EDUCATION (SCOTLAND) BILL. (Hansard, 28 January 1942)

LORD ALNESS
My Lords, I can present this Bill to your Lordships in a very few minutes of time. It is a simple and short measure, which, however, will have far-reaching and beneficial consequences, as I see them. The measure is required in order to give full effect in Scotland to the announced Government policy for the nutrition of school children. The object of that policy is to secure and to maintain during wartime a high standard of nutrition among children who are attending school. In order to achieve that end, it is necessary to remodel and accelerate the procedure which is at present in existence for feeding school children throughout the country. That end is secured by this measure, which is designed not so much to remedy malnutrition when it appears, as to secure that it shall not appear at all. In other words, the idea underlying 521 the Government's policy is prevention rather than cure. Under the existing law of Scotland, it is impossible to give full effect to the Government policy in this matter. For that disability there are at least two reasons. In the first place the law as it now stands in Scotland does not permit food to be supplied to a necessitous school child unless it is shown that an individual child is unable because of lack of food to take full advantage of the education which is offered to it. But the second reason is perhaps even more important. It is that, even when a child is shown to be in need of food, the education authorities require, in order to feed that child, to go through an elaborate procedure which almost defeats the end which the Act of 1908 had in view. The procedure is certainly not adequate or appropriate to war-time conditions, and representations to that effect have been made by various responsible bodies in Scotland.
Now, may I turn for a few moments to the Bill itself and run through its provisions? I can do so quite rapidly, and I hope clearly. The main provision of Clause 1 is the repeal of Section 6 of the Education (Scotland) Act, 1908. The reason why that repeal is proposed is that that section contains a most elaborate and cumbrous code of procedure which, as I suggested a moment ago, is quite unfitted for the conditions of to-day. Then, having got rid of that cumbrous procedure, the Bill proceeds with constructive proposals which are; to take its place. The first proposal of the Bill in paragraph (1) of Clause 1 is that education authorities may purchase and provide food for the purpose of supplying meals to children attending any schools in their area,, both on days when the school meets and on other days. That prevision is self-explanatory, and I will not detain your Lordships by saying a word about it, except to add that it is a provision expressed with considerable generality, and that there is no requirement that there shall be evidence of malnutrition before the provision comes into force.
Then comes paragraph (2). It is not proposed to relieve local authorities from the duty, which is laid upon them under the Act of 1908, to provide food for school children when the need for it is shown. This subsection, therefore, re-enacts that 522 duty, but, as I have already indicated to your Lordships, re-enacts it with a great simplification of the procedure which is to be found in the Statute of 1908. Paragraph (3) provides that where an education authority makes provision for a child under cither of the heads that I have mentioned, "they shall be entitled"—so the paragraph runs—"to recover from the parent the expense incurred," or "such part thereof, if any, as he is, in the opinion of the authority, able to pay."
I wish to make if clear to your Lordships' House that I am advised that the intention and the effect of paragraph (3), although it is expressed in language which lawyers call "enabling," are that it is mandatory. As your Lordships know, there are cases where such a provision so expressed has been construed to be mandatory because of its environment. There are certain other cases in which a provision of this kind has been construed not to be mandatory, again because of its environment. In this case the environment is such as to lead definitely and clearly to the conclusion—and it is a conclusion which has been reached with regard to at least two other Scottish Statutes which are expressed in similar terms—that the intention and effect are to make the provision mandatory. That is to say, the local authority is enjoined, and has laid upon it the duty of endeavouring to recover from the parent, if he is able to pay it, a part of the cost, or the whole of the cost if possible, to which the local authority has been put in the matter of feeding his children.
Then comes the repeal in Clause 2 of the Education (Scotland) (Provision of Meals) Act, 1914 That was a small Act of Parliament which provided that on days when schools were not sitting feeding provision might be made. That now becomes unnecessary, because in Clause I, paragraph (1), of this Bill that requirement is set forth. It only remains for me to add that the Bill, in Clause 3 and otherwise, includes certain other children, and gives them a right to provision at the public expense which they do not have to-day. In the first place provision may be made for children at any time when they are attending school. Under the law as it stands to-day they are entitled to the provision only at a time when they are under an obligation to 523 attend school. Under this Bill, even though a child continues to attend school after the statutory age when he is entitled to leave, he will still be entitled to the provision under this Bill which I am commending to your Lordships' House.
In the second place there is another class of children who are included in the Bill and who are not to-day included. A child who has reached the age of five, but has not proceeded up to then to attend school, is to be deemed for the purposes of this Bill as being in attendance at school, and, therefore, entitled to the beneficent provisions which the Bill contains. Lastly, a child for whose education the education authority has to provide, although not in school because of certain special circumstances affecting the child such as blindness, or deafness, or mental or physical disability—such a child, though not attending school, will be entitled to the advantages of this Bill. That, so far as I am concerned on the Second Reading, is the conclusion of the whole matter. I hope I have made it plain to your Lordships that this is a Bill which is not only necessary but which, as I ventured to say in opening, will have far-reaching, beneficent and important consequences, and it is for those reasons that I venture now to commend it to your Lordships for Second Reading.

