HC Deb 08 December 1976 vol 922 cc589-98

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Coleman.]

10.19 p.m.

Mr. Christopher Price (Lewisham, West)

The subject that I wish to raise concerns the effect of the House of Lords decision about the Tameside case and the meaning of Section 68 of the Education Act 1944. Section 68 provides: If the Minister is satisfied, either on complaint by any person or otherwise, that any local education authority or the managers or governors of any county or voluntary school have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under this Act, he may, notwithstanding any enactment rendering the exercise of the power or the performance of the duty contingent upon the opinion of the authority or of the managers or governors, give such directions as to the exercise of the power or the performance of the duty as appear to him to be expedient. I and a number of my hon. Friends feel that the House of Lords decision on Tameside was wrong, misconceived and completely inaccurate.

In saying that, I rely on Mr. Speaker Selwyn Lloyd's statement on 4th December 1973: It can be argued that a judge has made a mistake, that he was wrong, and the reasons for those contentions can be given, within certain limits."—[0fficial Report, 4th December 1973; Vol. 865, c. 1092.] I intend in a slight preamble to give certain of those reasons within those proper limits which were laid down. I shall adduce in my case two quotations from Lord Devlin, who wrote an article in The Times. It might put the criticisms that I am making in context as not coming from a small group of Labour Members, but as having a certain weight in the country at large.

Lord Devlin said: Another criticism is hard they try —he said that they try— cannot sec the problem in an administrative light.…But relevance depends upon the angle of vision and the judicial angle may well be different from the administrative. Lord Devlin ends the article with what I hope will become an aphorism well remembered in educational law: For the British have no more wish to be governed by judges than they have to be judged by administrators. I contend that the judges have made new law and have started governing in a sense to which they have no proper right.

I should like to make a case on this issue. Lord Salmon, one of the five Lords on the final appeal to the House of Lords, said: The authority's letter of June 7 had pointed out…that pupils most suitable and likely to benefit from the type of education —that is in grammar schools— would be selected by a combination of reports, records and interviews instead of by an 11-plus examination. So far so good. The noble Lord went on to mention The evidence of a number of distinguished educationalists". The number was two. One was a retired secondary school head teacher distinguished only for his talent in organising petitions against proposals for comprehensive reorganisation all over Britain. The other was a retired primary school head teacher without even that claim to distinction. The noble and learned Lord said that their evidence showed that this alternative method of selection has been widely used since the 1960s in areas as far separated as Lancashire Division 24, close to Tameside, and the London Borough of Barnet and that it had proved entirely satisfactory. Their evidence showed absolutely nothing of the kind. The selection procedure followed in Barnet was radically different from that operated in Lancashire Division 24 and neither of the two bore the remotest resemblance to the procedure described in the Tameside authority's letter about the procedure that it was going to carry out on 7th June. Neither on 11th June, which was the operative date of the Section 68 action, nor at any other time was the Tameside authority in a position to operate procedures of the kind described by the two allegedly distinguished educationalists. In the event, the procedure the authority operated was much more unsatisfactory than either and just about as unsatisfactory as I suspect the Minister had been led to expect.

Once more quotation from Lord Salmon's speech will put this in context. He finally said: It seems incredible to me that these facts"— these untrue facts— were unknown to the Department of Education and not available to the Minister on 11th June. If what Lord Salmon had been saying had been a recital of the true facts, it would indeed have been incredible, but the Department could scarcely have been expected to know and to make available to the Minister what were total figments of the noble Lord's imagination.

My other point relates to the judgment of the Chairman of the Appeal Court, Lord Wilberforce, who, at the beginning of his judgment, said: These proposals"— that is, all the proposals to make the various Tameside schools comprehensive— on 11 th November 1975 received the Secretary of States's approval and the council then became entitled to put them into effect". That also was stated ex cathedrain the House of Lords by Lord Wilberforce. It was not true. A substantial number of the schools had been given Section 13 approval by Mr. Edward Short when he was Secretary of State for Education as far back as 1969 and another section of those schools had been given Section 13 approval by no less a personage than the present Leader of the Opposition when she was Secretary of State in 1973.

