SECONDARY EDUCATION (CHESHIRE) (Hansard, 10 January 1977)

§ Mr. Alastair Goodlad (Northwich)

I am grateful to you, Mr. Deputy Speaker, for giving me the opportunity of raising once again the difficulties experienced by my constituents Master Richard Wilkinson and Miss Rebecca McMillan in obtaining access to the schools of their choice, and to the Under-Secretary of State for once more attending to reply to the debate at a very late hour. I am extremely grateful for the very close personal interest that the hon. Lady has shown in the matter.

When the House debated this matter on 20th December 1976 the Under-Secretary of State was good enough to express her sympathy for the predicament of the two children. She gave an undertaking that her right hon. Friend the Secretary of State would write to the Cheshire Education Authority asking it to re-examine the cases with great care and to reconsider them in view of all the circumstances and the substantial points that I then raised, and to say whether it would exceptionally be able to accommodate the children. I am most grateful to the Secretary of State for causing such a letter to be sent. Perhaps I may be permitted to quote briefly from it. It states: Although the Secretary of State decided that she could not regard the Authority's actions 1220 in these cases as unreasonable she is nevertheless deeply concerned about the burden which will be placed on the families of these children if they are unable to attend the same schools as their siblings because they live outside the school's present catchment areas. I am sure you have already considered carefully the difficulties facing those families—in the case of Richard Wilkinson the many conflicting calls of the various schools to which his brothers and sisters go; and in the case of Rebecca McMillan the demands of her mother's responsible job and the length of the journey from Mouldsworth to Tarporley. You are aware, too, that this is likely to be the last of only a few years in which children such as Rebecca have had to go from Mouldsworth to Tarporley, instead of Helsby. The decision is for you and your colleagues. We cannot force you to admit these children to the schols of their parents' choice. But at Mrs. Williams' request I ask you earnestly to look once more at all the circumstances of the two cases and to consider whether you can agree, exceptionally, to their admissions". So wrote the Secretary of State. Following the debate on 20th December I again contacted the chairman of the education authority and gave him a copy of the official record of the debate. I received the following reply: Thank you for your letter of the 30th December, in relation to Master Richard Wilkinson and Miss Rebecca McMillan. The basis of the refusal of the Admissions Sub-Committee (of the Education Committee) was contained in their resolution which precludes the transfer of children to another type of school, if they live within the catchment area of a Comprehensive school. The purpose of this resolution was to give the maximum support to comprehensive schools in their formative years and indeed, in following years, and this could not be achieved if the children in the higher ability strata were allowed to opt for Grammar Schools. We would expect the Minister to support us in this approach, since it is her Act which makes it incumbent upon us to reorganise on comprehensive lines. The argument that there is no room at the school, while not being the prime reason for refusal is, nonetheless, a valid one, and were we to make an exception for one child. it would be reasonable to make the same facility available not only to those children whose parents had appealed (some 24 in number) but to all children in Cheshire, and this would, surely, have produced a quite impossible situation resulting in considerable extra expense to the Authority. In view of the foregoing, I am not prepared to re-consider the matter. So wrote the chairman of the education authority.

That letter came as a great disappointment to myself and the families concerned, as I am sure it will have done to 1221 the Under-Secretary of State and her right hon. Friend. The House will be interested and surprised to learn from Mr. Maynard's letter that: The basis of the refusal of the Admissions Sub-Committee (of the Education Committee) was contained in their resolution which precludes the transfer of children to another type of school, if they live within the catchment area of a comprehensive school. I take that to mean that even if the Education Committee had accepted the statement, for example, of the headmaster of the Nantwich and Acton School, to which Richard wishes to go, that there is and was plenty of room—surely he, if anyone, should know—nonetheless Richard Wilkinson would not have been allowed to go there. I had understood from the letter of 6th December received by Mrs. Wilkinson from the Department of Education and Science that we have regarded the fullness of the school as the most important factor in our consideration even though the Authority may have mentioned other factors in their discussions with you. I am extremely anxious to dispel any notion that may exist that the parents of these children are acting in anything other than completely good faith—that, for example, they are trying, as it were, to sneak a grammar school education for their children on spurious grounds. As I have said before, Helsby School and Nantwich and Acton Grammar School are due to go comprehensive in the immediate future. Christleton School, at which Richard Wilkinson has a sibling, is undeniably full. Rebecca McMillan, who the House will remember was admitted by the education authority to have been "lost in the system", has already been informed that the council would sympathetically regard a request for her to attend St. Nicholas's High School, Hartford, on denominational grounds. She wishes, however, to go to Helsby for the reasons described.

