HC Deb 20 April 1971 vol 815 cc1121-35

12.15 a.m.

Mr. Buchan

I beg to move Amendment No. 13, in page 1, line 25, at end insert: (4) Any school in which fees are charged for school education shall be incorporated into the territorial zoning of that local authority's scheme and any pupil resident within that zone shall be entitled to attend that school without the payment of fees if his parent so chooses, and any pupil resident outwith that zone who attends that school shall be charged the full economic cost of his school education. The purpose of this Amendment is simple. It is to try to break down some of the potential privilege being written into education in our cities by the Bill. Our fear is that the introduction of fee paying will act adversely against the free provision of education within our cities.

Secondly, we are saying that it is wrong for two standards of education to be created within our cities. Therefore, to ensure that this does not happen, the school which parents choose as being the better, in the sense that some are prepared to pay to send their children there, should also be provided for the children who live in the neighbourhood.

I was frequently told, on this aspect of the Bill, that no one suggested that the education in these schools was better. If hon. Gentlemen opposite had admitted that the education in these schools was better, they would be open to the charge that they were allowing the buying of privilege. But they cannot have it both ways. If the education in these schools is not better, then the people paying fees are being conned. This will be the test and judgment.

If we allow those schools which charge fees to parents of children who come from outside the catchment area to remain open to the children in the neighbourhood, this will go some way towards establishing a consciousness of equality in education.

This is the purpose of the Amendment. I cannot see how it wrecks, to use the Under-Secretary's favourite word, the concept of the Bill. The hon. Gentleman said that it was to give freedom to local authorities to charge fees. The Amendment will still allow this. He said that it was to give freedom to parents to pay fees. It will still allow parents to pay fees. If, however, fee-paying parents object to their children associating with the ordinary children of the neighbourhood, they can opt out. So be it. But the Amendment fulfils all the requirements established in the best theoretical principles of the party opposite.

The Amendment seems fair and just. It will, at any rate, ensure that parents living in the neighbourhood of one of these schools, which are claimed to be better, will be able to take advantage of it without feeling that they are gaining privilege.

Mr. Edward Taylor

I appreciate the sincerity with which the hon. Member for Renfrew, West (Mr. Buchan) has put forward the Amendment. I realise that for him this is one of the fundamental points in the Bill. However, I cannot recommend the House to accept the Amendment, because it would destroy the basis on which the fee-paying schools were formerly organised. One of their great distinguishing features was that they had no catchment area and served as city-wide schools. Indeed, in some cases they acted almost as schools for a region.

Apart from ruling out selection for entry for some of the pupils, the Amendment assumes that the former fee-paying schools can be readily fitted into an authority's scheme of normal provision. But all those who have studied in detail the situation of the former fee-paying schools in Glasgow and Edinburgh, to quote two examples, will appreciate that it would be a very real practical problem for the authorities concerned to fit them into a comprehensive system which might exist. I think that the hon. Gentleman would at least accept that there would be very real practical difficulties about the integration of the former fee-paying schools within the comprehensive system. Because of the territorial areas and the situation of the schools, the schools have tended to be situated, certainly in Glasgow, near the city centre. To that extent, apart from anything else, I think that major practical problems would be presented.

The main point is that the distinguishing feature of the schools has been not to have a catchment area but to serve as city-wide schools and sometimes as schools for a region. In these circumstances, I do not think that the Amendment would be consistent with the spirit of the Bill.

Mr. Gavin Strang (Edinburgh, East)

We have repeatedly argued that our fundamental objection to these selective schools is the fact that they cream off the most able pupils and do not contain a cross-section of the community. This situation could be helped in Edinburgh—and to a large extent the Bill applies to Edinburgh—by arranging catchment areas for these selective schools.

When we challenge the Government on this issue and call these snob schools, they point to the scholarships. Our suggestion would be a more satisfactory way of getting non-fee-paying pupils into the scholarship system. As a student, I stayed in "digs" in Edinburgh and witnessed the pressure on youngsters doing their best to get these scholarships. Anybody who has witnessed this appreciates that this is an undesirable aspect of the whole system. One need only live near one of these selective schools to witness children who live virtually on the doorstep having to travel to another part of the burgh because they have not been selected.

While we oppose the Bill in principle, if we are to have this type of privilege those who wish to send their children to fee-paying schools should be prepared to bear the full cost and not expect to be subsidised by the State. The Amendment would result in less creaming off in Edinburgh, and this would benefit, for example, schools in my constituency. Because at present parents can opt out and send their children to fee-paying schools, many corporation non-fee-paying schools lose the benefit of the attendance of these parents at parent-teacher meetings.

