HC Deb 27 July 1944 vol 402 cc956-68

Consideration resumed of Amendment to Lords Amendment (page 50, line 14), at end, to add: If a local education authority inform the Minister that they are aggrieved by any directions given under this Section the directions nail be laid before Parliament as soon as may be thereafter and if either House of Parliament within the period of 40 days beginning with the day on which any such directions are laid before it resolves that the directions be annulled the directions shall cease to have effect. In reckoning any such period of 40 days no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

Mr. Hutchinson

I was pointing out that under this new Clause the Minister has extensive powers, if he is satisfied that a local authority or other person has acted unreasonably in the exercise of statutory powers conferred upon them, to give directions the effect of which is to override the decision of the local authority. I am not going to suggest that there may not be cases in which it is desirable that powers of this nature should be exercised by the Minister. This new Clause does represent, however, a departure from what has been the normal constitutional practice of Parliament. The House will probably agree that there may be cases, particularly under a Bill of this character, where a far-reaching power of this sort is necessary.

If, however, we give such drastic power to the Minister, we ought to impose adequate safeguards upon the exercise of that power which will ensure that its exercise by the Minister shall operate in a manner which is satisfactory to the authorities whose decision he over-rides: Therefore, I have put down this Amendment to the Clause which provides that it a local education authority is aggrieved by any directions which are given by the Minister, over-riding their decision under the provisions of this Clause, it shall be open to them to require that those directions should be laid before Parliament and that there should be an opportunity for Parliament, if it sees fit, to pray that the directions be annulled.

I submit that the Amendment provides a satisfactory and effective safeguard to the exercise of this power. It is not necessary for me to say that in the case of my right hon. Friend there is not likely to be any unreasonable exercise of the power. But we have to look at this matter apart from personal questions of that nature and to ask ourselves whether, as a matter of principle, it is right that we should vest in a Minister this far-reaching power of over-riding decisions which Parliament has said should, in the first instance, be taken by public authorities, such as local education authorities.

My right hon. Friend may say in reply to the Amendment that if it is adopted he will be exposed to frivolous objections to his directions being brought before Parliament. If what the Amendment proposed was that the right to bring these directions before Parliament should be extended to every individual who had made a complaint, or indeed to any body of managers whose decision was to be varied, then it might well be that we should have brought to Parliament complaints of a frivolous character. When, however, we are dealing with a local authority like a local education authority, we must assume that they will act reasonably. All we are asking is that my right hon. Friend will agree that, if he comes to the conclusion that the authority has acted unreasonably in the exercise of its statutory powers, it should have the opportunity of bringing his directions to Parliament for a final decision.

When we are dealing with a public authority we have to consider their position as a statutory body, and it is a serious thing for it to be said that a Minister of the Crown is satisfied that a statutory body have exercised their power unreasonably. No doubt it will be an exceptional thing, and I submit, therefore, that if the Minister seriously comes to the conclusion that a local education authority have acted unreasonably in the exercise of powers which Parliament has made contingent upon their discretion, they should have an opportunity, if they feel aggrieved, of causing those directions to be laid before this House so that Parliament may be the final judge between them and the Minister. I hope that my right hon. Friend, who has throughout the progress of this Bill acted with so much consideration for the local education authorities, will be able to meet us in this final matter and agree that there should be this safeguard for which we ask. It will enable this House to be the final judge on matters which may arise between him and them in the execution of the powers which Parliament has vested in them under this Bill and of the powers which Parliament has given under them other enactments relating to education.

Sir John Mellor (Tamworth)

On a point of Order. May I formally second the Amendment and then have an opportunity of speaking after the Minister has spoken on it?

Mr. Speaker

The hon. Gentleman cannot second the Amendment and then talk on it later. He may talk on the Lords Amendment when that comes before the House, because it will be a new Question.

