HL Deb 14 December 1908 vol 198 cc1187-95

Report of Amendments received.

Verbal Amendments in Clauses 5, 6, 8, 10, 12, 14, 17, 19, and 22 agreed to.


submitted two Amendments to Clause 23 providing the method of procedure to be followed in the event of any payment made by a school board being disallowed and surcharged. Recalling the circumstances which attended the discussion of this audit clause in Committee, he said it would be remembered that the Government were unable to accept the Amendments moved by Lord Balfour of Burleigh, but at the same time did not put the Committee to the trouble of a division. Subsequently, Lord Balfour appealed to the Government that they should do something to provide a better clause, to which he (Lord Herschell) replied that the whole question would be considered between then and the Report stage. The result of the consideration which had since been given to the matter was seen in the two Amendments now standing in his name on the Paper. The first Amendment made it clear that the privilege of exemption from surcharge, so far as the Department was concerned, on a first occurrence of what was considered to be an illegal expenditure, applied only to the first instance of such expenditure by any school board in Scotland—that was to say, it did not mean that each school board would be able to make this illegal expenditure once, in spite of the fact that it had been already disallowed in the case of one school board. He said advisedly "so far as the Department was concerned," because it was never intended that any ratepayer who considered himself aggrieved by any supposedly illegal expenditure on the part of his school board should in any way be deprived of his right to approach a Court of law to obtain a remedy, even on the first occurrence of such an expenditure. The second Amendment standing in his name contained words taken from the Town Councils Act with the object of making assurance doubly sure on this point. Where the Department had refrained from making a surcharge on the ground that it was the first occurrence of the offence although the auditor had declared the expenditure illegal, any aggrieved ratepayer, with this opinion of the auditor behind him, would have every confidence in going to the Court with the practical certainty that he would win his action and recover his expenses. It was obvious, however, that the position was such that the occasion for his doing so would hardly ever arise. The object, both of this power on the part of the ratepayer and of the power of surcharge on the part of the Department, was not so much to enable proceedings to be taken as to ensure that with these powers in reserve the occasion for the exercise of them would never arise. During the long series of years in which school boards had been in existence the amount which the accountant of the Department would have been prepared to disallow, had he possessed the power, had been almost infinitesimal, yet there was absolutely no power of surcharge. It was not the case that this amount would have been any greater had the accountant been vested with the power of surcharge, for, as a matter of fact, there was recorded year by year in the Blue-book a list of all the instances of what, in the opinion of the accountant, were illegal items, including expenditure which, though not strictly legal, had yet come to be regarded by the Board, and, in fact, by all concerned, as not only justifiable but even extremely desirable. Many of these items of expenditure were expressly sanctioned by the present Bill, and if the provision in Clause 3, Subsection (7), of the Bill had been inserted in previous Acts there was no doubt that an enormous proportion even of the small number of cases of illegal expenditure would not have appeared. He hoped these two Amendments would go far to satisfy Lord Balfour upon the score of what he had termed the "first bite." Apart from this point, there seemed to be, practically speaking, only one other real difference between the noble Lord's proposal and that of the Government, and that was in the method of seeking the intervention of the Court of Session. In the one case the procedure was for a Government Department or its officials to make a surcharge, and then leave the Court to determine on appeal as to the rightfulness of that action. In the other case—the Government proposal—the Department did not take upon itself the exercise of any judicial functions, which, of course, might be reversed on appeal, but merely asked the Court to declare as to the legality of certain expenditure, and a surcharge followed or did not follow as the case might be according to the decision of the Court. As between the two procedures, it would appear that the latter was certainly more justifiable on the grounds of precedent, and also of public policy. Looking first at the question of precedent, the method proposed in this case was the one prescribed over and over again in Education Acts as the procedure to be followed by the Department when it desired to secure the observance of what it considered the law on the part of school boards. He might refer in this connection to Sections 36 and 49 of the Act of 1872, to Section 13 of the Act of 1883, and to Section 46 of the Education Endowments Act of 1882. In all these cases the Department did not assume the judicial function, but proceeded to put the law into motion on a complaint at the instance of the Lord Advocate, leaving the Courts free to pronounce as to the rightfulness of the course suggested. Then, as regarded public policy, it was, he believed, an unheard-of thing, and it certainly would seem to be undesirable, that a Government Department should be placed in the position of having its decisions appealed against to any other Court than the High Court of Parliament. This was avoided, in the Government proposal, by not investing the Department with any judicial power from the exercise of which there could be an appeal, but by requiring the Department, if a decision as to the legality of any act of a school board was to be pronounced, to invoke the assistance of a Court of Law in the first place. The real difference between Lord Balfour's proposals and those of the Government, as amended by the two Amendments now on the Paper, was not really very great, and he could not help expressing the sincere hope that his noble friend would see his way to withdraw his opposition and so ensure to Scotland the enjoyment of the undoubtedly great benefits which this Bill would confer if passed.

