Official Report: Minutes of Evidence

The Chairperson (Mr Weir): We will formally determine and set out our position on the proposed amendments in each clause and schedule. All decisions today will be final, although there may be certain things, in light of other events, that we may want to put forward in amendments, which may or may not be pressed ultimately. It is anticipated that the Committee will conclude all formal deliberations on the Special Educational Needs and Disability (SEND) Bill today, and the Committee is aiming to agree its report by 4 November.

I welcome Caroline and Jan back to the Committee. Caroline has been with us from the start, and Jan has come off the bench following Irene's retirement. We have looked at amendments, but there is always the option that, on a particular clause or schedule, the Committee can register formal opposition to the Question that the clause or schedule stand part. That would ensure that the clause or schedule is debated at Consideration Stage.

Let us make a start at clause 1.

The Chairperson (Mr Weir): The Committee informally agreed that it may table an amendment to clause 1. The Bill Office has given us the list of draft amendments in hard copy. The Committee had informally agreed to consider an amendment that would require stated principles to underpin subordinate legislation. That is amendment 9 on our list. Towards the end of the informal session, we spent a little time on it, and the issue is high principles. To ensure that we are referring to the same thing, do you have a copy of the Bill Office list of draft amendments?

Mrs Caroline Gillan (Department of Education): Yes.

The Chairperson (Mr Weir): It is amendment 9. Does the Department have any final remarks on that amendment?

Mrs Gillan: The principles in the proposed amendment are the exact principles that are behind the whole future special educational needs (SEN) framework as a package in the Bill, the code and the regulations. We remain to be convinced of the benefits and impact of the amendment in how it may be interpreted or delivered in its entirety, how it may be exercised in conformity with the functions, and how that may be interpreted by the courts. That would be open to debate or interpretation. We completely respect the principles, and that is exactly the basis of the Minister's policy in delivering all this. However, whether it needs to be included in a duty of this nature —

The Chairperson (Mr Weir): You mentioned interpretation and used the very nice term "remain to be convinced" of its merits. Do you have direct concerns about the amendment?

Mrs Gillan: The Minister said that he absolutely abides by and supports those principles. However, he is not able to take a position in saying that he would support the amendment. It is a question of whether it is necessary and, indeed, would be beneficial overall in the operation of the framework. As I said, the provisions in the framework, and what we are building into the code and the regulations, fulfil those principles.

The Chairperson (Mr Weir): Without prejudice to the position of the Committee — I will open it up to members — if by way of the amendment not being there or being there in the context of being moved or not moved, would the Minister be willing to give assurances on those principles on the Floor?

Mrs Gillan: As we develop the remainder of the framework, I am sure that he would be — absolutely.

Mr Lunn: Caroline, you say that you have reservations about the need for the amendment. If you take the individual items under the amendment, are you satisfied that each one is already catered for in the Bill? I am looking at proposed new article A3(d) on building capacity in schools.

Mrs Gillan: The Bill will not build capacity. It puts enhanced duties on boards of governors in the supports that need to be put in place. It is up to the Department and the Education Authority to take forward capacity building and for schools and teachers to embrace that.

I suppose that is one example of whether the functions in the Bill would necessarily be able to deliver that per se. We have given you evidence about a lot of the capacity-building measures that have already gone on for early years and special educational needs coordinator (SENCO) training, and we gave you details of the boards of governors and the further roll-out of training on the SEN framework.

The duties on the boards of governors and on the EA to provide its plan, which will include training, are the building blocks. However, will every function in the Bill necessarily build capacity in schools? Is the Committee envisaging that every function must be exercised in conformity with all those principles, or would it be dependent on —

The Chairperson (Mr Weir): They are general principles.

Mrs Gillan: Those are the questions that may give rise to uncertainty about the benefits. I am absolutely sure that the Minister would be willing in his statement to the Assembly to assure the House that, as we progress, that is central to his policy.

Mr Lunn: Another thing that jumps off the page is minimising bureaucracy, which has been a bugbear for years. Is there a case for leaving some of the principles in there, if not listing all eight of them?

Ms Jan Matthews (Department of Education): When the review was introduced, a key thing was minimising bureaucracy. That is a key principle of the Bill's proposals, continuing through regulations and the code of practice.

Mrs Gillan: It is about reducing the number of stages and looking again at how the statement is drafted. The problem is that the total new framework has to be seen as a package and not just in the context of the Bill. On minimising bureaucracy, in some circumstances, there may be a justification for some bureaucracy, whereas in others it is needless.

The Chairperson (Mr Weir): I am tempted to say slightly facetiously that there are only seven subsections, so we have already reduced bureaucracy by one subsection in the draft amendment.

Mr Lunn: He is so sharp. I am not really convinced that we should not have a purpose clause here.

