§ Lady Tweedsmuir
I beg to move, in page 2, line 45, at the end to insert:to which he shall have due regard in the exercise of his powers under section 71 of the Education (Scotland) Act 1962".We had a considerable debate on this question in Committee. Many hon. Members on both sides will recall that the Educational Institute of Scotland was particularly concerned about subsection (3). As it reads, it appears that when the Council is dissatisfied with the content of courses provided within the colleges of education and it makes a recommendation on the subject to the governing body, and if after consultation with the governing body there is still no modification of the courses or the arrangements, the Council may make recommendations, if it so wishes, to the Secretary of State. As appears from the Bill as drafted,the Council may report the circumstances to the Secretary of State".After that the subsection ends, and there is no indication about what the Secretary of State will do after the circumstances are reported to him. In fact, there is no obligation on him to have any regard to the recommendations made to him by the Council on the subject.
We therefore raised this question in Committee. The hon. Lady said that she recognised that in Clause 4 the Secretary of State had the duty to have regard to the recommendations made to him under Clauses 2 and 3 and she therefore recognised that it would be more consistent if, under Clause 5, there were also a duty on the right hon. Gentleman to have regard to the recommendations made to him. In Committee the hon. Lady said:I will certainly look at this. I recognise that there is a reasonable argument here.… I am prepared to agree that I ought to be consistent".306 Therefore, I said:In view of the explanation which has been given and of the hon. Lady's assurance that in order that she may be consistent with her observations on Clause 4 she will see whether she can devise a form of words which makes it a duty on the Secretary of State to have regard to the substance of Clause 5, I beg to ask leave to withdraw the Amendment."—[OFFICIAL REPORT, Scottish Standing Committee, 23rd February, 1965; c. 123.]I was therefore surprised to find that no Amendment was tabled in the Secretary of State's name to take account of this fact which, without doubt, causes considerable concern.
During the debate in Standing Committee the hon. Lady pointed out that the Secretary of State has certain powers under Section 71 of the Education (Scotland) Act, 1962. It was therefore in order to make subsection (3) of Clause 5 consistent with Clauses 2, 3 and 4 that we proposed the Amendment which makes it perfectly clear that the Secretary of Stateshall have due regard in the exercise of his powers under section 71 of the Education (Scotland) Act 1962".That Act gives the Secretary of State power to direct certain educational establishments, among them the colleges of education, to carry out any duties imposed on them, and if by any chance they refuse to do so the Secretary of State has the power under Section 71(b) to ensure thatthe Court of Session may, on the application of the Lord Advocate, order specific performance of the duty".Therefore, in order to make it clear that the Secretary of State has a duty to take into account the recommendations made to him by the Teaching Council, we thought it right that we should move the Amendment to clarify the extent of his powers.
Perhaps I should say at this point that the powers which the Secretary of State possesses under the 1962 Act are not entirely acceptable to all the teachers' organisations. I have, for instance, received a communication on behalf of the Educational Institute of Scotland which I think it only right that I should read. It refers to the debates in Standing Committee on Clause 5. The General Secretary, on behalf of the Institute, says:I am very pleased that you have persuaded Mrs. Hart to reconsider the wording"—307 that is, the wording of Clause 5—and I hope that her reconsideration may be fruitful. An application to the Court of Session for an order for specific performance would be a dreadfully clumsy and very distasteful way of dealing with the matter.I am sure that the hon. Lady is aware of the Institute's feelings. I had hoped that we would see on the Notice Paper an Amendment, perhaps, of the 1962 Act which would try to obviate what many teachers concerned with the Teaching Council and who support it feel is a rather clumsy and distasteful way of imposing a duty. But no such Amendment has been tabled and therefore I hope that the hon. Lady will see fit to accept our Amendment. We believe that it makes it completely clear, as Clauses 2, 3 and 4 do, that the Secretary of State must have regard to the recommendations made to him.
§ Mrs. Hart
The noble Lady the Member for Aberdeen, South (Lady Tweedsmuir) is quite right in her quotation. I complimented her in Committee saying that she had adopted a reasonable attitude on the point that she was making. I also agree that I should be consistent. If two grounds are entirely comparable, then the two actions which result should also be comparable. This is what I mean by being consistent.
