§ *LORD REAY
My Lords, I beg to ask the Lord President of the Council whether the Board of Education, pending the introduction of the Bill promised in another place, intend to issue for the guidance of managers of public elementary schools (day and evening) any statement as to any immediate action, which managers of such schools should take in consequence of the judgment of the Court of Appeal in Rex v. Cockerton. I shall explain, as briefly as I can, the situation which has arisen in consequence of that judgment. The judgment severs the connection of school boards with the Science and Art Department, and does not allow science and art grants to be paid to board schools. As the Science and Art Department has ceased to exist, the judgment has in that respect only an historical value. But it is a curious fact that in the year 1871, immediately after the passing of the Education Act, the Science and Art Department asked on November 29th for the co-operation of the School Board for London in organising the conduct of the examinations of the Department, and in appointing special local secretaries for the several school divisions of the metropolis in connection with these examinations. It is, therefore, clear that at that time the Science and Art Department had not the slightest doubt 566 as to the legality of drawing school boards in the sphere of its operations. Neither that Department in 1871 or since, nor the branch of the Board of Education which now administers the science and art grants, nor any school board, seem to have entertained any doubt that the rates might be applied to instruction given in order to earn Science and Art grants. The Courts have now declared that school boards are not entitled to receive these grants.
The judgment of the Court of Appeal differs from that of the Court of First Instance. The auditor held, as one of his reasons for the surcharge, that school boards "have no legal authority to use, expend, or apply any part of the school fund in the instruction of classes registered under the Science and Art Department." The special case asked the Court to decide "whether it was lawful for the school board to pay the expenses of maintaining these schools or classes out of the School Board rate or the school fund." Mr. Justice Wills stated "that it was not within the power of the School Board to provide, at the expense of the ratepayers, science and art schools or classes," either in day school, or in evening continuation schools, but "that in both such educational work may be carried on by the School Board, provided the whole of the funds required for it are furnished from sources other than contributions from the rates." The Master of the Bolls gave his decision in a different way. He said "it was not within the powers of the Board, as a statutory corporation, to provide science and art schools or classes of the kind referred to in this case, either in the day schools or the evening continuation schools, out of the School Board rate or school fund." Therefore, the Master of the Rolls, in his judgment, does not allow, what Mr. Justice Wills allows that part of the school fund may be applied to earning these grants. It is possible that another construction may be put on the judgment as given by the Master of the Rolls, but it is desirable that no doubt should exist as regards the interpretation to be given, because, if the school fund is not to be applied for this expenditure, then the question arises whether school boards have the power to earn science and art 567 grants even when the whole expenditure is borne by fees or by subscriptions.
Section 53 of the Education Act of 1870 states clearly that "the expenses of the School Board under this Act shall be paid out of a fund called the school fund. There shall be carried to the school fund all moneys received as fees from scholars, or out of moneys provided by Parliament, or raised by way of loan, or in any manner received by the School Board." Therefore, if the judgment is to be interpreted literally, the School Board cannot carry on these classes even by levying fees or obtaining subscriptions and not at the expense of the ratepayers. It is very important that on that point we should know exactly how the judgment is to be interpreted. The judgment does not apply to public elementary schools being voluntary schools, and it would therefore place board schools in an inferior position—a state of things so unfair and unjust that I am sure the noble Duke the Lord President of the Council would not tolerate it. Either you must withhold science and art grants from all public elementary schools or you must, where the conditions are similar, grant them to all. If the Board of Education took the view that public elementary schools should only earn the Whitehall grant, I would not object to that solution of the difficulty. It would undoubtedly be a great advantage for all public elementary schools to be under one authority. But in that case it would obviously be necessary to compensate public elementary schools for the loss of the grants, which they have for a long time been allowed to earn from the Science and Art Department. That can be done without imposing any additional burden on the estimates, by a slight redistribution of the Whitehall grant, and the science and art grants.
It is too often forgotten that the science and art grants were originally intended for the industrial classes, and were given to the children of parents whose incomes were below £100 a year. In recent years the limit was raised to incomes under £500 a year, but this limitation was in 1897 entirely removed, enabling all classes of the community to enjoy the grants. This materially strengthens the claim 568 for liberal grants from Whitehall to higher elementary schools, and evening continuation schools, which are for the benefit of the children of those classes for whom the science and art grants were intended. The question, however, which requires immediate solution at the hands of the Board of Education is whether the science and art grants which are now being learned will be paid for the present session only. Another question on which some guidance is required is that of the attendance of adults at evening continuation schools. It has not been definitely settled what constitutes an adult, but if the line is drawn, as Mr. Justice Wills draws it, at children between sixteen and seventeen years of age, then in London alone, out of 80,267 scholars upon the rolls of those schools in December, 1900, no less than 49,393 over sixteen will have to be excluded from the education which they now receive. I cannot conceive that the Board of Education contemplate this exclusion, and I trust that we shall receive some re-assuring statement as to the continuation of this education. I am all the more confident that the Board of Education do not contemplate this effect of the judgment when I read the contents of the Code for continuation schools recently issued by the Scottish Education Department with the sanction and the approval of the noble Duke. It is often said that we ought not to mention Scotland. As regards secondary education, I am fully alive to the fact that different conditions obtain in Scotland from those which obtain in England; but with regard to evening continuation schools, which are of recent growth, the situation in both countries seems to me to require that the same provision should be made for a want which, in the excellent Memorandum which accompanies the Code for Scotland, is stated to be a want, not of the individual scholars, but of the whole community.