In Edinburgh we have the disgraceful situation of the provision in the ordinary corporation schools being inadequate because of the extent to which fee-paying schools have been pampered. We have had controversies about where the money should be allocated in the school building programme. There has been gross misuse of the resources for education available to the corporation simply because of the money that has been spent in this distorted education system.

Mr. Neil Carmichael (Glasgow, Woodside)

It would be wrong to allow the Under-Secretary to mislead the House in the way he did, though I am sure he did so unintentionally. He said that fee-paying schools tended to be in the centre of cities. This is certainly not so in Glasgow.

We have the Glasgow Girls High School, the Jordanhill High School and the Hillhead High School, all of which are outwith the central area. If one formed the three into a triangle, the Hillhead High School would be at the centre of gravity of the triangle, as it were. As part of the Minister's case rested on the geographical location of fee-paying schools, I trust that he appreciates that his remarks do not apply throughout Scotland.

On Second Reading I tried to explain the problem of such a school as that at Hillhead in my area. Just last week I heard of a girl of 4½ years whose parents—unwisely, as I told them—sent her older brother to the High School there. After an examination the little girl was rejected, with the result that she has to go to a school round the corner. Such divisiveness in a family is quite wrong.

I do not know about the geographical situation in Edinburgh, but the hon. Gentleman was quite wrong in what he said about Glasgow. I hope he will correct himself, and perhaps given an indication whether the Amendment would be applicable where a school was in the geographical position which he instanced.

Mr. Ronald King Murray (Edinburgh, Leith)

Until the 1969 Act was passed there were in my constituency no fewer than three schools at which under local authority administration fees were charged. That was in one single zone of the city, and nowhere near the city centre. Selection of the type which the Government seek to introduce, with fee paying in these schools, produces social and territorial barriers. Both of these barriers are equally irrelevant to good education, and the Bill is irrelevant to it, too.

Mr. Edward Taylor

It was not my intention to mislead the House when I said that in Glasgow the former fee-paying schools had tended to be in the city centre. I was thinking of such schools as the High School for Boys and the Allan Glen's School. Incidentally, Jordanhill School is not a local authority fee-paying school. But, irrespective of how many schools are in the city and how many are outwith, both the local authorities concerned have indicated their belief that there would be considerable practical geographical difficulties about the integration of the former fee-paying schools within a comprehensive system.

To be fair, the hon. Member for Woodside (Mr. Carmichael) asked whether, if these difficulties could be overcome, we would feel the same about the Amendment. The answer is that we would, because the Amendment would destroy the basis on which the fee-paying schools were formerly organised.

Mr. Carmichael

The hon. Gentleman accepts that Hillhead could be transferred tomorrow and become a comprehensive school, but that it would interfere with the basis on which the fee-paying schools are organised. The real basis is a case of the type of the little girl of 4½ who was rejected for the fee-paying school.

Mr. Taylor

No, the basis was that they were city-wide schools, and sometimes schools for a region not linked to a small, precise territorial zone. That was the character of the schools in the past and the character that some local authorities may wish to restore once the Bill becomes law. It is a matter for the authorities, and for discussion and decision by the local people. But the Amendment would destroy the whole basis on which the schools were formerly organ- ised, and the basis which the authorities may wish to bring back when the Bill is enacted.

Mr. Sillars

I had not meant to take part in the debate, but I must point out that we are here dealing not only with the former fee-paying schools but with education in the whole of Scotland. The hon. Gentleman cannot just say, "It does not happen in Glasgow, so let us not worry about it."

The case seems to be that I may have children catered for within 200 or 300 yards of our community, but if the local authority decides to make that school one of a limited number of fee-paying schools I am forced to choose between paying fees or sending the children to a different community school altogether. That is what the Bill at present seems to mean.

Bearing in mind what the Under-Secretary has just said, and to safeguard the position of parents in other areas of Scotland, the Amendment is essential, otherwise we shall be entitled in the municipal elections, for which we are only starting our campaign now, to tell people in other parts of Scotland that it is the intention of the Conservative Government that local authorities shall have the freedom to impose fees in local community schools and that parents who at present send their children to those schools by right will not be entitled to do so in future unless they pay an appropriate fee. If that is the situation it is disgraceful and the Under-Secretary is bound to accept the Amendment.

Amendment negatived.

12.30 a.m.

Mr. Edward Taylor

I beg to move Amendment No. 14, in page 2, line 2, leave out "unless they secure at all times" and insert Except where it may be exercised without prejudice to the".

Mr. Speaker

As I said earlier, with this can be discussed the sub-Amendment and Amendment No. 9.