What I thought I should do in pursuance of my undertaking was to look at the extent to which there was a real similarity between the two cases which the noble Lady has quoted tonight and previously to see how far precisely the same words and the same duties should relate to the one as to the other. In that sense, I believe that I fully carried out my undertaking to see whether consistency required making a change which would meet the noble Lady's point.
There is here an important difference between the two cases quoted by the noble Lady. In the case of Clauses 2 and the Secretary of State is required to have regard, in terms of Clause 4 in the course of exercising his education functions, to recommendations made to him by the Council. In the case of Clause 5, to which the Amendment relates, he receives a report on a situation in which the Council has made certain recommendations and a college of education has refused to accept them. What 308 the Secretary of State then has to do is to take the report as the basis on which he decides what action it is appropriate for him to take. It would be inappropriate to require simply that he should have due regard to it, as the Amendment proposes. Very often, it would not be enough for him to have due regard to the report that was put before him. Much more might be required.
As the noble Lady has put the situation to the House, I should explain that the Education (Scotland) Act, 1962, empowers the Secretary of State to make regulations governing a number of the aspects of the colleges of education. With the establishment of the General Teaching Council, a number of changes will be necessary. Revised regulations will be needed to take account of the winding up of the Scottish Council for the Training of Teachers. At this stage in the exercise of his powers to prescribe the duties to be performed by the governing bodies of the colleges, the Secretary of State would propose to include in the revised regulations a duty on a governing body to implement a recommendation of the Council where it is required to do so by the Secretary of State.
Having said that the 1962 Act would leave it open for the Secretary of State to invoke the provisions that it offers him if the governing body of a college did not implement a recommendation, something more needs to be added. The noble Lady has not, perhaps, entirely anticipated the kind of situation that might arise in which the Secretary of State, on being given a report by the Teaching Council that a college of education was not doing what it had been recommended to do by the Council, would need to consider all the aspects of the situation. There might be some aspects of which he was knowledgeable but of which the General Teaching Council, by the nature of its functions and duties, could not be so fully knowledgeable.
For example, we are today in higher education moving slowly but to some extent towards specialisation by some universities in certain fields. The view is growing that not every university should seek to teach every subject completely. It is thought by many that this is a sensible trend which should be encouraged. At the same time, there is another trend which certainly the Edu- 309 cational Institute of Scotland welcomes, and which, I think, most of us welcome, to associate the colleges of education and the training of teachers more closely with university education.
If this develops to any considerable extent, there might well be a situation when the General Teaching Council—this is a possible situation which needs to be covered by the Bill—was making an all-embracing recommendation intended to cover all the colleges of education, possibly in relation to the standard of teaching of a certain subject. On the one hand, because he had an overall picture of higher education, the Secretary of State might know but the General Teaching Council might not know—because it has no duty to inform itself of this kind of thing—that universities in Scotland were tending to specialise in some subjects and that it would be inappropriate for a college of education which had a link with a certain university to be asked to do something more in a subject from which that university was moving away. That kind of situation is a possibility.
In that event the General Teaching Council would correctly report to the Secretary of State, "We have asked colleges of education to carry out this recommendation, but one of them says that it does not want to do so." In the exercise of his powers under the 1962 Act, the Secretary of State would be concerned to see that a college of education carried out recommendations, but he would first want to see the totality of the situation, and it might he that from his overall knowledge he would arrive at the facts which he could discuss with the Council, which would throw a new light on the situation. For this reason, the cases are not parallel. Situations might arise when the Secretary of State wished to do something from his special overall knowledge which bore upon the recommendations that the Council was making to him and on the report that it submitted to him. He might want to look at more aspects than would be conveyed in the simple phrase "pay due regard to" the recommendations and the report.
I hope that with this kind of consideration in mind, the noble Lady will acquit me of any suggestion of evading my responsibilities to consider the matter and will agree that the consistency does not in 310 this consideration of the two cases offer a complete parallel. It is by no means inconsistent to have due regard in the one case but to expect that a little more will be involved in the other case.