The question arises where we can go from here. Section 76 of the Education Act 1944 reads: In the exercise and performance of all powers and duties conferred and imposed on them by this Act the Minister and local education authorities shall have regard to the general principle that, so far as is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents. 1222 The wishes of the parents have been made perfectly clear and I do not think they can be said to be incompatible with the provision of efficient instruction or the avoidance of unreasonable public expenditure.

In her speech of 20th December the hon. Lady, in disavowing the intention of her right hon. Friend at this stage of utilising the powers conferred on her by Section 68 of the 1944 Education Act, referred to Section 37. She noted in passing that no school attendance order was yet in existence in respect of the children who were the subject of this debate, but that the matter could arise. Although it is a matter for the parents, I think it right to tell the House that circumstances are likely to arise in respect of Richard Wilkinson where an attendance order may come into existence. I hope that the House will agree—perhaps the hon. Lady will confirm this—that if as a consequence of that attendance order, Section 37 were to be invoked, with the result that the wishes of the Wilkinsons were complied with, it would be extremely unfair if Rebecca McMillan did not also have the opportunity of attending the school of her choice. In other words, I do not think it should be a point of prejudice against her that she is currently attending school, in contrast to Richard Wilkinson who is not.

I remind the House, and I am sure that I have no need to remind the hon. Lady, that in the event of an attendance order being issued, the onus of proof as to what is reasonable is on the local authority rather than the Secretary of State.

Section 37 (2) of the 1944 Education Act reads: If, after such a notice has been served upon a parent by a local education authority, the parent fails to satisfy the authority in accordance with the requirements of the notice that the child to whom the notice relates is receiving efficient full-time education suitable to his age, ability, and aptitude, then, if in the opinion of the authority it is expedient that he should attend school, the authority shall serve upon the parent an order in the prescribed form (hereinafter referred to as a 'school attendance order') requiring him to cause the child to become a registered pupil at a school named in the order: Provided that before serving such an order upon a parent the authority shall, where practicable, afford him an opportunity of selecting the school to be named in the order, and if a school is selected by him. that school shall, 1223 unless the Minister otherwise directs, be the school named in the order. Subsection (3) reads: If the local education authority are of opinion that the school selected by the parent as the school to be named in a school attendance order is unsuitable to the age, ability or aptitude of the child with respect to whom the order is made, or that the attendance of the child at the school so selected would involve unreasonable expense to the authority, the authority may, after giving to the parent notice of their intention to do so, apply to the Minister for a direction determining what school is to be named in the order. Subsection (4) reads: If at any time while a school attendance order is in force with respect to any child the parent of the child makes application to the local education authority by whom the order was made requesting that another school be substituted for that named in the order, or requesting that the order be revoked on the ground that arrangements have been made for the child to receive efficient full-time education suitable to his age, ability, and aptitude otherwise than at school, the authority shall amend or revoke the order in compliance with the request unless they are of opinion that the proposed change of school is unreasonable or inexpedient in the interests of the child, or that no satisfactory arrangements have been made for the education of the child otherwise than at school, as the case may be; and if a parent is aggrieved by a refusal of the authority to comply with any such request, he may refer the question to the Minister, who shall give such direction thereon as he thinks fit. It seems unthinkable, given the wording of the section and the view that the Government have already expressed in the debate on 20th December, as well as in the right hon. Lady's letter to Mr. Maynard, that the Minister can possibly do other than direct the children to attend the schools of their choice.

In her speech on the 20th December the hon. Lady referred to the nature of the law at present and the possibility of future legislation. In the absence of the appropriate legislation I very much hope that the Government will continue their efforts to achieve an agreement with the Cheshire County Council without the necessity of lengthy procedures under Sections 37 or 68 and that the education committee will in turn help to avoid such a lengthy rigmarole.