The Chairperson (Mr Weir): Do members have any questions for the Department before we take general comments? If not, is the amendment necessary and worthwhile? What do members feel?

Mr Rogers: I tend to agree with Trevor. Let us have the guiding principles.

Mr Lunn: I have changed my mind once already.

The Chairperson (Mr Weir): Which statement of Trevor's are you agreeing with?

Mr Rogers: The guiding principles should be there.

The Chairperson (Mr Weir): In the legislation.

Mrs Overend: I have changed my mind. If the Minister puts them very clearly on the Floor, we can hold him to account.

Mr Hazzard: I feel the same as Sandra. This is judicial review (JR) heaven, or it will be if we are not sensible. I understand the situation that we want to get these in the Bill, but I think that it creates more trouble than good.

The Chairperson (Mr Weir): Any other comments?

Mr Lunn: If we are saying that the inclusion of those principles introduces JR heaven but that the principles are already enshrined in the Bill, you still have JR heaven. I do not see the argument that we do not need these principles, because people might apply for judicial review.

Mr Hazzard: I think that they are thematic. I do not think that they are specific enough for legislation.

The Chairperson (Mr Weir): We will put it to the Committee one way or another whether to accept the amendment or whether we feel it to be necessary. I put the Department on notice that, if we feel that the amendment is not necessary, we would at least require the Minister, at Consideration Stage, to commit to those principles very explicitly. Strictly speaking, we will put the Question to members, unless anyone else has a comment.

Mr Newton: I am OK, Chair.

Mrs Overend: We talked about tweaking it.

The Chairperson (Mr Weir): I think that, if the amendment was to be accepted, it would be on the basis that it would be tweaked somewhat. In general terms, could we have an indication by show of hands from those in favour of the amendment?

The Committee Clerk: Before we go to a vote, I remind members that, since a vote has been called, you have four options: "Aye", "No", abstain or not vote. I ask members to indicate very clearly which option they are choosing, other than the last, obviously.

The Committee Clerk: Two members voted in favour; five members voted against; and Mrs Overend did not vote. There were no abstentions.

The Chairperson (Mr Weir): On the basis of that, has the Department any final remarks on clause 1?

Mrs Gillan: No.

The Chairperson (Mr Weir): The Committee informally agreed to consider revising the wording of the regulation-making powers, specifically at new article 6A(7), replacing "may" with "shall". Does the Department have any final remarks or comments on the amendment.

Mrs Gillan: We provided the Committee with confirmation that we are content to change "may" to "shall". That is towards the end of paragraph (7).

The Chairperson (Mr Weir): Are members happy with the Department's amendment as the route to go?

The Chairperson (Mr Weir): There are no further remarks from the Department on clause 2.

The Chairperson (Mr Weir): There are a number of proposed amendments, The Committee informally agreed to amend clause 3(2) to replace:

with

in respect of SEN support for children. Has the Department any final comments on that amendment?

Mrs Gillan: The Minister is content to make the change. We have provided amendments drafted by the Office of the Legislative Counsel (OLC).

The Chairperson (Mr Weir): Are members content with the proposed amendment from the Department?

The Chairperson (Mr Weir): I remind members that the Committee informally agreed to consider an amendment in respect of the transfer of personal learning plans (PLPs) with parental consent. I will bring in the Department in a moment. Amendments 3 and 4 have been provided by the Department in hard copy, and it has drafted them along the lines that we suggested. Are members content with that change?

The Chairperson (Mr Weir): Members, we had informally agreed to consider revised wording of the regulation-making powers in clause 3, specifically at subsections (3) and (4) to replace "may" with "shall".

Mrs Gillan: In both instances, the Department would prefer to retain flexibility and the word "may". As we discussed, these regulations require engagement with stakeholders on the qualifications and general role of learning support coordinators (LSCs). In this instance, our position is to retain the word "may".

The Chairperson (Mr Weir): Are there any questions for the Department? Do you want "may" or "shall"?

Mr Lunn: I am getting a bit lost here.

The Committee Clerk: I remind members that we are at clause 3(3), where it says:

We are also talking about further down the page, where it says that, under new article 8ZA(2), "Regulations may". The proposal is that, in both instances, "may" becomes "shall". The Department has indicated that it does not want to do that, needs flexibility and wants the word "may" to remain. Does the Committee want "may" or "shall"?

The Chairperson (Mr Weir): Does anybody have any thoughts?

Mr Newton: I have to say, Chair, that I am very much in favour of "shall" in that context.

The Chairperson (Mr Weir): Is there consensus on that?

Mr Lunn: I hear the Department's opinion. I have not quite picked up its reasoning.

