Grand Committee Report of 24 April 1996

Official Report of the Committee on the Education (Scotland) Bill [H.L.]
Wednesday 24th April 1996.
Official Report of the Committee on the Education (Scotland) Bill [H.L.]

  The Committee met in the Moses Room at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Strabolgi) in the Chair.]
  [Amendment No. 25 not moved.]
  Clause 24 [Grants: requirements]:
  Lord Sewel Lord Sewel moved Amendment No. 26:
  Page 11, line 28, at end insert—
  ("(1A) The power of the Secretary of State to make regulations shall be exercisable only after consultation with bodies or persons appearing to him to be representative of bodies or persons whose interests are, or are likely to be, substantially affected by the regulations which he proposes to make.").
  The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 27 and 28. These are good practice amendments. They seek to establish a principle that when the Secretary of State is making regulations covering details of the legislation, he is required to consult with those bodies and those persons who will be affected by the legislation. That seems to me a principle worth putting into the Bill, if only for the reason that it would ensure that the Secretary of State is informed when he is making orders and regulations, which is no bad thing in itself. That is the general principle and is a worthy general principle to see enshrined in the Bill.
  If this proposal goes through as it is intended, as the noble Earl the Minister has said from time to time it should be on the basis of partnership. By accepting these amendments the Government would be indicating their good faith in pursuing a policy of partnership by a commitment to consult those bodies and organisations which will be directly affected by any subsequent details. It may be that the Secretary of State does not wish to consult and receive informed opinion, mainly because informed opinion does not seem to support the proposals in the first place. I beg to move.
  Baroness Carnegy of Lour: Obviously in this context consultation is important. The Scottish Consumer Council indicated in its advice to us that it thought it important that people should be carried along with the ideas which were being put into practice. So we shall need to know from the noble Earl the Minister the form the consultation will take. I do not know whether it has to go into the Bill, but it would be interesting to hear what he has to say about this.
  The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay): The noble Lord, Lord Sewel, raises an important issue in moving Amendment No. 26 and speaking to Amendments
  CWH 52
  Nos. 27 and 28. The amendments are designed to require the Secretary of State to consult with interested parties before determining the requirements under which grants made under Clause 23 are paid. They also seek to require the Secretary of State to have regard to certain important matters in determining the requirements. I should like to suggest to the Committee that our actions speak loudly. The noble Lord, Lord Sewel, mentioned good practice and I hope that we have a track record which suggests that we are intent on good practice.
  The Government have consulted extensively throughout the course of the development of the pre-school education voucher initiative. In August last year we issued a consultation document on the future of pre-five educational provision.
  We also issued towards the end of last year an invitation to all Scottish local authorities to submit informative schemes for participation in the initiative's pilot year. In that invitation we requested local authorities' views on a range of issues concerning the voucher system.
  The department consulted extensively on a draft of the profile of education provision which is a key factor in determining which providers will be admitted into the system. I am now in a position to make copies of the finalised profile available to members of the evidence-taking committee and these will be sent out very shortly. We will also consult shortly on the detailed curricular guidelines on pre-school education which have been prepared by Her Majesty's Inspectorate.
  Over and above these formal consultations Ministers and officials have discussed the voucher initiative with a range of bodies, including the four pilot authorities, CoSLA, the Scottish Independent Nursery Association and the Scottish Pre-school Play Association.
  I hope it will be clear from this that my right honourable friend the Secretary of State is committed to very full discussions, both formally and informally, on the operational aspects of the voucher initiative. We do have a policy of partnership, which the noble Lord, Lord Sewel, mentioned.
  I hope that the extent of the consultation which I have been able to detail to my noble friend Lady Carnegy will also reassure her regarding the questions she asked. The effect of these amendments would be to introduce unnecessary and potentially awkward rigidities into the development of the voucher system. As I said at the beginning, our track record proves that our intentions on consultation and partnership underpin the whole nursery voucher initiative.
  Lord Sewel: The Minister has drawn attention to the consultations that have taken place as regards the development of the proposal and the bringing forward of the Bill. These amendments seek to establish consultation, once the Bill becomes an Act, in terms of the various aspects of the implementation of the provisions. It will be necessary for the Government to give some clear and detailed assurance, preferably in the Bill itself, on the nature and scope of the consultation

  CWH 53
  during the actual implementation of the provisions. At this stage I beg leave to withdraw the amendment, but I am sure it is a matter to which we will wish to return.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 27 and 28 not moved.]
  On Question, Whether Clause 24 shall stand part of the Bill?
  Lord Ewing of Kirkford: I wish to oppose the Question that Clause 24 stand part of the Bill. That is consistent with our previous approach that Clause 23 should not stand part of the Bill. Perhaps I could save the time of the Committee in relation to Clauses 26 and 27 standing part of the Bill, because all these clauses together constitute Part II of the Bill to which we, as an Opposition party, are implacably opposed and want to see removed from the Bill. We will not achieve that today, and we reserve the right to return to this matter at Report stage. I need not bore the Committee by repeating the arguments that I made on the Question that Clause 23 stand part. Clause 23 deals with the provision of nursery vouchers although, as I have said so often, the word "vouchers" is not used anywhere in the Bill If we want that provision taken out of the Bill we also require the grants provision and the various other provisions in Part II to be removed. We will return to this matter at the Report stage and in the meantime it is not my intention to press it today.
  Clause 24 agreed to.
  Clause 25 [Delegation of functions]:
  [Amendment No. 29 not moved.]
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 30:
  Page 11, line 42, after ("person") insert ("(or any employee of his)").
  The noble Earl said: Clause 25 enables the Secretary of State to delegate the grant-making functions accorded to him by Clause 23. It will enable him to delegate certain functions, such as the payment of grant or the arrangements for issue of vouchers to parents, to a private-sector contractor. Such arrangements will ensure that the administration costs involved in the voucher initiative are kept to the minimum possible level. Amendment No. 30 makes clear that the functions so delegated may be exercised by the employees of a contractor and removes any doubt that such activity by them could be unauthorised sub-delegation. It is, a technical amendment which does not change the policy behind Clause 26 and I commend it to the Committee.
  I turn to Amendment No. 32. It clarifies the intention of Clause 25; namely, that the Secretary of State in exercising his powers under that provision to delegate grant-making functions can also choose to delegate them partially, or only in specific circumstances. Clause 25 does not allow the Secretary of State to delegate the power to prescribe the definitions of children eligible for vouchers. That must be done by statutory instrument and will be subject to the control of Parliament. In relation to his other powers, however, it would be a hindrance to the efficient administration of the voucher
  CWH 54
  system if the Secretary of State were to be restricted as to the extent of any individual functions, or to the range of functions, which he could delegate.
  This is another technical amendment intended to clarify the Secretary of State's powers in relation to his grant-making functions. It is modelled on existing provisions in the Deregulation and Contracting Out Act 1994, and it is also consistent with the corresponding provisions in the Nursery Education and Grant-maintained Schools Bill. These amendments do not change substantive policy and I commend them to the Committee.
  Lord Ewing of Kirkford: It is five months since the Bill was first printed and presented to your Lordships' House. I would have thought that the Minister, in moving the amendments to change its text, could have given us some background to the proposal of the change. They may be technical amendments, although I do not fully accept that they are, but it would be helpful if the Minister could tell us just a little more about where the thinking came from to insert these changes.
  The Minister described the amendments as technical but they give the right to the Secretary of State to delegate to a private organisation—no doubt the company which has been contracted for a year to administer the pilot scheme—the power to make grants. That is one of our objections. It is our view that this is public money; it is local authority money. All right, the Government say they are going to put in £31 million of additional money but that will not take place until the year 1998–99 when this Government will not be in office and the scheme will not be operating. However, that is all beside the point.
  Our discussions take place in the context of the terms of the legislation that is before the Committee. These amendments, technical though they may be, as the Minister said, give the Secretary of State powers to delegate to a private organisation the right to use public money to make grants. It is a repeat of the local enterprise companies but this time extended to education.
  Where does all this stop? To what extent are public funds to be given to private organisations to disburse in grants? I hope that the Minister, given the fact that the Bill is now five months old, will tell us where the thinking for the amendment comes from.
  3.45 p.m.
  The Earl of Lindsay: These amendments are technical; they do not change policy. They are designed to make the policy that has always been in the Bill work better. An important point is that given time it is possible to continue addressing certain issues within the department and also through continuing consultation and dialogue. From that consultation and scrutiny one inevitably finds better ways of delivering the same policy. It can be done through clarification; it can simply be fine tuning of a mechanism which is otherwise intended to remain on a certain course.
  Clause 25, enabling the Secretary of State to delegate some grant-making functions, seeks to achieve economies of scale and a low unit cost across the