Mr. Buchan

On a point of order, Mr. Speaker. May we have a little clarification on this? The sub-Amendment is of some significance. I shall seek to indicate my support for Amendment No. 14, but can we in that case have a vote, if necessary, on the sub-Amendment, which is so closely related?

Mr. Speaker

The sub-Amendment was not chosen for Division, it was chosen for discussion.

Mr. Taylor

The Amendment implements a promise which I gave during the Fifteenth Sitting of the Committee. Subsection (4) of new section 3 set out in Clause 1 contains the condition to be satisfied before fees for school education can be charged. …the Government will be prepared to move an Amendment on Report giving effect to the Amendment— that was the Opposition's Amendment— …subject to correction of some of the technical defects which are at present in it."—[OFFICIAL REPORT, First Scottish Standing Committee, 23rd February 1971; c. 704.] The Opposition, particularly the hon. Member for Renfrew, West (Mr. Buchan), seemed to prefer some of the wording in the proviso to section 1(3) of the 1962 Act as originally enacted.

For example, I note that the hon. Member for Lanarkshire, North (Mr. John Smith) said I also consider that the words 'without prejudice' would appear to anyone reading the legislation to be stronger than the phraseology used by the Government in this Bill."—[OFFICIAL REPORT, First Scottish Standing Committee, 23rd February, 1971; c. 706.] I take it that hon. Members opposite want the condition to be stronger. I have looked at this very carefully, and, as the House will see, we are prepared to move some way in returning to the 1962 wording by adopting the "without prejudice" formula. I have no doubt that, in view of their speeches during Committee, the Opposition will support this move to wording nearer the wording of the 1962 Act.

On the Amendment to this, the proposal to take out the proposed Amendment to Amendment No. 14 suggests a wording like that in Amendment No. 16. The words "in addition and" are unnecessary, I feel, and did not appear in Section 1 (3) of the Education (Scotland) Act, 1962, as originally enacted. But then we have Amendment No. 9. This is an interesting Amendment which illuminates the difference between the two sides of the House.

The Opposition's basic approach is that all authorities should have a wholly comprehensive system of secondary education. Our view is that the organisation of secondary education is fundamentally a matter for education authorities. Our Circular 760 withdrew Circular 600 which asked authorities to submit proposals for comprehensive reorganisation. We are content to leave it to the authorities which are responsible for providing education to decide the best method for providing it, and if all authorities in Scotland want to have a wholly comprehensive system, no doubt they will submit proposals accordingly.

What we have proposed in my right hon. Friend's Amendment fully implements the promise which I gave to the hon. Member for Renfrew, West and his hon. Friend the Member for Lanarkshire, North in Committee. I hope that they are happy with the wording of Amendment No. 14 and that the House can approve it.

Mr. Buchan

This is very much of a gift horse whose teeth I propose to examine. It is correct that the wording arises from an Amendment which we tabled in Committee. It was the only Amendment the spirit of which was accepted. It was a probing Amendment which would have made no basic change in the meaning, so its being accepted in spirit is not much of a concession. There is not a substantial difference between the "without prejudice" formula and the wording in the Act. I was curious about why the change had been made. There may be certain advantages. I shall advise my hon. Friends to support the Amendment, especially as I have tabled a similar Amendment, with one significant difference—that is, the addition of the sub-Amendment. The addition of the words "in addition and" is very important.

I am not sure why the question of the circular has entered the argument, unless it is in relation to Amendment No. 9. It has nothing to do with the sub-Amendment. The Under-Secretary did not deal with the sub-Amendment. It is not only I who think that the words "in addition" are significant. When in 1918 an Act was formulated to impose duties upon local authorities to provide free education but at the same time to allow the continuation of a limited amount of fee-paying the Government of the day were careful to spell out that such schools could be started only "in addition to". The words are: a scheme for the adequate provision throughout the education area of the authority of all forms of primary, intermediate and secondary education in day schools…without payment of fees, and if the authority think fit for the maintenance or support (in addition and without prejudice to such adequate provision as aforesaid) of a limited number of schools where fees are charged…". The whole sense of importing into Scottish education the power to charge fees in a limited number of schools was that it should be in addition to the existing provision. This was changed in the 1945 and 1962 Acts. It was not necessary in the 1969 Act. The wording has been changed again in the Bill. Does this mean that there was a difference between the thinking in 1945 and 1962 from that in 1918? If that was so, it might be justified for the hon. Gentleman not to accept the sub-Amendment. However, there was no such change. On the contrary, there was, if anything, a greater consciousness in 1945 and in 1962 of the need for the adequate provision of free education. However, with the passing of the years the fee-paying areas were known. If any problem arose over what was meant by "a limited number of" or, later, of "adequate provision", this was the group of schools being referred to. The words "in addition and" were not necessary in the later Acts.

