Official Report: Minutes of Evidence

The Chairperson (Mr Weir): I welcome from the Equality Commission Michael Wardlow, the chief commissioner, and Roisin Mallon, a senior policy manager. From the Human Rights Commission, I welcome Les Allamby, the chief commissioner, David Russell, the deputy director, and Colin Caughey, a policy worker. I ask you to make a short presentation — a maximum of 15 or 20 minutes — and then we will put some questions to you.

Dr Michael Wardlow (Equality Commission for Northern Ireland): Thank you very much for the opportunity to follow up our written submissions with oral evidence. Les and I will each speak for seven or eight minutes. Allow me to introduce my colleague, Roisin. Les will lead, and maybe he will introduce his colleagues before he starts.

Mr Les Allamby (Northern Ireland Human Rights Commission): Good morning. David Russell is the deputy director, and Colin Caughey is a policy officer.

First, the commission welcomes the Bill. It enhances the provisions in the Education (Northern Ireland) Order 1996 and the Special Educational Needs and Disability (Northern Ireland) Order 2005. The Bill's provisions are progressive, and our concerns should be read in that overall context. We broadly welcome the Bill. The Bill is important because the Department has set out and acknowledged the widespread evidence that identifying, assessing and meeting a child's special educational needs as early as possible leads to better educational outcomes and life chances. That is the important backdrop.

I want to go through four key issues, and I will do so in the order in which they appear in the Bill. The first is the duty in clause 1 to have regard to the views of the child. This is a step forward, but we think that an even greater step could have been made in a way that was completely compatible with the UN Convention on the Rights of the Child (UNCRC). In effect, clause 1 is hedged with the caution of "so far as reasonably practicable". That compares with the UN convention article 12 right — the right to be heard — which provides:

Our concern, in a nutshell, is how "reasonably practicable" might be interpreted in practice.

It is axiomatic that, if it is not possible to ascertain the view of the child because, for example, of capacity issues or if it is manifestly disproportionate, you do not need "so far as reasonably practicable" in the legislation. It would be clear that you had done all that you could, and it would, in my view, be in accordance with article 12. Where the problem lies is that that qualification can become code for "If there are administrative, economic or social inconveniences, that allows us not to take on properly our responsibility to make sure that the child is heard". That is particularly important for children who are, for example, in a marginalised group because of their disability or children in care.

A number of the issues here become important because, in the case of a child in care, you do not seek to hear only about the child and his or her parents, whose views may be in tune; you are looking at who has the parental/local authority. That becomes more complex. The views of a child are particularly important, and we do not think that the duty should be hedged with "so far as reasonably practicable". For us, the final backdrop to that is the convention committee's general comment number 12:

The child's voice is pivotal as part of an overall consideration of a child or young person's needs.

The second area I want to canvass briefly is clause 2, "Duty of Authority to publish plans relating to its arrangements for special educational provision". It seems to me that clause 2 is a cornerstone for the overall provision, given that the plan must set out the resources, the advisory and support services and the training that the authority proposes to make available to discharge its special education functions. Much of this legislation is the framework, and it is about what flows from that. The plan is critical to the level of services provided and how they are provided.

The right to education in the International Covenant on Economic, Social and Cultural Rights (ICESCA) is subject to progressive realisation. We are on a journey to the right to education, but it is also subject to the concept of non-retrogression, in human rights language, or no backsliding, in perhaps more common parlance. There is a useful benchmark from the Office of the High Commissioner for Human Rights, which sets out a litmus test. It was set out in the context of the right to education and other rights within ICESCA:

If any retrogressive measures are taken, the state party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the covenant and in the context of the full use of the state party's maximum available resources. We think that that is not a bad benchmark for saying to the Department, "This is good legislation, but your plan and the resources must be commensurate with the laudable aims in the primary legislation". I say that with full cognisance of the current climate that we are in. If this is to work and be meaningful, the resources must follow the very laudable aims.

Article 7 of the UN Convention on the Rights of Persons with Disabilities has a requirement that:

and that "effective individualised support" should:

We welcome the fact that there are tailored individual assessments, but the resources must be provided to make the needs identified a reality in practice.

The third area I want to canvass briefly is the rights of appeal in clause 9. The new right of appeal to the Special Educational Needs and Disability Tribunal is welcome. It applies when an annual review of a statement leads to no change and that is disputed by families. The new arrangements for children under two, if they are not provided with a statement in circumstances where families think that a statement should be provided, are also welcome. The issue that we want to look at is this: in line with the general statement of the UN Convention on the Rights of the Child, the child's view should be sought wherever possible, and the onus should be on the education authority to make sure that it cannot be done, rather than on the young person having to decide that it can.

We welcome the fact that a child over compulsory school age will be given rights in their own name, alongside recognition that, if that young person lacks capacity, there is still the provision for a parent to provide the application.

Making all those rights real is being dealt with in regulations. It is important that the Committee see how all the pieces of the jigsaw fit together and get the whole picture. To do that, you have to be able to have effective and meaningful scrutiny of the regulations so that you see the potential overall impact. Therefore, the regulations for this part of the Bill should be subject to affirmative resolution rather than negative resolution, under which you, effectively, pass all the regulations or none. If, for example, you see that, hypothetically, regulations 3 and 6 could be more effectively drafted, there is nothing you can do about it because changing them means that the other regulations that you are perfectly comfortable with have to fall as well.

The Chairperson (Mr Weir): Procedurally, that is not how the regulations would come.

Mr Allamby: If that is the case, we would welcome it. We felt that the appropriate standard was that, if the regulations go to the substantive part of the primary legislation, they should be subject to affirmative resolution. If that is what will happen, we welcome that.

Clauses 11 and 12 deal with appeals and claims by children: the pilot schemes and the follow-up provision. The pilot scheme provides for a child under compulsory school age to be able to appeal, including issues such as the right not to make a statement, the contents of the statement or the refusal to arrange an assessment of educational needs. That is a positive commitment, and we think that it is important. I know, for example, that, in complaints and ombudsman procedures for educational issues, you talk to the parents about the interests of the child and what the parents want, and then you talk to the child. The two are not always in tune, so giving the child a right in his or her own name is important in these circumstances.

We part company, I am afraid, with the Department on the timescale. The UN Committee on the Rights of the Child, in its concluding observations in 2008, commented on such arrangements. I am a patient individual, but it has taken seven years to get to this stage. Frankly, an arrangement that says, "This will be done within 10 years and will take at least two years to do", means that someone born in 2008 will, potentially, have reached compulsory school age by the time the pilot has been done and all of this has been dealt with.