  CWH 55
  administration and delivery of pre-school education. It is vital that operational efficiencies are achieved so that the public money at stake delivers the best possible return not only to the taxpayer but to the beneficiaries and the recipients, namely, the pre-school four year-old children. On that basis, I hope that the Committee will accept the amendments.
  On Question, amendment agreed to.
  [Amendment No. 31 not moved.]
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 32:
  Page 12, line 1, leave out from ("above") to end of line 2 and insert ("may make provision for the functions concerned to be so exercised—

  (a) either wholly or to such an extent as may be specified in the arrangement, and

  (b) either generally or in such cases or circumstances as may be so specified,

  but shall not prevent the functions concerned from being exercised by the Secretary of State.").
  The noble Earl said: I have just spoken to this amendment. I beg to move.
  On Question, amendment agreed to.
  On Question, Whether Clause 25, as amended, shall stand part of the Bill?
  Lord Ewing of Kirkford: I wish to place on record that I shall be returning to this matter at Report stage. As I said earlier, it is part of Part II of the Bill. We cannot change the situation here today. I therefore place on record that we shall return to it at the next stage.
  Clause 25, as amended, agreed to.
  Clause 26 [Disclosure of information]:
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 33:
  Page 12, leave out lines 3 to 13 and insert—
  ("() This section applies to—

  (a) civil servants in the Scottish Office and any other persons who carry out the administrative work of that Office, and

  (b) any person exercising any function by virtue of section 25 of this Act and any persons who are employed by (or are directors or other officers of) any such person or who carry out the administrative work of any such person.