Sir J. Mellor

I beg to second the Amendment to the Lords Amendment. I understand that the new Clause is in substitution for Clause 93, Sub-section (2) of the Bill, which a Lords Amendment is designed to delete later on. The new Clause is much stronger than that Subsection, which says: Where the performance of any duty imposed by or for the purposes of this Act on a local education authority or on the managers or governors of any county school or auxiliary school is thereby made contingent upon, the opinion of the authority or of the managers or governors, the Minister may nevertheless require the authority managers or governors to perform that duty if in his opinion the circumstances are such as to require the performance thereof. That requires them to perform a duty. Under the proposed new Clause, I respectfully suggest, the Minister's powers are very much stronger, because he may give directions as to the exercise of the power or the performance of the duty, as may appear to him to be expedient. He can not only tell local authorities that they have to perform a duty which has been imposed upon them; he can go further. He can tell them how they are to do it. The meaning of the words: give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient, would enable him to tell them not only to do a job but also the manner in which they are to do it.

Therefore, I hope very much that my right hon. Friend will consider very seriously accepting the Amendment. The proposed new Clause, being much stronger than the provision which this House had approved in the Bill, does, I think, make it necessary for us to scrutinise very carefully the Minister's powers. If this House entrusts local authorities with certain powers surely it can only be right that, if the Minister seeks then to override those powers, the local authorities concerned should have the right to come to this House and to challenge the Minister's action. That is all we are asking. If the local authority feel that the Minister has acted in a way that is unfair to the exercise of their discretion, they should be able to come to this House, which has given them the powers, and to say: "Is it right or is it not right that the Minister should take away from us now, in this particular case, the powers with which we have been entrusted?"

Mr. McEntee

I hope that the Minister will not accept the Amendment. All I can see in it is a possibility of very long delay and I do not see that there is anything to be said in its favour, Anybody who has served upon a local education authority, as I have for many years, will agree that in dealing with the Board of Education we have not found them unreasonable. Occasionally, we may have differed from the Board, but we have always found them willing to listen to any reasons that we put forward, and to consider any suggestions we had to make. What does the Lords Amendment propose to do? It proposes, if a dispute arises between some local body and the local authority, or between some person and the local authority, that if the person or local body represents to the Minister that a decision of the local authority is unreasonable he shall have a right to appeal to the Minister against the decision of the local authority. That is a perfectly sound thing to have and I am glad that individual citizens or local bodies who cannot come to an agreement with their local education authority should have the right to go to the Minister and ask him to act as arbitrator.

In a case like that I am sure that the local authority would not have reason to fear the decision of the Minister. I cannot see any possibility of it. It is suggested, in the Amendment by the hon. and learned Member for Ilford (Mr. Hutchinson) that the matter shall lie on the Table of the House for 40 days, but it may have to lie there for much longer than 40 days, because Parliament may have adjourned for some purpose for more than four days. If Parliament adjourned for any period more than four days, that period has to be taken into consideration and has not to be reckoned in the 40 days. Thus, it might go on for a couple of months while something of very great importance to the local authority is held up. It does not follow that Parliament will agree to the matter in question or will consider it, because it might be a very long time before the Leader of the House can find an opportunity for Parliament to give any consideration to the matter in order to clear up what, after all, may be only a very small dispute. I feel that we cannot afford to introduce new machinery to deal with disputes between the local persons or body and the local education authority, and therefore I hope that the Minister will not accept the proposed new procedure, which will hold up the ordinary business of the local education authority perhaps for a very long period. The more I examine the Amendment the less I find myself in agreement with it.

Mr. Tinker

This is a very attractive Amendment and makes an appeal to anybody, on its face value. When you suggest to a democrat that, before anything is agreed to, it must come before the House of Commons, he is inclined to agree; but in this case we have to ask ourselves whether the proposals now being made will cause delay. Local authorities may think they have a chance to lay complaints before the Minister but to let a matter lie on the Table for 40 days causes a big delay. We have had so much delay over the Education Bill altogether that we do not care to cause more delay and make it more difficult for the Minister to get through his work. I felt there was a lot to be said for the Amendment to the proposed new Clause and for the arguments of the hon. and learned Member who moved it, until I considered the matter carefully. The result is that I have come down on the side of the Minister and I hope that he will try to persuade the hon. and learned Member not to press his Amendment.