There was a pilot in England and Wales, so how much can we learn in Northern Ireland that will be very different? I accept that there is a case for a separate pilot, but I cannot see the case for giving yourself 10 years to do this. It seems to be caution in the extreme. Therefore, we ask the Committee, at the very least, to ask the Department to set out its plans in a timetable and emphasise that, if it is to run a pilot scheme, it should do so sooner rather than later. Perhaps, you could ask the Department what learning it thinks will come from the England and Wales scheme and what will be different about what we might learn from one in Northern Ireland.

Separately from the legislation, the Department is committed to developing a revised statutory code of practice for special educational needs that will be subject to consultation. It intends to cover a number of important issues. It includes the centrality of the child, the important UNCRC issue, personal learning plans, early years arrangements, learning support coordinator training and the new three levels of support and how they will work in practice. It is also likely to say something about the changes that will be made to the statutory dispute resolution — the alternative dispute resolution.

Finally, the Department has committed to look at the powers of professionals and how schools work with parents, children and other professionals who work in schools, including, for example, the healthcare sector. Those are all quite significant and substantive issues in the code of practice. It would be useful for the Committee to make sure that the code of practice is seen here because a lot of it will be important in complementing this legislation.

We are happy to take questions on that and other issues once Michael has finished.

The Chairperson (Mr Weir): We will hear from Michael first.

Dr Wardlow: Thank you, Chair. The usefulness of co-presenting today is that it is as though you are looking through a pair of glasses with a dual lens: one of equality and one of human rights. On some issues there is a Venn intersection — there are some things that you would expect us to say in common, so I will not labour any of those — but I will try to give you an audit from the inequalities perspective.

"Special educational needs" under the 1996 Order is defined as:

Therefore, maybe not unsurprisingly, one child in five in Northern Ireland — in fact, more than one child in five: 22% — is designated SEN. When it gets down to action on that, the number who have statements is 16,000 or about 5%. That has grown from about 11,000 less than 10 years ago, so something is going on. There are more statements and more children presenting with special educational needs. However, this is not a new issue. We trailed this way back in 2007, when we talked about ongoing inequalities. These are fault lines, and the danger of building education on fault lines is that, if you do not address fault lines, they will continue to give seismic shifts.

I welcome the opportunity to say that there is some good stuff here. Today, we are addressing the primary legislation. We realise that the secondary legislation — the regulations and code of practice — are yet to come, and Les referred to those. We want to make sure that those are investigated and interrogated with the same rigour. The high-level aspirations are laudable and all very well, but it boils down to "What now?". Sometimes, austerity is seen as cutting money, whereas it means doing the best that you can with the money you have and prioritising.

There are enduring key inequalities. For example, students who present with SEN or disability have lower levels of attainment than students who do not. In Northern Ireland, about 65% of pupils get good A levels. The figure for young people who have special educational needs or a disability is 30%. In GCSEs, excluding English and maths, it is 77% versus 51%. Importantly for me, however, is that when the good GCSEs of English and maths are added in, 62% of Northern Ireland plc's young people get good GCSEs versus 33%of those who present with SEN or disability. Interestingly, females still outperform males within those with special educational needs, particularly at A level: 70% to 55%. The same underachievement by boys goes on here too, not surprisingly.

Students with special educational needs are more likely to be bullied at school. They are less likely to go on to further and higher education and, surprisingly — maybe not — are less likely to be represented in medicine, dentistry and allied subjects. When you think of how the day for a doctor, nurse or dentist is pressured, you can understand why people do not have those career choices. However, it is interesting that you do not find many SEN people there.

Those who self-report disability are less likely to move into employment, and there are differentials in the protection. Once you move into further and higher education, those with disabilities are better protected than children at school. There is a range of differentials, but some of the barriers are societal; in other words, people are disabled by society. Some are disabled by the providers of services, and for some, of course, the barriers are those that the young people and their families live with. We know about the delays in assessment and statements. There is inefficient provision or a postcode lottery, as it was referred to in a previous presentation. There is a lack of funding and, sometimes, low expectations and saying, "I am not going to achieve". There is also a lack of appropriate support. Those are all things that you have heard here. If you were to hear from parents who have children living with these disabilities and special needs, they would tell you that.

Another issue is the conflation of special educational need and disability. Not everyone with a disability has a special educational need, and not everyone with a special educational need is disabled. The danger is that we somehow bring them together and conflate them. We need to recognise that statements mean statutory responsibility and empowerment for the children who have them. However, the bulk of kids with SEN do not have statements, and, therefore, we are not quite as clear on what the responsibilities are for Health and Education to deal with them. We deal well with statemented young people, but what are we doing about those who do not have statements but still live with special and educational needs? Rurality is another issue: we need to be careful that young people are not dealt with depending on where they live.

As Les said, we welcome the child-centred nature of the primary legislation: UNCRC article 12 and the rights of the child with a disability under articles 3 and 7.

It is really important that they stay front and centre. It remains to be seen what they will look like in the regulations and code or practice when they are delivered.

The personal learning plan is great, as is the designation of a teacher for support and learning. We also welcome the fact that young people who attain the age of 16 have the right, when age-appropriate and in keeping with their intelligence level, to ask for a statutory assessment and to bring a complaint in connection with disability discrimination. That is to be applauded, as are the proposals for the pilot. I am with Les on the time frame, and we have other concerns. I am fully cognisant — I am reminded of Donald Rumsfeld's "known unknowns" and "unknown unknowns" — that I may be told by colleagues in the Department of Education (DE) that these matters will be dealt with in the code of practice and the regulations. Well, let us mark them down and check that they will be dealt with there. It is all very well saying "child-centred", but how much will young people at an age-appropriate level be able to get involved practically in their learning, and how much will parents be able to get involved? Some schools are more welcoming of parental and young people's involvement than others, and there are some really good models of good practice.

It is unclear at the minute where the review stages will be in SEN. I know young people who are going through this, and the transitions from primary to big school, 14 to 16 and 16 to 19 are key. It is not uncommon for parents of children aged 18 still to be unsure in April where their child will go in June or September. This is across the piece, although it is not always the same. Transition will be key to how this works, which raises the issue of the interface between the Department for Employment and Learning (DEL), the Department of Health and DE. I know that the aspiration is for joined-up working, and our submission raises the possibility of putting a duty on the Department of Health and allied bodies, as well as on the Education Authority.

There are issues for us with the retention of statements and tribunal access. At the minute, the decisions of tribunals are not published. People cannot know what has gone before, so they cannot look at precedents. We recommend, therefore, access to that desegregated data and to tribunal decisions, so that people know when they go in what has gone before and do not have to make their argument again.