  () The Secretary of State may supply to any person to whom this section applies any such social security information as the person may require for or in connection with the exercise of any function in pursuance of section 23 of this Act.
  () Any person who is or has been a person to whom this section applies").
  The noble Earl said: In moving this amendment I shall also be speaking to Amendments Nos. 34, 35 and 46. The purpose of Amendment No. 33 is to ensure that the provisions of Clause 26 are entirely clear. The clause is intended to give the Secretary of State—in practice, the Secretary of State for Social Security—the power to disclose information to Scottish Office officials and to any other person to whom the Secretary of State's grant-making functions under Clause 23 have been delegated.
  It is important that the persons to whom the Secretary of State may disclose information, and to whom the offence of unlawful disclosure therefore applies, are defined reasonably clearly. After careful consideration
  CWH 56
  we have come to the conclusion that the clause as it stands does not achieve this end. It does not expressly authorise disclosure to civil servants, the reference to persons "employed by the Secretary of State" is not technically apt for civil servants, and references to persons employed are uncertain in scope and may not cover all those who should be covered.
  The amendment makes clear that disclosure may be made to Scottish Office civil servants, secondees and others doing work for the Scottish Office, and to persons exercising delegated functions, who in practice will be the voucher management company, and those working for it.
  Amendment No. 35 follows as a consequence of Amendment No. 33 in that it deletes a clause which would be redundant.
  I turn now to Amendment No. 34. In view of the fact that Amendment No. 33 defines persons to whom the section applies, Amendment No. 34 substitutes a simpler test of the circumstances in which it is an offence for a person to disclose social security information.
  Instead of it being necessary to show that the information was,
  "obtained or held in connection with the exercise of any function under section 23 of this Act",
  it will be sufficient to show that the person acquired the information while acting as a person to whom the section applies. As this avoids the need to establish the purpose for which the information is held, it will make the offence easier to establish while not substantively changing its scope.
  I turn now to Amendment No. 46. The purpose of this amendment is to extend the disclosure of information provisions of Clause 26 to the whole of the United Kingdom. At present, like the rest of the Bill, these provisions extend only to Scotland. This is not satisfactory for the following reasons.
  First, it must be competent for the Secretary of State for Social Security to disclose, for the purposes of the Bill, social security information held anywhere in the United Kingdom. It would be plainly ridiculous if the voucher system was frustrated merely because the child benefit centre's records of eligible Scottish parents happened to be held in an English office.
  Secondly, it must be the case that the unauthorised disclosure of information by civil servants and others to whom the Secretary of State's grant-making functions are delegated should be an offence if it occurs in any part of the United Kingdom. If such an unauthorised disclosure was not an offence merely because it occurred in Carlisle rather than Coldstream the Bill would be flawed. This amendment's extension of Clause 26 remedies these defects.
  Taken together, Amendments Nos. 33, 34, 35 and 46 bring the Bill into line with the corresponding provision of the Nursery and Grant-maintained Schools Bill. Those provisions have a similar definition of the persons to whom information may be disclosed and they already extend to the whole of the United Kingdom. I beg to move Amendment No. 33.
  Lord Ewing of Kirkford: These are important amendments and, as the Minister has rightly said, they deal with the disclosure of information. We are clearly not happy with the way in which this information is to be disclosed and are aware of the dangers surrounding the circumstances in which that information may be used.
  Perhaps I may press the Minister a little further on this. In the repeal clause of the Bill there is no reference to repealing parts of any social security legislation. Can the Minister say whether, when we come to Report or even Third Reading, the Government will be tabling repeal amendments in respect of social security legislation, dealing with the fact that there are social security departments which will release the information in the first place, and whether any part of the legislation will have then to be repealed as a result of what the Minister is moving here today?
  Baroness Carnegy of Lour: I should like to ask my noble friend a question or two about this? Clearly it is very important and it is an area in which I am not precisely clear how it will work. From my own recollection I know of no other case where the term,
  "civil servants in the Scottish Office",
  is included in Scots legislation. Could my noble friend tell the Committee the definition of a "civil servant"? If the matter were argued in court then the phraseology of any Bill could be argued. Is this a sound bit of drafting? It is unfamiliar to me, although it may well be that I simply do not remember seeing it before.
  In addition, can the Minister tell the Committee whether extending this section to England, Wales and Northern Ireland has an effect on paragraph (b) in Amendment No. 33:
  "any person exercising any function by virtue of section 25 of this Act and any persons who are employed by (or are directors or other officers of) any such person or who carry out the administrative work of any such person"?
  Can those be people in England? Is that implied? Presumably the civil servants in the Scottish Office do not become civil servants in England by dint of Amendment No. 46, but what will be the scope of the Bill if this amendment is accepted?
  The Earl of Lindsay: The noble Lord, Lord Ewing, wondered whether there should be any repeal of social security legislation. I am advised that is not the case. If between now and Report stage he feels that there are technical requirements for such a repeal, I would suggest we discuss it prior to Report stage in case technical explanations are needed.
  My noble friend Lady Carnegy raised three points, the first of which was the definition of a civil servant and the second, whether paragraph (b) of the amendment is soundly drafted. My draftsmen assure me that it is sound drafting. I am also advised that the definition of a civil servant is an employee of a central government department. The formulation in Clause 26 is modelled on the Social Security Administration Act, therefore it is well precedented.
  CWH 58
  On the point my noble friend raised about the extension of the clause to incorporate the whole of the United Kingdom, one of the principal reasons is so that the offence, for instance, of unlawful disclosure of information can be applied to a civil servant anywhere in the United Kingdom.
  I would just add for the benefit of the noble Lord, Lord Ewing, that the effect of the amendments is to permit for this particular purpose the disclosure of information which would be prohibited by social security legislation. To repeal any of the general social security legislation would go far wider than is necessary. I hope that may be helpful.
  Lord Carmichael of Kelvingrove: Anyone who has been in the other place and has represented a constituency will know that Members of Parliament spend a fairly large part of their lives in contact with the social security offices. I have a high respect for those offices. This, however, is a slightly different issue from most of them—this is more in the education field. I hope that steps will be taken to emphasise, through the area managers, just how delicate this matter is, not just to the family but particularly to the young student or the young child who is going to school. It is vital for the self-respect of people that there is total confidentiality.
  Lord Sewel: I wish to reinforce that point. It extends to those non-civil servants who are charged with the administration of the scheme. Real care has to be taken to make clear to these people, who perhaps are not aware of the public service to the extent that civil servants are, that they have a very strong duty not to reveal anything of a highly sensitive nature at all and that great penalties will properly fall upon them if they do.
  The Earl of Lindsay: I agree with the points made by both the noble Lords. The sensitivity of much of the information held by the Department of Social Security is such that we are determined that robust measures should be in place to prosecute any unlawful disclosure of that information. The only information to be released from the child benefit database will be parental names and parental addresses. Members of the Committee may be aware of the strict confidence in which the Department of Social Security holds the very sensitive information which it receives on the personal financial circumstances of members of the public. That point was well made by both the noble Lord, Lord Carmichael, and the noble Lord, Lord Sewel.
  It is incidental to the voucher system, but it requires access to some peripheral and uncontentious parts of that vast database—essentially the names and addresses of pre-school year children. Yet rightly, every detail of social security information is protected by stringent statutory provisions. This clause is designed to allow access to the information required for the voucher system, and only such information, while still retaining all the necessary controls over the use of personal information. We agree with the emphasis that both noble Lords have placed on the importance of providing that protection.
  4 p.m.
  Baroness Carnegy of Lour: I wish to comment on the effect of these amendments on one another. Does Amendment No. 46 alter the meaning of paragraphs (a) and (b) of Amendment No. 33?
  The Earl of Lindsay: It does not affect the meaning.
  On Question, amendment agreed to.
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 34:
  Page 12, line 15, leave out from ("person") to end of line 16 and insert ("which he acquired while acting as a person to whom this section applies.").
  The noble Earl said: I have just spoken to this amendment. I beg to move.
  On Question, amendment agreed to.
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 35:
  Page 13, line 16, leave out subsection (8).
  The noble Earl said: I spoke to Amendment No. 35 when moving Amendment No. 33. I beg to move.
  On Question, amendment agreed to.
  On Question, Whether Clause 26, as amended, shall stand part of the Bill?
  Lord Ewing of Kirkford: There is no need to repeat myself. I merely give notice, yet again, that we shall return to this matter on Report when we shall take the opportunity to pursue it further.
  Clause 26, as amended, agreed to.
  On Question, Whether Clause 27 shall stand part of the Bill?
  Lord Ewing of Kirkford: My previous comments apply also to Clause 27.
  Clause 27 agreed to.
  Clauses 28 and 29 agreed to.
  Clause 30 [School Boards: conflict of interest]:
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 36:
  Page 17, line 13, after ("theirs") insert ("or any appointment committee").
  The noble Lord said: This is a small amendment but it is quite important. It seeks to address a conflict of interest which might arise when school board members are acting as members of a local authority or a sub-committee, for instance, and an appointment committee. We are trying to show that a conflict of interest may arise as regards the appointment of similar staff, which is an important part of the school board's functions. Members of the board should be required to declare an interest if, for example, they are teachers who work or have recently worked, in the same school as one of the applicants. In such circumstances, that applicant may or may not have a marginal advantage over the others. However, members of the board should be required to declare an interest. It is a very simple amendment which improves the Bill. I beg to move.
  Lord Addington: This is a very sensible amendment which would improve the Bill. I believe that such
  CWH 60
  amendments, and indeed the provisions in Parts III and IV of the Bill, are far more appropriate to today's procedure than were the provisions in Part II. Less direct political conflict is involved and we can achieve a greater consensus as a result of our discussions.
  Baroness Carnegy of Lour: Perhaps I may ask the noble Lord, Lord Carmichael of Kelvingrove, whether he is referring to appointment committees not of the school boards but of the local authorities in respect of posts in the school to which the board relates? Is that what he is talking about, or is he talking about appointment committees within the school board?
  Lord Carmichael of Kelvingrove: I was not aware that school boards made appointments of this nature and therefore I assume that they would be local authority appointments. I have a feeling that the Minister is in sympathy with the amendment and, whatever changes he makes, he empathises with what I am trying to do. A member of a selection committee who has strong interests in a candidate must be required to make that clear and, if possible, should not become involved in the selection process.
  Baroness Carnegy of Lour: I understand what the noble Lord, Lord Carmichael of Kelvingrove, is saying. If the amendment is referring to an appointment committee of a local authority that should be stated. If it says "any appointment committee" it could be something that had nothing to do with the matter, unless the drafting of the rest of the clause precludes that. I am slightly surprised by the noble Lord's reply. I am not quite certain what the implications are but I wonder whether the definition is clear enough.
  Lord Carmichael of Kelvingrove: I can see that there may be a problem of semantics here. Someone on the committee may have nothing to do with normal appointments and know someone; one cannot stop that. Someone may be on the committee of a bowling club with one of the members. But we are speaking here on purely official levels. At whatever the level, it should be declared, but it would be up to the committee to decide whether a person should be sitting on a selection panel. There is a certain semantic argument here that I am sure that the Minister will have cleared up for all of us.
  The Earl of Lindsay: I am grateful to the noble Lord, Lord Carmichael, for moving the amendment, which he described as important and which the noble Lord, Lord Addington, described as sensible. Amendment No. 36 would extend the conflict of interest provisions set out in new Section 5A as inserted by Clause 30 to include an appointment committee set up under Schedule 2 to the School Boards (Scotland) Act 1988. Where an education authority intends to appoint a head teacher, a deputy head teacher or an assistant head teacher to a school, Schedule 2 requires the authority to set up an appointment committee comprising nominees of the education authority and the school board, where there is one. For posts below head teacher, the appointment committee also includes the head teacher.

