Explanatory Memorandum to the
draft National Assembly for Wales (Legislative Competence) (Education
and Training) Order 2008
1. The Explanatory Memorandum has been prepared by
the Wales Office and is laid before Parliament by Command of Her
Majesty.
2. Description
This instrument makes amendments to Schedule 5 to
the Government of Wales Act 2006 ("the Act"), which
sets out the subjects in relation to which the National Assembly
for Wales ("the Assembly") would be able to legislate
if it were given the power to pass Measures of the Assembly.
3. Matters of special interest to the Joint Committee
on Statutory Instruments
None
4. Legislative background
4.1 Section 95 of the Act empowers
Her Majesty, by Order in Council, to confer competence on the
National Assembly for Wales to legislate by Assembly Measure on
specified matters. These matters may be added to fields within
Schedule 5 to the Act. Assembly Measures may make any provision
which could be made by Act of Parliament (and therefore can modify
existing legislation and make new provision), in relation to matters,
subject to the limitations provided for in Part 3 of the Act.
4.2 Matters may be inserted into
the fields contained in Schedule 5 to the Act, by either an Act
of Parliament or an Order in Council, which has first been approved
by the Assembly and both Houses of Parliament. The latter route
enables the Assembly to initiate the process for conferral of
such competence, by seeking an Order in Council.
4.3 The draft Order would confer
further legislative competence on the National Assembly for Wales,
in the field of education and training (Field 5 within Schedule
5 to the 2006 Act). The text of Schedule 5 to the Government
of Wales Act 2006 as it stands at the time of laying this Explanatory
Memorandum is attached.[1]
5. Extent
Although the instrument extends to the whole of
the United Kingdom, its practical application is limited to Wales
as it amends provisions which will define the scope of the Assembly's
legislative competence.
6. European Convention on Human Rights
Huw Irranca-Davies, Parliamentary
Under Secretary of State for Wales, has made the following statement:
"In my view the provisions of The National Assembly
for Wales (Legislative Competence)(Education and Training) Order
2008 are compatible with the Convention rights."
7. Policy background
7.1 New legislative powers in
respect of the specified "Matter" will enable the Assembly
Government, Assembly Members and Assembly Committees to bring
forward coherent proposals for legislation, in the form of Measures,
which are based on Welsh priorities and timescales. These Measures
will be subject to thorough scrutiny and approval by the Assembly.
7.2 Education and training has
been a devolved subject area for many years and the Welsh Assembly
Government has wide ranging powers across the spectrum of education
and training, including in relation to schools, nursery schools,
universities, further and higher education institutions and special
educational needs. The Welsh Assembly Government also has a range
of primary legislative powers and there are also numerous secondary
legislative powers in these areas, which makes different provision
in relation to education and training in Wales. The Welsh Assembly
Government has used these to develop a distinctive approach tailored
to the particular circumstances of Wales.
7.3 The Welsh Assembly Government
set out in The Learning Country - Vision into Action, the
intention to 'promote inclusion in education and learning' and
to introduce 'an action plan in response to the recommendations
of the Education, Lifelong Learning and Skills Committee Review
of Special Educational Needs'.
7.4 The former National Assembly's
(constituted under the Government of Wales Act 1998) Education
and Lifelong Learning and Skills Committee review of Special Educational
Needs (SEN) provision in Wales concluded in March 2007 and examined
many of the fundamental elements of the existing system, especially
early identification and intervention, statutory assessment and
statementing, and transition.
7.5 The legislative competence
sought through this Order will enable implementation of key components
by Assembly Measure of the Welsh Assembly Government's Special
Educational Needs/Additional Learning Needs policy in Wales, including
matters dealt with in the former Education, Lifelong Learning
and Skills Committee review. The competence will also enable the
Welsh Assembly Government to bring forward measures for special
educational provision, for children, young people and adults with
additional learning needs. The principle of different educational
provision for such individuals is already well established in
law and practice in Wales.
7.8 The legislative competence
sought would also comply with other policy initiatives that impact
upon ways of working with pupils with additional learning needs
and to which the Welsh Assembly Government would wish to ensure
collaborative working.
7.9 The proposal for these powers
is also made in the context of the limitations to the current
settlement which restrict the Welsh Assembly Government in tackling
Welsh priorities and issues.