The code for English evening continuation schools has not been issued. I hope I may attribute the delay to the fact that the Board of Education are considering the issue of a code not very dissimilar from the Scottish Education Code, and that Parliament will soon be placed in possession of such a measure as may be necessary to render such a code 569 legal. Unless the school boards throughout England obtain statutory power to continue the education now given to adults in evening continuation schools, a gap will arise in our educational system of the most serious nature. I think school boards have a right to ask for some guidance from the Board of Education in the present unsettled state of affairs. The Board of Education and its predecessor—the Education Department—have certainly incurred some responsibility with regard to the situation. That is admitted in an article in the Quarterly Review of last month, in which it is stated that "surcharges, if they are to be made, would seem more justly to fall somewhere within the Education Office" than on the school boards, who have simply given effect to the instructions issued by that Department. I would point out that there is almost a unanimous opinion among those who deal with educational matters that the present situation is absolutely untenable, that an amendment of the law is urgently required. I am quite sure that nowhere must the difficulties which have arisen be more strongly felt than at the Board of Education, which has to administer the Education Acts as they have now been interpreted by the Courts. I do not ask for any disclosure of the contents of a future Bill, but simply for some guidance as to what is the course to be pursued by school boards in the interval which must occur before the law can be amended, and a settled state of things established instead of the confusion which at present prevails.
§ THE LORD PRESIDENT OF THE COUNCIL (The Duke of DEVONSHIRE)
My Lords, I am quite incompetent to follow the noble Lord into the legal points of the judgment in Rex v. Cockerton, nor do I think it would be at all expedient at the present moment that I should attempt to give a detailed answer to the questions the noble Lord has raised I read in the newspaper this morning that the London School Board, of which the noble Lord is chairman, resolved yesterday to address one or more letters to the Board of Education containing certain inquiries, which, as far as I could follow the statement of the noble Lord, referred to the points which he has raised. It is in my opinion, on this ex- 570 tremely difficult and complicated question, much more desirable that an answer to those questions should be given after full consideration and after an opportunity for full consultation with my advisers and the other Departments which may be concerned. Before answering the question of the noble Lord which is on the Paper, I would only protest against the attempt which has been made by the noble Lord to place upon the Board of Education the entire responsibility for the state of things which has arisen in consequence of the Cockerton judgment. Whatever may have been the case in the past, school boards in recent times have been repeatedly warned by the Board of Education that the course which they were pursuing in respect of some of these schools and classes was an illegal course, and I entirely decline to admit that the Board of Education are responsible for the state of things which has now been disclosed. In answer to the question on the Paper I have to say that the Board of Education have no responsibility under the Education Act for the expenditure by the school boards of the school fund. The Board of Education have no power to authorise any application of that fund which the law declares to be illegal. The Board of Education therefore have no intention of making any statement as to the immediate action the school boards should take in consequence of the Cockerton judgment. But the Government will in the Education Bill this session make such provision as appears requisite for enabling proper instruction in day and evening schools to be continued, and I have very little doubt that some way may be found of relieving managers who may continue to carry on existing schools and classes from any personal liability in respect of surcharges which might be imposed upon them.
§ EARL SPENCER
My Lords, as I said a good deal on this subject on a former occasion, I do not wish to go into the whole question again. But I wish to say a word with regard to the observations of the noble Duke as to the responsibility of the Education Department for the present state of affairs. I do not think my noble friend behind me referred, in what he said, to the administration 571 of the noble Duke in recent times. I think he and others will admit that on several occasions within the last few rears notices have been given that certain practices were considered, if not altogether illegal, of very doubtful legality. At the same time, my noble friend was perfectly correct in saying that not long after the passing of the great Education Act of 1870 the Education Department distinctly encouraged the formation of higher grade schools. Since the debate took place some time ago a very material change has taken place. The appeal has been given up, and the school boards in the country are face to face with the difficulty which this judgment has created. The noble Duke has engaged that this matter shall be dealt with in the Education Bill this year, but we must recognise that there is a very great probability of the noble Duke and his Department not being able to carry forward such a Bill in consequence of the great burden of work in another place. In that case some action must of course be taken. If this gap takes place in the education of the country before a Bill passes, very grave and serious detriment will ensue to education in various quarters, not only in the higher grade schools and to the students who remain there for a certain time, but also to the continuation schools.
§ THE DUKE OF DEVONSHIRE
I do not know whether I am to understand that my noble friend suggests that the Board of Education can do anything, in the absence of legislation, to make legal that which the courts have declared to be illegal.
§ EARL SPENCER
No. I understand that for the present payments on the science and art side will continue until some further change is made; but, whether it is possible for the Board of Education to do that or not, some step must be taken to remedy the great evil which will occur if nothing is done.
§ THE DUKE OF DEVONSHIRE
It is a question not of payment by the Board of Education, but of the application by the school boards of the school fund.
§ House adjourned at ten minutes past Five of the clock, to Monday next at a quarter before Eleven of the clock.