Mr. Lipson

I so often find myself in agreement with the hon. Member for Leigh (Mr. Tinker) that I am sorry to differ from him this time. The question at issue is not delay but whether the delay is unreasonable or undue in the light of the issues at stake. I believe that time would be found for any big question to be discussed in Parliament which, upon a big matter, ought to have the final word. On the other hand, I cannot believe that in a small, petty matter the Minister would go so far as to override the local authority. I am sure there would have to be a grievance of substance before he took action. The local authorities feel very strongly about the matter.

Mr. McEntee


Mr. Lipson

I am sure that Parliament would approve of local authorities being jealous of their rights and privileges. If we are jealous of ours, let us recognise the right of the local authorities to be jealous of theirs.

Mr. McEntee

Will the hon. Member give some authority for his statement that the local authorities feel very strongly about this matter? I have not found it, and I am in touch with them.

Mr. Lipson

My authority is that I have been appealed to by the Secretary of the Association of Education Committees. I think the hon. Member will admit that it is a responsible body. I am told that the Association of Municipal Corporations also, through their responsible officers, have made representations. The hon. Member could not have more responsible authorities than those.

Mr. McEntee

Is the hon. Member informing the House that he has personally received representations from those authorities expressing these views on the matter?

Mr. Lipson

My answer is "Yes." I have had a letter from the Secretary of the Association of Education Committees asking me to support the Amendment which is sponsored and approved by the Association of Municipal Corporations. I think my hon. and gallant Friend the Member for Ilford (Mr. Hutchinson) is recognised as one who can express the views in this House of responsible local authorities. My hon. Friend can take it for granted that there is strong feeling among local authorities on this matter because they feel that their rights are in question. They have been given certain powers, and if there is any question that they are not using their powers properly or are abusing them, that issue ought to be determined by Parliament.

I am surprised that anybody should suggest that Parliament should refuse to maintain its proper role as the watchdog of the Executive. Some of us are very concerned at the power which the Executive are increasingly taking to themselves at, the expense of other authorities, and that makes it all the more necessary for Parliament to act. I therefore hope that my right hon. Friend will turn a kindly eye on the Amendment. The local authorities were not enamoured of the Clause but they are not asking that the proposed new Clause might not be accepted. They ask, as I think they are justified in asking, that Parliament should ultimately have the last word.

Mr. Butler

I fully realise the reasons which animated my hon. and learned Friend the Member for Ilford (Mr. Hutchinson) and the hon. Baronet the Member for Tamworth (Sir J. Mellor) in moving and seconding the Amendment to the proposed new Clause. If I put the matter in its proper perspective the House may get a rather different idea of the Clause from that which it has had from the speeches which have been made, and I hope that my hon. and learned Friend will not press the matter. The Clause is of importance to the operation, and to the judicial and fair working, of the Bill as a whole. My hon. Friend the Member for Tamworth drew the attention of the House to Clause 93 (2) of the Bill, as it originally left the Commons.

He made out that the new Clause which hon. Members have been asked to consider is, in fact, more drastic and, so to speak, less fair to the authority and the individual than the Clause which was originally passed by this House in the Bill as sent to another place. Every shred of evidence I have had, including the best legal advice I could obtain, is to the contrary. Our idea in redrafting this Clause is to make it more fair, more just and less draconian than the original Subsection to Clause 93. We have made two definite changes in the new Clause which is to be substituted for Clause 93 (2). The new Clause D says: If the Minister is satisfied, either on complaint by any person or otherwise, … thus introducing the question of a complaint by any person, or otherwise, that any local education authority or managers or governors of any county or auxiliary school are doing this or that. It must be first proved by complaint. We have also brought into the new Clause the words "proposing to act unreasonably …"It has been thought, according to all the best advice we have been able to get, that by these two Amendments we have made this Clause less drastic than that originally passed by this House. That is the legal interpretation of the Clause as put before the House to-day. We are faced with a Clause which, in my view, is phrased in more equitable and just terms than the original Clause. Yet hon. Members are desirous of amending this Clause, which is in fairer terms than that which they have previously agreed to.