  CWH 61
  Serving on an appointment committee is one of the most influential and important duties carried out by a school board member. In principle, therefore, we are sympathetic to the intention behind the amendment and I am grateful to the noble Lord, Lord Carmichael, for bringing the matter forward. However, if I may beg patience from the noble Lord, I should like to take away the drafting that he has submitted to the Committee and bring forward a government amendment on Report.
  Lord Carmichael of Kelvingrove: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 30 agreed to.
  Clause 31 agreed to.
  Clause 32 [Placing requests]:
  Lord Ewing of Kirkford Lord Ewing of Kirkford moved Amendment No.37:
  Page 18, leave out lines 30 to 36.
  The noble Lord said: It may be for the convenience of your Lordships' Committee if I also refer my remarks to Amendments Nos. 38 and 39. These are probing amendments. The first two amendments deal with the question of the reservation of places in schools within a certain travelling distance. They deal with the problem where these travelling distances inhibit the schools in urban areas from reserving places because of the 3.2 kilometres distance in the case of primary schools and the 4.8 kilometres distance in the case of any other designated school. Some of our urban schools are quite badly overcrowded because of those travelling distances. It may well be that the urban schools are disadvantaged in respect of the proposals contained in the legislation. I hope that the Minister will have a look at this point.
  The final amendment deals with the proposal in the Bill that the Government themselves would prescribe maxima. In other words, the Government themselves would say what is the maximum number of places that may be reserved. The point I want to make is that the local education authorities will know the number of children who are likely to go to a particular school and will therefore know the number of places that are likely to be required to be reserved. In our view there is no need to prescribe a maximum number of places. It should be left to the discretion of the local authorities.
  We on this side of the Committee support the proposal contained in the Bill to reserve these places. It comes back to an exchange between the noble Baroness, Lady Carnegy, and myself yesterday when we were discussing the whole question of the placements legislation and the right of parents to choose the school to which they want their child to go. Of course, the amendment arises very much from a situation that arose in the Secretary of State's own constituency when, at Balfron High School, children who were living in the catchment area could not be admitted to the school because the school was overcrowded. We have no criticism of the proposal to reserve places. It is right and proper. Indeed, in the area where both the noble Earl,
  CWH 62
  the Minister and myself have our homes there are primary schools which are really bursting at the seams. Methilhill Primary School is possibly the best example of primary schools in Fife which are bursting at the seams but which could fall outside the criteria prescribed in the legislation.
  It is in a probing sense that I propose these amendments. I hope that the Minister will be able to enlighten the Committee as to the possibility of the Government having a second look at these proposals and, if necessary, coming back at Report stage with the required amendments. I beg to move.
  Baroness Carnegy of Lour: It is refreshing to know that the noble Lord's party is enthusiastic about choice of schools. That has helped the support of parents for the schools which they choose to be greatly enhanced.
  The problem is that where schools are close together in an urban area—and they may be very close together—it will be possible to refuse to admit people who want to choose a certain school by claiming that people are likely to come and live in that area and that places must be kept. Those same claims may be made for a second school which is quite close by. I am not sure that this whole arrangement really fits into the urban area scene. It is intended for places where there is but the one school in the catchment area. I wonder whether that can be explained to us.
  Lord Sewel: I wish to speak very briefly in support of the amendment. The great benefit of the amendment is that it helps communities become established and helps children become integrated into the community. Those of us who from time to time have moved home with young children realise the difficulties encountered by those children in becoming part of the community into which they are moving. One of the greatest helps in assuring that integration is attending the local school and building up a whole network of relationships with school mates and friends that starts at the school and flows over into the wider community. If, because of the pressure on places, people moving into an area cannot have their children attend the local school, there will be quite significant social consequences and I would hope that we could avoid them.
  4.15 p.m.
  The Earl of Lindsay: I say immediately to the noble Lord, Lord Sewel, that it is for that very reason that the Government want to enable places to be reserved for children moving in as a family into the catchment area of a certain school.
  The noble Lord, Lord Ewing, has raised some interesting issues. As the Committee knows, Clause 32 amends Section 28A of the Education (Scotland) Act 1980 to enable education authorities to retain places at certain schools for pupils moving into an area. Amendment No. 37 would have the effect of allowing the education authority to hold back unfilled reserved places for incoming children even if there is an equivalent school within reasonable walking distance.
  I would first make the general point that we consider it very important that parents should have the right to choose which school they want their children to attend.

