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Other than that, I have little criticism. We believe that the definition of disability should be clearly linked to that of the WHO.
Lord Livsey of Talgarth: My Lords, we welcome this order. As a matter of historical significance, it is the first legislative competence order to go through the National Assembly and we welcome that from these Benches. The focus is of course on special educational needs. I want to raise two issues. The first, as the noble Lord, Lord Glentoran, said, involves the definition of disability and the second concerns transport, particularly to places of higher education.
The chairman of the Assembly Committee on SEN—this involves legislative competence in particular—is concerned about the definition of the word “communication”. The opportunity has been missed to define it more clearly. The provisions focus on the word “communication”, which, I discovered from reading some of the speeches made in the Assembly when it was considering the LCO, is the subject of some controversy.
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The Assembly had a function of scrutiny, which it carried out, and it focused on the definition of disability. As the noble Lord, Lord Glentoran, said, there are different views on the word “communication” and whether it should be included in the order. The Welsh Assembly Government assume that the phrase “physical or mental impairment” automatically includes a communication impairment, but the National Assembly for Wales committee disagrees. The Welsh Assembly Government and the Welsh Affairs Committee of the other place think that the wording in the order is sufficient.
The Assembly was lobbied by a number of organisations. I have no doubt that they want to live in a perfect world and cannot always get what they want. I refer to the views of the Royal College of Speech and Language Therapy on the order. It states:
“We have been disappointed that the Welsh Assembly Government did not include communication impairment in the LCO as recommended by the Assembly Committee ... Communication impairment is a difficulty in decoding or understanding what has been said and a difficulty in expressing oneself through the spoken word, for example a word finding difficulty, a chronic form of the ‘tip of the tongue’ sensation we have all occasionally experienced, which can go unrecognised and unsupported. Everyone has heard of dyslexia, ‘word blindness’ for the written word ... Few have heard of dysphasia, ‘word blindness’ for the spoken word”.
The royal college makes the point that two or three children in every classroom have communication impairment and 6 per cent of the population as a whole has communication impairment. It states:
at present. It states that there are means to improve the situation for those people, but that:
“Children using alternative means of communication such as sign language do not have the right to ask their school for help to let them use their special form of communication”.
It then mentions the whole problem of and their difficulties in communicating. It also makes the fascinating point that 70 per cent of people in prison have those sorts of problems. That means that we are talking about something extremely important.
I want to make one or two other points, which relate to paragraph 12 of the explanatory document—I thank the Minister for providing all these documents. That refers to a geographical limit to Assembly measures. It imposes a prohibition on Assembly measures having effect other than in relation to Wales. I agree totally with that as a matter of principle. However, in practice, there are some difficulties. Some children from Wales with special educational needs have either to attend or reside in establishments in England. I cite my experience as a Member of Parliament for a constituency, Brecon and Radnorshire, which has a very long border with England. This is a cross-border issue, in fact. We had a big problem in Shropshire with children from Powys going there and the same standards not being applied in Shropshire as they were in Wales. I would like the Minister to comment on a situation where a child, though normally resident in Wales, is not able to receive the good treatment and instruction included in this order because they are in an establishment in England.
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I am certainly not satisfied with how far the settlement for devolution in Wales has gone so far, in that it is a hybrid. As a Member of Parliament, one could approach the organisations and the local authorities, in Shropshire for example, and communicate the problem. I note that in the order Assembly Members are not allowed to do that. In fact, the Assembly Members have responsibilities for SEN, so there is a problem, which I would appreciate the noble Baroness commenting on.
Baroness Finlay of Llandaff: My Lords, I rise to strike a slightly more optimistic note than that already struck. I would like to celebrate today because this is the first such order to come before us since we took the legislation through to allow this. In my view, the scrutiny process has worked well; it is consistent with recognising the unique needs of people in Wales and it extends the competence of the National Assembly for Wales to meet those needs. It seems eminently sensible that the provision for those with special educational needs can be appropriately addressed, as recommended by the review of the committee in the National Assembly for Wales.
