CLAUSE 35.—(School attendance orders.) (Hansard, 21 March 1944)

§ The Chairman
There are several Amendments on this Clause dealing with the same point, and perhaps hon. Members who have put their names to those Amendments, will be good enough to discuss them on the Amendment in the name of the hon. Member for Moseley (Sir P. Hannon) which I now call.

§ Sir P. Hannon
I beg to move, in page 28, to leave out lines 12 to 16, and to insert: provided that before selecting the school to be named in the order the authority shall consider any representations the parent may make and if the parent is dissatisfied with the selection made by the authority he may appeal to the Minister whose decision shall prevail. We want to secure that in this Bill the right of the parent should have the fullest possible protection. This Amendment proposes that before selecting a school the authority should consider any representation a parent may make, and if the parent is dissatisfied with the selection made he may appeal to the Minister, whose decision shall prevail. Some local authorities may not give sympathetic consideration to the case put forward by a parent and that being so the parent ought to be able to appeal to the Minister himself. Under this Clause we are dealing with orders made by local authorities in relation to schools and we want to do everything we possibly can to preserve the right of the parent and to ensure that the parent should have the last word in regard to the education of his children. A few minutes ago an hon. Member opposite asked what was to happen to a child whose parents said that its school was inefficient. The Parliamentary Secretary replied that the parent could appeal to the local authority. But suppose the local authority agree with the persons responsible for the management of the school, and not with the parent. Where would an appeal lie? How would the parent be able to get satisfaction? On that ground alone, I feel that it should be clearly defined precisely where the parent stands with regard to the education of the child. The Amendment speaks for itself and I hope it will be largely supported.

§ Mr. Stokes (Ipswich)
I should like to say a word or two in support of the Amendment, especially in view of the demonstration that we had a few minutes ago—

§ The Deputy-Chairman (Mr. Charles Williams)
We must not go backwards.

§ Mr. Stokes
I will not slip again, but the Education Bill seems to make strange bedfellows. The Minister has promised that he will keep the rights of parents to the fore in the Bill. I support what the hon. Member opposite has said, that those rights should be inserted wherever possible, and this seems a suitable point to insert them.

§ Sir J. Lamb
I have Amendments on the Paper which you, Mr. Williams, or your predecessor said could be considered with this Amendent. I should like to support what my hon. Friend has said because I do not think any of us would deny the right of the parents to have the ultimate decision in their hands of the school to which the child shall go. Unfortunately there are many parents perhaps not quite in the same position as the local authority and the teachers of the school where the child has been receiving its education, to say where it will receive the greatest benefit. It should be the duty of the local education authority to make an order suggesting the school, but the parents should have the right of making their representations. The only qualification I would put to it is that, if the parents' recommendations are not accepted by the local authority, they should have the right to appeal to the Minister and the Minister should have the opportunity of deciding, I think it is something that we can ask for, and I hope the Minister will accept it.

§ Mr. Ede
I do not think my hon. Friend the Member for Ipswich (Mr. Stokes) can really have read the words which it is proposed to omit, because they give the parents a greater right than the words the hon. Member for Moseley (Sir P. Hannon) proposes to substitute for them. It is true that my hon. Friend is accustomed to going to bed with the hon. Member for Moseley on certain aspects of this Bill, but this is an occasion when they should, at least, have twin beds, if not separate bedrooms. We propose that, when the education order is made, the parent shall have the right of selecting the school and, if the local authority object, he may appeal to the Minister. The proposal of the Amendment is precisely the reverse. The local authority, in fact, select the school, and the parent has to appeal. I think our way of doing this is the right 777 way, because it is easier for a local education authority to appeal to the Minister than for an individual parent in some village or back street who, even if he knows of his right does not know the way in which he can exercise it. If we desire to preserve the right of the parent to select the school, the way we have arranged for it is to ensure that he shall have the first voice and that it will only be in cases where he exercises some ludicrous choice, that there is likely to be an appeal by the local education authority. I hope the Committee will agree that the Clause shall stand as worded.

§ Mr. Colegate
I am in sympathy with the Parliamentary Secretary's exposition of the case, but would he not consider the possibility at a later stage of leaving out the words "where practicable"? These seem to me to throw some doubt on the right of the parents, which doubt would be removed, if those words were removed. Moreover, the wording does not seem quite grammatical. I think the word "practicable" applies to the selection, but surely, if the words were left out, the hon. Member's doubts might be to some extent resolved.