7.10 The main issues which have
been identified are:
a) there is no power to alter the
statutory threshold which activates a Local Education Authority's
formal SEN duties;
b) case law has established that
the Welsh Ministers' Code of Practice in relation to SEN has relatively
weak legal force because LEAs must merely "have regard"
to it. This means that, provided an authority gives an intelligible
good reason for departing from the Code, it may do so. Social
services guidance issued under s.7 of the Local Authority Social
Services Act 1970, for example, is much stronger in that case
law has established that authorities are expected to comply with
it;
c) the formal system of statementing
is highly prescriptive. Whilst there are Assembly powers to make
regulations about the operation of this process, these do not
permit it to make fundamental changes to the structure of the
statementing process;
d) there is no power to alter the
range of individuals with rights to appeal to the SEN Tribunal
for Wales. Accordingly, at present it cannot provide a right of
appeal for children (as opposed to parents and/or carers) even
if a child has the necessary capacity to bring an appeal. In relation
to children, this contrasts with, for example, the Children Act
1989 which, in a number of instances, gives children the right
to make applications to the courts;
e) the current system does not
allow for local dispute resolution mechanisms to be concluded
before proceeding to appeals to the Tribunal;
f) there is no statutory requirement
for LEAs to provide advocacy services for children with SEN. This
is in marked contrast to the position in relation to social services
for children in respect of whom the Children Act 1989 places an
express duty upon authorities to make advocacy arrangements. The
current powers do not permit similar provision to be made as regards
learners with SEN;
g) there is little scope for theWelsh
Assembly Government by regulations to confer additional specific
duties upon LEAs or anyone else in relation to SEN.
7.11 In this way, the current executive
powers of the Welsh Ministers are not sufficient to allow the
Welsh Assembly Government to tackle these issues.
8. Scope
8.1. Independent reports over recent
years and current work commissioned by the Welsh Assembly Government
indicate that changes are required to the existing statutory framework
for special educational needs (SEN). The Education Act 1996 sets
out the framework for the provision of SEN education. This places
duties on schools and Local Education Authorities (LEA) and sets
out prescriptive arrangements for statementing and appeals, and
enables the Assembly to issue a Code of Practice on the delivery
of SEN. The Welsh Ministers currently have few powers to make
changes to the statutory framework set out in the 1996 Act.
8.2 The draft Order will insert
a new Matter (Matter 5.17) under Field 5: education and training
in Schedule 5 to the Government of Wales Act 2006 to enable changes
to be made by way of Assembly Measure, in relation to any aspect
of the organisation and delivery of SEN in Wales. This legislative
competence would also enable an extension of the existing definition
of SEN to include additional educational needs and thereby impose
obligations upon public bodies in relation to that extended category
of learner and to implement any desired alteration in policy in
relation to the structure of the statementing process and the
provisions of the SEN Tribunal.
8.3. The principal purpose, therefore,
of this draft Order is to empower the Assembly to make Measures
under Part 3 of the 2006 Act that will give effect to whichever
recommendations or subsequent policy development are taken forward
in due course by the Welsh Ministers. The intention is to ensure
that Measures can be made across a wider range of areas connected
with the provision of education for children and adults whose
educational needs diverge from those upon which the mainstream
education system currently is focussed. The reform of current
provision about children's' special educational needs is an area
of priority for the Welsh Assembly Government.
9. Reports from Assembly and
Parliamentary Committees on the proposed Order
9.1. There were two main recommendations arising
from the Assembly Legislative Competence Order Scrutiny Committee
report. The first was that the definition of disability should
be amended to include the word "communication". The
Welsh Assembly Government takes the view that the words "physical
or mental impairment" would include a communication impairment
and that to insert a specific reference to communication impairment
could have the unintended consequence of casting doubt on the
generality of the current formulation. The Welsh Assembly Government
notes that the Welsh Affairs Committee has concluded that the
current formulation is sufficient.
9.2 The other main recommendation related to extending
the scope of Matter 5.10 to include travel provision to and from
higher education institutions. The Welsh Affairs Committee similarly
recommended that Matter 5.10 be amended so as to include the provision
for travel arrangements for those in higher education. As the
proposed Order was worded, any Assembly Measure dealing with persons
falling within Matter 5.17 could make provision, amongst other
things, for the travel of persons who are receiving primary, secondary
or further education or training by also engaging the enabling
power under Matter 5.10. Such a Measure could not have made provision
for the travel to and from higher education institutions.
9.3 Policy in respect of travel to higher education
institutions in Wales is dealt with by way of the Welsh Ministers'
wide ranging grant making powers provided by the Teaching and
Higher Education Act 1998 and it is not envisaged that this position
will change. However, the Welsh Assembly Government has accepted
the Committees' recommendations to the extent that a Measure could
make provision about the travel to and from higher education institutions
of persons described in new matter 5.17. A new Article 2 (2)
has therefore been inserted in the draft Order which extends the
scope of the Assembly's existing legislative competence in Matter
5.10 accordingly.
9.4 Following on from the recommendation in relation
to travel it was identified that the Assembly's legislative competence
under Matter 5.10 does not extend to children under the age of
two. This lacuna has been addressed by insertion of the reference
to nursery education in Article 2 (2).
9.5 The Welsh Affairs Committee also recommended
that the proposed Order be amended to refer to the World Health
Organisation's definition of disability from time to time, by
including a power for the Welsh Ministers to substitute some other
definition by statutory instrument should circumstances make that
desirable.
