young people to illustrate why it is necessary to obtain a representative sample of all young people—because their responses vary so much.

A 12 year-old from Shrewsbury said:

“They’re not seeing the whole picture, they’re not showing what everyone is doing, just what a select group are doing”.

So young people themselves are aware of the potential for just taking a little token group and listening to what they have to say. A 17 year-old from Gloucester said:

“The only way the Government can try and stop young people or any person who’s drinking or taking drugs is to occupy their time with things they find fun”.

Ask the young people what they find fun, and do not ask their parents or teachers or anybody else to decide for them. Another young person from Gloucester said:

“You’ve got to help the low achievers, otherwise that’s just letting the brilliant ones get all, while the ones who have problems don’t get a look in”.

That is the comment of a very socially inclusive young person.

The current wording in the Bill states that the views of qualifying young people should be ascertained, which means any young person between 13 and 20. It is essential, however, to find a way of ensuringthat the views of young people are genuinely representative and reflect a full cross-section ofyoung people in the community. I hope the Minister will look kindly on the insertion of the words“a representative sample of”.

Amendment No. 217 concerns the school discipline policy. This is where the governors are given the duty to consult various people, including a sample of pupils. It is an area where every child should be given an opportunity to input their views—not just a few children, or even a representative sample, but every child in the school. If children are to sign up to the school’s disciplinary policy and help the staff enforce it through peer pressure, they really need to be able to own that policy, to feel that they had a hand in developing and publishing it on behalf of their school. Unless every single child in the school is asked their opinion and feels they have had that opportunity to input, if they break that discipline policy they can turn around and say, “No one asked me. I don’t think it’s right. My school shouldn't have made those rules”.

I know many children who belong to families where the parents take the same approach in setting their own discipline policies, house rules and even pocket money levels. When the children are consulted about what they think is reasonable and negotiate with their parents, they are much more likely to adhere to the rules they feel they have jointly reached. With regard to the discipline policy which the governors and the head teacher between them have to come to, it is important to talk not just to a sample, however representative it might be, but to every single child. That is what Amendment No. 217 attempts to introduce into the Bill. I beg to move.

I shall speak to AmendmentNo. 127. I was prompted to table this amendment because it seemed to me that if parents were going to be consulted about a proposal for a trust school, it made sense to consult in some way the pupils of that school, especially in secondary schools.

I think there is a general principle here. The pupils are the people most directly affected by decisions taken about their school, and in some important respects they will know more. They will have a more intimate knowledge of the school than their parents. It seems right that they should have a right to have their views taken into account by a governing body, or whatever.

In this amendment I have made a proposal that, where possible, the consultation—where there is one—should be through the school council. I sought to find out to what extent school councils were already in existence, and I read that whereas in 1998 some 65 per cent of secondary schools and 15 per cent of primary schools had a school council, it is estimated that the proportions have now risen to 80 to 85 per cent for secondary schools and 75 per cent for primary schools. Such councils seem to be a suitable vehicle for consultation.

I am aware that the noble Baroness, Lady Walmsley, is proposing that all the pupils should be consulted on disciplinary matters. I have not gone quite as far as that; sometimes there is a rather large number of them. I was thinking of an alternative. Perhaps alongside school councils—and I am pushing the boat out now—there should be a class council. I believe that young people have good sense, especially as regards disciplinary matters and a disciplinary policy. If a council comprising members of a class sat down with a teacher to talk the matter through, they would be persuasive and effective advocates of an effective disciplinary policy. I believe that a disciplinary policy has to be owned by everybody in the school, otherwise it will not work.

Amendment No. 127 would ensure that, where the legislation provides for consultation with parents, there should be suitable provision for consultation with pupils—for example, in school councils.

I feel moved to speak to the amendment in response to what the noble Lord, Lord Dearing, has just said. Of course, I support consulting young people. In fact, we would not have had Every Child Matters without consulting young people; it was based on that.

As regards Amendment No. 127 on school councils, the school where I am a governor has class councils, which also involve parent class councils. It has a school council that is consulted about discipline and school organisation. That school council is taken very seriously by the school. I wonder why the amendment does not propose that every school should have a school council. Therefore, you could consult the school council on this matter—end of story.

