Section 12A — Requirement that education be provided in mainstream schools

Standards in Scotland's Schools etc Bill: Stage 3 – in the Scottish Parliament at 4:00 pm on 7th June 2000.

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Photo of Peter Peacock Peter Peacock Labour

It gives me great pleasure to introduce this section of the bill, which represents the biggest step forward to inclusion for children with special educational needs in our schools.

However, before moving on, I wish to refer to what I believe has been the quite grotesque mis-representation of the Executive's position on this issue, which has given rise to lurid press headlines. It is disgraceful to purposefully mislead and alarm parents about our intentions. To prey on the emotions of already vulnerable children and families is utterly despicable—almost as despicable as politicians who seek to fuel those fears and exploit the emotions of parents and children for their own ends.

I shall set out clearly what the Executive intends and reassure all those parents who have been wilfully and unnecessarily misled on this matter. We propose that, for the first time in Scotland, we will create a presumption that every child in Scotland—every child—will go to a mainstream school. Many parents will be frightened by that prospect, believing that their child would be better off in a special school.

There can be circumstances where that would be in the best interests of the child. The law, at the very least, should allow for a balance on whether it is always in the best interests of the child or the wider community for that to happen. We have defined three limited circumstances when that debate about such matters could occur. I have consistently made it clear that those circumstances cannot be regarded as an opt-out by local authorities. To underpin that, I have lodged a further amendment to strengthen that position by making it clear that those circumstances can only be considered exceptionally.

Mary Mulligan has also lodged an amendment to seek to further limit the circumstances. She has found a better expression of our policy intent and I recommend that we accept her amendment, although, by implying that councils could ordinarily act unreasonably, it is not perfect in its construction. I will need to consider how we might tidy that up at some point in future. However, it is important to accept that amendment today.

Amendment 26 would have the effect of negating key elements of what I have argued is a major new duty on education authorities and a substantial strengthening of a parent's ability to secure mainstream education for their children. It would undermine the careful balance that we have been trying to strike between the sometimes competing interests of all parties involved.

It would also bring with it problems in implementation. It potentially sets the child's view at odds with the parent's view. It proposes an independent arbitration service in the event of a difference of opinion between an education authority and the family, without defining what is meant by the family. It proposes arbitration—something that we would not rule out for future consideration but restricted to the suitability or otherwise of education being provided in a special school and not the suitability of mainstream schools. That is what the amendment implies. I cannot, therefore, recommend acceptance of the amendment in Nicola Sturgeon's name, but I have pleasure in moving the Executive amendment and asking members to support that of Mary Mulligan.

I move amendment 3.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

I start by saying that the grotesque misrepresentations that the minister referred to are the genuine concerns of parents of children with special educational needs and the groups that represent them. I say to the minister in all sincerity that in future he could consider his language a bit more carefully.

I support the intention of section 12A(1), which is to create the presumption that children with special educational needs will be educated in mainstream schools. That is something for which many groups and individuals have campaigned for many a long year. The concerns arise because of the opt-outs contained in subsection (2) of section 12A. I and others expressed the view at stage 2 of the bill that subsection (2) gives local authorities too wide a discretion to refuse children with special educational needs access to mainstream schooling. Many of the groups which represent children with special educational needs, including Equity, believe that subsection (2) in its current form, far from improving the position of children with special educational needs, makes matters worse. It gives local authorities more freedom than they have at the moment to refuse those children access to mainstream schooling.

The first opt-out in subsection (2) says that mainstream education will not be provided in a mainstream school if the school would not be suited to the ability or aptitude of the child with special educational needs. Let us be quite clear at the outset. Very few mainstream schools, without very special effort, would be suited to the ability or aptitude of children with special educational needs. Surely the challenge of inclusion is to make schools accessible for all children, not just for some? A good school will adapt to suit the abilities of all children, not just some. The first opt-out absolves local authorities of the responsibility to provide schools designed to bring out the best in all children, regardless of their abilities. That responsibility should be the hallmark of a good education system.