We think that a very clear monitoring and evaluation process should be put in place. It is a question of valuing what you measure or measuring what you value. It should, I think, be the latter. We are very good at doing the former. When we know what success looks like, we need to build that in and try to make sure that we monitor efficiently the whole way through.

We recommend that the code of practice be SMART, to use the jargon. We want to make sure that it includes time frames. We welcome, for example, mediation or alternative dispute resolution. We are not sure whether some people may be put off. I know that it is not obligatory, but, if you end up in a tribunal, will someone take out a bit of paper saying, "We note that you did not take up mediation"? There are imponderables and unknowns there.

We have had an ongoing engagement with our colleagues in the Department about additional areas of law reform that we think necessary. These are areas in which there is a dissonance between here and GB, specifically the requirement for schools to provide access to aids and services for children with disabilities, and where those special needs cases could be heard. It is perfectly possible that there is provision for a child with special educational needs, but when he or she needs access to additional aids and services, there is not a statutory responsibility to provide them. That does not seem reasonable.

There is another range of issues that we have asked to be taken into consideration at the same time. We realise that there are financial constraints, but it comes back to measuring what you value or valuing what you measure. If you would like, and if time is available, Roisin will share a very simple case study on these additional issues. They are not necessarily what you are focused on today, but, once again, we ask this question: why not take the opportunity to bring this together so that children and young people with multiple identities — not simply SEN but life-limiting conditions in some cases — have statutory access to those provisions?

The Chairperson (Mr Weir): Thank you, Les and Michael. You have made a number of points, some of which are common themes that have been raised before. At the end of the session, I will come back to an issue that I think everybody has raised at the Committee: the interaction between the primary legislation and the regulations and code of practice.

I want to tease out a couple of issues. First, both submissions refer to the need for a redress mechanism. Specifically, the Equality Commission submission mentions where the health element of a statement is not met. The Human Rights Commission submission refers to a lack of support for the SEN statement. Do you have any feelings on what the level of uptake of those redress mechanisms might be and what the costs and benefits would be if those were built in?

Dr Wardlow: I am not sure that a costing has been done. Roisin, do you want to pick up on our specific response on redress?

Mrs Roisin Mallon (Equality Commission for Northern Ireland): You mentioned a greater duty on health. We asked that consideration be given to a stronger duty on health providers to meet the needs of children —

The Chairperson (Mr Weir): At this stage, we are just receiving evidence, but a number of witnesses have suggested including in the legislation a statutory duty of cooperation between Health and Education. Sorry, I interrupted you.

Mrs Mallon: We pointed out what has been happening in Great Britain. There could be parallels, but you also have to look at individual differences between the two jurisdictions, so we ask only that consideration be given. I understand that, under the Children and Families Act 2014 in Great Britain, there is a stronger duty on health commissioning services to provide support and health provision for children with SEN, and we ask simply whether it is appropriate to match that in Northern Ireland. Whether that is a suitable duty to place in this legislation is more a question for the Department.

Dr Wardlow: We have said consistently that there are a number of areas in which we have fallen behind Great Britain because of the Equality Act 2010. Disability is one big area, and this is a smaller issue of disability. The Malcolm judgement, and much more besides, shows that people with disability have fewer protections here, and, for children and children and young people, it is exactly the same. Some issues are predicated on that bigger issue on which we have fallen behind, but, in the Bill specifically, we think that there could be redress. As it stands, DEL comes in at age 16 and the Department of Health at age 18 or 19. DE hands over, and it is all about budgets and everything else. There is too much confusion for parents trying to find their way through. It is about mapping that and making the levels of responsibility clear.

The Chairperson (Mr Weir): Les, do you wish to comment on that issue?

Mr Allamby: I have three quick things to say in reply. First, the statutory duty of cooperation would be extremely welcome. An old area of mine is tribunals. I am pretty confident that I have not had sight of anything that has ever been done to look at the alternative dispute resolution mechanism and how it works in practice. I would support it as a way of reducing the number of cases that have to go to tribunal. My concern is that I have never seen a survey of those who have used it, so I do not have a feel for how it works. I do not think that I have ever seen any material on how it operates in practice and how much it gives to people. It is one of those hidden areas. It is worth having a conversation with the Department about exactly how alternative dispute resolution works in practice. Does it head off at the pass a large number of appeals?

I was interested that, in earlier iterations, the intention was to make it compulsory to go through the alternative dispute resolution but that is no longer reflected in the legislation, and you can opt out. The idea is that you provide a note to say that you have opted out. I know that, if you go to a tribunal and it appears that you have opted out, unless there is a good reason, it puts you on the back foot before you have started because it looks as though there is some reason why you did not want to engage, and that can be interpreted as —

The Chairperson (Mr Weir): The equivalent can be seen in, for example, a social security tribunal. If, for whatever reason, the person appealing has not ticked a box to consent to his or her medical records being accessed, a natural assumption can be that he or she is trying to hide something. The argument on the other side is that, if the reason why someone has not gone through that process is qualified, some other inference can be drawn.

Mr Allamby: The danger is that it becomes code for "difficult" or "individual who does not want to discuss it". There are some issues there.

The third point is that we are still working on the 1995 Disability Discrimination Act definition of disability. That has moved on in Britain as a result of the 2010 Equality Act. It has moved us much more into the social model as well as the medical model. It is quite significant that we are still dealing with a definition that is now 20 years old. Things have advanced considerably in this field in 20 years, so this is an issue that we need to grasp. Whether it is by way of an Equality Act or whether, in this case, we should be looking at our definition of disability for this particular purpose, it is an issue that needs to be addressed.

The Chairperson (Mr Weir): To some extent, you have answered the second point I was going to raise. Michael, and your submissions, made reference to changes to the tribunal system, and Les has outlined the lack of available information on alternative dispute resolution. Are there any other reforms that you would want to see to the SEND tribunal from a legislation point of view? I appreciate — [Interruption.]

Mr McCausland: Sorry, I apologise for the —

Dr Wardlow: It is a little musical interlude; that is great.

Mr McCausland: I do not know what happened there.

Dr Wardlow: In answer to the question, we have said a number of things, and I will ask Roisin to come back in. We know from parents who are trying to go through the system that it is a bit impervious. It is a case of "How do we get through this system?". There is a lack of aggregated and disaggregated data. If you are going to do an exam, then you have previous exam papers. If you are going into a tribunal or the courts, you know where precedents were set. In this case, it is like shooting in the dark. There is also a perception that hit rates are not high. You hear parents saying, "You do not have a lot of chance", so a lot of people do not go into it. We made some suggestions specifically around the nature of special educational needs and disability and even how compensation might be made.