For the Chairman of the Appeal Court, the final appeal court in our land, to get his facts wrong to that extent should cause grave disquiet in this Parliament about what our judicial procedures consist of. It certainly caused me grave disquiet and I think that anyone looking objectively and with regard to the facts at the sort of judgments handed down by the Appeal Court could only conclude that those judgments were misconceived, misguided and wrong in fact.

I fear that under our judicial system as we have it and run in the way we have it they have to stand now as the law of the land and we have to accept them, as they say in the marriage ceremony, for better or worse. I hope that we do not have to accept them until death do us part, although I must not of course go so far in this debate as to call for legislation.

It is also worth going back to the original purpose of Section 68 of the 1944 Education Act. It was a compromise introduced on 12th July 1944 again by no less a personage—the stage is set on this occasion with substantial personages—than the Lord Chancellor, who was then Lord Simon. A noble and learned Lord, one Lord Roche, had suggested that there should be a still further step of taking the matter to the law courts and getting there, perhaps by a High Court judge, a judicial pronouncement between the parties. The Lord Chancellor said: The view taken by the President of the Board of Education, and after consultation with him I must say that I share it, is that that is not a convenient procedure in the circumstances for we are dealing largely with matters of administration. I do not deny that His Majesty's Judges on occasion have intervened in this sort of case very practically and very usefully under previous Acts of Parliament, but still the Judges primarily have to decide matters of law. What is involved here is not a matter of law but of applying good sense and preventing bias and local prejudice taking command of the situation. The position will not be that the Minister is deciding his own case. This was an age of male chauvinism. He went on He will merely be trying to get the machine to work, and I think we may have sufficient confidence in the man in charge of this all-important Department of Government."—[Official Report, House of Lords, 12th July, 1944, Vol. 132, c. S62.] I have great confidence in the man in charge of education today, as I have in the person who previously held that post and to whom I am Parliamentary Private Secretary.

In this Parliament it is important to quote those words because by a quirk of our law—which, being a non-lawyer I do not understand—it was not proper to read out the intention of Acts in our divisional courts, appeal courts, or in the House of Lords. Therefore, none of our judges could be officially apprised of the original intention of the Act.

Last Session I introduced a modest Bill to restore the original intention of the House of Commons into the law. The then Mr. Butler proposed a tougher clause when the Bill first came before the House of Commons. The intention was not that there should be judicial interference.

I am worried about the decision on Tameside for a number of reasons, and my first question to the Minister is simple. Section 68 has been used about half a dozen times a year since the 1944 Act was passed. The Secretary of State has used the power to insist on minor matters of administration—the admission of individual children to particular schools, for instance. All local authorities in Britain, accept that overriding power of the Secretary of State. It has been a useful power and it would be dangerous if the Lords Wilberforce, Salmon, Diplock and Dilhorne took away that power without realising what they were doing.

Does the Secretary of State accept that she still has the power to use Section 68 year by year, as it has been used for the last 30 years? Does she consider that she still has the power to deal with the minutiae of the administration of education? Can she use that power and does she intend to go on using it? If she thinks that that power has been weakened, I assure her that some of us will be urging that she should get back that power by legislation.

Secondly, and much more important, does my right hon. Friend feel that she still has that power on wider issues? I quote a passage from the Committee proceedings on the Education Bill that went through Parliament this year. My hon. Friend the Member for The Wrekin (Mr. Fowler), whose departure from the Department of Education and Science I and many of my hon. Friends regret. said: Once this Bill has become an Act, my right hon. Friend will not hesitate in such circumstances to use Section 68 of the 1944 Act should it prove necessary, in other words"— here he describes "such circumstances"— if an authority unreasonably refuses to carry out satisfactory approved proposals which give effect to the principle set out in Clause 1(1) of this Bill."—[Official Report, Standing Committee E, 13th April 1976; c. 1182.] That was a forthright ministerial statement about the administrative use of Section 68 which was stated there and then to be part and parcel of the Education Act that has just passed through the House. Does my right hon. Friend still stand by her hon. Friend's statement. Her answer to that question is very important, because many of us will have something to say about that.