Mrs Gillan: We provided an annex to the Committee of our analysis in breaking down where we felt that "shall" would be appropriate and where we would prefer "may" to remain. You are happy with certainty when you feel that there will be one way of doing it and one way only of doing it now and moving forward. Certainly, some clauses, such as the general one on conferring other functions relating to learning support coordinators, are, by their nature, flexible, and we may or may not want to confer functions now, and we may confer other functions in the future. However, after we talk to schools and stakeholders about appropriate qualifications, particularly qualifications and experience for learning support coordinators, do we want to be very prescriptive? We might be prescriptive initially, but, in a couple of years' time, as the framework develops and there are new qualifications, we may decide to take a much less prescriptive approach.

Tying us in at this point will tie our hands too much. Without our knowing or having engaged with stakeholders as to what the qualifications would be, do we want to prescribe qualifications? Do we want to do both? On both those regulation-making powers on conferring such other functions, we "shall" confer such other related functions. What are those other functions that we must then confer? By their nature, to tie us at this stage without our having the certainty of knowing what we put into the regulations — at the closed session last week, we gave you an indication of the flavour of where we are going — we really want to engage with school principals, the Education Authority and other stakeholders as to what they see as appropriate.

Ms Matthews: The views of those stakeholders are very important in developing the regulations.

The Chairperson (Mr Weir): With the drafting — I will bring Trevor in in a moment — how is the requirement that you simply have regulations that require it tying it in specifically by not allowed that?

Mrs Gillan: If it says "shall", it shall have a prescribed qualification or experience, but it might be that, as Jan said, further down the line, we may not want to have prescribed qualifications. After our engagement with stakeholders, we may not want prescribed qualifications or prescribed experience right now. We might not want to do that at this stage. It is that proposed change in particular that we are most concerned about.

The Chairperson (Mr Weir): Is it the qualifications?

Mrs Gillan: It is about developing the role of the LSC. It refers to line 10 and line 25 on that page and the one below it about conferring such other functions. That, by its nature, cannot be "shall" because it is a general catch-all provision.

Mr Lunn: OK. I am convinced about "may". May I ask you about new paragraph (2A)(a) on an ordinary school? Are you talking about ordinary schools?

Mrs Gillan: That is the legal definition of a school that is not a special school.

Mr Lunn: Is it?

Mrs Gillan: Yes.

Mrs Overend: I can understand where you are coming from on that. If you leave it as "may", is there a possibility that some areas will do it and other areas will not, so it would lead to an inconsistency?

Mrs Gillan: The key is that we will put what we want in the regulations after we have had that engagement. Whatever we put in the regulations has to be applied consistently across the board. Obviously, the Committee will later discuss changing the process from negative to affirmative resolution. As we have firmer drafts, and after we have spoken to the key stakeholders, we will come to the Committee to ensure that you are content with the exact content in all areas. They need to be applied consistently.

The Chairperson (Mr Weir): Does anybody else want to come back on "may" or "shall"? Is the Committee content with "may", given what has been said?

The Chairperson (Mr Weir): If that is the case, we will not need to move that amendment. That is the last reference to that amendment to clause 3. We earlier accepted that there are already a couple of amendments to clause 3.

The Chairperson (Mr Weir): In terms of asking the Department if it can provide in terms of sight of the new protocols that are going to be there, that is something that you would be in a position to —

Mrs Gillan: We wrote yesterday to provide the information that is available on the allied health professional review, and we have given a link to the documents that have been published. That review is at phase 3; it is due to finish next year. The proposed new framework for allied health professionals supporting pupils with SEN, plus some operating principles between health and education authorities, is being finalised and will be subject to ministerial consideration, and the review will then want further engagement. We are not just able to provide those details at this stage, but there are some useful documents to show you the stages of the review and a report from phase 1, which I hope gives you a flavour —

The Chairperson (Mr Weir): I appreciate that discussions with the Department of Health are ongoing. Maybe I will just refer you, then, to the potential amendment, which in terms of the Bill Office paper is amendment No 2, which is the duty on the health authority:

What is the Department's response to that?

Mrs Gillan: The Minister is absolutely supportive of all amendments that touch on the Department of Health and its design to enhance cooperation; he has no objection, in principle, to cooperation. All these amendments are cross-cutting. The Minister has written to the Department of Health to ask for its views, and that is where we are.

In relation to the second element of the amendments, on the integrated planning, sharing of information and pooling of budgets —

The Chairperson (Mr Weir): We will maybe just deal with each one of these in turn. That will be the next item that we will come to, but we will deal with these one at a time in relation to that.

The Committee Clerk: Does the Minister support the therapeutic provision, which was suggested by the Department?

The Chairperson (Mr Weir): In terms of that particular one, will the Minister support that amendment?

Mrs Gillan: The Minister has written to the Department of Health for its views. Obviously, the Minister is not in a position —

The Chairperson (Mr Weir): OK. Would it be fair comment to summarise that the Minister is not expressing hostility to it at this stage, to put it that way if I can?