Mrs Mallon: It is not empowered to make compensation for discrimination or harassment. We have pointed out that there could be a situation where one child is harassed because of race and one because of disability and the first child could seek compensation because there is not that limit in terms of other courts whereas the second child could not.

We have mentioned access to case decisions. They are not published at SENDIST level, and, therefore, there is a lack of precedents. It is difficult for parents to know how cases might run. We have talked about the limited availability of legal aid. There is an issue of inequality of arms. You may have to appeal against the board, which has access to professional legal advice, and you may not have legal aid to access such advice.

You asked about legislative reform, so I will pick up on that briefly. It is not part of the Bill or the consultation, but it is something that we asked the Department to look at because it has overall responsibility for the Special Educational Needs and Disability (Northern Ireland) Order (SENDO). Michael mentioned that there is a gap in Northern Ireland law regarding reasonable adjustments and auxiliary aids and services. This is a legislative gap that has been addressed in Great Britain but has not been addressed here. We recommended that the Department consult on this when it was taking forward these provisions, and we are disappointed that that has not been done. We feel that it places disabled children here at a disadvantage. There is provision for disabled students in further and higher education, and they have that right. Disabled children in schools do not have that right. I am happy to take any further questions, but I just wanted to point that out.

The Chairperson (Mr Weir): That is useful. There is another area that I want to touch on, and I suppose I am playing devil's advocate. The reference in clause 10 to the pilot scheme has been mentioned. We have the slightly unusual timescale construct. You also mentioned that pilot schemes had been done in England and Wales. One of the concerns that have arisen is that there was very low uptake when those pilot schemes were put in place. Whatever scheme you put in; if you have a very low uptake then you have the costs of additional bureaucracy. Is there an argument that there would be relatively little material benefit, that money spent on the associated costs would be better being put into the front line of provision for SEN and disability services, and that we could simply learn the lessons from the pilots that have been done elsewhere rather than necessarily having to repeat them? Could you comment on that?

Mr Allamby: One of the points made in our written submission is that the legislation should place a procedural duty on the Department to make this happen in real terms. In other words, the support that a young person would need to go to a tribunal in their own right should be put in place. I accept that that involves some resources, but there is a principle here about the child or young person being able to fully articulate his or her needs. If a child is in care, for example, and there is an issue, the notion that there is a parent who could do this just as well is simply not there. There is an important principle here.

Making this work is not simply about putting a right in place. I have some experience of SENDIST tribunals from my Law Centre days. We often received calls from people who were quite well educated and, at one level, very willing to do their own case, as they knew the needs of their son or daughter, but who were still very reluctant to go before a tribunal because the issues at stake were so substantive and they wanted to have somebody there with them. Frankly, if well-educated adults struggle with appearing before a tribunal, the barriers to a child or young person to go through that process are considerable.

If people are serious about this, they have to make it happen. We have put in the idea of a procedural duty so that you not only produce information that is child-centred and friendly but you provide support. I do not think that it has to be an enormous resource issue. I am not pretending that some resources would not be needed, but it could be done in a sensible and proportionate way. I do not think that we should run away from that. The principle is important enough to make it happen.

The Chairperson (Mr Weir): I just want to ask a final question. Les, you mentioned resources. I was struck by Michael's comment that the definition of austerity is that it is not simply a matter of cuts but can also be about making the best use of what you have. I suspect that you were not speaking at a rally in the last week, because I am not sure whether that would have been a crowd-pleaser. [Laughter.]

Mrs Overend: It is part of the positive thinking that we were talking about earlier.

The Chairperson (Mr Weir): Absolutely. I do not want to put words in your mouth but to characterise your general position, it is that there are many good improvements in this but there are things that could be done better. From a cost and resource point of view, the Department has indicated that it sees this as being cost-neutral and should not cost any additional money, which seems hard to square with the degree of improvements required. Do you have any assessment of the cost? You have suggested additional measures; for example, that the Department should adopt your joint blueprint in the legislation. What are the cost implications of the additional elements you are suggesting?

Dr Wardlow: I am not sure about the economics and the money. This is a personal comment, because we do not have a response to that —

The Chairperson (Mr Weir): I understand that.

Dr Wardlow: — but, like you, I am surprised that it is cost-neutral, although I understand the reasons, given austerity, why that is what is coming forward.

As you know, there is a concern that the reduction of weeks in statements may well mean that fewer children will be statemented. No one wants that to happen. In other words, the bar on statementing would be lifted simply as a trade-off in some shape or form. I know that you have heard evidence, so I am simply saying that. As an equality body, our concerns have always been around whether children, particularly those living with disabilities and special educational needs, are given the age-appropriate support to allow them to perform and have the same potential as others. I have shown from the stats that there is trailing underachievement and lack of performance and a lack of aspiration. We have known that for a long time. If we are saying now that this is now going to try to address that, then our concern, for example, is that, in early intervention, there is no mention of preschool. We would love to ask about what happens with preschool children. It is certainly not clear. It may be about how the Department of Education does its costing and other issues. However, for us, this is about reasonable adjustment and how we make sure that the children can achieve their full potential.

Our additional items are not new. Some of them have been around for a long time because we have fallen behind. Each year that we fall behind, more children are statemented and more present with special needs. There will be more such children if this graph continues. The cost per child will increase. This is about doing what you can, valuing what you measure and measuring what you value.

We do not have the money in our heads, but it is strange that this will be cost-neutral. The bottom line on this one is that, if we are saying that, in the regulations and the code of practice, the real focus is on improving the lives and potentially the outcomes for these young people, then it will be worth it. I would love to come back in 10 years' time and say that those stats have narrowed. They are getting better but very slowly. I would love to be able to say, "I am finding doctors and nurses and people in dentistry now who had presented with SEN". We have the ability to do something. Some of the joined-up work could also help, and I do not know whether that will involve a lot of money. DEL, DHSSPS and DE should work together, for example, at those transition stages. There are ways to do this that would save money as well.

Mrs Mallon: Clearly, some of the steps will have cost implications. Providing additional support features, additional capacity-building measures and individual support to students will cost money. However, that has to be balanced by the positive outcomes this will have for children. Very often. there are cost implications when you try to address inequalities, but these have to be balanced against the positive impact. Equally, we should be mindful that, if there are cuts in the education budget and cuts in the budgets of schools, those must not impact on money that is ring-fenced or earmarked for children with special educational needs. There is a need to ensure that that is protected.

Mr Allamby: I have two very quick points. Inevitably, there will be some modest costs; I do not see how this can be cost-neutral. I think there are some ways in which you can manage the money that is here without trading off numbers; and that can be looked at. For me, the issue is that if we do not do the things that this aspires to do and that are laudable then, inevitably, there will be some displacement costs further down the line. If this is about improving education outcomes, if it is about improving life chances, then, when children move into adulthood — as regards how people contribute to our economy and how employable they eventually can become, etc — there are costs down the line.