  CWH 63
  For that reason the proposals in the Bill on placing requests have been tightly drawn. We should always remember that a place retained is a place denied to a pupil seeking admission by placing request. Therefore places should be retained only where the case for giving the place to a pupil likely to move into an area is stronger than that for a pupil applying by placing request.
  Where there is no other equivalent school within a reasonable walking distance, the case for retaining places for incomers is very strong. Otherwise, such pupils could be faced with travelling some distance out of the local area to school. Where there is another equivalent school reasonably near, the need to retain places is patently less as the inconvenience and travel is likely to be reduced.
  Using our common sense we realise that on the whole there is likely to be greater flexibility in terms of the provision of school places where there is more than just one school within a certain radius, and we therefore defined the manner in which places can be reserved and focused it on those areas where there is no equivalent school within a certain distance. There is no specific prejudice against schools in urban areas. The rules under the formula apply to all schools, whether they be urban, semi-rural or indeed rural.
  The Bill seeks to strike an equitable balance between the interests of children outwith the catchment area and the interests of children moving into that area. We take the view that this amendment could reduce parental choice unduly and therefore we are not attracted to it.
  Amendment No. 39 links directly to Amendment No. 38 as it would remove the definition of equivalent school necessary for the purposes of Section 28A(3B). The definition of "equivalent school" in new 28A(3E) ensures that the alternative school under consideration in any given case is a similar type of school.
  Amendment No. 38 would remove that part of new Section 28A(3C) which would give the Secretary of State power to prescribe by regulations the maximum numbers of places that an education authority could reserve for children who may move into a school's catchment area. I recognise that the new section elsewhere requires education authorities to reserve only the number of places that are regarded by the authority as reasonably required for incomers. There are therefore checks and balances to help ensure that an authority does not reserve so many places that the interests of pupils seeking a place by placing request are unreasonably compromised.
  Nevertheless, I hope Members of the Committee will appreciate that we regard the right of parents to choose the school which they wish their children to attend as most important, both as a basic right and as a means to improve standards. That is why we consider it important that a power should be taken to enable regulations to be made to limit the number of places being reserved if that proves necessary. I say "proves necessary" because the reservation of a number of places by regulation would only he an option for the Secretary of State.
  CWH 64
  As the noble Lord, Lord Ewing, said, local authorities are often best placed to estimate the likely number of incoming parents with children within a certain year and therefore, in general, we would expect the local authorities to be able to determine that number of places which should be reserved. The Secretary of State does, however, retain this option to set numbers by regulation in case he feels that the numbers of places being reserved are unreasonable.
  Whether that option of the Secretary of State were adopted would depend on circumstances and regulations would not be enacted without close consultation with those involved in operating them. If such an option were to be adopted, it is clear that different numbers would very likely have to be prescribed for different categories of schools, given the diverse sizes of both schools and catchment areas.
  The power to prescribe limits to the number of places which may be retained is part of the overall pattern of checks and balances to secure maximum freedom of action for the authorities to decide on local arrangements and also to provide necessary safeguards for parents and pupils.
  In the light of the explanation and assurance that I have been able to give on this area, I hope the noble Lord may feel able to withdraw his amendment.
  Lord Ewing of Kirkford: In the light of the Minister's comments, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 38 and 39 not moved.]
  Clause 32 agreed to.
  Lord Ewing of Kirkford Lord Ewing of Kirkford moved Amendment No. 40:
  After Clause 32, insert the following new clause—
  FURTHER EDUCATION BURSARIES
  (". In section 12 (Boards of Management) of the Further and Higher Education (Scotland) Act 1992 after subsection (2) there shall be inserted the following subsection—
  "(2A) Subsection (2) above does not confer power to grant and make payments in pursuance of bursaries, scholarships or other allowances to persons over school age for which provision can be made under section 49(1) of the Education (Scotland) Act 1980.").
  The noble Lord said: This new clause deals with the whole question of higher education bursaries and is indeed a very important issue, particularly for local authorities in Scotland. I hope the Minister will explain to us what actually happened when the Secretary of State took his decision to transfer from the local authorities to the higher education authorities and the colleges the right to allocate grants and bursaries for higher education. That decision was taken without consultation with the Convention of Scottish Local Authorities, and it was taken only a week after the Secretary of State gave an absolute assurance to the National Union of Students that the allocation of grants and bursaries would be left with the local authorities. There has been no explanation of why the Secretary of State, first, did not consult with the Convention of Scottish Local Authorities, and, secondly, why he

  CWH 65
  changed his mind within seven days of giving the assurance to the National Union of Students that this function would be left with the new unitary authorities. So the purpose of the new Clause is to enable the return to the local authorities of this function, which has been taken away from them without, as I say, any consultation by the Secretary of State. It is, indeed, a very important function, and the funding of that function will obviously be taken away from the local authorities as well and given to the colleges of higher education. In these brief comments, I hope that I have given the Minister a platform on which to explain to us how on earth this all came about. There was no consultation with CoSLA and a guarantee to the National Union of Students was within seven days, without any notification to anyone, just overturned. I hope that I have said sufficient to allow the Minister to explain just exactly what happened behind closed doors. I beg to move.
  Lord Addington: In dealing with further education, surely those authorities who know the conditions for further education in relation to jobs and practical tasks are the people best placed not only for providing the funding but also knowing where it should go. The amendment seems to be very straightforward. It deals with an area of concern. I hope the Minister will give some assurance that local authorities will still have a very close control and influence over where the funding for further education goes.
  The Earl of Lindsay: As from 1st April 1996, each incorporated further education college is responsible for dealing with the applications for bursaries for students attending their college. Following a consultation exercise with regional and islands Councils, £45 million was transferred from the aggregate external finance settlement to the colleges for 1996–97. The consultation did take place.
  The unitary authorities retain responsibility for further education bursaries for students not attending one of the 43 incorporated colleges. In recognition of that, £4.7 million remains in the AEF to assist authorities in meeting these residual responsibilities.
  Using financial and student information provided by the local authorities, the 1996–97 bursary allocations have been issued to each college in line with their historical position. Bursary policy guidelines have been issued which are based heavily on those issued by CoSLA and hitherto operated by the local authorities on their bursary scheme. To assist colleges in their preparation, we have distributed instructions on eligibility and residency; we have issued a national policy document; a commentary on its application; guidance on an appeals and complaints procedure; a "standard" bursary application form for session 1996–97, and indeed a student guide. These measures will ensure that there is minimal disruption to the service being provided to students, and it is the students, as recipients and beneficiaries, who we see as being the priority in terms of how the arrangements are made.
  CWH 66
  Linking bursaries to other college responsibilities will enable colleges to deliver an integrated service to students. The responsibility transfer will enable greater control to be operated, in that funding and payment cancellation decisions can be made and implemented more quickly. It will also be possible for students to know whether they have been successful in obtaining a study place and bursary award at the same time.
  Given that there was consultation with the regional and islands councils on this, that the financing has been worked out fairly on information provided to us by the local authorities and students; and given that the arrangements reflect the fact that we want the students themselves to be the beneficiaries, I hope that the noble Lord feels more reassured than he did when he stood up to move the amendment.
  Lord Ewing of Kirkford: I am sorry to say that I am not more reassured. I do not doubt that consultation took place with local authorities that were on their death bed. They were going out of existence. I do not doubt that, but I would like to see an account of the consultation that took place because the report that I have is that certainly no consultation took place with CoSLA. It is normal practice in local government in Scotland that consultation on issues that will affect all the local authorities, all the education authorities—in this case regional and island councils—takes place with the organisation representing the local authorities, the Convention of Scottish Local Authorities.
  The Minister has not referred to the fact that there was a joint bursaries working group between the Scottish Office and CoSLA in which new regulations had already been prepared in order that the new unitary authorities coming into being, as they did on 1st April this year, would administer these bursaries. I hope the Minister was not trying to present a case that the students wanted this change, because far from the students wanting this change, the record shows quite clearly that the students did not want the change, and indeed their representations to the Secretary of State were to the effect that they did not want the change. The Secretary of State gave them an assurance. The Minister has not dealt with this. He gave the National Union of Students an absolute assurance that the allocation of bursaries would be left with the local authorities.
  The Secretary of State's original thinking was that he would give the function to the company that administers the student grants, but then he was approached by the colleges. It was not the Secretary of State who thought about giving the function to the colleges; it was the colleges that thought about getting the function from the local authorities. On being approached by the colleges, the Secretary of State then decided that he would transfer the function from the local authorities to the colleges. The Minister must be aware that it could not have happened at a worse time. Here we had new unitary authorities coming in, in a year in which they had been preparing their administration, and part of that administration was the allocation of bursaries. They were all geared up for that, but colleges are not geared up. From the reports I have the colleges are struggling to come to terms with administration of the scheme, and