Mrs Gillan: He is unable to — it obviously touches on another Department —

The Chairperson (Mr Weir): I understand that. Members, I know this is something that we discussed a little bit in the private session. I presume — at least I think — that one of the issues I suppose with this may well be something that gets some level of potential support in relation to that, but, at the very least, I think that earlier, when we were putting this on a formal basis on it, members were happy enough at least to press ahead with this as an amendment, I suppose, subject to if there was then something that came back by way of agreement in relation to that.

Mr Lunn: I have no doubt that the Minister of Education is in favour of full cooperation between his Department and the Department of Health. Our problem is that we need the same obligation on the Department of Health. I do not know whether that is forthcoming or not. When we discussed this earlier, it seemed to me that we were placing quite onerous obligations on the Department of Education to look after a child's education first and to do all the necessary things to make sure that children with a special need are fully catered for. However, that includes actions that are required by the Department of Health. So why not have the same obligation placed on that Department? That is the problem. The current legislation does not push it that far. It seems to me that it can get out of accepting its obligation on the grounds of lack of resource, for instance. That is not satisfactory.

The Chairperson (Mr Weir): Are you just checking —

The Committee Clerk: Chair, just to confirm with members that we are at number 2 on the white paper, so it is the duty on the health authority to provide therapeutic or other provisions. This is the very specific one, not the general duty, about something specific having to be provided on the statement.

Mrs Gillan: I take on board what the member says. The Minister has always said that he, as Education Minister, cannot in his Bill impose duties on other Departments.

The Chairperson (Mr Weir): OK. From earlier discussions, are members content that we move ahead with that amendment?

Mr Newton: I want to know specifically what the Minister is writing to the Department about.

Mrs Gillan: For his views on the various elements of the amendments that touch on the Department of Health, and, obviously, as a cross-cutting issue, any position would have to come to the Executive —

The Chairperson (Mr Weir): Sort of the range of amendments that are there and the corporate issue, OK.

Mr Lunn: Sorry, Chair, I am getting confused again about whether we can insert items in our Bill that place an obligation on other Departments.

The Chairperson (Mr Weir): Yes, we can, because we are essentially acting on behalf of the Assembly. The issue on it is that the Minister cannot bring forward an amendment that imposes a duty on Health. The Assembly can, and, therefore, this Committee can propose an amendment.

Mrs Gillan: The Minister could with Executive agreement.

The Chairperson (Mr Weir): He can get agreement from the Minister of Health to make a particular form of wording.

Are members content with amendment No 2 as is?

The Chairperson (Mr Weir): I suspect that, in terms of precise attitude, eventually if something were to come back by way of an agreement from the Department of Health, Education would want to look at that.

We move to the third amendment, which I think Caroline was touching on. It is on the general duty of the Education Authority and the health and social care authorities to cooperate. What are your views in terms of this particular aspect?

Mrs Gillan: As I said, the Minister supports the principle of cooperation. In relation to some of the amendments, especially on the pooling of budgets, for example, there may be a concern about the workability of that in the current departmental structures and, indeed, our financial processes and how that could be achieved —

The Chairperson (Mr Weir): The only point I would make, Caroline, I think the wording at present is permissive rather than obligatory: it talks about "may" pool the budgets. I do not know whether that would be probably sort of problematic.

Mr Hazzard: That was the point that I was going to make: it is enabling rather than mandatory.

The Chairperson (Mr Weir): Folks, there may be some interference with mobile phones. Make sure that they are not sitting directly in front of microphones. We do not want any of this lost to posterity in that regard. Future researchers and people doing PhDs may be poring over this as we speak in connection with that. In relation to that, the point has been made in terms of the pooling side of it, which is permissive in that regard on it. Are members content to agree amendment No 3?

The Chairperson (Mr Weir): We turn then to amendment No 4, which is the issue of if there will be regulation in terms of oversight on cooperation. I appreciate that this touches into areas directly outside the Department. Does the Department have any comments on that?

Mrs Gillan: It is really about whether there is a necessity for the additional oversight body in the current climate —

The Chairperson (Mr Weir): The only thing, sorry, I would point out, I suppose that there is an issue about trying to make sure that it is the right one; it is not creating a new body but is giving the power to the RQIA.

Mrs Gillan: The Minister would highlight that there is already a role for the Health and Education Committees in scrutiny and oversight and also that the Children's Commissioner has an oversight and challenge role in this arena through article 7 of the Commissioner for Children and Young People Order 2003. One might question whether this provision would reduce bureaucracy if there are existing mechanisms that would permit oversight to be carried out.

The Chairperson (Mr Weir): Do members have any questions or queries?

Mr Lunn: If the Health Committee or this Committee or the Children's Commissioner were charged with conducting a review, which might be unusual for Committees like ours for a start, surely they would want to go to the regulator to find out what the performance has been. In that case, the RQIA would seem to be the obvious destination.

