National Assembly for Wales
MEMORANDUM FROM THE MINISTER FOR EDUCATION, CULTURE AND WELSH LANGUAGE
CONSTITUTIONAL LAW: LEGISLATIVE COMPETENCE, WALES
Constitutional Law: Legislative Competence, Wales
Proposal for a Government Legislative Competence Order relating to Education and Training (Additional Learning Needs)
Introduction
1. This Memorandum has been prepared and laid in accordance with Standing Order (SO) 22.14. It sets out the background to the provisions in the attached government proposed Legislative Competence Order (LCO) which would confer additional legislative competency upon the National Assembly for Wales. It is laid in accordance with SO 22.13 and explains the scope of the power requested.
2. The constitutional context to this request is set out by the Government of Wales Act 2006 (the 2006 Act) and the UK Government’s policy. The UK Government’s White Paper “Better Governance for Wales” published in June 2005 set out the UK Government’s commitment to enhance the legislative powers of the National Assembly for Wales, as a democratically elected institution with its own detailed scrutiny procedures.
3. Section 95 of the 2006 Act empowers Her Majesty, by Order in Council, to confer competence on the National Assembly for Wales to legislate by Assembly Measure on specified matters. These matters may be added to Fields within Schedule 5 to the 2006 Act. Assembly Measures may make any provision which could be made by Act of Parliament (and therefore can modify existing legislation and make new provision), in relation to matters, subject to the limitations provided for in Part 3 of the 2006 Act. An Order in Council under Section 95 of the 2006 Act is referred to as a Legislative Competence Order (LCO) in this memorandum.
4. Matters may be inserted into the fields contained in Schedule 5 to the 2006 Act, by either an Act of Parliament or a Legislative Competence Order, approved by the Assembly and both Houses of Parliament. The latter route enables the Assembly to initiate the process for conferral of such competence, via a Legislative Competence Order.
5. The proposed Legislative Competence Order would confer further legislative competence on the National Assembly for Wales, in the field of Education and Training (field 5 within Schedule 5 to the 2006 Act).
Background
6. New legislative powers in respect of the specified “matter” will enable the Assembly Government, Assembly Members and Assembly Committees to bring forward coherent proposals for legislation, in the form of Measures, which are based on Welsh priorities and timescales. These Measures will be subject to thorough scrutiny and approval by the Assembly.
7. Education and training has been a devolved subject area for many years and the Assembly Government has wide ranging powers across the spectrum of education and training, including in relation to schools, nursery schools, universities, further and higher education institutions and special educational needs. The Assembly Government also has a range of primary legislative powers and there are also numerous secondary legislative powers in these areas, which makes different provision in relation to education and training in Wales. The Welsh Assembly Government has used these to develop a distinctive approach tailored to the particular circumstances of Wales
8. The Welsh Assembly Government set out in, The Learning Country - Vision into Action, the intention to ‘promote inclusion in education and learning’ and to introduce ‘an action plan in response to the recommendations of the Education, Lifelong Learning and Skills Committee Review of Special Educational Needs’.
9. The National Assembly’s former Education and Lifelong Learning and Skill’s Committee review of Special Educational Needs (SEN) provision in Wales concluded in March 2007 and examined many of the fundamental elements of the existing system, especially early identification and intervention, statutory assessment and statementing, and transition.
10. The legislative competence sought through this Legislative Competence Order will enable implementation of key components by Assembly Measure of the Welsh Assembly Government’s Special Educational Needs/Additional Learning Needs policy in Wales, including matters dealt with in the former ELLS Committee review. The competence will also enable the Welsh Assembly Government to bring forward measures for special educational provision, children, young people and adults with additional learning needs. The principle of different educational provision for such individuals is already well established in law and practice in Wales.
11. In the wider context, meeting a diverse range of special educational needs requires close collaborative work not only interdepartmentally but also with a range of statutory and voluntary organisations within Wales. This collaborative approach to working is evidenced throughout our policies in relation to SEN with the use of collaborative working with stakeholders to develop policy.
12. Equality of Opportunity underpins all aspects of this work to ensure all children and young people have equal access to education, can reach their full potential and barriers to learning are removed. In response to the Equality of Opportunity Committee’s Report earlier this year, the Welsh Assembly Government emphasised the policy direction and assurance of the commitment to policy and service delivery being firmly focussed on the needs of the individual.
13. The legislative competence sought would support the above and also comply with other policy initiatives that impact upon ways of working with pupils with additional learning needs and to which the Assembly Government would wish to ensure collaborative working.
14. The proposal for these powers is also made in the context of the limitations to the current settlement which restricts the Welsh Assembly Government from tackling Welsh priorities and issues.