  CWH 67
  they are very fortunate indeed that, notwithstanding the fact that the function has been removed from the local authorities, the local authorities through their chief executives, chief education officers and finance departments are giving assistance to the colleges in order to administer the scheme. The whole thing is absolutely crazy. It was taken away from the local authorities which then, of their own volition, give assistance to the colleges to administer a scheme that has been taken away from people who are experts at administering the scheme. The local authorities are giving this assistance because they do not want the students to suffer. This is about the only point on which the Minister and I agree on this issue—it is crucial that the students should not suffer.
  I should like to hear more. I simply cannot accept the not lame but certainly flimsy explanation that was given about the Secretary of State's approach to this matter, because all the evidence that I have is that it was the intention of the joint working group that was set up between the Scottish Office and CoSLA to leave this with the local authority. The new regulations were already in being and were part of the discussion that was ongoing in the joint working party, and yet suddenly the feet were cut away from it all because the Secretary of State in a blinding flash decided to accede to the request of the colleges and give this work to the colleges. We need a much more substantial explanation than we have already had. I hope that the Minister is now better prepared to give us a much more substantial explanation.
  4.30 p.m.
  The Earl of Lindsay: I have been prepared from the beginning to give the noble Lord a substantial explanation, but he perhaps disagrees in principle with the fact that something has been devolved from the local authorities to the colleges in the running of their own affairs. In the same way on a broader scale we are seeking in the Scottish Office to devolve down some of our current powers to local authorities. This is one of a number of measures that we are encouraging, or guiding, local authority duties further into the community or into the institutions over which they otherwise have control. There was consultation with the regional and islands councils. The Secretary of State himself on 10th November 1995 met with CoSLA representatives and outlined his intention to transfer responsibility for further education bursaries to further education colleges from 1st April 1996.
  As I have explained, the unitary authorities retain responsibility for further education bursaries for students not attending one of the 43 incorporated colleges. The noble Lord quite rightly said that the students themselves are one of the most important factors in that they should not suffer. We have guided and assisted the colleges very heavily in this matter. We have used the guidelines that CoSLA itself issued in the operation of bursary schemes. We have issued other instruction and guidance in other matters to ensure that students have to suffer minimal disruption from such changes.
  CWH 68
  At the end of the day we want the colleges and the students to benefit from a more integrated service, the greater control that colleges can have over their affairs and, indeed, the speed with which they can make decisions on various matters without having to await those decisions being made by local authorities. The consultation existed. CoSLA was informed and the maximum amount of help was given to the colleges to ensure that they took on these new duties efficiently. I hope that the noble Lord, on reflection, will feel that the picture he paints is much worse than what exists in reality.
  Baroness Carnegy of Lour: This is not an animal with which I am enormously familiar. I have not spoken so far on this topic but re-reading what CoSLA said I personally see the merit of the colleges doing this work. The problem CoSLA faces is, to a large extent, a problem for the staff. The local authority bursary staff who are doing the job will lose it while the colleges will have to take on people. Does the Minister have any information about whether it is possible to facilitate the move of local authority staff to the colleges? Those working within the local authorities feel that the colleges lack understanding and knowledge of the system, which is natural. Of course, at the moment that is the case because they have not been doing it: those people reside in the local authorities. One has some sympathy with people who find themselves in that position. This is quite a big part of the argument that CoSLA is making to Members of the Committee. Does the Minister have anything to say about that? Is he able to look at it?
  The Earl of Lindsay: I can promise both the noble Lord, Lord Ewing, and my noble friend Lady Carnegy that I will write if there is any information which could usefully be given that I have not already given. My noble friend makes a very good point. The transition had to be smooth and the transfer of functions had to take place with minimum disruption. I repeat that that is why we issued bursary policy guidelines along the lines of those which CoSLA issued.
  We set out to assist the colleges in every possible way we could. We distributed instructions on eligibility. We issued a national policy document and a commentary on its application. We issued guidance on the appeals and complaints procedure and also a standard bursary application form for the session 1996–97 as well as the student guide. We wanted the colleges to assume these new duties simply, quickly and efficiently and we wanted the students to benefit from the transition similarly.
  Lord Ewing of Kirkford: I would like to press the Minister further. I am impressed by his ability to defend the indefensible but he is never really very comfortable when doing so. If, as the Minister says, the Government wanted the colleges to administer these bursaries, wanted to help the colleges all they could, and wanted to provide support and advise them on the complaints procedure and the appeals procedure, why was there not

