Legislation Committee supports Innovative Rights for Children

Published 08/07/2009   |   Last Updated 14/07/2014

Legislation Committee supports Innovative Rights for Children

The Assembly’s Permanent Legislation Committee No. 3 has published its report on Welsh Government proposals to extend children’s entitlement by providing them with rights to make special educational needs (SEN) appeals and claims of disability discrimination to the SEN Tribunal for Wales.

The committee’s report supports the principle of the proposed Measure and the need for legislation. It also acknowledges that legislation will ensure compliance with the United Nations Convention on the Rights of the Child.

The proposed Measure would create a universal right of appeal and claim for children, which is not based on age or competency. Whilst some witnesses raised concerns regarding how this may be practically implemented, the Committee were assured by the Minister for Children, Education, Lifelong Learning and Skills, Jane Hutt AM that these concerns could be addressed in future regulations and guidance.

The Committee gave careful consideration to sections of the proposed Measure that provide powers for Welsh Ministers to preclude a child from making an appeal or claim. The Committee agreed that children should have an unfettered right to appeal or make a claim and concluded that these powers should be removed from the proposed Measure, with a caveat that if they were to remain, they should be subject to more rigorous scrutiny by the Assembly (through the affirmative procedure) before they are used.

The Committee also considered a number of implementation issues arising from the proposed Measure, particularly regarding the notice and service of documents on a child; the appointment of case friends including requirement of parental consent; the independency of advocacy services and the meaningful participation of children in Tribunal proceedings.

The proposed Measure refers to proposals for the piloting of the rights of a child to appeal or make a claim and that confer powers on Welsh Ministers to change, by Order, the proposed Measure in relation to the outcomes of the pilot. In its report, the Committee strongly recommended that any future orders to amend the proposed Measure, after the pilot and evaluation phase, should be subject to scrutiny in the Assembly using the super affirmative procedure.

The report also acknowledges evidence received from witnesses calling for a further consultation process with key stakeholders on conclusion of the pilot and evaluation phase. The report recommends that the Minister consider bringing forward an amendment to the proposed Measure this effect.

During its scrutiny, the Committee gave careful consideration to the breadth of the powers conferred on Welsh Ministers under section 18 to amendthe proposed Measure. The report expresses concerns regarding how these powers could be used by future Ministers to amend the principles of the proposed Measure. The report also considers that the framework powers being sought under this proposed Measure relate to issues of fundamental principle, such as whether a child can or cannot appeal. The Committee has therefore recommended that the use of section 18 of the proposed Measure be subject to the super affirmative procedure.

Committee Chair Dr Dai Lloyd stated that:

“We have considered the proposed Measure in considerable detail and have taken into account the results of wide consultation. We agree with the principle and need for this legislation and fully support the extension of rights to children to make Special Education Needs appeals and disability discrimination claims to the Special Education Needs Tribunal for Wales. We are pleased that the proposed Measure will underpin the United Nations Convention on the Rights of the Child and welcome its introduction.

We do however have some reservations regarding the practical implementation of some aspects of the proposed Measure and have made recommendations to this effect. We have also raised concerns and made recommendations regarding the framework nature of the proposed Measure and the breadth of the powers conferred on Welsh Ministers to amend the proposed Measure in the future”.

Further information on the proposed Measure and the legislative process can be found at Legislation Committee No. 3's webpages