Amendment moved— In page 24, line 25, to leave out from the word 'account' to the end of line 11, on page 25, and to insert the words 'and, in the event of any expenditure of the same nature as any payment so disallowed being incurred in any subsequent year by any school board to whom such disallowance shall have been timeously notified by the Department, the Department, If they should be of opinion that the members authorising such expenditure should be surcharged, may present a petition to either division of the Court of Session craving to have such expenditure declared illegal, and the said members of the school board ordained to refund the amount of such expenditure in the event of it being declared illegal; and the Court shall, before granting or refusing the prayer of such petition, consider any representations made in answer thereto by the members proposed to be surcharged; and the Court shall have power to find that the expenses of the said proceedings shall be payable by the said members personally or out of the school fund as may appear just.'"—(Lord Herschell.)


said that as between the clause which the Committee inserted on his Motion and the clause as now proposed by the noble Lord in charge of the Bill, there were two points conceded in favour of the view which he (Lord Balfour) had Ventured to express. There was no doubt that the Amendment was a considerable strengthening of the law of audit so far as school boards were concerned. It was also the case that the anomaly would now be done away with under which each school board in the country would have been allowed once to offend against the law. The position of affairs would, now be that if a particular item of school board expenditure was once for all declared illegal every school board would, if due notice was given to them, as, of course, would be the case, be bound by that decision. That was a very important concession, and one for which he expressed his gratitude. The other concession was that, even as regarded the first offence, any ratepayer could, if the sum involved was one of any magnitude, take the offending members of the school board to Court and have them surcharged for the illegal expenditure. There remained only the question of the appeal. He ventured to think that when the accountant had found an expenditure to be illegal and when the Department had certified that it was so, it would have been much more appropriate if the persons against whom the strong presumption was made were themselves to appeal to the Court, and not that the onus of taking an appeal should lie the other Way. I he idea of the dignity of the Department being offended by such an appeal was a little thin. At present the Secretary for Scotland could be made a respondent in an action by a town council if he wrongfully surcharged. But he frankly admitted that, in all the circumstances, the question as to who was to appeal to the Court for the final decision did not seem to him a point of substance on which, after the concession which had been made, they should quarrel. He gladly accepted this as a great advance upon school board audit, but hoped it would not be taken as a precedent for cutting down county council, town council, and parish council audits, which were more stringent. He would have preferred, as a matter of practice, if the present Amendment had been inserted in another place, but he would be satisfied if he received an assurance from the Government that they meant to stand by the Amendment in the other House. If that assurance were forthcoming he would gladly respond to the appeal made by Lord Herschell, and not press his view in the matter further.


I am very glad to hear that the substance of the Amendment meets with the approval of the noble Lord opposite. It was so clearly explained by my noble friend who represents the Department that I do not propose to touch in any way on its merits. I will merely deal with the point mentioned by the noble Lord at the end of his remarks with regard to the procedure when the Bill goes back to the other House. I have been in communication with my right hon. friend the Secretary for Scotland on this matter and he assures me that this Amendment will be a Government Amendment in another place, and that he will stand to it. I think that will meet the wishes of the noble Lord.

On Question, Amendment agreed to.

Consequential Amendments agreed to.

Amendment moved— In page 26, line 41, after subsection (6) to insert the following new subsection: '(7) Notwithstanding anything in this section contained, any ratepayer or elector who shall be dissatisfied with the account of a school board or any item therein may complain against the same by petition to the sheriff specifying the grounds of objection, and the sheriff shall hear and determine the matter of complaint, and his decision shall be subject to the same right of appeal as in ordinary actions in the Sheriff Court. Provided always, that it shall not be competent to petition the sheriff after the lapse of three months from the date of publication of the abstract of the accounts in terms of subsection (2) (f) of this section.'"—(Lord Herschell.)

On Question, Amendment agreed to.