§ Mr. Silkin (Peckham)
I have a great deal of sympathy with what my hon. Friend has said, but in many cases the parent is not in a position to know what schools are available. He might select one because an older brother was going to a certain school, and he might want the younger brother to go to the same school. But the older brother will be going on to a secondary school, to which the younger one will not be able to go. Or he may choose on the basis that a particular school is near his home, regardless of the type of school. In an urban area, that is likely to happen a great deal with the multiplicity of different types of schools It seems to me, therefore, that it would be wiser to let the local authority name the school after consultation with the parents. They would be informed of the ground on which a particular school is chosen and they would know that, if they are not satisfied, they have the right of appeal. I think, if it is made a condition that the local authority should make the choice after consultation with the parents, the parents' position is safeguarded and the right hon. Gentleman will have fewer appeals than he would otherwise have where the parent makes 778 the decision. I hope the right hon. Gentleman will reconsider the matter.

§ Captain Cobb
I think the Parliamentary Secretary is perfectly right. The wording in the Bill is far better than that in the Amendment. I feel that the parents ought to have the right to say what kind of education the child should have and to what sort of school he should go. The hon. Member for Peckham (Mr. Silkin) is tending more and more to treat the parent as if he was a sort of half wit who wants a nurse to lead him across the road. I want parents to take a more intelligent interest in the education of their children and I think they ought to be encouraged to take it. I hope the right hon. Gentleman will resist the Amendment.

§ Sir P. Hannon
I am not entirely satisfied with the hon. Gentleman's answer because it does not credit the ordinary parent with the intelligence to make an appeal. I think most parents will be able to make an appeal, or get someone to advise them how to make one. The ordinary man is not so bereft of intelligence as not to be able to do this. I agree with my hon. Friend the Member for The Wrekin (Mr. Colegate) that the words "where practicable" ought to be removed and, if that is done, I shall be glad to ask leave to withdraw my Amendment.

§ Mr. Ede
The cases we are dealing with are, on occasion, quite difficult. For instance, a child may have no parent or guardian who can readily be traced. Clearly someone in that case will have to make a school attendance order, but it would not be practicable to consult with the parents. It is for that kind of reason that these words are inserted.

§ Sir J. Lamb
In that case, on whom would you serve the order?

§ Mr. Ede
You would probably have to find the present custodian. I ask hon. Members to realise that it is sometimes a matter of great difficulty for the parent to realise what are his exact rights. An appeal to a Government Department appears to some person in a small rural cottage, or in a back street in a town, a far more tremendous operation than it is. I have no doubt that a local education authority desiring to make an order will draw the attention of the parent to the nature of the alternative schools that may 779 be available and, if he indicated that he was going to ask for one which was unsuitable, would point out the unsuitability. If, in spite of that, the parent insisted, the local education authority would appeal and would be in a great deal better position to exercise the rights conferred on them than the individual parent.

§ Sir P. Hannon
In view of what the hon. Gentleman has said, and realising that the Ministry is fully alive to the importance of safeguarding the interests of parents, I beg to ask leave to withdraw the Amendment.

§ Mr. Denville (Newcastle-upon-Tyne, Central)
I beg to move, in page 28, line 16, after "directs", to insert: regard being had to the religious beliefs of the parents. So much has been said about the rights of parents in connection with the Bill that one finds it difficult to add anything, because the right hon. Gentleman on more than one occasion has said he is going to look after their rights. In this case a child might not be properly educated by its parents or by a tutor, and the education authority might say, "This child must go to a school under our authority," and they would compel it to attend. We ask that in a case like that the parents should have a right to say that they will send the child to a school where it will be taught the religion of its parentsֵ The same thing arises later in the Bill. If an authority wishes to divert the child from one school to another, it should not have the power to do it, unless it complies with the religious beliefs of the parents.

§ Mr. Ede
In view of the fact that the last Amendment has been withdrawn, the parent has got the right of selecting the school. Therefore, the issue can only arise if there is an appeal to the Minister by the local education authority. Early in the discussions in Committee, my right hon. Friend accepted an Amendment which compelled the local education authority to have regard to the wishes of the parents as to religious instruction of their children, and he indicated that that would cover many subsequent Clauses. We are advised that this Amendment is unnecessary, because it will be for the Minister, in considering 780 this matter, to have regard to the wishes of the parents.

