My Lords, we now come to Part 3. I shall move Amendment 16A, and speak briefly in support of Amendment 34A in the name of the noble Baroness, Lady Howe.
In 1978, the noble Baroness, Lady Warnock, described inclusion, or integration, as it was known at that time, as,
“the central contemporary issue in special education”.
It has not lost much of its salience in the time that has elapsed since then. It refers to the opportunity, or even the right, for disabled children to be educated in mainstream schools alongside their non-disabled peers as an expression of their right to take their place in the community as fully equal members of that community. It is a right that many disabled people feel has been too long denied and which is accordingly all the more highly prized, especially by many parents so far as the education of their disabled children is concerned.
The right to inclusive education is contained in Article 24 of the UN Convention on the Rights of Persons with Disabilities, which the UK ratified in 2009. In relation to the right to education, states are also under an obligation to take measures to achieve the progressive realisation of the right. When the UK ratified the convention, it entered a reservation and interpretative declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of the progressive realisation of the right to inclusive education.
This amendment was recommended by the Joint Committee on Human Rights to place the principle of inclusion in the Bill among the general principles set out in Clause 19, in line with the rights contained in the UN convention and in terms which closely follow the language of the UK’s interpretive declaration.
In Grand Committee, the Minister outlined steps which the Government were taking to promote the principle of inclusion, which he considered made it unnecessary to amend Clause 19. He referred to duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to policies and practices. For the most part, however, the measures he referred to were what I might call “soft measures”, such as continuous professional development of staff and development of expertise in supporting children with SEN. He also relied on the fact that guidance on inclusion would be given in the SEN code of practice.
Why should one want to go further than this? There are six reasons. First, the code of practice, the latest draft of which was issued on 4 October, is very much watered down compared with the existing guidance. In particular, it contains many fewer of the sorts of examples and scenarios which help to bring the principle of inclusion to life for people who need guidance in how to implement it. We need something like the JCHR’s principle in the Bill as a necessary peg on which to hang stronger guidance. Secondly, the principle of inclusion continues to be the subject of considerable litigation. This suggests that the current state of the law and guidance leaves considerable scope for uncertainty. Putting the JCHR’s general principle in the Bill would help to remove this uncertainty and clarify the law and relevant guidance. Thirdly, the JCHR has recommended our amendment. Fourthly, it is in line with the obligations to which the UK has signed up under the UN convention. Fifthly, as I have said, the language of the amendment closely follows that of the UK’s own interpretive declaration, so should hardly be uncongenial to the Government.
Sixthly, there is otherwise nothing about inclusion in the Bill, notwithstanding that inclusion remains one of the central contemporary issues in special education, as I have said. The Minister will point out that Clauses 33 and 34 effectively contain rights to inclusion, but—and this is the most important point—these are rights to inclusion for the individual child. We need a general principle in the Bill in the terms of this amendment which gives local authorities an obligation to,
“continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children”.
We need an obligation of this sort in the Bill and one which lays the obligation on local authorities to take a strategic overview of the provision in their area and plan for its strategic development in line with the principles of inclusion, and in a way which enables that principle to be progressively realised. Without this, we continue to encounter the problem of children being rejected by individual schools which do not have the facilities—because the legislation is drawn in such a way that they can do that—because the authority
has failed to take a strategic overview and ensure that there are schools in their area which have the requisite facilities.
There is one general point. I see that people might worry that an amendment in these terms, which speaks of the progressive development of an inclusive system, with increasing access to mainstream schools, might tend to exclude the possibility of education in special schools for those who want it. That is not my intention at all. I am in favour of what I call a mixed economy of provision. There is nothing in this amendment which would take away the right of a parent to opt for a special-school placement if they want to. This is enshrined in the legislation. Under the law as it stands, which is retained in this Bill, no one can be compelled to send their child to a mainstream school who does not want to.
I will just say a word about Amendment 34A. My Amendment 16A covers the importance of developing an inclusive system in which disabled children and young people are increasingly welcomed by mainstream schools with the right skills to support them. The general presumption in favour of mainstream education is maintained in Clause 33. That is why it is disappointing that the potential for special academies to admit children with SEN without an education, health and care assessment and plan is included in Clause 34(9). The fact that academies are brought within the SEN framework by this Bill is very welcome, but the inclusion of Clause 34(9) seems oddly at variance with this approach. As I said at Grand Committee, this clause undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as the most appropriate placement, following a statutory assessment and decision-making process which takes full account of the wishes of the parent.
Draft regulations under Clause 34 allow a child or young person to be placed in a special school without an EHC assessment and plan on an indefinite basis, provided that the placement is reviewed termly. Some parents may welcome this power because of the potential to give swifter access to a special-school place. Without a full assessment and decision-making process, however, there is a high risk of inappropriate placement. This new power to place children in special schools outside the rigour of a statutory assessment and decision-making process risks a return to a time when parents could be pushed into accepting a special-school place for their child, not because it is the best placement for them but because the mainstream school had not, for whatever reason, provided the appropriate support. In fact, it would take us back to the situation which obtained before 1999.
I support the noble Baroness, Lady Howe, in proposing that this subsection be removed and, in so doing, I beg to move Amendment 16A.