The order will ensure that those with special educational needs are protected from discrimination, and it also gives a right of appeal. It will remove the anomaly of the wriggle room that educational authorities have had, which has been confirmed in case law, to get out of spending on those with special educational needs.
I turn briefly turn to the scrutiny process. My view is that it has proven its worth. The Welsh Affairs Committee’s recommendations on the draft Order in Council, on the provision of travel arrangements for those in higher education and the extension of that to cover those under-twos in nursery, have been incorporated. That process revealed the further problem of the Disability Discrimination Act 1995. Therefore, it has also resulted in modification of the legislative council order to allow provision for those diagnosed with a progressive health condition, such as a brain tumour, before the disability is manifest, rather than them having to wait until it is manifest and then be assessed. By that time, their disability has usually progressed further, and they are always playing catch up in relation to their needs.
The iterative process has worked well, too. Not all the recommendations from the Welsh Affairs Committee have been taken up. As the noble Lord, Lord Glentoran, said, the committee recommended that the WHO definition of disability should be used in the order, but that definition is very broad and neither Parliament nor the National Assembly for Wales have any control over it, so it becomes a catch-all.
The problem is that there is no specific definition for the types of disability that the Assembly may need to pass legislation for. Disability and need vary widely across the whole group, which is extremely heterogeneous. No specific definition is included in the order; that seemed to be the right decision because it leaves the National Assembly for Wales with some leeway and flexibility for the different situations that will arise.
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The other recommendation from the committee related to the problem of communication, which was referred to by the noble Lord, Lord Livsey of Talgarth. The Welsh Assembly Government have taken the view that the words “physical or mental impairment” are in fact a catch-all. Those terms will include communication. I agree with that decision, and I will explain briefly to the House why I think it is helpful to have it as a broad catch-all.
Conditions such as dysphasia are due to a problem with central processing. We do not yet have very sophisticated imaging techniques to use widely on everyone presenting with word blindness, but I think that we will before too long. My guess is that we will find that within the speech area of the brain there is altered physical processing and that the physiology is not working as well as it should for one reason or another. Speech therapy can retrain the plastic brain—there is plasticity in neurones—to reform connections and to develop and find compensatory ways around a problem. That term “physical” would encompass it. Similarly, deafness is “physical”. You might want to say that because the dysphasia is in the central brain it would come under the catch-all phrase “mental”. I even have a concern about trying to separate “physical” and “mental” too widely, because I think that it is just that the science has not advanced enough for us to identify the physical component of the condition that manifests itself as a mental disorder.
As communication is absolutely key to all issues around consent in society, it is important that anything at all that impairs the ability to take in, process and weigh up information is considered, as well as anything that impairs the ability of a person to simply communicate. That is why it is helpful to have the much broader framework and not to separate it out as a separate class under the name of “communication”.
I hope that other noble Lords will join me in celebrating that a process—namely, the Orders in Council procedure—that we set up, and about which many were sceptical, has indeed been shown to produce an order that should be fit for purpose for Wales.
Lord Jones: My Lords, the face of this statutory instrument in itself is Welsh history of a kind. It is wordy, but it is historic, and it is a first. It is a development arising from the context of the 2006 Westminster legislation that required London and Cardiff to work closely together and to trust each other. In itself, it is a straightforward order; it is bespoke and it is in coherent terminology. Of course, it is not law-making as such, but it grants a competence, and it is for the Welsh Assembly Government and the Assembly to make law and, in this instance, for local education authorities to implement it. That is the pathway, and it is full of good intent. It certainly demonstrates the collaborative capacity of Whitehall, Westminster, the Welsh Assembly Government and the Welsh Assembly to work together. Surely, it augurs well for the future.
I rather think that an order entitled “Constitutional Law Devolution, Wales” is pointing to considerable future increases in the constitutional
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Devolution in Wales and in Britain is getting more substantial by the day. I heard Professor Anthony King say the same in these buildings yesterday. Parliamentary power is being devolved across all of Britain. In the debating Chamber of your Lordships’ House one may consider where it might it lead and where it will end. Certainly, devolved Government in Wales is here to stay—it will not go backwards.