I wish to speak briefly on the principle of listening to children as far as we can. I welcome the many things that the Government are doing to support families, especially the recent increase in maternity leave and benefit and support for fathers. However, year on year an increasing number of parents are separating and an increasing number of children are being taken into care. I believe that the BMA has recently produced a troubling report on the mental health of children. There is a lot of disruption in children’s families. One consequence of that is that it can be difficult for parents to listen to their children. Children get ignored because of the upheavals in their family. So it is important for the self-esteem of children from those backgrounds that every opportunity is taken to listen to them and take their contribution on board as far as possible.

Recently, I was with my nine month-old great nephew. We were engaged in a game where he was pulling faces and I was responding to the faces that he made. I have heard that, like my great nephew, infants become delighted with the fact that they can influence the adults close to them and they get carried away with that. The same principle applies to the matter that we are discussing—the feeling that one can influence the world and one’s environment even when one feels small and insignificant. That is especially true of children from families where there is disruption. Therefore, I strongly support the principle of what is proposed and look forward to the Minister’s response.

We support the concept of listening to children. Their opinion is an important ingredient of any consultation. However, we do not believe in a child having a say to the extent that it amounts to a burden on him or her to make decisions. We have to be careful about that. They are children, after all, and we should let them be free to enjoy their youth. We should not be too prescriptive in determining the roles that they should play in their school environment.

Having said that, I am pleased that there is consultation with a sample of pupils on discipline policy in schools. However, I rather agree with the response of the noble Lord, Lord Dearing, to Amendment No. 217. For every pupil to have a say about discipline in a school of, say, 1,400 pupils is somewhat unreal. I shall be interested to hear the Minister’s response to these probing amendments.

At this late hour, I am in the happy position of being able to fulfil some of the dreams of the noble Baroness, Lady Walmsley. We have given a lot of consideration to the matter, and we think that we can move part of the way that she described.

Amendment No. 217 would amend Clause 81, which concerns consulting a sample of pupils on a school behaviour policy. Our view, having considered this also in the light of the ongoing discussions that there have been on the Childcare Bill, is that we can move further. We agree with the point that a discipline policy is central to a well functioning school, and the maximum possible engagement of the pupils in that process is important. I emphasise the word “consult”. It is not a requirement for them to make a decision; I completely agree with the noble Baroness, Lady Buscombe, that you do not want to put young people in the position of becoming the decision makers. To consult all the pupils is not in principle an over-burdensome requirement. They do not have to respond to the consultation; noble Lords are asked to participate in many consultations on which they do not give their views.

Having listened to what the noble Baroness said and having reflected on it previously, without giving an absolutely firm commitment—we need to look at it further—we are minded to table a similar government amendment on Report that would simply remove the sample requirement and have a general requirement to consult. I cannot give an absolute assurance, but we think that that is likely to be an appropriate policy.

I am in the even happier position of being able to respond positively to Amendment No. 253, in the name of my noble friend Lady Turner, who is not even here. I hope that, when she wakes up in the morning and reads Hansard, this might please her. The Government unreservedly agree with the second part of the amendment, which aims to remove the current exemption of nursery-age children from the consultation duties on schools and local authorities under Section 176 of the Education Act 2002.The amendment in this respect reflects what the Government have already provided for in the Childcare Bill through the amendment that the noble Baroness, Lady Walmsley, referred to. Therefore, we will consider tabling an amendment on Report that brings children of nursery age on to the same footing in terms of consultation requirements, irrespective of the setting in which they may find themselves. I will be glad to tell my noble friend that I have been so persuaded by her arguments that we have decided to move in this respect.

The first part of Amendment No. 253 proposes duties on schools to consult pupils. Section 176 of the Children Act 2002 already provides for the consultation of pupils on issues affecting them. The section provides for statutory guidance to which local authorities and governing bodies must have regard about the consultation of pupils in connection with the taking of decisions affecting them. We are encouraging schools to put the 2004 guidance issued under Section 176 into practice in ways that are meaningful to children and young people. One prime means of giving effect to that guidance is the establishment of school councils. I am a great believer in the role of school councils; it is one of the areas that I have been most impressed by in terms of changes in the education system over recent years. When I and many other noble Lords were at school, the idea of any form of consultation with pupils was regarded as a somewhat outrageous act of lèse-majesté. Now, it is common not only in secondary schools but, increasingly, in primary schools.

I had the privilege recently to launch School Councils UK, which is an excellent organisation providing training materials for the establishment of school councils in primary schools. I launched those materials in a primary school in Hackney that has an outstanding school council in a very challenging area. It takes a real sense of responsibility and leadership for developing the behaviour policy in the school, tackling bullying and helping to improve the school in a number of ways. We are looking to see how we can take that forward, although it does not require statutory duties in the Bill.