Mrs Gillan: They would probably go to RQIA reports and ETI reports to gather evidence, and the Department, if we were asked for a report on how we had been cooperating, would point to various independent evidence. This is an additional mechanism, I guess, to conduct a report every two years. This is something where we touch on Health, and, obviously, we would look for the views of the Minister of Health and of the Department of Health. Moreover, the Minister is minded that if the Children's Services Co-operation Bill goes through, a lot of the amendments to this clause would be overtake —

The Chairperson (Mr Weir): I think from that point of view, Caroline, again, clearly we are in a position that the Children's Services Co-operation Bill is at a relatively advanced stage, but as yet it is not legislation, so I suppose we have to always work on the assumption that nothing is out there in that regard. That might mean that certain things might apply to some of the other areas of cooperation; for example, also in amendment No 3 I think a lot of it might apply as well. We have a situation if and when that becomes concrete legislation that might well mean — which is likely to be a situation where final decisions are taken before this reaches Consideration Stage of the House — that certain things are not necessarily pushed in as amendments because they then become unnecessary and redundant in that regard.

I suppose the other thing, Committee, which was also indicated was we had made reference to the RQIA. It seems probably at first guess to be the most appropriate body, I think as Trevor has indicated. It was one of the things we were also trying to find out to get even the views of the RQIA itself. Clearly if it was felt that it was the inappropriate body or they were suggesting that, for example, the Children's Commissioner is the best person or whoever, obviously we would seek to further amend on that side of things

Members have heard what the Department said in relation to that. Are members still content to move ahead with an amendment just on that?

The Chairperson (Mr Weir): I think the amendment that we have drafted there on that is an addendum, I suppose, to the previous amendment, which would be allowing for the RQIA.

Mr Hazzard: Are we aware that the RQIA are the best people to do this?

The Chairperson (Mr Weir): No.

The Committee Clerk: The Committee could agree to write to the RQIA to seek its views and agree on a "without prejudice" basis; if its answer was that it could do it, that would be fine. However, if it said that, for the following brilliant legal reasons, it was an inappropriate body, perhaps the Committee might, on that basis, revisit the decision.

The Chairperson (Mr Weir): It would sort of make it effectively — I know this is really supposed to be the final sign-off, but I suppose it is slightly provisional/final.

Mr Hazzard: What about the time frame? One of the principles that we discussed was a lack of bureaucracy. How did we come to decide on two years? Is two years better than four years or 12 months?

The Committee Clerk: If the Committee decided to support the amendment, I have heard of situations of an amendment being made at Consideration Stage and being amended at Further Consideration Stage —

The Chairperson (Mr Weir): I think one of the things if we are checking first with the RQIA whether, if an amendment of this nature was to go through, they were the appropriate people, I do not know whether they could also give advice from a professional opinion saying well, actually, for example, two years is wrong and it should be three years, four years, 18 months or whatever type of thing is the appropriate time frame in that regard. It does strike me because I know that — Eilís can correct me if I am wrong — particularly in terms of an amendments point of view, one of the areas at Further Consideration Stage I suppose ideally really should be the tweaking of what is there. If, for example, one of the things was to change the time frame to say that instead of two years it should be four years, for example, that is something that could very easily be done at Further Consideration Stage if the Assembly was minded to accept it and we got assurances on that.

Is the Committee content on that basis then?

Mr Hazzard: I am sorry; I just have one final point to make.

The Chairperson (Mr Weir): Are you playing the role of Columbo here?

Mr Hazzard: Who picks up the cost of reviewing this, and what is it likely to be? I do not know whether we can include that.

The Chairperson (Mr Weir): I think we can include that in the information. I think, to be honest on it, whether we take a provisional position on this, it may well then be guided by the responses that we get from particularly the RQIA on that side of it.

The Committee Clerk: I would be surprised if the RQIA would be able to indicate a cost basis. The Committee has asked previously about the costs of cooperation and mapping etc, and those do not —

The Chairperson (Mr Weir): I think monitoring the level of cooperation probably should not be something that should be exorbitant in terms of cost. At the end of the day, if you think about it at one level, I suppose the only issue is where the oversight comes from. If it is part of the overall purpose, whether it is through the Children's Services Co-operation Bill or in the legislation here or whether it is simply good practice, we will want to be in a position that in terms of observing what is the level of cooperation between Education and Health, particularly on the ground in that, that is going to have to be monitored in some shape or form anyway in that regard. That cannot be got round.

There is no point in saying that we want to see cooperation and then we are just going to disregard it and do not particularly take a look at what is happening in that. It is going to have to be monitored anyway. It is a question of somebody drawing that together. Whoever's hat that falls under, shall we say, it probably will not make a great deal of difference to the overall gloss on it, particularly if it is, in one shape or form, a body that already exists. I think that the argument would have less merit if we were looking to set up a specific monitoring body that was then going to have a secretariat and a panel sort of looking after things on the sort of permanent basis that was going to be doing that for oversight; we would be adding to bureaucracy and you would be adding to cost. If, essentially, you are looking at, "Here is something that is going to have to be done that existing bodies fall under", then it becomes probably less of an issue, I think.