While it is not a matter for me, I cannot agree with the right hon. Lady that the circumstances of the cases under discussion preclude her from intervening under Section 68. I base that view on a 1224 reading of Lord Wilberforce's judgment in the House of Lords Appeal of the Secretary of State for Education and Science against the Tameside Metropolitan Borough Council—Times Law Reports, 21st October 1976—which time does not permit me to develop.

As a Conservative MP, I am naturally conscious of the irony of trying to assist a Labour Government in putting into effect their express wish of allowing two of my constituents to go to grammar schools against the wishes of a Conservative-controlled education authority. I have deliberately kept the political temperature of my remarks as low as possible in the hope that by diffusing light on the situation rather than generating heat we can reach a swift and amicable solution. Whether or not the situation would have arisen but for the Government's Circular 4/74 and the 1976 Education Act I do not wish to speculate.

No doubt these cases raise issues of contemporary constitutional significance. That is a matter which we can debate more appropriately and at greater length if and when the Government bring forward amending legislation. These cases are, however, of crucial importance to two families in my constituency, and if lengthy procedures under Section 68 and Section 37 can be avoided the only ones to lose will be the lawyers and the only ones to gain will be the children.

As my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) said in a speech to the Conservative National Advisory Committee on Education on 19th June 1976: It is the task of the administrative system to adapt itself to the needs of the children and not the other way around. What my hon. Friend might have said is that he deplores, as I do, individual children being used as political footballs.

The Chairman of the Cheshire Education Committee mentioned in his letter that the parents of 24 children had appealed to the Committee against their school allocations. I regard that as a modest number indeed in a county the size of Cheshire, and one which every effort should have been made to accommodate.

I am not prepared to believe that the education committee of the Cheshire County Council is deliberately acting in 1225 these two cases to embarrass the Government. If we, as individuals, disapprove—as we do—of the Government's policy of compulsory universal comprehensivisation our most appropriate course, in my view, is to condemn the policy by our words and where possible our actions but to mitigate rather than exacerbate what we see as its undesirable effect by our actions where we are in a position to do so.

It seems to me that the Cheshire Education Committee has it within its power to mitigate what some of its members may view as the quite regrettable consequence of Government policy. There is still time for the committee to do so.

If the peg on which the education authority is hanging its hat is a desire to support the Government to the letter in their policy of comprehensivisation, and the Government have specifically disavowed their desire for such support in these particular cases, as they have, the peg has surely fallen out of the wall.

The Cheshire Education Committee meets only every other month, and the matter has now been debated twice by the House of Commons since the committee's last meeting. Therefore, it has not had an opportunity to look at this matter afresh. I hope that Mr. Maynard, the chairman, for whom I have the warmest personal regard and respect, despite our disagreement over this matter hitherto, will persuade the committee to look at these two cases sympathetically at its next meeting later this month. Anything further that the hon. Lady can do to help in reaching a favourable conclusion will be received with the same measure of gratitude as that which she has done already.

§ The Under-Secretary of State for Education and Science (Miss Margaret Jackson)

The two cases which the hon. Member has referred to the Department in recent months relate to Richard Wilkinson and Rebecca McMillan, both of whom were allocated places at Tarporley High School but requested places at alternative schools within the county. As I made clear in my reply to the hon. Member for Northwich (Mr. Goodlad) in the Consolidated Fund Bill debate on 20th December 1976, I have 1226 been as anxious as he is that these cases should be resolved satisfactorily.

I am sure that I do not need to remind the hon. Member for Northwich, but I should like to remind the House, that the powers of the Secretary of State to intervene in cases of this nature are severely limited. My right hon. Friend the Secretary of State considered very carefully the reasons put forward by the parents of Richard Wilkinson and Rebecca McMillan for requesting particular schools and the authority's case for refusing the parents' requests. However, since the authority claimed that both Nantwich and Acton Grammar School, requested by Richard Wilkinson, and Helsby Girls Grammar School, requested by Rebecca McMillan, were already full with children who live within the schools' catchment areas, she was forced to the conclusion that, in the terms of Section 68 of the 1944 Education Act, she was unable to issue a direction against the Cheshire Education Authority.