One recollects the difficulties encountered in the first referendum in 1979, which was lost. The noble Lord, Lord Roberts of Conwy, who is in his place, probably knows every nook and cranny of Welsh legislation for a whole generation. He was on the winning side then and I was on the losing side. The second referendum was secured by the narrowest of margins in the late hours, and it was the traditional narrow swing.
I support the principal purpose of the order. It surely presages the much-needed reform of children’s special educational needs in Wales. Our Minister in Cardiff, Jane Hutt, has a commitment to those with such needs and she is conscientious in her approach. All of us in public life know that our schools are under unique pressure to deliver on standards and targets. There have been advances but still the child with special educational needs in Wales—and elsewhere—often loses out. I dare say that none of us here can adequately imagine or quantify the miseries of the parents of such children; they will always worry. The Assembly is clearly determined to act.
I hope that the good intentions of this order are transmitted into practical advantages for every Welsh child with special educational needs. The Explanatory Memorandum, which is helpful, certainly gives that impression.
Finally, as the years pass, I expect the Welsh Assembly to accrue stronger powers. I do think it is fanciful to envisage genuine law-making powers in Cardiff within a decade. I am far from being sure whether the Mother of Parliaments foresaw that prospect, but here we are. The daily lives of the Welsh people are increasingly decided by the Welsh Assembly; I refer, for example, to the fields of housing, education and training, health and transportation. I cannot be sure what that means for Members of another place. I dare say that they have considered carefully the legislation. One thing is certain: the order certainly aims to do good.
Lord Roberts of Conwy: My Lords, I, too, have been mainly interested in the process and passage of this first order under Part 3 of the Government of Wales Act 2006, which will enable the National Assembly to legislate and pass Assembly Measures relating to specific aspects of education and training. Like the noble Baroness, Lady Finlay of Llandaff, I think we have reason to be pleased with the pioneering procedure that has been followed, and I trust that equal care and diligence will be taken with similar orders that come before us in future.
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This historic first order, although the substance is important in its educational and disability context, arose from legislative shortcomings found by the Assembly in the course of an in-depth examination of special educational needs. The subject matter was selected not, I am glad to say, for political or media impact but by policy considerations, and I commend the promoters for their integrity and restraint. Neither does the choice of subject suggest that there is an overwhelming demand in the Assembly and in Wales for a major programme—a veritable flood of legislation that can be met only by a referendum bringing Part 4 of the Act into operation and by full legislative powers for the Assembly. However, that may be a mistaken impression. I am told that there are more orders like this one on the way.
The order was subject to rigorous and effective scrutiny not only by the Assembly committee that dealt with it but by the Welsh Affairs Committee in the other place and by our own Constitution Committee. All this is admirably summarised in the very adequate documentation accompanying the presentation of the order. Of course, it all took time. The first draft was laid before the Assembly committee on 12 June last year, and I am sure that it will be June this year, at the earliest, before we have an Assembly measure to achieve the order’s objectives. Perhaps the Minister will assist us on the timing.
The question of the precise nature of the Assembly measure to be presented haunted the minds of some of the participants, notably Alun Cairns of the Conservatives and Janet Ryder of Plaid Cymru, in the Assembly’s hour-long debate on the order on 5 February. We too have asked similar questions about the propriety of giving legislative competence without knowing precisely what it will be used for. It is clear that the more detailed knowledge we have of proposed measures, the easier the passage of orders allowing them will be. However, what impressed me about the Assembly debate was the appreciation of the Minister, Jane Hutt, of the value of the process of examining the order as, “our opportunity”—that is, the Assembly’s opportunity—
Jane Hutt paid tribute to Eleanor Burnham, who chaired the first scrutiny committee, and described it and her collaboration with the Welsh Affairs Committee in further scrutiny as “a steep learning curve”.