Mr Hazzard: I have just one final question. According to what we are saying, it is about publishing a report on how they have cooperated. Do we need to go further and say that we want recommendations on how we strengthen cooperation? Will that be taken as a given?

The Chairperson (Mr Weir): I think, under those circumstances, if somebody is monitoring how people cooperate, I think it is kind of implicit to be honest on it if they are saying that there is a problem. If they are saying that everything is fine, if they are saying a problem is there, and here is where the problem exists type of thing, I would be surprised if anybody was highlighting that and then not pointing some degree of direction as, "Here is something that we could at least look at, or here is a plan of action to improve it".

Finally, are members content with that amendment, subject obviously to getting that information back?

The Chairperson (Mr Weir): Specifically then in relation to that there is a suggested amendment No 10 in the Bill Office, which adds both suggestions by the Children's Law Centre. What is actually suggested is, I suppose, the additional five words to deal with quantification:

Again I would seek maybe the views of the Department in relation to that.

Mrs Gillan: Our position is that we do not view this amendment as necessary, as article 16 of the 1996 Order already requires the statement to specify the educational provision, and the detail is fleshed out in the code of practice. That terminology is already being ruled on by the tribunal —

The Chairperson (Mr Weir): I understand that. We are aware of the fact that obviously article 16 includes that, and so therefore from that point of view we are not looking to move away from it or entirely redraft it, but potentially to add in the words "the nature and extent of".

Mrs Gillan: The question is this: what does "the nature and extent of" mean? It is obviously something that would be very heavily scrutinised at tribunal. We have discussed previously instances where, in some circumstances, statements will be extremely specific about hours of particular assistance, whereas in other circumstances they may not be so specific, and the benefits of having flexibility in some circumstances. It would all turn on the phrase "the nature and extent of" which is, to some degree, unknown in its interpretation.

Mr Rogers: When you say that it is fleshed out in the code of practice, do you mean the existing code of practice or the revised one?

Ms Matthews: It is in the existing code of practice, but it would be fleshed out further in the revised one that will be developed through engagement with stakeholders.

Mrs Gillan: So there is a further elaboration already —

The Chairperson (Mr Weir): Of that.

Mrs Gillan: We will take that forward.

The Chairperson (Mr Weir): OK, members, in terms of the amendment, are you content with what the Department has said, or do you want to press ahead with the amendment? Have you any suggestions in connection with that? Do not all rush at once. Are you sufficiently reassured in terms of that?

People, if you either say yes or no, it would be vaguely helpful to guide me. Are you sufficiently reassured, or do you want to press ahead with the amendment?

Mr Lunn: I do not know.

The Chairperson (Mr Weir): Trevor is the voice of reason here. Are you here to abstain in person?

Mr Lunn: I hear what the Department says. On the basis of our previous discussion, I thought that we had convinced ourselves that it was useful to put in "the nature and extent of". I do not know.

I would, frankly, leave it in and accept the amendment.

The Chairperson (Mr Weir): Are members then prepared to accept the amendment?

The Chairperson (Mr Weir): Are members content with clause 5, as drafted, with the proposed amendment?

The Committee Clerk: It is just "as drafted". This inserts a new clause.

The Chairperson (Mr Weir): Sorry, this inserts a new clause, so it would be "as drafted".

The Chairperson (Mr Weir): An amendment has been suggested to clause 7, which relates to children under the age of two. I understand that the Department is again replacing "may" with "shall". On this occasion, you are content to agree that.

Mrs Gillan: Yes.

The Chairperson (Mr Weir): Are members content with the departmental amendment to replace "may" with "shall"?

The Committee Clerk: We are at clause 7(2)(10), on page 5, where it says:

The "may" will become "shall".

The Chairperson (Mr Weir): Clause 8, on page 121, deals with a child's right to speak at tribunal. Amendment No 5 is again on page 5 of our papers, and I ask for the Department's views on that.

Mrs Gillan: Again, the Minister is supportive of the hearing of and the right of the child to express their views. In fact, many of the provisions in the Bill support that. In relation to this particular right and the tribunal element, that obviously is a matter for the Department of Justice now, and the Minister has written to the Minister of Justice for his views on that.

The Chairperson (Mr Weir): OK. Again, we had a bit of discussion about this beforehand. Are members content? Danny, do you want in there?

Mr Kennedy: No.

The Chairperson (Mr Weir): Are members content with that amendment?

The Chairperson (Mr Weir): We then move to clause 8(7) and the amendment to replace "may" with "shall". I ask for the Department's views on that.