The second opt-out says that education will not be provided in a mainstream school if it would be incompatible with the provision of efficient education for other children. That is the age-old argument that children with special educational needs spoil the educational experience for other children. The research says exactly the opposite: that the presence of children with disabilities in mainstream education has a positive impact on other children, exposing them to experiences and to learning opportunities that they would not otherwise have. Anybody who has visited a mainstream school that has within it children with special needs will know the positive impact that those children have on the school and on the other children. The objection to the second opt-out is that it sends a message that mainstream schools are for some and not for all. We should be taking great care not to send out that message.

The final opt-out is that mainstream education will not be provided if it would result in significant public expenditure. The central objection to that clause is that we should not—we cannot—put a price on inclusion. Those decisions should not be based on consideration of cost. We are talking about children's lives and those decisions should not be reduced to crude calculations of costs. Costs incurred by including one child will open up a school to other children with special needs.

There is also the question of definition. What is significant public expenditure? Or, if we accept Mary Mulligan's amendment, what is unreasonable public expenditure? Peter Peacock said that Mike Russell's amendment on Gaelic-medium education had a technical flaw in that it did not define "reasonable demand". If that was true of that amendment, then it is true of this amendment and its failure to define significant or unreasonable public expenditure. Who decides what significant public expenditure is? I see that the Minister for Finance is listening carefully. We all know that there are many cash-strapped local authorities in the country. Even small amounts of public expenditure will be significant if a local authority does not have the money.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

We are saying that local authorities will be able to refuse access because they cannot afford it. I will give way.

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I had considerable concerns about section 12A before the Executive introduced its new amendment today. Can Nicola Sturgeon tell us why she did not oppose the unamended section 12A when it was debated in committee? Does she not agree that today's Executive amendment makes a significant difference to the original formulation? To say that it should be presumed that those circumstances apply only exceptionally is in fact a radical policy development.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

If Malcolm Chisholm reads the Official Report of the Education, Culture and Sport Committee meeting, he will see that I raised exactly those concerns. That was not pushed to a vote. I reserved that position to allow every member of this Parliament to take a decision on one of the most important amendments that we will examine today.

It is true to say that the amendments improve the situation, but they do not do enough. "Unreasonable public expenditure" still has not been defined and neither has the term "exceptional circumstances" in the minister's amendment. Section 12A gives the green light to bad local authorities that do not want to make an effort to include children with special educational needs in mainstream schooling. I do not believe that any member wants that to happen. My amendment deletes the opt-outs but also recognises that there will be circumstances in which it will not be in the best interests of children to be educated in a mainstream school. It makes it clear that those decisions will be made, not on the grounds of cost or what it would mean for other children, but on the grounds of what would be in the best interests of children with special educational needs. If we are committed to an agenda of inclusion, that is the basis on which the decisions should be made.

I urge members not to reject the amendment, which is supported by the parents of children with special needs and the organisations that represent them. It will prevent us from passing a bill that will make matters worse for the children with special needs whom everyone in this chamber wants to help into mainstream education to ensure that they get the best possible opportunities in life.

Photo of Mary Mulligan Mary Mulligan Labour

I want to make it clear that I and the other members of the Education, Culture and Sport Committee were totally in favour of ensuring that all children with special educational needs were entitled to be educated within the mainstream, where that was appropriate.

The witnesses to whom the committee has spoken, including those to whom we spoke as part of our investigation into the provision of special educational needs, continually told us that, while they accept that it is desirable to have most children in mainstream education, there will be individuals for whom that is not the best circumstance. That is what Peter Peacock's amendment picked up on. I think that Nicola Sturgeon has missed the point. As she said, the committee discussed the definitions of various words. I believe that I questioned the minister on the word "significant". Like Nicola, I was not convinced that that word went far enough. Significant public expenditure could be anything above the norm. We did not think that that was acceptable, which is why we lodged this amendment.

Photo of Nicola Sturgeon Nicola Sturgeon Scottish National Party

For the benefit of everyone in the chamber, could Mary Mulligan define what is meant by "unreasonable" public expenditure? It seems that the problem of definition is as significant in relation to that word as to the word "significant".