The good quality of the Assembly debate on the order was very reassuring. I do not propose to deal with the points of difference that arose in the course of scrutiny, except to say that they were sensibly and fairly dealt with. I happen to agree with the conclusions, and I am glad that the noble Baroness, Lady Finlay, agrees with me. Others who participated in the ensuing arguments may take a more controversial view when the order is considered in the other place.
I conclude with the request to Ministers at all levels to consider carefully the experience gained in the passage of this first order, to learn whatever lessons
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Lord Rowlands: My Lords, like the noble Baroness, Lady Finlay, I come to praise this order. I do so because it meets the criteria that emerged from the exhaustive discussions we had on the Government of Wales Bill about how to assess or judge an order. Three elements emerged from those discussions—three criteria to test whether we should—or should not—approve an order. The first is whether there is proper justification for seeking such competence. It has been shown that there is overwhelming justification in this case; it derives from an excellent, painstaking and very sensitive review by the Education, Lifelong Learning and Skills Committee into this difficult, and in many cases distressing, area of special needs. Anyone who has had constituency cases—and many here like myself have had such experiences over 30 years or more—will know what angst and anguish is caused in the desperate search to find what is best for a child, for parents and for the local authority. There is the question of state-maintained schools and mainstream schools versus special schools and the issue of rights and tribunals. The painstaking and excellent work of that Education, Lifelong Learning and Skills Committee review, as summarised in paragraph 7.10 of the Explanatory Memorandum, perfectly justifies the extension of legislative competence into this field. So the first criterion has been qualified and very clearly justified in the best possible way.
The second criterion we agreed during the course of the Government of Wales Bill was that we should not be presented with wide, sweeping orders seeking competence in education—for example, the whole of secondary education or further education. The type of competence sought should be specific and clearly defined so as not to be a back-door method of acquiring legislative competence in the broad sense. This order meets that criterion. Besides the issue of disability, it is very specific and well defined in as much as it is confined to the issue of competence in relation to special needs. Therefore, it passes the second test. The accumulative capacity of the Assembly to legislate in education is pretty formidable. Given the statutory instruments, statutory legislation and framework powers from various Bills, plus this new legislative competence—and that which is in the pipeline on learning and skills—I would be interested to know from my noble friend what in legislative terms does not come under the competence of the Assembly in the field of education and learning.
The third criterion—I remember it being a fundamental issue for many of us—is that we do not want to be presented with these orders without proper prior legislative scrutiny. That scrutiny should be carried out primarily by the Assembly and the Welsh Affairs Select Committee, although this House would have a role of one kind or another. The process by which this order has arrived here is proof that that criterion has been well and truly met. The noble Baroness, Lady Finlay, was rightly impressed by the work of both the Assembly committee
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Finally, I am a member of the Constitution Committee of this House. It decided that it would accept responsibility for a 12-month experimental period to look at these orders. We intend to use this period purely to decide whether an order is constitutional rather than to look at the content.
Defining the term “disability” seems to be the only issue to cause a measure of dissent. I find the Welsh Assembly Government’s case, in paragraph 9.6 of the Explanatory Memorandum, for not accepting a WHO definition quite convincing. It states:
“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”.
As a passionate supporter of parliamentary sovereignty, I support that sentiment.
Lord Anderson of Swansea: My Lords, I can be brief, as the points that I proposed to make have been made already, particularly in relation to the way in which this order meets the three criteria set out by my noble friend Lord Rowlands. I am happy to join other noble Lords in the celebration. I think that I shall join the noble Baroness, Lady Finlay of Llandaff, at the party she talked about. It was good to have her considerable medical experience applied to this order.
I welcome the order, but I particularly welcome the process. It is clear that the process in respect of this order has been enormously painstaking and lengthy, as the noble Lord, Lord Roberts, said. Perhaps one should not expect quite such a painstaking series of hurdles in future. In Wales, I suspect that there was always a temptation to be different for its own sake. Clearly, many special educational needs will be the same on both sides of the border. But the joy of the Assembly is that it has been able to experiment and, in a pioneering way, has lighted the path for others, such as with the Children’s Commissioner; it is good that he supports this.
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