Despite this, as the hon. Member has said, I wrote to the Cheshire authority about these cases stressing the burden which will be placed on the families of these children if they are unable to attend the same schools as their siblings because they live outside the schools' present catchment areas. I also made it clear, as I did in my recent reply to the hon. Member for Northwich, that the decision whether to admit the children to the schools of their parents' choice is one for the authority: we cannot force it to do so because in terms of Section 68 of the 1944 Education Act the authority was not acting in a manner which we could properly regard as unreasonable. My right hon. Friend can intervene only if she is satisfied, and properly satisfied, that an authority has acted or proposes to act unreasonably in the exercise of a power or the discharge of a duty conferred upon it by the Education Act. It is not open to the Secretary of State simply to substitute her judgment for that of an authority exercising its statutory discretion in the administration of the local education service, even if many people might regard the authority's decision as highly unsatisfactory. Nevertheless, my letter urged the authority to look once more at all the circumstances of these two cases and to consider 1227 whether it could agree exceptionally to the admission of these two children to the schools of their choice.

I have just received from the Cheshire authority the reply to my letter. The rather curt reply is in similar terms to the one received by the hon. Member for Northwich, which he has just quoted. I must emphasise that the reason for my hon. Friend's decision not to intervene on behalf of these families was that the authority could justify the claim that to admit these pupils to the schools of their choice would lead to extra expense in teaching and running costs. The authority itself may have reached its decision for different reasons which my right hon. Friend did not regard as relevant or important.

Nevertheless, the hon. Member questions whether, in the circumstances, my right hon. Friend could not after all have used the powers conferred upon her by Section 68 of the Education Act 1944 to direct the Cheshire authority to grant school places of the parents' choice to Richard Wilkinson and Rebecca McMillan. In answer to this point, I can only say that my right hon. Friend has examined these cases most carefully and, with the benefit of legal advice, has concluded that there were no grounds for intervention.

In cases of this kind, Section 68 of the Act must be read alongside Section 37, in that intervention is precluded when an authority can justifiably maintain that the school selected by the parent is either unsuitable to the age, ability or aptitude of the child—a matter not at issue in these cases—or that the attendance of the child at the school so selected would involve unreasonable expense to the authority. This is a term which, to put it mildly, is not widely understood, but it is this second factor on which my right hon. Friend based her decision not to intervene in these cases. This is the kind of criterion on which we must base judgments of this kind.

The hon. Member referred to Lord Wilberforce's judgment in the Tameside case. I have read it too, but I must tell the hon. Member that I do not see any- 1228 thing in it which will assist us in this matter.

The hon. Member states his hope that, should these cases require the issue of a school attendance order, my right hon. Friend will direct the authority to name the school of the parents' choice in that order. In response to this, I must emphasise that the school to be named in any school attendance order is a matter which will be decided in the light of the circumstances, if and when the authority seeks such a direction. It would be quite wrong for me to say anything now which would at any stage prejudice such a decision. I hope the hon. Member will forgive me if I do not go into that aspect of the case.

I am sure that I need not say how unhappy I am that the Cheshire authority has decided not to make an exception to its normal policies and procedures in these cases. My letter to the authority was directed not to maintaining that it had acted in any way unreasonably in the terms of the Education Act; it was merely to say that I would have hoped that the authority would reach a different decision, more in line with our policy of granting parental wishes in matters of school admissions wherever that is possible. But, now that the Cheshire authority has decided that it cannot do this in these cases, I am afraid that it is not open to me to take the matter any further. I have made our views clear to Cheshire, but the final decision is for that authority, as the elected local authority.

However, I agree with the hon. Member that it is very sad that a Conservative local authority should reject the representations of a Conservative Member and a Labour Minister, and refuse—as, indeed, the chairman's letters to the hon. Member and to me indicate—even to reconsider the cases as we asked. The authority insists that it is unable to allow parental choice to be exercised in this way, despite the emphasis placed on parental choice over and over again by hon. Members on both sides of this House. I echo the hon. Member's hope that the Cheshire authority, when it has the opportunity as an education committee to meet and consider these cases, will reconsider them, as it has so far refused to do, and will reach a decision 1229 that will give more satisfaction to the hon. Member, to me, and, most important of all, to the families of the children concerned.