Mrs Gillan: In this circumstance, we have indicated that we would prefer to retain flexibility in the development of the regulations. Hopefully, the site of the illustrative content assures the Committee of our desire to be comprehensive in how we provide for mediation. At the same time, this is an emerging area on which we want to take into account emerging best practice. This is one instance where we would like to retain flexibility.

The Chairperson (Mr Weir): Are members content with the reassurance that we have got?

Mrs Overend: Can you point out where that is again?

The Chairperson (Mr Weir): We are at clause 8(7), which starts off "Regulations may make provision". If the amendment were accepted, clause 8(7) read: "Regulations shall make provision".

Mrs Overend: Oh right. OK.

The Chairperson (Mr Weir): Are members content with the assurance that they have been given on that area?

The Chairperson (Mr Weir): I think that that is the only other amendment to clause 8.

The Committee Clerk: It is clause 8 as drafted. That is a new clause.

The Chairperson (Mr Weir): Clause 9 deals with the rights of SEN children over compulsory school age. Amendment No 6 would amend clause 9(4)(b) by making provision for parents to exercise the rights of a child where a child lacks capacity. I ask for the Department's views on that.

Mrs Gillan: Again, we do not see a need for that amendment. Obviously, the illustrative content of the regulations that we have offered sets out that ability: where the child lacks capacity, the parent shall be entitled to exercise those rights. So, that assures you that we are dealing with the issues on parental rights and a child's capacity. However, I wonder whether the effect of the amendment, by saying that that absolutely must happen, would lead to a situation whereby you would be content that, where a child lacks capacity, it shall fall to the parent. Do we want to retain that flexibility? It may not be appropriate in every circumstance. I think that the effect of the amendment is to tie it down too tightly. However, hopefully the illustrative content that the Committee saw last week, particularly regulation (h), shows that we have included this provision in the draft for the time being. We will go out and consult. We may fine tune it further depending on the views of the stakeholders, particularly the Children's Commissioner and other bodies.

Mr Newton: I am content with that, Chair.

The Chairperson (Mr Weir): OK. Are members content with the reassurance that they have got?

The Chairperson (Mr Weir): Amendment No 7 refers to capacity determination to include consideration of age, maturity etc. Are there any comments from the Department?

Mrs Gillan: Again, this is in the illustrative content of the regulations around age and maturity, but we would prefer to keep it in the regulations with that flexibility to develop and fine tune it as we move forward. We do not see the need for this particular amendment and, hopefully, the Committee is assured, having seen the illustrative content.

The Chairperson (Mr Weir): Members, are you content with that reassurance?

The Chairperson (Mr Weir): We will move on to some of the issues in relation to regulatory making powers at clauses 9(2), (3) and (4), where we have already discussed making "may" into "shall". The Department has suggested that it can accept at clause 9(2) and (3) —

Mrs Gillan: Yes, that is right.

The Chairperson (Mr Weir): So, from that point of view, members, are you happy enough to accept two out of the three in connection with the position of the Department on that? If so —

Mr Newton: Does that mean that we have won two out of three, Chair?

The Chairperson (Mr Weir): Yes; we go through to the next round on the away goals rule. Are Members content with (2) and (3)?

The Chairperson (Mr Weir): Clause 10 is about compulsory school age. Specifically, the suggested amendment at clause 10(2) again refers to the issue of "may" and "shall". What are the Department's views on that?

Mrs Gillan: Again, that is a similar argument to the previous one about the regulations, how we hope to develop the capacity and how we do that. That is one for flexibility as we see it, because that is a new-ish area that we are entering.

The Chairperson (Mr Weir): OK, Members, are you happy to accept the reassurance on the regulations?

The Chairperson (Mr Weir): Clause 11 is about the pilot scheme. Will the Department comment on clause 11(3)(a), which sets an age limit on the applicability of the pilot scheme? There seems to be UN Convention on the Rights of the Child (UNCRC) guidance to the contrary. Obviously, there is no contradiction to that, but can you speak to that, please?

Mrs Gillan: Apologies for not having articulated this in the past as clearly as we could have done, but that particular clause, 11(3)(a), about the age from which a child may make an appeal or claim came from the Children and Families Act in England. The approach there — which might be the approach that we want to adopt here, but we just do not know at this stage — is not about restricting the rights of appeal to only certain age groups or for a certain age. A number of pilots are being run, and different approaches to different age bands are being tested. A different approach might be taken for children who are P1 or P2 age from those who are aged maybe 11,12 or 13. That is what gave them the flexibility to do that.

We absolutely accept and the UNCRC accepts that we want to run this pilot for all children. Although we will do a single pilot, depending on how England and Wales are getting on with theirs — and that has not started yet but it is shaping up — we may, in our single pilot, trial different approaches to the supports and mechanisms for allowing those children to make an appeal. I am sorry that we have not articulated that.