I have made certain criticisms of our judges, but the Tameside case should be taken very much more seriously by the House. Many calls have been made by judges and people in high office for a Bill of Rights setting out an appeal procedure over the procedures of the House. The principal advocate has been Sir Leslie Scarman, for whom I have tremendous respect as someone who has been in the forefront of the fight for civil liberties. I do not know whether that Bill of Rights would be supported by the House. In certain circumstances I would support it, and in certain circumstances I would not.

It is intolerable that our judges should already begin to behave towards Parliament and the Executive as though that Bill of Rights already existed and to pre-empt decisions and reinterpret the law differently. We take cognisance of that and, if it has been shown that, as a result of the Tameside case, the powers of the recent Education Act and of Parliament generally have been eroded, it is incumbent upon the Secretary of State to come to the Dispatch Box and tell Parliament what she will do about it, by legislation if necessary.

10.40 p.m.

The Secretary of State for Education and Science and Paymaster General (Mrs. Shirley Williams)

>: I am grateful to my hon. Friend the Member for Lewisham, West (Mr. Price) for raising these matters tonight and for the frankness with which he has spoken. I have much sympathy with many of the points lie has made and I am sure that many of his comments will have made explicit some strong feelings that are held by many on this side of the House.

I look for a moment at the background. Section 68 provides that where the Secretary of State is satisfied that an authority or the managers or governors of a school have acted or are proposing to act unreasonably with respect to any duty or power, he or she may give such directions as to the exercise of that power or the performance of that duty as appear to him or her to be expedient. That is a very wide and sweeping power, almost without parallel in other legislation.

Successive Secretaries of State have invoked their powers very rarely. In almost every case where a direction has been given it has been in relation to the attendance at school of individual pupils or small groups of pupils. There have been only three other cases in the whole history of the Education Act, of which Tameside is the most recent. That indicates how cautiously and carefully Ministers have always used Section 68.

The Department was advised as long ago as 1948 that "unreasonableness" in the context of Section 68 involved an element of perversity. Members of this Government and, indeed, all Labour Governments—I shall not commit the almost invisible Opposition—have always exercised their powers on that basis. The comments of their Lordships on this front were not such as to cause us any surprise.

For example, Lord Dilhorne said: The question whether a local authority was acting or was proposing to act unreasonably had to be viewed objectively. It did not suffice that in his opinion"— that is the Minister's opinion— the conduct of the authority was unreasonable. For him to have power to give directions the conduct had to be such that no reasonable authority would engage in it. Lord Diplock said: To fall within this expression"— that is "unreasonable"— it must he conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt. In both these cases the doctrine expounded is on all fours with that which Labour Ministers have always accepted. The judgments given by the Law Lords contain nothing that was surprising in the interpretation of the meaning of the word" unreasonable" or anything to suggest that the interpretation put on it by successive Labour Ministers was wrong. But it must be recognised—this is of crucial importance—that both the House of Lords and the Court of Appeal made judgments on issues and findings of fact—some of them have been mentioned by my hon. Friend—in relation to matters which, as the law was previously understood, were regarded as entirely within the province of the Minister or Secretary of State.

Moreover, there is no doubt that some of the judgments and some of the findings in the Tameside case are surprising, and I am not at all amazed that my hon. Friend should have said so. I find myself in harmony with his comments and in particular in what he has had to say about Tameside's selection procedures.