We have taken two substantive steps. I have asked Professor Geoff Whitty, the director of the Institute of Education at the University of London, to examine the experience of the operation of school councils and to report to the Secretary of State, which he will do later this year. We have indicated that we will consider his report with a view to updating the guidance under Section 176 of the 2002 Act to provide stronger advice to schools and more best practice guidance on how they can establish school councils and involve them meaningfully in the work of schools. My noble friend Lady Massey also referred to the important work of school councils in primary schools, and it has become increasingly widely understood that they can play that role.

I hope that the noble Lord, Lord Dearing, will accept that, given our bona fides, which, I think, is clear, we do not need to put new statutory duties in the Bill and that the work is proceeding in any event. I encourage the noble Lord and other noble Lords who have experience and views in this area to speak to Professor Whitty. I will draw his attention to the debate that we have had this evening. He is taking this work very seriously, and in terms of pupil engagement in the life of schools and in the taking of decisions affecting them this could turn out to be path-breaking.

Amendment No. 52, in the name of the noble Baroness, Lady Walmsley, in respect of youth, would clarify the process by which authorities should consult young people about positive leisure-time activities. The new duty in Clause 6 includes a requirement for local authorities to consult young people about the provision of facilities in their area, the need for further provision and any access issues. The duty focuses on securing access to activities. Therefore, to fulfil the duty, authorities will need to focus their attention on the groups of young people who face the greatest barriers to participation in their area, and the consultation offers a powerful means to assess the nature and extent of those barriers.

We, therefore, do not expect local authorities to consult every young person in the area, but equally we expect that any sampling will be robust enough to capture the views and needs of young people belonging to those high-risk groups. That is not the same as a representative sample, which, for example in an area where the majority of the population were from the same socio-economic or ethnic group, could mask the views of a minority facing disproportionately challenging barriers to participation and which a local authority may wish to consult specifically on the provision of these activities.

Therefore, the legislation needs to offer authorities some flexibility in order to target their consultation in the most effective way in terms of the types of services that they believe they may need to provide in an area; and that a requirement to consult a representative sample would reduce the ability of authorities to undertake this and, in turn, reduce the effectiveness of the duty for the young people whom we most want to help.

Amendment No. 20, in the name of the noble Baroness, Lady Walmsley, seeks to ensure that, in carrying out their new duties under Clause 3 to respond to parental representations, local authorities should in certain cases ensure that the views of a particular child are taken into account. We entirely sympathise with the spirit of the amendment, but it goes beyond the scope of the clause. The duty in Clause 3 does not apply to complaints or representations in respect of individual pupils who might, therefore, have a right to be consulted individually but to how a local authority discharges its general duty under Section 14 of the Education Act 1996 to secure sufficient schools for providing primary and secondary education in their area and the new duties added by Clause 2 of this Bill to secure diversity and increase opportunities for parental choice in the provision of schools.

The duty to consider and respond to parental representations does not apply to complaints or representations about the access to education or quality of education provided to an individual child where the existing arrangements for making complaints remain in place. The draft illustrative guidance on parental representations that we have made available reinforces that point. It states that such representations might cover, for example, a request for a new school with a particular ethos, or a general complaint about the quality of provisionin schools in the area, but such representationswould not concern individual circumstances or the education of an individual child.

The existing references to a “qualifying child” in Clause 3 are simply to specify that the duty to respond is triggered only if the representation is made by a parent who has a child in the local authority’s area who is of or under compulsory school age. It does not mean that representations should specifically be in respect of the education of a particular child. I hope that I have clarified the issue and that the noble Baroness will be satisfied with that position.

I thank the noble Lord for his reply. Did the noble Lord, Lord Dearing, wish to say something before I withdraw? No. I agree with the Minister that when the noble Baroness, Lady Buscombe, spoke about asking children to make decisions, I sat here thinking that no one was asking children to make decisions. The intention of my group of amendments was only to consult children, certainly not to put the burden on them of making any of these decisions.

In terms of large schools, we need only give children an opportunity to respond to a draft code of discipline and to make suggestions on how it might be changed or amended. I see no reason why that should not be done quite easily. I am delighted to be able to thank the Minister for being minded to bring forward an amendment along those lines at the next stage of the Bill. I am also delighted that he has been able to accept part of Amendment No. 253 in the name of the noble Baroness, Lady Turner. I am sure that she will make similar arguments to him again in the future, given the wonderful results that she obtained this evening.