LORD HERSCHELL moved the deletion of subsection (3) of Clause 27. The subsection ran— On the application of a school board, or on the petition of not less than ten ratepayers, the Department may, for the purposes of the school board election, if they think fit, divide the school board district into two or more electoral divisions, may define the boundaries of such divisions, and may fix the number of members of the school board to be elected within each division. This subsection was, he said, originally inserted when it was proposed to do away with the cumulative vote, and was not now necessary. Apart from this, it conflicted to a certain extent with the provision in Schedule B of the Act of 1872.

Amendment moved— In page 28, after line 9, to leave out subsection (3)."—(Lord Herschell.)

On Question, Amendment agreed to.

LORD BALFOUR OF BURLEIGH moved to amend Clause 30, which provided that— When any part of the annual revenue administered under a scheme approved in terms of the Educational Endowments (Scotland) Act, 1882, or under any Provisional Order confirmed by Act of Parliament, is applicable to the granting of bursaries, of to the payment of fees, such part of the revenue, if not on the average exceeding £50 per annum, shall be paid over in each year by the governing body of the endowment to the secondary education committee of the district, to be applied to the granting of bursaries in conformity with the general scheme for the district framed by the said committee, and, if on the average exceeding fifty pounds but not exceeding one thousand pounds per annum, shall, notwithstanding any provision of the scheme hitherto regulating the number, amount, conditions of tenure, or method of award of the bursaries, be applied by the governing body to the granting of bursaries in conformity with the general scheme for the district as aforesaid. He moved to insert, after the words "if on the average exceeding £50 but not exceeding," the words "£500 per annum in the case of endowments the revenues of which before the passing of this Act might be applied to purposes in two or more counties, or in any other case not exceeding." This Amendment raised a point of considerable substance. The effect of Clause 30 was, as he thought, to take away from certain governing bodies the autonomous administration of the funds under their control. The clause laid down that whenever a governing body had bursaries under £50 annual value they were absolutely and entirely to be handed over to the district committee, but when they were above £1,000 in value they were to be left entirely in the hands of the governing body. He thought that was rather a wide gap. The latter of those limits could only apply to towns. There were in country districts sums considerably above £50 a year, but under £1,000, which it was unfair to divert from the control of the governing body. He knew of an instance in the county of Banff where the annual amount of bursaries was £600 or £700. That bursary fund was administered under a scheme formed within the last twenty years, and the governing body was fully representative. It seemed hard that in a case where the endowment had been reformed so recently the fund should be merged into the general bursary scheme of the county.

Amendment moved— In page 30, line 3, after the second word 'exceeding,' to insert the words 'five hundred pounds per annum in the case of endowments, the revenues of which before the passing of this Act might be applied to purposes in two or more counties, or in any other case not exceeding.'"—(Lord Balfour of Burleigh.)


said there were only six endowments which would be exempted by Lord Balfour's Amendment. The governing bodies of three, of those had approached the Government during the earlier stages of the Bill, and fully stated their case. After full discussion they expressed themselves satisfied with the provisions in the last paragraph of the clause, viz.— Provided also that when the governing body of any such endowment are of opinion that this section is inapplicable or is unfair in its application in the case of the endowment administered by them, they may represent their views to the Department, who, after making such inquiry as they may deem fit, may make an order either exempting the revenue of the said endowment from the provisions of the section, or confirming the application of the section to such revenue. Of the remaining three, two were, he understood, quite acquiescent, and, therefore, there remained only one governing body strongly opposed to the provision. He could assure the noble Lord that any representations made to the Department under the proviso would receive the fullest and fairest consideration. He hoped this assurance would satisfy the noble Lord.

LORD BALFOUR OF BURLEIGH said that, after the assurance given, and the circumstances in which they were placed, he had no alternative but to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Drafting Amendments agreed to.

Amendment moved— In page 32, after line 11, to insert the words 'Except in Section 6 of this Act, the expression "parent" includes guardian and any person who is liable to maintain or has the actual custody of the child or young person; and in Section 6 the expression "guardian" includes any person as aforesaid.'"—(Lord Herschell.)

On Question, Amendment agreed to.


explained that the object of his next Amendment was to make the definition include certain schools which were not at present included.

Amendment moved— In page 32, line 16, after the word 'Parliament,' to insert the words 'or a school in receipt of any other grant from the Department a condition of which is that the average fee per child shall not exceed ninepence a week or such other sum as may be fixed from time to time by regulations of the Department.'"—(Lord Herschell.)

On Question, Amendment agreed to.

Bill to be read 3a To-morrow, and to be printed as amended. [No. 253.]