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

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. 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.