Sir J. Mellor

Is it correct to say that whereas Clause 93 (2) merely empowered the Minister to give directions to the local authority to perform a duty the new Clause empowers him to go further, and to tell them how they are to perform the duty?

Mr. Butler

I am advised that the original wording requiring the managers or governors to perform a duty was equally strict, and that the hon. Member's apprehensions are not as powerful as he would imagine. I think the new wording is more equitable than the old in both respects, in regard to the complaint and in regard to the word "unreasonably." We are faced with the provision in the Bill to which the hon. and learned Member for Ilford wishes to make, an Amendment, which is to the effect that any directions made by the Minister, if they aggrieve an authority, shall be put before Parliament, and left, as the hon. Member for West Walthamstow (Mr. McEntee) said, to lie for what may be many more than 40 days. Let us examine that position. In my view the hon. and learned Member for Ilford's position has that main weakness. This Clause is being sought by the Government, and we are asking the House to agree with the Amendment brought from another place, because we consider it necessary in the last resort to have the power in the Bill in the hands of some person, we suggest the Minister, to deal with the small questions of disagreement which may arise between an authority and a person. I fail to see, in the first place, why my hon. and learned Friend should insist that only if the authorities were aggrieved should the matter be brought before Parliament. This Clause is inserted as a protection for the citizen and the ordinary person. If he is to be fair he must insist that the aggrieved person shall have his case in every matter, small or large, brought before the attention of Parliament. This Clause gives the opportunity to the Minister to intervene and settle small questions of friction which may arise between an authority and a person in the operation of this Bill. I claim it would be utterly unjust if only when one side, the authority, was aggrieved, should the matter be brought before Parliament, and that when a citizen was aggrieved, it should not. That is the main difficulty I see in my hon. and learned Friend's Amendment.

Mr. Hutchinson

Will my right hon. Friend accept an Amendment to my Amendment on those lines? I attempted to safeguard him against frivolous complaints.

Mr. Butler

Why it should be frivolous I fail to see. It will be the Minister's duty to keep the balance fairly between the authority and the person. I could not accept an Amendment to the hon. and learned Member's Amendment on the lines just suggested for the reasons which I am about to indicate in the second part of my speech.

Let us examine the type of cases which this Clause may affect. I think it permissible to take one or two minutes on this, because it obviously interests the House, and my hon. and learned Friend has evinced every sign of sincerity and interest. Cases I might mention are very simple. Under Clause 32, to take one Clause at random—I ought to know the Bill fairly thoroughly by now—an authority, after notice served on any parent, may require that parent to submit his child for examination by the medical officer. If there is an unreasonable exercise of function in that particular matter it should come to the attention of the Minister, and the Minister could quite rightly decide in a fair and just manner the issue as between the parties concerned, the authority and the person. I claim that an issue like that is quite unsuitable to be laid before Parliament, especially for an indefinite number of days, perhaps as long as three months.

To take another instance, Clause 48 deals with the provision of board and lodging otherwise than at boarding schools or colleges and hon. Members will remember that, in the course of our deliberations, we inserted an Amendment in Committee that as far as practicable effect should be given by the authority to the wishes of the parents of the child or to the wishes of the young person, as the case may be, in respect of the religious denomination of the person with whom he will reside. That is to say if a child is sent away from home we want the authority, if possible, to put it in a home of which the occupants are of the same denomination as the child. We inserted that on purpose, to ease the situation for children who may have to leave their homes. It is quite possible that in a matter like that there might be a small dispute. In that case, surely it is better to give an ordinary citizen a right of appeal to the Minister. Surely it is unreasonable to ask that it should be brought before Parliament and laid for what might be a considerable number of days.

