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National Assembly for Wales (Legislative Competence) (Education and Training) Order 2008

rose to move, That the draft order laid before the House on 6 February be approved. The noble Baroness said: My Lords, this draft order, covering additional learning needs, represents the first use of the powers conferred on the National Assembly for Wales under Section 95 of the Government of Wales Act 2006. This enables the National Assembly for Wales to seek legislative competence from the UK Parliament to make a new category of legislation, Assembly measures. These measures will be scrutinised by the National Assembly, just as Parliament scrutinises Bills. The 2006 Act includes a number of safeguards to the interests of UK Government in conferring legislative competence on the National Assembly. For example, measures made by the National Assembly have effect only in Wales and only in respect of the scope of the competence conferred. They cannot remove or modify functions of Ministers of the Crown without the consent of the relevant Secretary of State. On 5 February, the National Assembly considered and agreed the draft order that is before this House and which, subject to the agreement of this House this afternoon and that of the other place next week, will give the Assembly the power to pass measures in the area of additional learning needs in Wales. The draft order will confer further legislative competence on the National Assembly in education and training, an area that has been largely devolved for many years. Welsh Ministers have 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 National Assembly also has legislative competence in many areas of education and training, conferred through framework powers in parliamentary Acts, as set out in Schedule 5 to the Government of Wales Act 2006, the latest version of which is attached to the Explanatory Memorandum that accompanies this draft order. Policy in this area of education has been developed in Wales on a collective, all-party basis; indeed, the draft order originated as a result of the report and recommendations of the National Assembly’s former cross-party Education, Lifelong Learning and Skills Committee. The draft order also reflects recommendations made by the Children’s Commissioner for Wales. The principle of different educational provision is already well established in law and in practice in Wales. This draft order will enable the Welsh Assembly Government to bring forward measures for special educational provision for children, young people and adults with additional learning needs. It is also important to acknowledge the opportunities that this draft order offers to cover all age groups for lifelong learning, so that adult learners in the community, adult, work-based, further education and higher education sectors may also benefit. The proposed order was considered by this House’s Constitution Committee, the Welsh Affairs Committee and a committee of the National Assembly for Wales. The scrutiny process has provided members of these committees and other interested parties, organisations and constituents with the opportunity to comment, question and suggest amendments. All the recommendations arising from the final reports of these committees have been carefully considered and the draft order laid before the House today reflects the outcome of that consideration. Under the devolution settlement, the National Assembly has responsibility for special educational needs provision in relation to education and training, but without the legislative powers for it to legislate to change fundamental aspects of provision in this area. At present, the National Assembly has no powers to legislate to strengthen the status of the code of practice for special educational needs in Wales to ensure compliance. The current SEN code of practice provides practical advice to LEAs, schools and other key stakeholders on how to carry out their statutory duties in this area. It is, however, considered to have only weak legal force, as LEAs only have to have regard to it. This contrasts with similar guidance for social services, where established law means that authorities are expected to comply with such guidance. There is also no statutory basis by which the National Assembly can consider making the current formal assessment of statementing less prescriptive. Although the Welsh Assembly Government have powers to make regulations about the operation of the statementing process, they are unable to make more fundamental changes to the structure of the statutory process, as this is enshrined in primary legislation. While it is too early to suggest in detail what changes might be necessary, this fundamental weakness was highlighted by the National Assembly’s former Education, Lifelong Learning and Skills Committee in its policy review of the statementing process. It called on the Welsh Assembly Government to seek the necessary powers to secure full legal competence for such statutory assessment arrangements. A further limitation on a statutory level is that the National Assembly currently has no power to alter the range of individuals with the right to appeal to the Special Educational Needs Tribunal for Wales, including the right of appeal for children with sufficient understanding to exercise that right, in addition to the right of appeal for parents and carers. The Children’s Commissioner for Wales strongly urged that the Welsh Assembly Government should consider providing a right of appeal for children. He saw this as being particularly consistent with the UN Convention on the Rights of the Child, which underpins all the Welsh Assembly Government’s policies for children and young people. At present the right of appeal is limited to parents and carers of children and young people whose cases have been before the tribunal. It is important that there is opportunity for public consideration of such issues and that widespread consultation with key stakeholders takes place. The granting of legislative competence on additional learning needs will enable the National Assembly to carry forward its policies and make a real difference to the lives of those Welsh learners, enabling them fully to participate in the many learning opportunities available within Wales. It will enable the Assembly to consider and scrutinise future legislation in this area and to tailor provision in line with Welsh needs. I commend the order to the House and I beg to move. Moved, That the draft order laid before the House on 6 February be approved. 11th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)