Photo of Mary Mulligan Mary Mulligan Labour

As Peter Peacock said, the amendment is imperfect, even with the substitution of "unreasonable". However, the word "unreasonable" signifies that the expenditure would have to be unreasonable within the context of the budget of a local authority. It also puts the onus on the local authority to say why the expenditure is unreasonable, rather than having the parents of the children battling against the local authority. However, we recognise that we have to consider individual cases and not take the broad-brush approach that Nicola Sturgeon has taken.

It is unfortunate that people have been misled in this debate and I hope that this amendment will reassure the parents, families and children that we want to ensure that all the children, where suitable, have the option of mainstream education.

Photo of George Reid George Reid Scottish National Party

In this section, I have to put the question at 16:35. I therefore ask for short and snappy contributions.

Photo of Shona Robison Shona Robison Scottish National Party

I support amendment 26, which is one of the most important amendments that we will be discussing today. It goes to the heart of what the Scottish Parliament is about: the integration of equal opportunities into all policy development, legislation and implementation. Section 12A, however, undermines equal opportunities as it will be used to exclude disabled children from mainstream education.

Amendment 26 seeks to rectify that situation by putting the child's best interests at the centre. It explicitly rules out disability and additional expenditure as primary reasons for refusing a child a mainstream placement. The existing section 12A is a licence to segregate disabled children and will mean that they will continue to be excluded from mainstream education, not through choice but through prejudice.

As the Riddell report highlighted, there has been no improvement in the past 13 years in the number of disabled children in mainstream education, and section 12A will do nothing to rectify the situation. The last-minute—which says it all—Executive amendment to include a presumption that the opt-outs can be used only in exceptional circumstances is not enough to address the concerns of parents of disabled children. Their concerns were very much in evidence when they held a demonstration at this Parliament just last night.

It is extremely patronising to say that the parents of disabled children do not know exactly what they want from this legislation. They know what they want and they know that what is being proposed is woefully inadequate. It certainly falls short of the Executive's stated commitment to inclusive education, and comes as a bitter disappointment to the families of disabled children. This bill is an opportunity for Scotland to be in the vanguard of inclusive education. Without amendment 26, it will continue to lag behind.

Inclusive education has been a reality for more than 20 years in Norway and Italy, and even the proposed legislation for England and Wales contains a stronger commitment to inclusive education than the Scottish bill does and makes no reference to ability or aptitude. Do we really want to have weaker legislation in Scotland than in the rest of the UK? The Equity group, which gave us this amendment, also gave excellent and persuasive evidence to the Equal Opportunities Committee.

Photo of Shona Robison Shona Robison Scottish National Party

I am running out of time. The amendment recognises the need for continued special education where that is the wish of the parents or child, or where the local authority can show that a mainstream placement would not be in the interests of the child. There is therefore a safeguard, and an independent conciliation service would resolve any disputes.

Amendment 26 puts the interests of the child first and foremost and has the support of Children in Scotland, Disability Scotland, the Association of Scottish Principal Educational Psychologists, as well as this Parliament's cross-party group on children.

Amendment 26 rules out disability and additional expenditure as primary reasons for refusing a mainstream placement. The Disability Discrimination Act 1995 will be extended to include education later this year, making unjustified discrimination and admission arrangements to schools unlawful. Let us get ahead of the game and make it clear that discrimination has no place in educational legislation for Scotland.

I urge members to support amendment 26.

Photo of Brian Monteith Brian Monteith Conservative

I support Nicola Sturgeon's amendment. This is an important debate and I agree that the opt-outs in the bill are too wide-ranging. We should be moving away from the idea that considerable cost should have a bearing on decisions about mainstream placement.

I support the idea of mainstreaming where it is appropriate. There has been much discussion about integration, but the use of the term integration denies the fact that there are separate groups. To achieve inclusive education does not always have to involve mainstreaming; in some cases it should involve the provision of special educational schools, such as Donaldson's College, the Royal Blind School and the Craighalbert centre. Nicola Sturgeon's amendment recognises that. The proposed phrases:

"would be incompatible with the wishes of the child and the child's parents" and

"can be demonstrated by the education authority not to be in the best interests of the child" mean that those schools would still have a place. I find it quite possible to support Nicola Sturgeon's amendment, and I am pleased to give my support today.