In the Seventh Schedule—I could mention many other examples where friction might arise—it is laid down that associations of teachers shall be brought into the conferences which have to be set up under that Schedule for the purpose of preparing an agreed syllabus. Suppose there was a slight difference of opinion as to which associations of teachers should be brought in in a particular area, and the conference were held up, surely it would be unreasonable to bring a matter like that before Parliament for 40 days, and involve Members in issues with which they could not have time to deal. Hon. Members will see there is no analogy between the directions which would be given under this Clause and regulations. Under this new Clause individual cases would be dealt with. Regulations, on the other hand, are of general application. This is where my hon. and learned Friend the Member for Ilford has on a very rare occasion in his life fallen into error. I think he has confounded the situation. He imagines that here we are dealing with a provision to override the discretion which Parliament has given to authorities. That is not the case at all.

As I envisage the matter this is a reserved power which any constitutionalist would really prefer not to have but is necessary for the smooth working of the Bill. It is, in fact, a judicial power reserved by the Minister in cases of friction in small matters which have been dealt with "unreasonably." It is not analogous with the case of a Regulation in which Parliament has given the main direction which the Minister is deliberately flouting by administrative action. It has nothing to do with the argument coming into fashion in Parliament today. Also I would add that it might be dangerous to ask me to lay more Regulations before Parliament. I might forget them and get into difficulties such as arose at Question Time to-day.

I am not deliberately seeking this Clause, but I think it necessary for the smooth operation of the Bill and as a sort of reserve power. As I have also said, the issues involved are not suitable in my view for laying before Parliament. I will say that I do not believe in delegated legislation and as one who believes in the control of Parliament I still think I am perfectly right in recommending this Clause to the House for the reasons I have given. The Minister of Education is one to whom I think such quasi judicial functions can be given in connection with this sort of thing. We have special functions to carry out at the Board in connection with our charitable trusts and other matters. The Bill reserves these functions to the Minister and in that it has met with approval. I give an undertaking that the Clause will be operated in the proper spirit and not in the wrong spirit in the future.

Mr. R. Morgan

I rise to oppose the Amendment to the proposed new Clause and support the Minister in the statement he has made. I regard the Amendment which has come from another place as a very wholesome one. When yearly reports come forward showing how this magnificent Bill is working in the country, if we adopt the Lords Amendment we shall be able to say to the Minister, "Why have you not intervened in the case of such and such a thing? Why has it not been carried out according to the tenets of the Bill?" We should not have the delaying action suggested in the Amendment of the hon. and learned Member for Ilford (Mr. Hutchinson) but should throw on to the Minister of Education the direct responsibility of seeing that all these authorities are not held up in any programme they may have before them and in a way described here as unreasonable. I look forward to the time when the Minister of Education—as we are now to call him—will be able to say in any difficulty on which agreement cannot be reached: "Here is your court of appeal." I cannot imagine that any Minister of Education, either now or in the future, would not give reasonable consideration to any dispute that arises. Therefore, I should like to raise my voice against the hon. and learned Member's Amendment and in favour of the Amendment that has come from another place.

Amendment to the Lords Amendment negatived.

Lords Amendment agreed to.

Subsequent Lords Amendment, in page 50, line 30, agreed to.

Lords Amendment: In page 55, line 18, at end, insert new Clause E: (Pupils to be educated in accordance with wishes of parents.) In the exercise and performance of all powers and duties conferred and imposed on them by this Act the Minister and local education authorities shall have regard to the general principle that so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure pupils are to be educated in accordance with the wishes of their parents.

Mr. Butler

I beg to move, "That this House doth agree with the Lords in the said Amendment."

This Clause, which relates to the wishes of the parents, was inserted to take the place of Clause 8, paragraph (b), which we left out. I said that Clause 8 (b) pervaded the whole Bill, but on reconsideration we felt this method of having a complete Clause achieved our object rather better than the other system suggested. I therefore suggest that it would be wise to agree with the Lords in the Amendment. It will entail certain consequential Amendments.

Question put, and agreed to.

Consequential Amendments made to the Bill:

In page 50, line 26, leave out "person" and insert "pupil."

In line 29, leave out "person" and insert "pupil."

In line 30, leave out "person" and insert "pupil."—[Mr. Butler.]

Subsequent Lords Amendments to page 56, line 8, agreed to.