I should like to return to the use of Section 68. My hon. Friend asked me a direct question in relation to the admission of individual pupils to schools. The power conferred by Section 68 has been used sparingly. But successive Secretaries of State have directed local education authorities to admit particular children to the schools preferred by their parents in circumstances where an authority's refusal of admission has been regarded as unreasonable. This will be an important point.

In the past five years 35 directions have been given in such circumstances, relating to about 90 children. One such direction, relating to the admission of two children to a primary school, has been issued within the past few days. They are issued without regard to the politics of the authority concerned. The power to give these directions is always used reluctantly, because the decision of an elected local authority charged with the administration of education in its area is not lightly to be set aside.

I think it right, as does my hon. Friend, that there should be an ultimate remedy available to ensure that the rights of parents are preserved. Taking into account the attitude of the higher courts, I assure my hon. Friend that I shall continue to use the Section 68 powers in appropriate cases and will examine what might be done to improve the arrangements whereby school places are allocated and how parents' views can be properly considered within a non-selective system.

Some hon. Members in the Opposition parties—I congratulate and welcome the hon. Member for Cambridge (Mr. James), who has come in for this important debate—have applauded the decision of the House of Lords in the Tameside case on the ground that it represents a check on the power of the Executive. It is regrettable that only one Opposition Member is present to hear my hon. Friend's powerful arguments.

Lawyers are brought up in the belief that the restraint of the Executive is one of the prime functions of the courts. But it is often a short-sighted belief. Any weakening of Section 68 will in practice impinge much less on the powers of the Secretary of State than on the rights of parents, to which the Opposition so frequently draw attention.

If the Opposition really want to strengthen parental rights—and their reaction to the Tameside case gives one leave to doubt this—I am bound to say that they should join with us in seeking to limit the damage arising from the Tameside judgment.

The lack of interest of the Opposition in a matter which impinges on parental rights is in very marked contrast to that of my hon. Friend the Member for Stalybridge and Hyde (Mr. Pendry), who is here along with others of my hon. Friends, and who has repeatedly made representations to my hon. Friends and myself about the unfair procedures in his own constituency, which falls within the Tameside district.

It is right that a Government should have the broad support of parents, of most teachers and of local authorities before embarking upon the enforcement of a national policy.

We believe that this is the position in regard to comprehensive education. The movement towards comprehensive education has developed with Government encouragement, and more than three-quarters of our children receive their education in maintained comprehensive schools. Only one education authority has no comprehensive schools at all.

I have already made it clear that I accept the decision of the House of Lords, the highest court in the land—indeed, I must accept it unreservedly—in the Tameside case. But I deeply regret the reasons given for it. I endorse many of the comments of my hon. Friend the Member for Lewisham, West and I believe that the time has come to recognise that the judgment may do lasting damage to a generation of children in Tameside.

Now that we have the Education Act on the statute book—this answers my hon. Friend's second question—we do not need to rely on interpretations of Section 68 alone. My belief is that no reasonable local authority—and I use the word "reasonable" advisedly—would wish to override the will of Parliament. I hope in consequence that damage caused by the House of Lords decision may be undone.

Mr. Mike Noble (Rossendale)

Is my right hon. Friend aware that a large number of Tory-controlled local authorities seem at a distant look to be using the Tameside decision as a reason for holding back on going comprehensive? I cite the example of the Bury authority, part of which is in my constituency. One local authority had a plan for comprehensive education, but, following the Tameside decision, it has now decided to have a fresh look. Can my right hon. Friend tell us something about the powers being used by these authorities and their attitudes towards delaying tactics, and about the steps she will take in those circumstances?

Mrs. Williams

My hon. Friend will know that authorities may, of course, react like this, but Parliament both decided that authorities should be asked to go comprehensive and asked them to put forward their plans within six months. That decision was debated in the House and it was agreed by the House that six months was sufficient time for them to put forward their plans for comprehensive schemes. I am sure that they will obey the law.

Question put and agreed to.

Adjourned accordingly at twelve minutes to Eleven o'clock.