  CWH 69
  a joint working party established? Why were there not new regulations applicable to local authorities to enable that to happen?
  The Earl of Lindsay: I am sure it is not unusual for different parts of the public arena to be exploring the same issue in different directions. While one policy was perhaps unfolding towards the transition which then took place, I imagine that the joint working party itself might have been working to an agenda that preceded our intentions articulated on 10th November 1995 by the Secretary of State to the CoSLA representatives. I find nothing unsurprising in different aspects of the same policy being simultaneously pursued.
  We may have a problem of principle here between the noble Lord, Lord Ewing, and myself in that the Government feel strongly that if a function or decision-making power can be devolved downwards to the point where it matters most, we would like to see that happen, whether it be in the health area, schools or indeed any other area. That is why we have been in such extensive discussions with CoSLA to see how many duties we have in the Scottish Office that are not necessarily for the Scottish Office Ministers to pursue but could be better performed by local authorities.
  The local authorities have perhaps been a little more reluctant to give up duties and see them devolved downwards into the community than we have in our efforts to devolve powers to local authorities and others. However, we feel strongly that such duties should be delegated downwards.
  This is perhaps not too far from the principle that divides us on nursery education vouchers in that we want to see parents making the decision as to where children are sent for their pre-school education rather than the local authority being the sole arbiter and, as it were, monopoly-holder of such matters. We may well be back on a well-argued principle that was aired earlier in our discussions on the Bill.
  Lord Ewing of Kirkford: We are obviously not going to receive an explanation. The Scottish Office has changed substantially since my days there when civil servants took their guidance from Ministers. Now we are told that it is nothing unusual for civil servants to be pursuing one course of action while the Minister is pursuing a completely different course of action. I suppose that that encapsulates the whole approach of the Government. It must be absolute chaos in the Scottish Office. One of the first jobs of my noble friend Lord Sewel on entering the office will be to sort it all out and get the place on an even keel.
  We shall not get any further on this. We have had no explanation as to why the Secretary of State did not consult CoSLA. He just went and told them in November 1995. There is no explanation of why he changed his mind within seven days of meeting the National Union of Students. We are not to get any explanation. I should like to put on record my admiration of the Minister's ability to defend the indefensible. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 33 agreed to.
  Clause 34 [Regulations and orders]:
  Lord Sewel Lord Sewel moved Amendment No. 41:
  Page 19, line 20, leave out ("annulment in pursuance of a") and insert ("approval by").
  The noble Lord said: The purpose of the amendment is self-evident. It is clearly to provide that regulations under the Bill, when it becomes an Act, should be subject to the affirmative rather than the negative procedure. Why? Quite simply, the Bill is replete with clauses giving the Secretary of State power to make regulations. Indeed, there has been a ghost almost, not so much in the debate but a ghost within the Bill.
  We all know that the main part of the Bill is about a voucher scheme for nursery education. The word "voucher" does not appear at all. That part of the Bill becomes operative only as a result of regulation. Indeed, the policy objectives of the entire Bill can be secured and will be given flesh only through regulation and order.
  Given the disproportionate importance of the orders and the power given to the Secretary of State to make regulations and orders within the Bill, surely it is appropriate that the affirmative procedure is adopted so that the opportunity for Parliamentary scrutiny is widened. That is particularly relevant and necessary when the Bill is silent about what it is seeking to achieve; that is, the introduction of a voucher scheme.
  Lord Addington: We should all recommend and encourage the department to discuss provisions which will be introduced by regulations. The affirmative procedure gives us the opportunity so to do, and thus it should be used wherever practically possible.
  In agreeing to the scheme, as the noble Lord has just said, the beef, if we can use that expression at this particular time, is not here, but will be served at some later date so that at least we will be able to pass some opinion on the quality of the cut.
  4.45 p.m.
  The Earl of Lindsay: I was surprised that the noble Lord, Lord Sewel, mentioned the word "ghosts" in moving this amendment. It was a refreshing departure from the speech which I had been expecting from him. I would remind the noble Lord that, although he sees some kind of shadowy vacuum in Part II, the Secretary of State, under Section 23 of the Education (Scotland) Act 1980, already has the power to make grants to persons for the provision of education. The noble Lord may see ghosts in the Bill where is a hard profile of what we are seeking in the 1980 Act.
  Lord Sewel: Will the Minister accept that the word "voucher" does not appear in any legislation relating to nursery provision?
  The Earl of Lindsay: I was talking about the Secretary of State's ability to make grants. I cannot immediately tell him how often the word "voucher" appears in Scottish education Acts.

  CWH 71
  This amendment would require that every order or regulation made under this Bill by the Secretary of State for Scotland would be subject to affirmative resolution by either House of Parliament. I suspect that the drafting of the amendment did not intend the "either" to be the case, but that is the way the amendment is focused on the Bill as presently drafted.
  Members of the Committee will be aware that the affirmative resolution procedure is now used quite sparingly. There is good reason for this. Negative resolution procedures allow efficient use of limited parliamentary time while allowing for proper scrutiny to be made where necessary. Affirmative resolution is used only where the power in the enabling Act is such that it would be inappropriate for the positive consent of Parliament not to be sought.
  There is no discretionary element in the Bill which is of a nature which would demand that Parliament be required to debate its exercise. I would assure the Committee, and specifically the noble Lord, Lord Addington, that in any event negative resolution retains Parliament's ultimate control. We feel that that is absolutely vital and should be the case. On that basis, in addition to the technical observation on the drafting of the amendment, I hope the noble Lord can withdraw his amendment.
  Lord Sewel: I am intrigued at what the noble Earl, Lord Lindsay, thought I was going to say—perhaps we can have a conversation afterwards. I find his answer totally unconvincing. At this stage I shall beg leave to withdraw the amendment but it is again something to which we may wish to come back.
  Amendment, by leave, withdrawn.
  Clause 34 agreed to.
  Clause 35 agreed to.
  Clause 36 [Short title, commencement and extent]:
  [Amendments Nos. 42 to 45 not moved.]
  The Earl of Lindsay The Earl of Lindsay moved Amendment No. 46:
  Page 20, line 1, leave out from first ("to") to end of line and insert ("subsections (4A) and (5) below, this Act extends to Scotland only.
  (4A) Section 26 of this Act extends to England, Wales and Northern Ireland as well as Scotland.").
  The noble Earl said: I spoke to Amendment No. 46 when moving Amendment No. 33. I beg to move.
  On Question, amendment agreed to.
  Clause 36, as amended, agreed to.
  Schedules 1 to 5 agreed to.
  Schedule 6 [Repeals]:
  Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 47:
  Page 31, column 3, leave out lines 4 to 7.
  The noble Lord said: In moving this amendment perhaps I may speak also to Amendment No.48. The amendments ensure that education authorities retain some discretion with regard to how they discharge their functions as education authorities. The repeals procedure will, by deleting the word "general" from each of Sections 2 , 19(1) and 65F of the Education
  CWH 72
  (Scotland) Act 1980, give the Secretary of State power respectively to prescribe requirements to which every education authority shall conform, which are to apply to the premises and equipment of educational establishments under the management of education authorities and relating to the conduct of schools making provision for recorded children or recorded young persons. There is concern that the Secretary of State, by being empowered to make regulations prescribing requirements, rather than general requirements in relation to the matters outlined above, will be able to restrict education authorities' ability to discharge their functions. We should therefore like the Minister either to take this matter away and see whether there is going to be a diminution of power of the education authorities to discharge their functions, or accept the amendment in some form that will allow them to discharge their functions much as they have done for a very long time. I beg to move.
  The Earl of Lindsay: I can reassure the noble Lord, Lord Carmichael, immediately that the repeals set out in Schedule 6 are not so draconian that we are removing all discretion from the education authorities—I believe he used terminology along those lines.
  Amendment No. 47 would delete the repeals in Schedule 6 and the word "general" in Sections 2 and 19(1) of the Education (Scotland) Act 1980. Amendment No. 48 would delete the repeal in the same schedule and the word "general" in Section 65F of the 1980 Act. These repeals are minor technical changes responding to doubts raised by the Joint Committee on Statutory Instruments in the other place as to the vires of regulations made under Section 2 of the 1980 Act. The grounds of concern were that the wording of Section 2 might allow the prescription only of broad principles and not the making of detailed requirements. The power had previously always been interpreted as a power to prescribe requirements which are general in the sense of establishing rules which apply to education authorities across the board, but which prescribe duties in detail.
  The purpose of the change to Section 2 and other similar powers in Section 19(1) and Section 65F of the 1980 Act is therefore to respond to the joint committee's criticisms and make clear that it is competent for regulations to impose detailed requirements where appropriate, and not merely to prescribe general requirements. The change has no policy significance. The Government remain in favour of less regulation not more regulation, as the entire Committee knows.
  It is against that background, and the assurance that we are not seeking to clip in a draconian fashion the discretion of the education authorities, that I ask the noble Lord to withdraw the amendment.
  Baroness Carnegy of Lour: I have listened carefully to what my noble friend has said. This is a very interesting point. I quite see how the drafting schedule has arisen, but he will have to ensure that the interference, as they see it, in local authority affairs by central government will not be made possible inadvertently on a number of other detailed issues