§ Sir Myer Galpern (Glasgow, Shettleston)
Would I be correct in interpreting my hon. Friend's remarks to mean that a situation could arise when the recommendations of the Teaching Council concerning changes of courses in colleges of education could be rejected in total by the Secretary of State after he had taken into consideration the other relevant matters to which my hon. Friend has referred?
§ Mrs. Hart
No. My hon. Friend will recognise that what we are considering here is the receiving of a report by the General Teaching Council about the failure of a particular college of education to carry out a recommendation which has been put to it. We are concerned here, not with recommendations, but with a particular situation which has been reported.
§ Mr. Wylie
I am not sure that the position is very satisfactory. It is correct, as the Under-Secretary states, that in Clause 5 the Secretary of State is dealing with a report, but the whole basis of that report is the recommendations which the Teaching Council makes to the governing body of a college and which the governing body refuses to accept. If the Teaching Council thought fit—the power is only permissive; the Council does not have to pass this on to the Secretary of State—to pass on the report to the Secretary of State, the whole object of the exercise, presumably, is to bring to the attention of the Secretary of State the recommendations which it saw fit to make and which the governing body had refused to accept.
It seems to me to be special pleading by the hon. Lady to draw distinctions between recommendations referred to in Clauses 2 and 3 and the report which is referred to in Clause 5. All three cases fundamentally deal with recommendations. It is true that the Secretary of State does not have to follow the recommendations. All that the Amendment would do is to write into the Bill that the Secretary of State must have regard to them.
311 I should be the first to concede that that is not important, neither do I think that Clause 4 is important. It was argued by my right hon. Friend the Member for Argyll (Mr. Noble) that if we set up a body of this nature with power to make recommendations, it would be necessary to write into the Statute that the Secretary of State must have regard to the recommendations. The Under-Secretary, however, dug in her toes.
If "have regard to" is as important as the hon. Lady made out in Clause 4, ipso facto it is equally important on Clause 5. Although the hon. Lady has made an ingenious and valiant effort to draw distinctions between Clauses 2 and 3, on the one hand, and Clause 5, on the other hand, it does not seem to me to make any difference.
§ The Secretary of State for Scotland (Mr. William Ross)
I think that the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) has defeated his own argument, because he started by saying that these words were unnecessary.
§ Mr. Ross
We are not talking about Clause 4. We are discussing, quietly and sensibly, what should be done here. I thought that my hon. Friend made it perfectly clear that the power given to the Council in respect of colleges arises from regulations which exist, but which will have to be changed because of the coming into being of the new Council. This will be laid down by the Secretary of State. The regulations have to come before the House, and my hon. Friend has stated what the procedures will be within these regulations. I think that the purpose of reporting to the Secretary of State is not that he should forget all about it, because, as the hon. Lady rightly said, he already has obligations under the 1962 Act.
I think that this is an example of taking a hammer to crack a very small nut. Most of the difficulties which arise here will be settled by open and clear discussions between the persons concerned. As the hon. and learned Gentleman said, we do not even lay on the Council a duty to report to the Secretary of State every matter about which it is 312 concerned. We give the Council the right to report to the Secretary of State, and to my mind it is fairly obvious that thereafter there comes into force the powers of the Secretary of State which are not exactly within this Bill, but within another Act of Parliament.
I think that the former Solicitor-General is right. I do not think that these words are necessary, and it is because they are not necessary that I ask the hon. Lady to withdraw the Amendment.
§ Lady Tweedsmuir
I am glad that the Secretary of State has seen fit to come to the rescue of his hon. Friend. As my hon. and learned Friend said in Committee, we greatly missed the right hon. Gentleman's presence there. Indeed, as far as I know he has made only one major speech on education.
During the Committee stage—and this is really the reason for the Amendment—the hon. Lady said it was essential to have Clause 4, which lays on the Secretary of State a duty to have regard to any recommendations made to him under Clauses 2 and 3. We sought to delete Clause 4 because we thought it was inconceivable that a Secretary of State, even the right hon. Gentleman, would not have regard to any recommendations that were made to him, but the hon. Lady was quite firm and said that it was essential to have Clause 4.