On Amendment No. 127 in the name of thenoble Lord, Lord Dearing, which I supported, the Government are clearly moving in the right direction on school councils by updating the guidance, and I am certainly happy with that.

With regard to Amendment No. 52, the Minister said that he feels that local authorities need the opportunity to focus on particularly high-risk groups. Although there is apparently nothing wrong with that, I am a little worried that some groups which have every right to be consulted may well be missed out. They may have a different sort of input which is perfectly valid and which might affect the nature of the recreational facilities provided by the local authorities. So I hope that, in carrying out their duties in the way that the Minister has described and by focusing, reasonably, on high-risk groups, local authorities will not inadvertently miss out large groups of children who may not be particularly high-risk but whose well-being would benefit very much from the right sort of recreational facilities. Such children might be able to give the local authority valuable input on the nature and planning of those facilities.

I will read in Hansard the Minister’s response to Amendment No. 20. I think that he clarified whatI was trying to get at. He explained that the amendment is not acceptable because it is responding to an individual child rather than a group of children. However, I will look at it again and think carefully before deciding whether to pursue it any further. With that fairly happy response, I am pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Page 2, line 37, at end insert-

“( ) Where a local education authority in England receive representations from parents requesting the publication of a notice under section 7 of the Education and Inspections Act 2006, and the local education authority decide to take action other than publishing a notice under that section, the statement under subsection (1)(b) must include their reasons for not publishing the notice.”

The noble Baroness said: I shall speak also to Amendment No. 67. Amendment No. 21 would ensure that, where a local authority received representations from parents requesting the publication of a notice inviting proposals from outside the local authority for a new school and then decided not to publish the notice, it would have to state why it was doing so.

This is, in part, a probing amendment but, were it to be accepted, which I believe it could be, it would not intrude on a local authority’s right to not publish a notice. However, it would ensure that parents were entitled to an explanation when their proposals were not considered or published.

The amendment would add no huge burden to local authorities; rather, it would ensure transparency in the decision-making process. Where a parent’s proposal had been refused, surely the local authority would have logged a reason for that decision as a matter of course. I am sure that the Minister will recall the text of the regulatory impact assessment, which states that some authorities,

“tend to regard community schools as ‘their’ schools and to regard other categories of schools as being outside the local family of schools”.

It is my view that no school is greater than the sum of its parts: the pupils, parents and teachers. A clear priority set out in the White Paper is the voice of the parent. A whole chapter is dedicated to parents driving improvement. The amendment would ensure that no parents’ views could be ignored or not acted on in any way.

Amendment No. 67 would enable the Secretary of State to prescribe minimum conditions for the schools in the area of a local authority. Where the authority failed to meet those minimum standards, it would be forced to publish an invitation for proposals for the establishment of a new foundation, voluntary or foundation special school. Such conditions could include a minimum proportion of self-governing schools or refer to purely academic considerations.

It is very important that failing local authorities take decisive action to remedy that. When large numbers of schools are failing in an area, it is essential that new providers are allowed to come into the system, bringing with them a different ethos, and in so doing, driving the improvement in school standards. Too many schools currently under-perform. The National Audit Office has found that as of July 2005 there were 1,557 poorly performing schools in England, representing 4 per cent of the primary schools and 23 per cent of secondary schools. That is far too high. These schools educate 980,000 pupils, or 13 per cent of the school population. Of schools in special measures, less than 10 per cent recover within 12 months.

Individual cases point to local authorities with unacceptably low levels of performance. Take Knowsley, the authority which has the worst value- added school, and where only 25.5 per cent of pupils achieve five or more good GCSEs, including English and mathematics. In 20 local authorities fewer than one-third achieve this level. Consider also Nottingham City, where more than one-quarter of pupils fail to achieve even five or more GCSEs at A* to G when English and maths are included.

We on these Benches cannot be alone in thinking that when local authorities languish at the bottom of performance tables they should take decisive action to tackle this. I seem to recall the noble Lord, Lord Dearing, saying earlier that that is the case. One should not allow these schools to languish for too long.

It would be inappropriate for local authoritiesto establish new community schools in such circumstances, as they have demonstrated their unfitness for the challenge. The amendment would ensure that local authorities are truly the proactive commissioners of successful education rather than allowing them the possibility to be the passive providers of coasting schools. I beg to move.