But we now face the same situation as was faced in 1918. In 1945 it was not necessary, and in 1962 it was not necessary, because these schools were known. In 1971, however, there are no local authority fee-paying schools. We have abolished them. We start, therefore, from scratch, precisely as the legislators did in 1918, when they saw the importance of the words, in addition and without prejudice to". I need not spell out the significance of it. If the Under-Secretary is convinced that the introduction of local authority fee-paying schools cannot prejudice existing free school education, he has nothing to lose by accepting our sub-Amendment. Because of my fear that it might prejudice free school education, I want the sub-Amendment. So we are at one, the hon. Gentleman because he claims that it will not harm the provision of free school education, so he can accept what we propose without damaging his purpose, and myself because I fear that it will harm it and I want the sub-Amendment so that, if necessary, it can be challenged.

Because of the technicalities of the Report stage, I cannot press the question to a Division, as I should have liked to do. I ask the hon. Gentleman, therefore, either to give us an assurance that he will reconsider the matter and have the change made in another place, or to say, as I hope he will, that he accepts it now.

Mr. John Smith

I am grateful to the Under-Secretary to the extent that his Amendment improves the phraseology, and I am glad that we were able to persuade him about that, but there is at the back of our minds the feeling that the Government put in the words "without prejudice" in relation to the adequate provision of free school education just as a sop to public opinion and to create the impression that free school education would in no way be prejudiced by the introduction of fee-paying schools.

That is a matter of controversy between the two sides of the House. But the addition of the words "in addition and" would be of great value because they would make clear that the duty imposed by the Bill is that a local authority must first attend to the business of making sure that there is adequate provision of free school education, and only when it has done that may it start to play about with fee paying in schools.

The Bill would make clear that authorities must not run two horses at the same time but must be satisfied first that there is adequate free school education. The addition of these words would be important for that reason. If we can accept the hon. Gentleman's Amendment, why does he not accept ours?

Mr. Edward Taylor

I have no strong feelings about the Government Amendment. I was perfectly satisfied with the wording in the Bill as originally drafted, but, because of the strong representations made by the hon. Members for Renfrew, West (Mr. Buchan) and for Lanarkshire, North (Mr. John Smith), I agreed to look into the matter and try to improve it. I am sorry that the hon. Member for Renfrew, West is so suspicious about it. I can assure him that there were no grounds for his suspicion. I should be happy to leave things as they were in the Bill as drafted.

12.45 a.m.

I have not been convinced that the Amendment to the Amendment is necessary. The words "in addition" are unnecessary. They do not appear at all, for example, in Section 1(3) of the 1962 Act. We got on perfectly well without any such words, and I do not think they would add anything of value. We do not want to clutter up our legislation with redundant words. If I saw any benefit or greater clarification stemming from their use I would not wish to be difficult about the matter.

We have gone a considerable way in introducing our own Amendment, which was perhaps unnecessary. I will, as always, read carefully hon. Members' speeches, but I can give no assurance about a further Amendment at a later stage because I can see no reason for it. I have not been convinced by any of the arguments.

Mr. Buchan

I have been shattered by the Under-Secretary's reply. This is the final admission of awareness, almost, by the Government of the evil that they are doing in the Bill. If they were not convinced that the introduction of the fee-paying schools did not prejudice secondary education, they would be perfectly willing to accept the provision that they should be introduced only where there is no prejudice. They have simply to accept our Amendment and there is no problem. I am surprised that the hon. Gentleman has rejected it after all that he has said on the matter. It worries me a lot. It seems to me that the Government are quite willing to harm free school education. I have put it down to ignorance, to their failing to understand the effect on free education. Now I believe they are quite prepared to see it harmed in order to have a little bit of privilege. If I am wrong the hon. Gentleman will think again and encourage another place to include our words. I regret very much that I cannot vote on this matter.

The Lord Advocate (Mr. Norman Wylie)

I did not want to intervene in the debate, because I have not been concerned in Committee, but is the hon. Gentleman really serious when he says that the words have a totally different effect? I cannot see it. The primary duty and the proviso is that education authorities must secure at all times adequate education. Like my hon. Friend the Under-Secretary, I very much doubt that the Amendment would make any difference. The provision of adequate free education is a primary responsibility on the local authority, and the entitlement to charge fees can arise only after that requirement is satisfied.