The Chairperson (Mr Weir): I understand that. Are there any comments from members on that?

Mr Lunn: I fear I have missed a couple of meetings and may not be up to date. Has this business about the duration of two years and repeal at the end of 10 years been dealt with to our satisfaction?

The Chairperson (Mr Weir): Yes, I think that it has largely. It has been talked about anyway.

I refer you to clause 11(1) and (3) on the issue of "may" or "shall".

Mrs Gillan: This pilot is one where we really feel that we would like flexibility precisely because we want to draw on what is happening in Wales, albeit that they have small numbers. We have sent their report to you. We also want to draw on England. We would rather have this menu of flexibility to develop the pilot moving forward.

The Chairperson (Mr Weir): Are there any comments from members?

Mr Newton: Sorry to go back a step. Is there one pilot, or are there a number of pilots?

Mrs Gillan: Ours will be one pilot, but, within that, we might take different approaches. Interestingly, in England and Wales —

The Chairperson (Mr Weir): The plane may be landing in different places.

Mrs Gillan: There are different approaches for different ages. What they appear to be doing in England and Wales is running different pilots in different local education authority areas and trying different approaches in those areas, possibly based on age. We will have one pilot for the whole of Northern Ireland, albeit, as I said before, that we might say, "Let us do it in this way for P1 and P2 children where there is a case friend or a supporter", whereas that might not be necessary for older children. There will be a single pilot.

Mr Newton: And the 10-year duration that Queen's was specifically —

Mrs Gillan: Obviously, our initial focus is going to be on rolling out the Bill regulations and code and getting people trained up on that and implementing it. We then need to turn our minds to the pilot. It is helpful to have a bit of a delay before we do that. I do not mean delay in a negative sense but simply because, although the Wales pilot has been running, they have only had one disability claim, and the English pilot is due to start. We want to gather evidence.

I also assured the Committee that, although it says that the pilot should have a duration of at least two years, given that there have been small numbers elsewhere, we envisage it running for longer than two years. It is not that there would simply be a gap and nothing in place for a period.

The Chairperson (Mr Weir): OK. Are members happy to accept the reassurance on "may" or "shall"?

The Chairperson (Mr Weir): There is one area where we want clarification rather than an amendment. There is reference to "parent" in the Bill. Will you just clarify the definition of that?

Mrs Gillan: We wrote to the Committee yesterday confirming that the definition of "parent" is contained in the 1986 Order. It makes clear that, for all the education orders, including the 1996 Order that we are amending here, there is a very clear definition of parent and that that is absolutely what applies by drafting convention.

The Chairperson (Mr Weir): Are members content with that, or does anyone want to —

Mr Lunn: Do you have this definition handy?

Mrs Gillan: I do. The letter summarises it slightly because there are lots of different subclauses and it is particular. It provides that a:

It also provides that parental responsibility has the same meaning as under the Children (Northern Ireland) Order 1995. There is quite an intricate web of what the definition of "parent" is across education health and social care legislation. We would not want to do anything different. We would have no reason to do anything different here.

Mr Lunn: No. I am not being facetious, but modern living is developing and people who have care of children are not always in the same situation now as they used to be. I just want to make sure that it takes care of all of that.

Mrs Gillan: Yes, absolutely.

The Chairperson (Mr Weir): We previously looked at amendments to the procedure for regulation-making powers at clauses 3(3) and 3(4) from negative to draft affirmation. What are the Department's views on that amendment?

Mrs Gillan: The Minister is content to support that amendment and has asked OLC. Indeed, we provided you with a draft, which would give effect to that. If you have the draft in front of you, I apologise that there is a slight typo in it. It refers to regulations made under article 8 or 8A, and that should read "8ZA".

The Chairperson (Mr Weir): I am sure that members have picked that up already.

Mrs Gillan: I am sure that you have.

We are agreeing to convert the regulation-making powers in the Bill to be draft affirmative. As I said before, we are conscious that there are other regulation-making powers in the 1996 Order that remain negative. Because our approach for the new regulations is to develop a single consolidated set of regulations rather than have two or three in tandem, OLC has drafted a provision. It would be the new article 28(4) A and B, which provides that, where you have a mix of negative and affirmative, they will all be affirmative.

The Chairperson (Mr Weir): From that point of view, the Department agrees with our position. Are members content with that amendment from the Department? If so, a new clause will be added to the Bill.

The Chairperson (Mr Weir): That concludes the formal clause-by-clause scrutiny of the SEND Bill. Obviously, as I have indicated, a few of the things that we have agreed today may be taken over by events, and we will have to monitor that. The Committee will consider its report on the clause-by-clause scrutiny on 4 November, which will enable us to move ahead.

Caroline and Jan, thank you very much for your assistance. That concludes that item of business.