  CWH 73
  because of this. The point being made is that it will have wider repercussions than intended in the Bill. It might not be possible to respond at this moment, but it would be nice to have some reassurance that the application is not wider than that which is precisely related to the Bill.
  The Earl of Lindsay: Rather than risking misleading my noble friend Lady Carnegy I will write to her and copy the letter to the noble Lord, Lord Carmichael, on this specific point.
  Lord Ewing of Kirkford: Before we leave this matter, I am interested in the noble Earl's response to my noble friend Lord Carmichael in that this schedule is in response to the concerns of the Joint Committee on Statutory Instruments. We are dealing with primary legislation and it is a House of Lords Bill. This Bill has never been before another place, so how does a House of Lords Bill of this nature—primary legislation—fit into the powers, duties and functions of the Joint Committee on Statutory Instruments? To whom was the advice from the Joint Committee on Statutory Instruments given? Was it, for example, given to the Scottish Office or was it given to the parliamentary draftsmen? Should there not have been reference at Second Reading to the fact that the Joint Committee on Statutory Instruments had commented? It is normal practice that when the joint committee refers to legislation, it is intimated to either House that the joint committee has commented on the proposed legislation. This has never been intimated until today, and, with great respect, this matter should have been intimated at the start of our proceedings, certainly at Second Reading. An indication should have been given that the joint committee had commented on this so that we were all aware of the background to the repeal provisions that are contained in Schedule 6 to the Bill. I find it very interesting indeed, having at one time been a member of the Select Committee on Procedure in another place. We are dealing here not with a statutory instrument but with primary legislation.
  The Earl of Lindsay: I would point out to the noble Lord, Lord Ewing, that the Notes on Clauses deal with this matter and that those Notes on Clauses were published and made available to the House immediately after Second Reading.
  Lord Ewing of Kirkford: After Second Reading?
  The Earl of Lindsay: Yes, as is customary. I believe that we always endeavour to make Notes on Clauses available after the Second Reading of a Bill. I would refer the noble Lord to the final page dealing with Schedule 6 and I will endeavour to get a copy of it for him if that would help.
  The history of this matter may be of interest to the noble Lord, given the specific questions that he has asked. When the School Pupil Records (Scotland) Regulations 1990 and the Further Education Student Records (Scotland) Regulations 1990 were made under this power, the Joint Committee on Statutory Instruments drew them to the attention of both Houses of Parliament and cast a doubt on their vires.
  CWH 74
  The joint committee took a similar approach over the Testing in Primary Schools (Scotland) Regulations, which have since been revoked. The grounds of concern in both cases were that the wording of Section 2 might allow the prescription only of broad general principles and not the making of detailed requirements.
  I hope that that casts some light on the noble Lord's doubts.
  Lord Carmichael of Kelvingrove: I would not for a moment suggest that the noble Earl was other than trying to be helpful. If the noble Baroness, Lady Carnegy, grasped what he was saying, she has the great advantage of having a copy of the Notes on Clauses. I understand that the Notes on Clauses may have been in the Printed Paper Office, but I also understand that the normal courtesy—I am sure that it was not the Minister himself at fault—is that at least the Opposition Front Bench is sent a copy or is told that the copies are now available. When there are these complicated Bills with back references, most of us jump at the idea that there will be Notes on Clauses. It is a great help. I certainly had no intimation that there was such a thing.
  Baroness Carnegy of Lour: The whole thing seems to me to have been entirely normal. Notes on Clauses were published after the Second Reading. I picked them up in the Printed Paper Office, as I always do. I see that there is an explanation here of the repeals that are referred to in Schedule 6. I had not spotted that until the discussion began. But that is completely normal. I do not know what normally happens to Opposition Front Benches because I have not been on one. I have always picked up Notes on Clauses of any Bill after the Second Reading, and if it is a Private Member's Bill one has to produce them oneself.
  The Earl of Lindsay: Perhaps I may put the record straight. First, if any of the normal courtesies were ignored, I apologise. Secondly, I can make sure that a copy is delivered to noble Lords opposite. Thirdly, I can assure the Committee that the Notes on Clauses were made available as I said they would be in my Second Reading speech on 11th December. I refer Members of the Committee to col. 1146 of Hansard on that occasion. It is always our intention to make Notes on Clauses available in order that technical details will be pursued through that avenue.
  Lord Carmichael of Kelvingrove: I thank the Minister. It is obviously one of these mix-ups. I usually run to get a copy of Notes on Clauses to make some sense out of what the draftsman is saying. I can only blame myself that I did not do so on this occasion. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 48 not moved.]
  Schedule 6 agreed to.
  Bill to be reported with amendments.
  The Committee adjourned at one minute past five o'clock.