§ THE DUKE OF BUCCLEUCH AND QUEENSBERRY
My Lords, before the Bill receives a Second Reading I would like to thank the noble Lord for the very clear statement he has made in presenting it to the House, and especially for explaining very fully the attitude and intention of the Government in regard to those words in paragraph (3) of Clause 1, that the county council shall be entitled to recover the expense from the parents of children if they are satisfied that they can afford to pay. This does not actually put on the Statute Book words which would perhaps be desired by many people, but at any rate it makes clear that the Government wish county councils to take advantage of this provision. I am sure that is correct. On the other hand, if the Government had not indicated their intention in the matter it would have been invidious for some county councils and education authorities to adopt opposite attitudes without any 524 guide from Parliament. That would have put them in an awkward position, and subjected them to severe criticism, according to whether they were considered to be extravagant or mean in their attitude.
Moreover, if this encouragement from Parliament had not been given to local authorities, and if no action had been taken under this provision, it would mean removing from parents another of their responsibilities, thus adding to that removal of responsibility of which we see signs in regard to early religious education and instruction in other ways, the absence of which may sometimes lead to juvenile crime.

VISCOUNT ELIBANK
My Lords, before this matter is disposed of, I should like to ask for an assurance that this particular interpretation of the clause is one which would be accepted in a Court of Law. Suppose a county council, not being satisfied with that interpretation, insisted on carrying the matter into a Court of Law, would the interpretation which has been placed upon it by the noble Lord be adopted by the Court, because of the indication given by the noble Lord in this House that that was the interpretation? I think it is rather an important question because you may find some county councils in Scotland who are refractory over that particular point. If they insist on carrying it to the Court, can you be satisfied that the Court will adopt the interpretation expressed by the noble Lord this afternoon?

LORD ALNESS
My Lords, may I have the permission of the House to reply quite briefly to the noble Viscount? I am only a humble Minister and not a prophet, and therefore I cannot predict, nor can I reasonably be asked to predict, what a Court of Law may do in interpreting the Statute. All I can say is that I have taken the best legal advice available to me, and I am advised that in the circumstances in which the words appear in this Bill, not only the intention but the effect of them will be that they are mandatory and not enabling merely. I may also add that these words have been so construed—I think I said so when moving the Second Reading—in two other Statutes affecting Scotland where the wording is substantially the same as in this clause. Therefore, if a different wording were inserted in this clause that might have an unfortunate reaction upon the 525 interpretation which would then fall to be placed upon the two other Statutes to which I have referred. I can only say that I have carefully gone into this matter, which was raised in another place, and that on the advice which I have got there can be no doubt at all of the intention and effect of the words which have been selected and placed in the Bill.