15. The main issues, which have been identified are:
a) there is no power to alter the statutory threshold which activates a Local Education Authority’s formal SEN duties;
b) case law has established that the Welsh Ministers’ Code of Practice in relation to SEN has relatively weak legal force because LEAs must merely “have regard” to it. This means that, provided an authority gives an intelligible good reason for departing from the Code, it may do so. Social services guidance issued under s.7 of the Local Authority Social Services Act 1970, for example, is much stronger in that case law has established that authorities are expected to comply with it;
c) the formal system of statementing is highly prescriptive. Whilst there are Assembly powers to make regulations about the operation of this process, these do not permit it to make fundamental changes to the structure of the statementing process;
d) there is no power to alter the range of individuals with rights to appeal to the SEN Tribunal for Wales. Accordingly, at present it cannot provide a right of appeal for children (as opposed to parents and/or carers) even if a child has the necessary capacity to bring an appeal. In relation to children, this contrasts with, for example, the Children Act 1989 which, in a number of instances, gives children the right to make applications to the courts;
e) the current system does not allow for local dispute resolution mechanisms to be concluded before proceeding to appeals to the Tribunal;
f) there is no statutory requirement for LEAs to provide advocacy services for children with SEN. This is in marked contrast to the position in relation to social services for children in respect of whom the Children Act 1989 places an express duty upon authorities to make advocacy arrangements. The current powers do not permit similar provision to be made as regards SEN;
g) there is little scope for the Assembly by regulations to confer additional specific duties upon LEAs or anyone else in relation to SEN.
16. In this way, the current executive powers of the Welsh Ministers are not sufficient to allow the Welsh Assembly Government to tackle these issues.
Scope
17. Independent reports over recent years and current work commissioned by the Assembly Government indicate that changes are required to the existing statutory framework for special educational needs (SEN). The Education Act 1996 sets out the framework for the provision of SEN education. This places duties on schools and Local Education Authorities (LEA) and sets out prescriptive arrangements for statementing and appeals, and enables the Assembly to issue a Code of Practice on the delivery of SEN. The Welsh Ministers currently have few powers to make changes to the statutory framework set out in the 1996 Act.
18. It is proposed that the Matter be inserted under Field 5: Education and Training in Schedule 5 to the Government of Wales Act 2006 to enable changes to be made by way of Assembly Measure, in relation to any aspect of the organisation and delivery of SEN in Wales. This Legislative competence would also enable an extension of the existing definition of SEN to include additional educational needs and thereby impose obligations upon public bodies in relation to that extended category of learner and to implement any desired alteration in policy in relation to the structure of the statementing process and the provisions of the SEN Tribunal.
19. The principal purpose, therefore, of this LCO is to empower the Assembly to make Measures under Part 3 of the 2006 Act that will give effect to whichever recommendations or subsequent policy development are taken forward in due course by the Welsh Ministers. The intention is to ensure that Measures can be made across a wider range of areas connected with the provision of education for children and adults whose educational needs diverge from those upon which the mainstream education system currently is focussed. The reform of current provision about children’s’ special educational needs is an area of priority for the Welsh Assembly Government.
Geographical limits of any Assembly Measure
20. Section 93 of the 2006 Act imposes a prohibition upon Assembly Measures having effect other than in relation to Wales. It provides that a provision of an Assembly Measure is not law in so far as it is outside the Assembly’s legislative competence. A provision is outside competence if it applies otherwise than in relation to Wales or confers, imposes, modifies or removes functions exercisable otherwise than in relation to Wales (or gives power to do so). There are limited exceptions for certain kinds of ancillary provision, for example provision appropriate to make the provisions of the Measure effective, provision enabling the provisions of the Measure to be enforced and to make consequential amendments to other legislation.
21. The limitation relating to functions other than in relation to Wales means that the Assembly would not be able by Measure to confer on the Welsh Ministers, Welsh local authorities or any other public authority functions which did not relate to Wales.
Minister of the Crown functions
22. This proposed Order in itself does not seek to modify or remove any functions of a Minister of the Crown. By virtue of Part 2 of Schedule 5 of the Act, the Assembly may not by measure alter the functions of the Minister of the Crown without the consent of the Secretary of State for Wales. In relation to any future proposals that may impact on Minister of the Crown functions the appropriate UK Government Departments will be consulted and agreement sought to any future proposals to change or modify those functions.
23. In respect of the SENTW there are a number of Minister of Crown functions, which are the responsibility of the Secretary of State, the Lord Chancellor and to a minor extent the HM Treasury. In relation to the SEN jurisdiction of the tribunal, these functions relate to the appointment and removal of members and the President of the Tribunal, and the number of individual tribunals that may exercise the jurisdiction of the Tribunal. In relation to the disability discrimination in the education field jurisdiction of the Tribunal, Minister of the Crown functions are more extensive and also encompass the procedure of the Tribunal.
24. Discussions will take place with the appropriate UK Government Departments regarding the future of these Minister of the Crown Functions.
Conclusion
25. For the reasons outlined above, the Welsh Assembly Government proposes that the legislative competence of the National Assembly for Wales should be extended in accordance with the provisions of the government proposed LCO to which this Explanatory Memorandum relates.
Carwyn Jones
Minister for Education, Culture and the Welsh Language
June 2007
(Version 8 11 June 5)
