I am grateful for the noble Countess’s question. I shall explain. On 24 October, the DPRRC published a subsequent report in response to the Government’s Amendments 210 and 211 which reaffirmed its recommendation that the code should be approved by affirmative procedure on the first occasion and whenever it is revised.
We are in complete agreement with noble Lords on the importance of the SEN code of practice, particularly to parents, and I understand why the supporters of this amendment want to maintain the current arrangements for approval. I would like to set out why
we do not think that this would be in the best interests of those who use the code, and why we think it vital that we keep the ultimate users of the code in mind during this debate.
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First, we want the new code to be kept up to date, in contrast to the current code which has not been changed since it was published in 2001. In our view, this is critical to its usefulness to those interacting with the SEN system. One of the main reasons why the current code is so out of date is because the affirmative procedure process applies to any revisions of the code. This requires time to be found for debates in both Houses, no matter how small the change.
To take a particular example, the Learning and Skills Council closed on 31 March 2010 and was replaced by the Skills Funding Agency and the Young People’s Learning Agency. However, three years later, the code still refers to the Learning and Skills Council, which could be extremely confusing to anyone looking to use this part of the code. To have changed the references to the Learning and Skills Council in the current code of practice to keep it up to date would have required the Secretary of State to lay a revised draft of the code before both Houses of Parliament and for parliamentary time to be found to enable both Houses to debate the changed references.
There are also examples where legislative changes have taken place and are not reflected in the code: the early years foundation stage came into force in 2008; the Academies Act 2010 imposed the same SEN obligations on academies as apply to local authority maintained schools; the Children, Schools and Families Act 2010 gave new rights to parents to appeal to the tribunal following the annual review of a statement; and the Equality Act 2010 imposed a duty on schools to make reasonable adjustments through providing auxiliary aids and services. None of these rights, duties and obligations is covered in the current code.
The Government believe in thorough parliamentary scrutiny. However, debates under the affirmative procedure would not have been able to change the legislation to which the revisions in the code referred. Any concerns noble Lords or Members in the other place had about the legislation itself would have been debated and, hopefully, noble Lords or Members would have been reassured as the relevant primary legislation was going through.
The current code has remained out of date, through different Administrations. There is not just one reason for this, but it is natural for those with the difficult task of finding time for parliamentary debates to hold off for now as there will probably need to be another change in six months, and so the code never gets revised. That, with the best will in the world, is exactly what I fear will happen if the new code has to be approved through the affirmative process.
In addition, in terms of procedure, there are other codes which are important to parents which do not go through these approval arrangements. To take one example, the admissions code, which is of great importance to parents seeking a school place for their child, is
approved by negative procedure, and there does not appear to be any difficulty with that. Codes in other areas, such as those under the Mental Capacity Act and the Equality Act, are also approved by negative procedure. We are not proposing that revised versions of the code after the first are approved by negative procedure just because other codes are, but I hope some comparisons to other similar documents are helpful and provide some reassurance.
I believe that the negative procedure would allow for small and uncontroversial changes to be made to the code, which are important to keeping it up to date, while still allowing Members of both Houses to call for a debate if they are concerned about proposed changes. I hope noble Lords are reassured that this is an appropriate balance.
Noble Lords have spoken about the consultation arrangements for the code. Clause 68(2) provides for the Secretary of State to carry out sensible and proper consultation on the code. When smaller changes to the code are made, the consultation will be focused on those who the changes affect. For example, if a change to early years provision is made, we would consult representatives of early years providers and parent groups with a particular interest in early years provision, rather than including further education providers and young people in the consultation about such a change. I hope noble Lords agree that this is proportionate and are reassured by Clause 68(2).
I hope my responses on these points have reassured noble Lords of the intention behind our Government’s amendments and of our understanding of the importance noble Lords rightly place on the code and its approvals process. I therefore ask the noble Lord to withdraw his amendment.