While we have not costed our suggestions and what they mean — I am not sure that some of it would be easy or possible to do, in fairness to the Department — you can make some attempt at it. It is a kind of displacement cost, and there is a sense in which if you penny-pinch that can come back on you. You can be penny wise and pound foolish. It seems to me that you have to look at the broader picture of displacement costs. Therefore, it makes immense sense to put in some relatively modest, in the current climate, but sensible resources to make the very good aims of the Bill happen in practice. Otherwise, the danger is that we will have a framework that everybody agrees with but, actually, when you look beyond the facade, there is nothing inside the house. That is the danger that we run into with this.

Mr Lunn: Thank you for your presentation. Last week, the trade unions attended the Committee, and we spent an inordinate amount of time discussing clause 1. I just want to clarify your position on clause 1. Les, you seem to welcome its broad principle and then want to rewrite half of it — constructively, of course. You, Michael, on behalf of the Equality Commission — correct me, if I am wrong — do not seem to have the same problems with clause 1. You are content to wait for the code of practice and the regulations down the line. Is that a fair summary of your position?

Dr Wardlow: As I said at the top of the meeting, we are looking at this through the equality lens and Les is looking at it through the human rights lens. It is appropriate that the issue about reasonableness and so on was picked up.

For us, the issue is that the rights of the child should be front and centre. Lots of stuff has been written, by Laura Lundy, for example, in which you can see how you do that stuff. We are saying that we recognise the fact that, at each stage, we will have this ability to look at the section 75 duties. The aspiration or direction of travel has been decided, and that is great. We want to see what that actually means. In some ways, whether it is on the welfare strategy, at a very high level, the devil is in the detail, if I can use that term. What we are saying is that we will continue with it. It is like Rumsfeld's known unknowns.

We have not expressed a concern one way the other about reasonableness, and I expect that that will come from Les. We are putting the amber light up and saying, "Great; this is a great direction of travel", but we want to see the detail, we want to see it measured through outcomes and we want to see resources put against that.

Mr Allamby: Trevor, I think I said that it was a step forward, but it could have been a greater stride. I am not sure that I want to take half the clause out. I want five words removed: " so far as reasonably practicable". By my standards, that is pretty modest.

My understanding is that the Children and Families Act 2014 — the equivalent provision in Britain — does not contain the words "so far as reasonably practicable". I do not think that the world would stop spinning as a result of having a duty that is much more closely aligned to article 12 of the Convention on the Rights of the Child, which is to seek and have regard to the views of the child. I do not think that the words "so far as reasonably practicable" are useful for anything other than giving a blanket defence that it is too hard to go and find ways of getting the views of a child, for example, who is in care. There is nothing that stops us moving forward in the way that they have moved forward in England and Wales.

Dr Wardlow: You specifically asked about that particular thing. We have two other issues in there that have to do with, first, the preschool setting and, secondly, transitions. We are saying that it was not just that and that there are a number of things that we would like to see to ensure that the course of direction is continued. We are happy with the broad principle at a strategic level, but we want to see the detail.

Mr Lunn: Even the unions disagreed about this last week, which is what I meant to say. I have a limited knowledge of legislative terminology — let us put it that way — but the phrase "the Authority shall" is quite strong, I believe, in legislative terms. It does not say that the Authority "may" or "will"; it says that it "shall". Also, the phrase "so far as reasonably practicable" is pretty common parlance in these sorts of things. To "have regard to" is quite significant as well. If you start putting in obligations and "must" and so on, I do not think that the Department would favour that. My impression is that the Department is happy enough with this and perhaps what we need to look at is exactly what you say, Michael: we need to look at the regulations and the code of practice.

Dr Wardlow: We have the same thing in section 75 where one phrase used is "due regard" and the other is "regard to the desirability". There are legal differences between "regard" and "due regard". The lawyers can make money in settling —

The Chairperson (Mr Weir): To pick up Trevor's point, I am sure that we can get legal advice on this. I appreciate some concerns that you have on it, but the inclusion of the words "so far as reasonably practicable" also has a level of legal responsibility. If you were to simply abandon that and have nothing there, how would the courts interpret that? I suppose that the argument is that what was always intended was a common-sense approach, but, if you do not have any qualifier on that, does that mean that, when you are in a judicial review, it goes well beyond what was intended?

Mr Allamby: I will pick that up. There are statutory duties around education and health and social care already in the system, and their interpretation by the courts has generally been that, where you have a duty, you have to show that you have addressed yourself to that duty. There may be circumstances where you look at it and say that it is manifestly or disproportionately or even physically not possible, and generally, the courts will accept that. What it does is force you to go at least to the first stage of considering.

As for taking the words out, I do not think that it forces the Department into doing things that are unduly onerous. I think it sits much more comfortably with the UN Convention on the Rights of the Child. Case law has generally taken, to use your view, Chair, a common-sense view of these things. It is not an absolute duty that you have to spend hundreds of thousands of pounds in order to get the views of three individuals. There is a kind of weighing up of that. What I think this does is send out a message. It is my worry. I think I used the words "administrative convenience". There might be all sorts of reasons to not even go there and look in the first place. It could be that the regulations and the code of practice would allay some of those fears. It is better, frankly, that it is put in the legislation and made clear.

Mr Lunn: You can help me out here, Les. Is there any precedent in our legal system for specific reference to a United Nations convention being included in a Bill?

Mr Allamby: A very interesting debate has just been had. There was a case about the benefits cap in Britain — a case called R (SG) — where the question was the role of the UN Convention on the Rights of the Child. One of the issues with the benefit cap was that it applied to claimants but, clearly, where they have children, it affects children. There was an interesting range of views about the role of international treaties, ranging from, at one end and from my point of view — I am unfortunately in a minority — former Lord Chief Justice Kerr, who said that it was time that we actually incorporated it and treated it as incorporated, to others who recognised that there were roles to help you interpret the legislation where there were ambiguities. There are set tests where you can take the convention into account. In terms of judge-made law, there is not an absolute that says that the convention applies, but the direction of travel is clear. David, you might want to say something.

Dr David Russell (Northern Ireland Human Rights Commission): I just wanted to say that the Welsh Assembly has incorporated the United Nations Convention on the Rights of the Child.

Mr Lunn: Yes, thank you for that. [Laughter.]

Dr Russell: And all legislation has to have due regard to it.

Mr Lunn: I was going to spring that on you.

Dr Wardlow: One further thing that I forgot to say is that the Children and Families Act 2014 does not have that defence of "reasonably practicable". It is struck out. So, there is a precedent in GB legislation. It is not there.