We have considerable sympathy with the intentions behind Amendment No. 21, moved by the noble Baroness, Lady Buscombe, in respect of the requirement to provide a proper statement of reasons in response to a request submitted by parents. But we think that it would be excessively prescriptive to set out this requirement on the face of the Bill.

Let me explain what we are doing in this regard. Clause 3 is the expression in the Bill of the commitment set out in the White Paper to give parents the right to ask for a new primary or secondary school. It places an explicit duty on local authorities for the first time to respond formally to parents who are seeking changes to the provision of schools in their areas, including new schools. We are determined that this duty should give parents the right to be heard by their local authority on the provision of schools in their area and to receive a considered and proportionate response.

The draft illustrative guidance to local authorities, which we have made available, makes it clear that this is a duty which they must take seriously. They will need to respond on a case-by-case basis, after evaluating the depth and quality of support from parents cited in the proposals, gauging the level of parental concern more generally, and analysing patterns of demand in the area. That would include the issues raised by the noble Baroness in terms of the failure of existing provision in the area.

More specifically, the guidance stipulates that the local authority should respond to the original representations by means of a statement, and I hope that the noble Baroness will be reassured to note that the draft guidance specifies that. It states:

“In all cases, the statement would need to set out the local authority's justification for arriving at its conclusions in order that the parents or parent group can follow the reasoning involved and, if dissatisfied, complain citing the reasons given”.

That is a categoric statement of the requirements that we are placing on local authorities.

Indeed, if parents believe that their local authority has not taken proper account of its duties, they may complain to the Secretary of State, who would consider whether to intervene—for example, by directing the local authority to reconsider its decision. Parents would also be able to make representations to the schools commissioner, who might also play a role in the process.

We believe that statutory guidance is the most appropriate and proportionate way of setting out detailed expectations of how local authorities should respond to parental representations. While there may indeed be representations from parents specifically requesting a competition for a new school, which was the case raised by the noble Baroness, not all representations will be that specific. We should not, therefore, single out that specific possibility in the Bill.

Similarly, while a competition for a new school might be one outcome of a parental representation, there may equally—quite legitimately—be circumstances where the local authority will judge that the best response might be, for example, to propose the enlargement of an existing successful school, or other changes to existing provision which meet parents’ demands in other ways. In all cases, however, local authorities will need to provide full justifications for whatever their conclusions may be in response to whatever the parental representations may be. I hope that the noble Baroness will be reassured on thatbasis that we are with her in spirit, the guidance will deliver what she seeks to achieve and that she does not need to take the amendment further.

The new clause introduced by Amendment No. 67 would require a local authority to hold a competition for a new foundation, voluntary or foundation special school or academy if prescribed conditions about the standard of education and the extent of diversity in the authority were not met. Competitions are intended to be held where proposals for a new school need to be published. They could well include cases where pupil numbers are increasing, where there is a replacement required for a failing school or where schools are being reorganised in an area. However, it is for the local authority, as commissioner, to decide whether a new school is needed, or whether it might be preferable to reorganise in some other way, perhaps involving the addition of places at existing schools.

We also recognise that proposers might wish to come forward with proposals for new schools without waiting for the local authority to issue an invitation. We have therefore provided in Clause 10 for them to be able to do so with the consent of the Secretary of State.

I hope that these proposals, taken in the round, will satisfy the noble Baroness. They represent our extensive discussions on how we would take these provisions forward in another place. The balance is now right. In their role as champions of parents and quality assurers of provision in their local areas, local authorities must deploy a range of measures, not just to attract new schools—the issue raised by the noble Baroness—or to expand good schools, but also to assist and turn around weak schools and encourage ambition in coasting schools. We have a set of policies in place to encourage those outcomes, which needto be seen alongside the issue of competitions and parental representations.

I thank the Minister. I found his response to Amendment No. 21 extremely helpful, and will leave it at that. I fully accept his points and take them on board.

I want to think a bit more about AmendmentNo. 67, though, encouraged by the words “encourage ambition”. I see and understand the Minister’s proposals on a range of measures a local authority should take on board. A lot of this is about the proof of the pudding and leaving it in the hands of local authorities, in practice, to take on board the different considerations and types of measures they could put in place on competitions and proposals for new schools, as well as thinking about how to deal with existing schools through other measures.

I am somewhat appeased and placated by the Minister’s response, but will read with care what he has said in Hansard. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

Clause 3 agreed to.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.