Photo of Karen Gillon Karen Gillon Labour 4:30 pm, 7th June 2000

I want to support the Executive amendments and oppose Nicola Sturgeon's amendment, and to put on record my disgust at the politics that are being played in the debate with vulnerable young people.

Yesterday evening's television contributions and today's press contributions did nothing to inform the debate, but everything to scare people into believing that their children were about to be withdrawn from mainstream schools. If I, or my colleagues on the Labour benches, believed for one minute that that was the case, we would not support the amendment. Many members on the Labour benches have a long and proud tradition of supporting children with special educational needs. We will not be lectured by anyone on those children's need to be included in mainstream schools.

Photo of Karen Gillon Karen Gillon Labour

No.

The issue is far too important to become a political football. For too long, the subject of special educational needs has been placed on the sidelines of the British political debate. Once and for all, we have included in an education bill a presumption of mainstreaming for children with special educational needs. At the same time, the bill will enable a balance to be achieved—that is important because there will continue to be parents who wish their children to be educated in a special school. There are genuine views on both sides of the debate, and those views have to be taken on board.

Sam Galbraith's amendments help to place that balance at the centre of the bill and allow both sides—special schools and mainstream schools—to have their place. To say to people, falsely, that the bill will mean that their children will be forced out of mainstream education is simply wrong, untrue and dishonest. People are being used to make cheap political points.

I urge members to oppose the amendment in the name of Nicola Sturgeon.

Photo of George Reid George Reid Scottish National Party

The minister has just under three minutes to respond.

Photo of Peter Peacock Peter Peacock Labour

I will be brief.

The amendments that we tried to deal with at stage 2 are extraordinarily difficult. They concern children with very difficult personal circumstances, and we are genuinely trying to find ways of bringing those children into mainstream education. We are striking a blow for equality by ensuring that we can, as a presumption in law, ensure that every child in Scotland goes to a mainstream school.

There was consent at stage 2 from the SNP and the Tories. They recognised that the matters were difficult and that we were trying to find a proper balance. We refined our earlier amendment with a further amendment today to try to give greater strength to that balance. We are prepared to accept Mary Mulligan's amendment today, again to find greater consent and balance and to give greater effect to what we are trying to do. Let no one say that we are seeking to remove children from mainstream schools and put them into special schools. That is simply a lie. Our intention is exactly the opposite. We believe that we have found the right balance in difficult circumstances.

I cannot really believe that Nicola Sturgeon and Brian Monteith believe that we should not have a debate when—in extreme, exceptional circumstances—it is right to have that debate about whether a child should go into a mainstream school or not. We must always leave that option open, in the interests of the child and of the community. That is what we are seeking to do. These are difficult matters, but we are seeking to deal with them genuinely and I think we have found the right balance.

I very much regret that, at the first sniff of trouble around the issue, the SNP breaks off the consensus and seeks, like a shark in water that has sniffed a bit of blood, to get in and cause greater difficulty. It is shameful that that has happened.

Amendment 3 agreed to.

Photo of George Reid George Reid Scottish National Party

No.

The question, is that amendment 26 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid Scottish National Party

There will be a division. Those who wish to support amendment 26 should press their yes buttons now.

Division number 5

For: Adam, Brian, Aitken, Bill, Campbell, Colin, Canavan, Dennis, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Dr Winnie, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Fergusson, Alex, Gallie, Phil, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnston, Nick, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McLetchie, David, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Robison, Shona, Russell, Michael, Salmond, Mr Alex, Scanlon, Mary, Scott, John, Sheridan, Tommy, Sturgeon, Nicola, Swinney, Mr John, Tosh, Mr Murray, White, Ms Sandra, Wilson, Andrew, Young, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Galbraith, Mr Sam, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeish, Henry, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, Mr John, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, Whitefield, Karen, Wilson, Allan
Abstentions: Harper, Robin

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 45, Against 69, Abstentions 1.

Amendment 26 disagreed to.

Photo of George Reid George Reid Scottish National Party

I put Ms Sturgeon at a disadvantage; we are having difficulty with our screens. I should have called her to sum up and did not—my apologies.

Amendment 27 moved—[Mrs Mulligan]—and agreed to.

Amendment 4 moved—[Peter Peacock]—and agreed to.