§ Captain Prescott (Darwen)
To what Clause was the Amendment made to which the hon. Gentleman refers?

§ Mr. Ede
Clause 8 (2).

§ Mr. Denville
Having heard what my hon. Friend has said, I beg to ask leave to withdraw the Amendment.

§ Mr. Moelwyn Hughes
I beg to move, in page 28, line 45, to leave out from "section," to the end of the Subsection.
This is the Clause which endeavours to secure that the parent carries out the duty imposed on him in Clause 34 to see that the child receives education suitable to his age, ability and aptitude. He is given the opportunity of doing that by sending the child to school or by having him educated otherwise. Obviously, in working out how this duty was to be enforced, the framers of the Bill had to have in mind some method by which the education offered otherwise than at school was to be tested for its efficacy and suitability to the age, ability and aptitude of the child. The manner by which that is sought to be achieved is first that there must appear to the local education authority to be a prima facie case that the education which the parent is providing is not suitable. That is the first examination of the efficiency of the education. Then the local education authority must serve upon the parent a notice requiring him to satisfy the authority that the education of the child is efficient. The parent has the opportunity, under the next Sub-section, of satisfying the authority that the education is efficient and is such as carries out the duty imposed on the parent by Clause 34. The authority, through its expert educationists and advisers, will examine the question of the efficiency of the education tendered by the parent and the reasons given by the parent for it, and will decide whether ii is good enough. If it decides it is not good enough it will issue an order directing the parent to send the child to school. The parent is given the power of selecting the school and of appealing to the Minister if his choice is not accepted. The order to the parent implies that the parent's choice of education otherwise than at school is 781 not efficient. If the parent does not desire to comply with the order he is entitled to apply to the education authority requesting that the order be revoked on the ground that the arrangements he has made for the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school are good enough.
If the authority refuses to revoke the order the parent has a right of appeal to the Minister. I imagine that when the appeal goes to the Minister he will be advised by people competent to judge these matters. For the second time, therefore, this matter receives competent adjudication. We have got to the stage where the competent advisers of the local education authority and the Minister and his advisers have adjudged the education to be not good enough. There then faces the parent an order directing him to send the child to school. If he does not comply with the order the consequences appear in Sub-section (5). A summons is then issued for non-compliance with the order, and the parent is able to go before a bench of magistrates, which is the final, ultimate court of appeal in judging whether the education of a child Otherwise than at school is good enough for the child. Are they equipped? Are they as competent and as knowledgeable in matters of education as the advisers of the right hon. Gentleman or of the competent local authority? [HON. MEMBERS: "Yes."] Lay magistrates? I am not surprised to hear that reply from Members on the other side of the Committee. This is the loophole for the private tutor. [HON. MEMBERS: "Why not?"] There is no objection to a private tutor provided that he is good enough to satisfy the local authority or the advisers of the Minister that he is competent to give the proper kind of instruction, but if any private tutor is good enough, he will certainly be able to satisfy one or the other. I say that the proper judge between on kind of education and another—

§ Mr. Magnay
Does not the hon. and learned Member believe in the jury system?

§ Mr. Hughes
Perhaps I may just inform the hon. Member that no jury is seen in a magistrate's court.

§ The Deputy-Chairman
It is going rather beyond the scope of the Amendment to discuss the jury system.

§ Mr. Hughes
I agree. The jury is completely irrelevant to the point which I am making. The whole purpose of the Amendment is to secure that the judge whether education is efficient or not and of the relative merits of two types of education, is that already comprehended within the Clause. One of the worst possible ultimate tribunals of appeal in this matter is a bench of lay magistrates. Are we to make a bench of lay magistrates into a House of Lords, to adjudicate on the comparative merits of two systems of education? As a tribunal, they are not competent to judge in this matter. I have not proposed the Amendment without having regard to consequential Amendments. I desire to keep open to the parent any other defences which may be valid to him, other than those which I have mentioned.

§ Mr. Pickthorn (Cambridge University)
It has been very entertaining to hear this chivalrous attack upon the right of the free-born Englishman to have one of his hereditary properties, the property of managing his own children, defended in the courts of law. I should have thought it was an essential part of liberty. It is entertaining, but not very convincing, to hear that right attacked by an eminent professional of the law. It really almost makes one doubt whether Henry VIII did not fall into error when he assimilated Wales with England. I hope that whichever Minister is in charge of the Clause, he does not mean to let this go.