Mr Lunn: Going back to the UNCRC, would it make your day, Les, and that of your organisation, if there were at least reference to having regard to it, an obligation or whatever terminology we care to use in the Bill? Would that provide a backstop for you?

Mr Allamby: Yes, as an individual who is not known to be easily pleased — [Laughter.]

— I could overcome that reputation. It would be very helpful if the convention was given acknowledgement in the Bill. That would be something that we would welcome. I suspect that the welcome would be broader than the Human Rights Commission. It sends out a message, which is quite important.

Dr Russell: On previous legislation, the commission had a similar debate around the Convention on the Rights of Persons with Disabilities (CRPD). One way of effectively addressing many of the issues that we have raised in our submission would be to insert an additional clause about having due regard to the Convention on the Rights of the Child. That would deal with most of it in one fell swoop.

Mr Lunn: Maybe, Chair, we could —

The Chairperson (Mr Weir): I will consider all alternatives in that regard.

Mr Lunn: Can I just mention the pilot scheme before I finish?

The Chairperson (Mr Weir): OK, go ahead.

Mr Lunn: You have certainly found common cause with just about everybody on that one. The two-year scheme, which you may introduce within 10 years, after which time it will be repealed, is the greatest load of legal nonsense I ever heard. What would your alternative be? You mentioned the Welsh experience, but I have heard now that it was not very comprehensive and you may not learn much from it. If that clause said something like "The Department shall introduce a pilot scheme within three years", would that be a better compromise?

Mr Allamby: Yes. First of all, it would be helpful if they actually set out a timetable. I do not know whether the intention is, frankly, to move to it quickly or whether, having given themselves that latitude, it will drift along until year 9 when somebody reminds somebody to do it. It would be much better to set a timetable. I am not averse to saying that we might want to do a pilot here. We should say that it will be introduced. You should give them the powers to do a pilot, and it should be introduced within the kind of time frame that you suggest, which seems to me to be perfectly reasonable.

A pilot has been done in England and Wales. We do not know whether the results will be the same in Northern Ireland, but you are not starting with a blank sheet of paper; you already have some work that has been done elsewhere. I do not think that the timetable needs to be anything like as flexible as it is in the Bill currently. Some way of reducing that to three years sounds pretty sensible to me.

Mr Lunn: We would certainly be breaking new ground if Northern Ireland started to learn from best practice elsewhere at this late stage. You can tell that I am feeling a bit flippant today.

The Chairperson (Mr Weir): On that positive note, Chris, you are next.

Mr Hazzard: Thanks very much for the presentation. A lot of the stuff that I want to say has been touched on. I want to focus on the idea of a redress mechanism. No doubt all of us here have been sickened at times by the heartache that parents have had to go through because of something as simple as the need for the rights of their child to be met. It is a real scourge on us that we have not been able to address that sufficiently. Is there a model for a redress mechanism that we should look at to deal more effectively with the issue?

Michael, you talked about the very proper need for setting clear levels of responsibility. Again, is there an area somewhere else that we can look to, even in another Department or across Departments? I hear very little talk of co-design when it comes to this, never mind a statutory responsibility on Health. Should we look at anywhere else that does this right?

Finally, the code of practice is not currently subject to any Assembly procedure at all. The Department can go out to consultation and make changes in the future if it wishes. Should we put in a prerequisite for the Assembly to have a procedure in deciding any revisions to the code of practice?

Dr Wardlow: I will pick up the last point. Obviously, there is the ongoing statutory duty of the body in its section 75 responsibilities and how that is moved down the line. I am surprised: I did not realise that the COP was not coming back here. It is for you as a legislature to do that, but I would have thought —

The Chairperson (Mr Weir): At the moment, Michael, effectively, the COP is at a level below regulation.

Dr Wardlow: Yes, I understand where it sits.

The Chairperson (Mr Weir): It does not require Assembly approval.

Dr Wardlow: What will happen, possibly, is that stuff will get pushed out like a lump in a carpet when you are pushing it to the wall. The danger is that it will be done in the regulations and then it will be done in the COP. Living on the other side of that in a previous existence with integrated schools, I know there was the requirement under article 64 of the Education Order to do x but how the Department did that changed over a whole period, which was not subject to anything other than what the Department said. It is the same with the Irish language and all sorts of stuff. That is the example that I know. The danger, therefore, is that so much gets pushed down to, if you like, the operational level, which, in one sense, empowers absolutely, but remember that schools will end up with a lot of responsibility with the boards of governors. There are huge issues about where this effectively stops. It could end up with people thinking about a huge legal framework.

The other issue was alternative dispute resolution. In other places, we have been involved in working with alternative dispute mechanisms rather than ending up in the court structures, whether that is through employment tribunals or whatever. This needs to be worked through well. I am sure that good practice exists elsewhere. I am sure that this problem has been solved somewhere, as, for example, is co-working. We saw some good examples of that in youth interfaces, for example, with the education service and DEL interfaces at 16. There are some good examples of this. The problem is that, with restricted resources, it will actually become a question of where my money is going. At 16, there are certain interventions with DEL. At 18, there are certain interventions with DHSSPS transition. Parents cannot be the ones who suffer. Children cannot carry the cost. This needs to be dealt with very early on. It is not just about co-working: I am not sure what that means. This needs to be spelt out. What does it look like? What are the outcomes? How do we measure them and who is accountable? What redress is there to the bodies that are doing this? It is too late when a child leaves school with low GCSEs. You cannot blame people then.

Mr Hazzard: On that, should sanctions be stipulated if co-working does not take place?

Dr Wardlow: My personal view is that the carrot is much better than the stick to encourage staff to work together to a common goal. Children and young people is motherhood and apple pie stuff — fatherhood and apple pie, to be gender-neutral. I have seen this work in my other job. I have seen staff, the public and the Civil Service work really well together when they have been given the opportunity to create something and do stuff. That is happening in some interfaces of transition. I am hearing some good stories as well, but look out for best practice; it actually exists. We are not good at bringing up best practice. I do not want this to be simply another route to legislation, but we have said that tribunals need to be much more open about publishing results and everything else. Have you anything to add, Roisin?

Mrs Mallon: In our response, we said that we generally support early resolution of disputes, but we have to see what the outworkings of that will be. We have not got that yet. None of the proposals, either separately or in combination, when you add up the various factors, will unfairly deter individuals from accessing their rights. That is the main thing.

Obviously, DEL has brought forward the idea of doing something similar in relation to mediation in employment, and we are waiting to see the outworkings of that. That was to include equality complaints. There could be learning from how the new mediation procedure being taken forward by DEL works; we could also look at that.