When we came to Clause 5, we said, "If it is essential to lay on the Secretary of State a duty to have regard to all these matters which are referred to him in the form of recommendations in accordance with the earlier Clauses, how is it that here no duty whatsoever is laid on him?". The circumstances are reported to the Secretary of State, but apparently he has no duty to have regard to them.
It is because we wish to help the hon. Lady to be consistent in her argument on behalf of the Secretary of State who was never present at our deliberations that we have tabled the Amendment. We recognise the point made by the hon. Lady that there are changing conditions within the colleges of education. Indeed, my right hon. Friend the Member for Argyle (Mr. Noble) particularly asked the hon. Lady what the position would be when the colleges of education became 313 more closely linked with the universities and then became degree-granting institutions, arid she said:Any changes which were so fundamental and so radical in the colleges of education that they were no longer enabled to come within the ambit of the Bill would clearly require some consideration, and in particular some reconsideration of the Regulatons."—[OFFICIAL REPORT, Scottish Standing Committee, 23rd February, 1965; c. 122.]What the hon. Lady was arguing was that the Bill as drafted gave the Secretary of State power under Section 71 of the 1962 Act, and that if the colleges of education were to advance in status there would have to be changes in the regulations. Therefore, what she was saying was that there was a duty on the Secretary of State under the existing Act, and the point of the Amendment is merely to make quite clear to all those who will have to read the Bill when it becomes an Act, which we hope will be very soon, that under Clause 5, as well as under the previous three Clauses, the Secretary of State shall have a duty to pay regard to any recommendations made to him.
After all, surely it is our duty in this House to try to make the Bill consistent. Those who have to interpret it, may have to do so in the courts, and may well ask, "How is it that Clause 5 lays no duty on the Secretary of State, while the other Clauses do?". It is for this reason that we consider it our job to try to make the Bill absolutely clear. We hope that there will be no disagreement between the Secretary of State and the colleges of education, but there might be. Clause 5 has been included in the Bill to deal with that, and we think that it should be consistent with the provisions of the earlier Clauses.
I have listened carefully to the hon. Lady's explanation of this matter, and to the right hon. Gentleman's support of his hon. Friend. I am not convinced that the hon. Lady is being as consistent as she said she wished to be.
§ Mrs. Hart
Does the hon. Lady distinguish between having regard to recommendations under Clauses 3 and 4, and looking at the report of circumstances under Clause 5? Secondly, does not she accept that, in any case, when the Council comes into being it will be necessary 314 to revise the regulations which impose a duty on the governing body of a college of education to implement a recommendation of the Council? That being so, does not the hon. Lady recognise that where it is possible to revise the reservations to cover one contingency, namely, the coming into being of the Council, should there be a fundamental change in the relationship between colleges of education and universities, it will be equally possible to revise the regulations to cover that contingency, too?
§ Lady Tweedsmuir
I consider that the recommendations under Clauses 2 and 3, and the reporting of the circumstances to the Secretary of State, which are, after all, the circumstances in connection with the recommendations, or, as Clause 5(3) says, the recommendations as modified, are the same thing. It is for that reason that I think the Secretary of State should have regard to them.
The hon. Lady asked whether I recognised that there could be a difference between regulations in connection with the colleges as they are now constituted, and the colleges as they might develop. I recognise that it is possible to frame regulations to deal with that, and that is why we provide in the Amendment that the Secretary of State shall have due regard to Section 71 of the 1962 Act. It is for that reason, and in relation to his powers in the exercise of the regulations, and in the framing of the regulations, that we have tabled the Amendment.
Although the hon. Lady has shown much ingenuity, I do not think that she has satisfied those who will have to interpret the Bill when it becomes an Act. However, as she has given an assurance that she, or the Secretary of State, will frame regulations which will take account of the fact that the Secretary of State must examine carefully the circumstances and recommendations reported to him, and take action on them under Section 71 of the 1962 Act, I will withdraw the Amendment, although I feel that the hon. Lady would have been well advised to accept it because it would have confirmed the powers already possessed by the Secretary of State. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.