§ Mr. Silverman (Nelson and Colne)
I am astonished at my hon. and learned Friend who moved the Amendment, and I would like to ask him what he thinks ought to be the position of a parent who has had a school attendance order served upon him, and who really can prove what the words of the Clause provide, namely, that the child is already receiving adequate education. My hon. and learned Friend is advising the Committee to adopt an Amendment which would deprive such a parent of any defence in the court, and make him automatically guilty of an offence under the Clause, even though he could prove that the child was receiving adequate education. That would be a very strange position for people on this side of the Committee to adopt and I do not think that very many of us do, in fact, adopt it.
783 My hon. and learned Friend is seeking to institute, for third-party judgment on a question that might very well be capable of two opinions, the opinion of the authority and the expert. I am surprised at an hon. Member of such legal eminence reposing such overweening confidence in experts. I have heard a lot of expert witnesses in my time, and I have seen them called on both sides of what looked to me, as a layman, a perfectly plain case. Our judicial system, which enables a lay tribunal to hear all the evidence that can be called on both sides, to weigh one lot of expert evidence against the other and then decide whether the requirements of the Section has been fulfilled, is an eminently just and workable system.
I know the hon. and learned Gentleman says that this matter has been inquired into several times and that there have been two adjudications on it already. I suggest to him that there have been nothing of the kind. There has been no adjudication upon it. An adjudication means third-party adjudication. The adjudication to which he refers is not third-party, but is judgment by the local authority, or the education committee, in its own case. I am not saying that, in the overwhelming number of cases, it is not very likely that the local education authority is right. In those cases they will have no difficulty whatever in proving it to the satisfaction of the court. I do not think that the reference to a jury was quite so much out of order, because the functions that would be exercised by lay magistrates in this matter would be very like those of a jury deciding between one lot of expert evidence and another.
Suppose that the local authority or Ministry in a particular case had been acting unreasonably. Suppose that, in looking into a question, they had omitted, to take into consideration things that ought to have been taken into consideration. Suppose an order had been made when, in justice, it ought not to have been made. My hon. and learned Friend would deprive the parent of any remedy at all, or else he would drive the matter further into the much more expensive and protracted litigation of the High Court, to have the order of the local authority or the Ministry quashed, as not having taken into account things which ought to have 784 been taken into account. That is a much more costly and complicated procedure, which many parents would not be able to adopt as easily as they can go to one of our courts. There they can state their case and leave the local authority to state its case, and let the court judge, as it is right it should, when the individual quarrels with the community. I hope that the right hon. Gentleman will not accept this Amendment.

§ Mr. Butler
The hon. Member for Nelson and Colne (Mr. Silverman) has put the case for the Government most ably and I was very grateful that towards the end of a long Sitting he should introduce this influence in the Debate. The position is that the hon. and learned Member for Carmarthen (Mr. Hughes) has spotted, as is usual with him, an interesting feature in the Bill which is an alteration in some respects from the present position. Under the existing law there are two different methods of enforcing school attendance. Either a parent can be prosecuted under a school attendance by-law, or application can be made in a court of summary jurisdiction for an attendance order. In this case subsection (5) provides that a person who fails to comply with a school attendance order shall be guilty of an offence unless he proves to the court that he is causing the child to receive efficient full-time education. As the hon. Member for Nelson and Colne has said, surely that is the best method of dealing with this matter, because it meets the interests of the public and this Committee. There is some local tribunal before which a parent can be arraigned in order to satisfy the court that the type of education is satisfactory. If we go either above or below that procedure it seems to me that we get into trouble. If we go below that, a statement by the tutor will not be good enough. If we go above and carry the matter into the realm of the High Court we are surely exaggerating the situation and also carrying the offence out of the locality, in which the circumstances may be understood, into a sphere where the local circumstances may not be properly understood.
Therefore, short of further consideration which I shall certainly give to the matter, I do not see any method better than this proposed to see that a parent who chooses to use the method of tutor is giving the child satisfactory education. It has come up in the course of our educational discussion that the "beaks," as 785 they are called, are not suitable people for adjudicating on the type of education given. Surely this is a fairly simple matter. The parent will be able to give evidence, the matter will come out in public, it can be reported on and I should have thought that in the individual case of the parent who is employing a tutor it is the fairest method for the public to rely upon. I failed to find any other local machinery I could adopt. If in the next stage the hon. and learned Member could suggest any positive method I will look at it.