One hon. Gentleman asked what was meant by "adequate provision", and this matter was also canvassed in Committee. It has always been regarded as an administrative matter for the Secretary of State and not a matter for the courts. This sort of question has been raised in case law, particularly most recently in Quinn v. Dundee Education Authority in 1930, an action of declarator under Section 6 of the 1918 Act, whether a question arose whether someone was entitled to free education. There was a question of the nature of the obligation on the local authority when the Act talked of providing adequate free education. The court held in the most specific terms that the question of what were adequate facilities of that kind was not one with which a court of law could deal, that it was essentially a matter of administrative control. In one of their lordships' judgments the matter was put like this: The advancement of education, especially secondary education, is an urgent problem. It cannot brook the delay and confusion that would arise from litigations in the courts between parents and the local education authority in regard to the preparation of educational schemes. This matter was raised at some length in Committee and I hope that the situation is now clear.

Mr. Lawson

Why do we need to have such words in this legislation if they really mean very little and cannot be interpreted in a court of law?

The Lord Advocate

The hon. Gentleman is well aware that words such as "adequate" and "substantial" are frequently used in public general legislation. They have been used throughout a whole series of education Acts and this is only the last of a very long series. The question asked in Committee was: who would decide what was adequate—would it be the courts or the Secretary of State? The answer is the Secretary of State. It is not a matter on which the court will express a view.

Mr. William Small (Glasgow, Scotstoun)

I wish to ask whether it is administratively proper for some 1,800 children in Glasgow to be deemed to be fee-paying by this Administration.

Mr. Lawson rose—

Mr. Speaker

Order. The hon. Member has no right to speak again, nor has the Lord Advocate any right to do so. The Under-Secretary of State has a right to speak again, but no other hon. Member.

Mr. Lawson

On a point of order, Mr. Speaker. I had not, in fact, spoken. I asked a question about the interpretation of the word "adequacy". I made no speech. If it is interpreted as a speech, it is not my understanding of a speech.

Mr. Speaker

It is true that the hon. Member has asked a question but nobody appears to be very willing to answer him.

Amendment agreed to.

Mr. Edward Taylor

I beg to move Amendment No. 20, in page 2, line 27, leave out from 'have' to the end of line 28 and insert 'power to make charges'.

Mr. Speaker

It might be convenient to the House to take with this Amendment, Amendment No. 21, in line 33, after 'Act', add: 'but the payment of such fees shall not be (and shall be deemed never to have been) a prior or necessary condition for admission to any school'.

Mr. Taylor

There was an interesting debate in Committee about whether the words "make charges" should be substituted for "charge fees" in line 28 of page 2 of the Bill. The Amendment was moved by the hon. Member for Lanarkshire, North (Mr. John Smith), and I gave the following undertaking: I assure him, without making a specific promise, that I will look at the question very carefully between now and Report with a view to tabling an Amendment which would implement his suggestion."—[OFFICIAL REORT, First Scottish Standing Committee, 9th March, 1971; c. 1240.] As the House will see, I have been able to do more than implement his suggestion since the substitution of "make charges" for "charge fees" enables us to remove the retrospective words in lines 27 to 28.

Though the change of words from "fees" to "charges" will make no practical difference to education authorities, I am advised that, strictly speaking, a power to make charges cannot be regarded as identical with a power to charge fees. I have no doubt that the hon. Member for Lanarkshire, North will agree with this view since in Committee he said that there is a wealth of difference between the proposition 'charge fees' and the proposition 'make charges'."—[OFFICIAL REPORT, First Scottish Standing Committee, 9th March, 1971; c. 1214.] Since at least nominally a new power is being conferred on education authorities, it follows as a consequence that the retrospective words in lines 27 and 28 can be deleted.

Since there was some misunderstanding in Committee about the purpose of these words, I shall try to explain in detail why I think they can now be dispensed with. When I argued against the deletion of these words in Committee, I did so against the background that no new power was being given to authorities and that we were repeating words in Section 3 of the 1962 Act as set out in Section 1(1) of the 1969 Act. This is no longer the situation. We are at least formally giving authorities a new power—a power which I think on examination is more appropriate to the circumstances than the power granted in 1969—and there is no circumstance requiring the new power to be made retrospective.

Mr. John Smith

Having promoted this matter in Committee, I would just say that I accept this Amendment.

Amendment No. 21 reads: but the payment of such fees shall not be (and shall be deemed never to have been) a prior or necessary condition for admission to any school".

This relates to what happened in Glasgow education authority when certain charges were made which were in effect a condition of admission to a school. It was a device whereby charges were made when it was illegal to charge fees. This is to prevent this happening again. The qualifying words are an attempt not to give the cloak of legality by hindsight to what Glasgow Corporation did, legally or not—certainly immorally—during the period up to 1969.

Amendment agreed to.

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