9.6 The Welsh Assembly Government has given careful
consideration to this recommendation. It has concluded that it
would not be appropriate for the Assembly's legislative competence
to be determined by reference to a definition that neither Parliament
nor the Assembly has any control over. The draft Order does not
now refer to persons who have a disability and so the need for
a definition of "disability" has been removed.
9.7 However the Welsh Assembly Government did identify
a different problem with the definition of "disability"
in the proposed LCO. The problem was that it covered those with
progressive health conditions but only if those persons also suffered
an identifiable impairment. This definition would not have covered
persons in the early stages of a progressive health condition
where their physical and mental characteristics or abilities were
not affected. That would not have been consistent with the definition
in the Disability Discrimination Act 1995 ("DDA 1995").
The DDA 1995 now provides that persons with cancer, HIV infection
and multiple sclerosis are disabled for the purposes of that Act.
These three conditions were inserted by amendment in the DDA
2005 because, whilst it was possible for people with these conditions
to be diagnosed without any adverse effects or symptoms, they
might be discriminated against immediately. Therefore the proposed
Order needed amendment so as to capture all the disability discrimination
jurisdiction of the SEN Tribunal for Wales. New paragraph (b)(ii)
in new matter 5.17 addresses the issue. However, paragraph (b)(ii)
goes wider than merely mirroring the provisions in the DDA 1995
because it will give the Assembly legislative competence to make
provision about those who have been diagnosed with a progressive
health condition even though there is no impairment and that competence
is not limited to only those who have cancer, HIV or multiple
sclerosis.
9.8 The House of Lords Constitution Committee published
a Report on the scrutiny of this proposed Order on 4 December
2007 but has not drawn particular attention to any aspect of the
proposed Order to which this draft LCO relates.[2]
10. Persons with a past disability
The proposed Order excluded persons who no longer
have a disability. This was not consistent with the definition
of disability in the Disability Discrimination Act 1995 which
applies not only to persons who have a disability but also to
persons who have had a disability. The draft Order now encompasses
persons who have had a physical or mental impairment and persons
who have had a progressive health condition. The amendment will
ensure that such persons are within the jurisdiction of the SEN
Tribunal for Wales and enable the Assembly to make provision by
Assembly Measure, to extend the scope of the SEN Tribunal for
Wales to consider claims of disability discrimination in admission
or exclusion decisions (relating to educational or training facilities)
under Chapter 1 of Part 4 of the DDA, from persons with past disabilities.
11. Constitutional issues
The House of Lords Constitution
Committee concluded on 23 October 2007 that no matters of constitutional
principle arise from the proposed Order.[3]
12 Geographical limits of any
Assembly Measure
12.1 . Section 93 of the Act imposes
a prohibition upon Assembly Measures having effect other than
in relation to Wales. It provides that a provision of an Assembly
Measure is not law in so far as it is outside the Assembly's legislative
competence. A provision is outside competence if it applies otherwise
than in relation to Wales or confers, imposes, modifies or removes
functions exercisable otherwise than in relation to Wales (or
gives power to do so). There are limited exceptions for certain
kinds of ancillary provision, for example provision appropriate
to make the provisions of the Measure effective, provision enabling
the provisions of the Measure to be enforced and to make consequential
amendments to other legislation.
12.2 The limitation relating to
functions other than in relation to Wales means that the Assembly
would not be able by Measure to confer on the Welsh Ministers,
Welsh local authorities or any other public authority functions
which did not relate to Wales.
13. Minister of the Crown functions
13.1 This draft Order in itself
does not seek to modify or remove any functions of a Minister
of the Crown. By virtue of Part 2 of Schedule 5 of the Act, the
Assembly may not by measure alter the functions of the Minister
of the Crown without the consent of the appropriate Secretary
of State. In relation to any future proposals that may impact
on Minister of the Crown functions the appropriate UK Government
Departments will be consulted and agreement sought to any future
proposals to change or modify those functions.
13.2 In respect of the SEN Tribunal
for Wales there are a number of Minister of Crown functions, which
are the responsibility of the Secretary of State, the Lord Chancellor
and to a minor extent the HM Treasury. In relation to the SEN
jurisdiction of the tribunal, these functions relate to the appointment
and removal of members and the President of the Tribunal, and
the number of individual tribunals that may exercise the jurisdiction
of the Tribunal. In relation to disability discrimination within
the area of the education jurisdiction of the Tribunal, Minister
of the Crown functions are more extensive and also encompass the
procedure of the Tribunal.
13.3 The UK Government has confirmed
that it is content with the scope of the draft Order.
14. Conclusion
For the reasons outlined above,
the Welsh Assembly Government proposes that the
legislative competence of the National
Assembly for Wales should be extended in
accordance with the provisions
of the draft Order to which this Explanatory Memorandum relates.
15. Impact
A Regulatory Impact Assessment has not been prepared
for this instrument as it has no impact on business, charities
or voluntary bodies.
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