§ Mr. Woodburn (Stirling and Clackmannan, Eastern)
Have you rights of inspection?

§ Mr. Butler
Yes.

§ Mr. Moelwyn Hughes
Far be it from me to deprive the free-born Englishman of a right, evidently very precious to many, and particularly precious to the hon. Member for my University—the right, which so many have exercised throughout the years, to hire a tutor for his children. I am not going to deprive millions of that right. I beg to ask leave to withdraw the Amendment.

§ Mr. Silkin
I beg to move, in page 29, line 16, at the end, to add: (8) A local education authority may authorise an officer of the authority to exercise on their behalf any of the powers conferred on them by this section. I put this Amendment forward as a simplification in administration. If this Amendment is not carried then the function of carrying out this Clause will devolve upon the local education authority, and possibly a sub-committee of that authority. The task will be a pretty onerous one, and it is felt that it is one which could suitably be left under proper control, in many cases, to an officer of the authority. This Amendment is designed to secure that.

§ Mr. Butler
I think it is possible there may be at the back of the hon. Member's mind the possible conduct of local proceedings, in which case we are advised that Section 207 of the Local Government Act, 1933, a copy of which I could send him, covers the point I have in mind. Short of that particular difficulty we do not feel that the hon. Member's apprehensions need necessarily be aroused toy the Clause as drafted. I feel that the Clause 786 had better stand as it is, subject to the hon. Member studying, perhaps, the Local Government Act, of which I will be glad to furnish him with a copy.

§ Mr. Silkin
I am not satisfied, but I do not want to detain the Committee. Perhaps I could have a word with the right hon. Gentleman. I beg to ask leave to withdraw the Amendment.

§ Mr. Moelwyn Hughes
I desire to draw the attention of the Committee to what I believe to be an omission in Sub-section (7) of the Clause. Sub-section (7) provides for the order to continue in force so long as a child is of compulsory school age. The previous parts of the Clause make provision for orders to be made, otherwise than by the local authority. The school named in an order may be a school named by the local authority or may be a school directed by the Minister. That direction will not appear in the order made by the local authority and it ought to be enforceable. I can give another example. At the end of Sub-section (4) it is provided that a parent aggrieved by a refusal of the authority to comply with the request altering the school can refer the question to the Minister who shall give such direction thereon as he thinks fit. That is to say he issues his own order. He gives his own direction and there is no provision for giving these directions issued by the Minister the same validity and duration as is given in the terms in Sub-section (7) to the orders of the local education authority.

§ Mr. Silkin
I should like my right hon. Friend's view on whether it is possible, under this Clause, in the case of a child requiring special educational treatment in a special school, for the local education authority to require that it should go to a boarding school. There is an Amendment on the Paper which was not called, I understand, because there is a view that such a power is already inherent in the Clause. I should like to have the Minister's assurance that that is the case.

§ Mr. Woodburn
With regard to that point I do not think it is inherent in the Clause at all. It says: 787 a school attendance order may. That applies to any attendance order made. The hon. Member's Amendment refers to a proviso subject to any Amendment which may be made by the local education authority and I do not quite understand where the principle comes in with regard to that Amendment.

§ Mr. Butler
I have noted the points made. I am advised that the point made by the hon. Member for Peckham (Mr. Silkin) can be met under the Bill. Regarding the points of the hon. and learned Member for Carmarthen (Mr. Moelwyn Hughes), as they have a legal significance I would rather not give an answer, here and now. I will study them and see if they have a significance to which I ought to pay attention.

§ Mr. Silkin
Could the right hon. Gentleman be a little more explicit on the point I raised?

§ Mr. Butler
Will the hon. Member draw attention to the particular Amendment he had in mind?

§ Mr. Silkin
In page 28, line 25, at the end, to insert: (4) If, in the case of a child requiring special educational treatment in a special school, the local education authority, or on an application to him under the last preceding subsection the Minister is satisfied that such treatment can best be secured by the child's attendance at a boarding-school the school attendance order, may require his attendance at such a school.

§ Mr. Butler
That Amendment was not called, but I have now before me a note on this matter, and I am advised that the hon. Gentleman's object is covered, and that it would be quite unnecessary to raise the matter of the Clause.