You rightly said that the code of practice is not subject to scrutiny by the Assembly. That is true of all codes of practice. None of the equality codes go through the Assembly either. That is probably a reflection of the fact that they have less legal status. A tribunal must take provisions of the code into account, but it is not completely bound by them. I assume that is why they do not go through legislative scrutiny by the Assembly.

Mr Allamby: I would like to say two things, and then I may pass some stuff on to my colleagues. We are behind the curve in Northern Ireland with the redress mechanisms. Tribunal reform has happened in England, Scotland and Wales. It happened in legislation in 2007. The Department of Justice committed itself to it and then put it on the back-burner. It has not said that it will not happen, but it is now pretty low in the Minister's in tray.

Part of tribunal reform included issues around proposed oversight of dispute resolution and tribunal mechanisms. We have not had a body to undertake oversight of tribunals since almost the 1950s, whereas, right up until very recently, Scotland has retained an oversight model. One of the issues for us about the ADR mechanism and the SENDIST tribunal is understanding and knowing whether or not they are working well. I do not have a clue. I am actually interested in the area, and, if I do not have a clue, I am pretty sure that relatively few people are aware of how effective the mechanisms are. Tribunal reform and what is going on in DOJ become important for issues like that, because you could have somebody coming to an Assembly Committee and either saying that the tribunals are working very well or not, which would be really useful.

I understand that the code of practice will go out for consultation. The question is when that happens and how it fits in with the timetable here, because it seems to me that the sooner that happens, the better. I am agnostic over whether it should come here on some sort of statutory basis. If you ask to see it, I am pretty sure you will get to see it. They have committed themselves to a consultation process and, being pragmatic, I could live with that. It is one of the codes of practice that is quite important for you to see, because it is pivotal. Alongside the regulations, this is a circumstance where the three really do fit together and become quite important.

I do not know if colleagues want to come in on the other issues.

Dr Russell: Members will see at the back of the submission that the Commission provided substantive advice to the Minister in 2012 on the issue of redress generally. Obviously, human rights law does not dictate how redress should be afforded, but it is pretty clear that there is a substantive element of it, including the possibility of sanctions, should that be something you want to consider, and the procedural element. One of the things we noted at the time was that, if you look at the procedural elements of the mechanisms that are already in place, you see that the tribunal is there and available; there is a role for the board of governors; there is a role for the Department; ultimately, there is the possibility of judicial review; there is alternative dispute resolution in the system; the Commissioner for Complaints can take complaints on the issue at the appropriate time; and there is a role for the Children's Commissioner to receive complaints. Overall, in the procedural system, one of the issues — either Les or Michael raised this earlier — is the empowerment of the parents and children engaging in the system. Do they know that the system exists and that it is being changed? Are they empowered to use the system, given its complexities?

Is what is available and when the appropriate time would be to engage the various elements clearly laid out for people?

Mr Rogers: Thank you. This has been helpful. I want to go back to a point that you made, Michael. When we look at the number of children who have special educational needs or the number of statemented children per head of population, how do we compare with neighbouring jurisdictions?

Dr Wardlow: I can get you the figures. My understanding is that, at 22% on SEN designations, we are higher than Britain. Statements are at 5%, and my sense is that we are higher there as well. We will get the comparative figures. They may well be in the research that we as a board are looking at today. I will get back to you, but that is my sense.

Mr Rogers: Thank you. Mention was made of the Children and Families Act, and how you had a better chance of a more joined-up approach between Health, Education, DEL and so on. Are you disappointed that the Children's Services Co-operation Bill has not got beyond OFMDFM? That might have been of some help in pulling that cross-departmental approach together in terms of the needs of the child.

Dr Wardlow: I think that there are a range of structures there. Way back, my background was as a youth worker. Youth work has progressed significantly. In some ways, it still remains a Cinderella, but there is really good practice out there. For a long time, we have been trying to put together some infrastructure that supports this in a three-dimensional way, and that is one of them. The children and young people's strategy is another one, and the role of NICCY. To be frank, even youth workers do not know how to negotiate that system; even if you had a compass you would get lost. Touching on what David mentioned, how do you put down a very clear idiot's guide to getting through this — if I could put it that way? Of course, there are pieces of legislation that apply, and if they were there a single equality Act or equality and human rights Act, it would make life a lot easier. We are not really concerned about what you call it; it is what it delivers. However, those are only a means to an end.

Children and young people have to negotiate something that they should not, and my fear is that they become subjects, rather than creators, of their own learning. I think that they need to be creators, not consumers. The problem with all of this is that we are still not sure how much young people will be able to be creators of their learning plans. That will also be their redress mechanism: how they can actually access that, particularly at 16-plus. It is great that that is happening, but I have seen a young person trying to get through something like that without precedents and without knowing how to do it. We can put them in there, but there also needs to be resourcing and support for them, and that is where the co-working with the health and educational professionals can come together. I am very positive; I think that it can work. I am disappointed that certain pieces of legislation are not in place, but I think that it can work despite that.

Mr Allamby: David set out the variety of redress mechanisms. Potentially, there is another one on the horizon, which is the ombudsman's powers. As I understand it, the ombudsman may well play a role in special educational needs. The important thing for me is that we make sure that we have something that is readily accessible and really sets out very clearly the various redress mechanisms and their advantages. A judicial review is hardly appropriate for anybody unless they have legal aid, and, even within legal aid, there may be other ways in which special educational needs issues can be dealt with if they are very individual as opposed to underlying policy issues. We need to find a way of making sure that all of the system is easily navigable.

Mrs Overend: This has been very interesting. A lot of my questions have been covered. We talked about transition and how there are so many difficulties around that, whether that is from early years to primary, or from primary on up. Some of our other witnesses talked about there being a mechanism for someone else to take ownership of the personal learning plan. Have you any thoughts on that? They talked about parents being more responsible for it, but then there is the concern that they do not know the ins and outs of everything and that they would need support. I am interested in hearing your views on that.

Dr Wardlow: Outside the commission, I have personal links with a woman who went right through the system. Her child is now 18. I listened to stories about very good practice, where health professionals came together with education very early on to say, "Well, how are we going to help him through this system?". On an annual basis, they were able to work towards the transition so that, when he transitioned, it was to the school that they wanted, they knew a year in advance and everything was going well.

I heard another story where, as I said, sitting in April, the family still did not know what was going to happen in September. The fact is that it can be done. Family involvement is key, but there is also the important point that the young person's voice needs to be heard. Why, for example, are we finding that they do not take up dentistry and medicine and so on? Why are they less likely, for example, to go into employment or FE and HE generally?

There are issues that young people have to have their voice heard on. We would have liked to see that spelt out in a bit more detail so that the transition stages are met. Preschool, for example, is not even mentioned. What happens there? I know that there is a danger of stigmatisation very early on, but, with increasing numbers of young people and children, we cannot put this away. It needs to be there, whether in the regulations or the COP. It needs to be real, and it needs to be stood up and tested. The aspirations are great, but, until they are tied down to say what they look like, how do you then seek redress? The danger is that sometimes it is at the end of the year when you realise that something has not happened, so the annual reviews are key for us. There is a rolling pattern. We also understand the challenging of those assessments. The hit rate is quite low in being able to win the reassessment, particularly if you are 16 and you want a reassessment yourself. It could take a long time to get to that point; you might be 17 by then. I am simply saying that there is good practice out there already. Maybe it is with the children who present on the disability side of it. We should be looking at those examples. I would be looking for a child-centred approach that involves the family.

Mrs Overend: Do you have any thoughts on extending responsibility to age 21? Some of the other witnesses suggested that.

Dr Wardlow: We have not formed a view on that, but there is an issue about some cut-off points. At the age of 11, a child has responsibilities. There is no coming of age in our society; it is not like other societies where you go out and kill a lion or whatever it is that you do. We have various stages. At 18, we are meant to do all these things. Some 18-year-olds are 14 and some 14-year-olds are 18 in terms of their abilities. Therefore, there is an issue about protecting children and vulnerable adults as well. We need to be looking at this in the broader terms of how we, as a society, owe responsibilities to those people. The problem is that they fall off the system very often at the age of 18. They disappear into desegregated data somehow. So many of them do not go on to HE and FE; maybe they end up in some other form of employment. We actually do not know a lot about what happens. The tracking is not there. There is a piece of work to be done. We would be open to the fact that people need to be supported so that the inequalities are stopped.

Mrs Mallon: There is evidence to suggest that there are particular difficulties in meeting the needs of that post-19 transition phase. NICCY has done research on the difficulties of disabled children at transition points. It produced a report on that and made a number of recommendations, so there is clear evidence that, at certain transition points, that is not being met.

Mr Allamby: I have two quick points. Human rights does not give an answer to the 21-year-old. The UN Convention on the Rights of the Child applies until age 18. It seems that, in policy terms, there is some eminent sense in having the discretion to go beyond 18 in certain clear circumstances. I had some experience of the transition in Health and Social Care, where there are considerable implications when you transition from children's services to adult services. I would be very surprised if there are not some of those around issues in education, particularly where children have missed a year's schooling etc. It is not that unusual for someone to remain in even traditional schooling beyond 18.

The other point about the transitions is that the UN Committee on the Rights of the Child — I think that we mentioned it in our submission — has flagged up that education authorities should include children and their parents' views in the planning of curricular and school programmes and in decisions about the transition to the next level of schools or choice of track or streams. The right of the child to be heard has to be assured because of the implications of those decisions for the child's best interests.

Those should be subject to administrative or judicial review. It is talking about judicial review in a much broader sense.

It is clear that, in terms of UN Committees, there is a clear focus on that transition and the need to be very cognisant of both parents and children and on the perhaps relatively small number of occasions where they may diverge or where there is only a child to hear from because there are not parents but other forms of carers. That is crucial to this, and, therefore, it is important, as Michael said, that that is rigorously tested to make sure that it happens in practice.

The Chairperson (Mr Weir): I want to conclude with one question. I appreciate that a lot of areas have been covered. Chris touched on the code of practice. One of the central issues that we talked about is the relationship with regulations. By necessity, the nature of the legislation is that it will be more dependent on regulations than most. We made the point to the Department — it has given indications that it hopes to satisfy us — that, before we sign off on the main legislation, we need to get some sight of the regulations. Legislative counsel has made a suggestion that an alternative or additional route in terms of the concern over regulations is to have some high-level constraint in the primary legislation on what can appear in regulations. I appreciate that this may require more of a detailed answer. Do you have any thoughts on areas that you would like to see restrained or constrained in the Bill?

Dr Wardlow: We have said that we recognise that a lot of legislation now seems to be going through the process of high-level aspiration, key points, the duty to encourage and facilitate, the definitions and so on and then into the detail. Because we still have an ongoing duty to look at section 75, whether it comes at the top or the second level, we still have to, in a sense, go at it.

The Chairperson (Mr Weir): I understand that.

Dr Wardlow: I understand for some that, if it is in the primary legislation, there is much less wriggle room, if I can put it that way. I do not think that we made any specific recommendations about things. For example, I know that Les talked about UNCRC being in the legislation: I do not think that that makes it more or less applicable. It is the optics and signals the intent. If it is also about signifying intent that this is what we really believe in, the problem will arise if there is a delay between the primary legislation and the regulations. That will be the bigger concern. We will have a chat at the commission when I go back and see if there is anything and maybe get back to you in writing.

The Chairperson (Mr Weir): I appreciate that you may want to respond after further consideration.

Mr Allamby: I am not sure that extemporising would be that helpful to the Committee either. We should probably kick it for touch as well. There is an issue there, and we were looking at the notion of affirmative resolution so that there is genuine scrutiny of the regulations. Having that scrutiny —

The Chairperson (Mr Weir): Yes, I want to reiterate a point about that: whether it is affirmative or negative resolution does not make any particular difference to the way that it is scrutinised or to the procedure. There is sometimes a little bit of a misunderstanding about that.

Ms Maeve McLaughlin: There has been a clear issue around what is reasonable and practical and the formal duty to cooperate. I am wondering about Scotland. You made the case that we need to consider that formal duty and look at best practice models. Do you have a view on what is happening there? There has been a huge shift around how Scotland delivers health, for example. Has there been learning from there that we could look at, or has it simply been the same scenario with the Children and Families Act?

Dr Wardlow: To be frank, although we have connections with partner bodies across the place, because we are not educationalists, we are not up to date on the detail of that. My feeling is always that the answer to your problem is somewhere. As Trevor said, we need to be open enough to look at best practice right across. I have friends who live in Scotland and have been there a long time, and, when I talk to them about their health system and the duty of care with young people, they are very glowing about it. That is anecdotal. They live in an area where there is good access — I think that there is an issue about rurality there as well — but there has been a longer process of interplay between those bodies and there is a much more joined-up approach than we have. We are coming from a legacy perspective here, and I have a fear about legacy plus austerity. The fact is that we have some best practice here as well.

The Chairperson (Mr Weir): Thank you for your submissions. The lions at Bellevue zoo can at least rest easy knowing that, culturally, there are at least some differences and that they are relatively safe. It has been a very useful session.