HL Deb 12 March 1968 vol 290 cc92-102

2.46 p.m.


My Lords, I beg to move that this Bill be now read a second time. I will begin my speech by emphasising an important point of fact which my right honourable friend made clear in another place. The Bill arises out of the interim injunction granted by the Court of Appeal in the case of Bradbury v. Enfield Borough Council. This genesis is reflected in its terms, as I shall show. It does not, however, affect in any way the implementation of the Enfield authority's proposals for the eight schools involved in that case. These have already been dealt with on the basis of the law as the Court held it to be and the Bill does nothing to change that. Indeed, the Bill seeks to give explicit statutory form to the substance of the Court's interpretation of the existing law. The Bill is, I am pleased to say, short: but it is inevitably somewhat technical, and in this connection your Lordships will, I hope, be assisted by the fact that Schedule 3 reproduces the text of the relevant sections of the 1944 Act as they would be read when the Bill becomes law. The amendments proposed are printed in heavy type.

I think it may assist the House if, before dealing with the particular provisions of the Bill, I first explain how the present law on establishing and closing schools operates. Section 13 of the Education Act 1944 requires that when a local education authority or the promoters of a voluntary school propose to establish a new school, or when a local education authority propose to close an existing school, they must give public notice to this effect so that the inhabitants of the locality can, if they wish, submit objections to the Secretary of State. After a two months' interval for those objections, the proposal is subject to the Secretary of State's approval. Up to last year, the establishment of a new school had been equated with the setting up of a new educational entity, normally in new buildings. Changes to existing schools, were not treated as requiring action under Section 13, except where the Secretary of State, under Section 67, determined that a proposed enlargement of the premises of an existing school amounted in his view to the establishment of an entirely new school.

The Court of Appeal took the different view that, in addition to enlargements, other changes to existing schools could also have the effect of producing a new school in place of an existing one. It held that a substantial change in the age range of the pupils or a school becoming co-educational involved so fundamental a change in its character as to constitute the discontinuance of the school and the establishment of a new one. The Court held therefore that proposals for such changes were subject to the formal approval of my right honourable friend under Section 13 of the 1944 Act which could be given only after the publication of notices under that section.

The implication of this decision may therefore be that any schools to which such changes were made without approval under Section 13 are in law new schools which have been unlawfully established and have been unlawfully maintained by the local education authority. Your Lordships will, I am sure, agree that it would be unsatisfactory to leave the legal status of these schools, of which there must be several hundreds, and the validity of the action of local education authorities in this state of doubt. It is therefore proposed to regularise the legal position of these schools: and this is achieved by Clause 1, subsections (1) and (4). It will be appreciated that the retrospective effect of these subsections is strictly limited to the validation of actions which were done in good faith and which have subsequently been put in doubt by the decisions of the courts. There is no question of making unlawful something that was lawfully done or of taking away any vested rights.

My Lords, if the Bill necessarily guards against the retrospective application of the Enfield judgment, it equally provides for the implementation of that judgment for the future but by a somewhat different process. No changes are proposed in the procedure for the establishment of entirely new schools, the discontinuance of existing ones or for out-and-out change, such as turning a boys' school into one exclusively for girls or vice versa. Such cases—which involve a complete change of pupils—will continue to entail the discontinuance of one institution and the establishment of a new one. But your Lordships will, I am sure, agree that there is something artificial in labelling a proposal to change the size or function of a school as its formal closure and the establishment of another merely in order to bring the process within the scope of Section 13 and its public notices. At the same time, such changes, if they are substantial are very properly the focus of public interest. The Bill therefore proposes that after the end of the summer term, 1968, changes in the size or character of an existing school, if significant, shall in themselves be subject to the process of notices and representations and require the Secretary of State's formal approval under Section 13, but without involving the formal closure of the school and its replacement by a new one. This is achieved by Clause 1, subsections (2) and (5).

Your Lordships will wish to know how it is proposed to decide whether an enlargement of the premises or a change of character of a school is to be regarded as "significant" and, therefore, subject to the public notices procedure The Bill, in paragraph 5 of Schedule 1, defines "significant" in relation to a change in the character of a school or an enlargement of school premises as implying a substantial change in the function or the size of a school. The concept of a significant change in function is new, and it may help your Lordships if I quote some examples of changes which would be regarded as significant for purposes of the Bill and of others which would not.

The point is perhaps most readily illustrated in the case where there is to be a change of sex composition. A change from a single sex to a mixed school or vice versa is a clear-cut and significant change. But, my Lords, other less far-reaching changes may be educationally desirable, but not on a scale to warrant going through the statutory procedure; for example, the admission of a small number of girls to the sixth form of a boys' school for instruction in a particular subject or subjects. Where to draw a line between extremes would be a matter for decision in relation to particular cases or categories of class, but my right honourable friend proposes to give local education authorities some general guidance on the subject if Parliament approves the present Bill.

The same is true of changes in the age range of pupils. A change from, say, a school taking pupils throughout the secondary course, ages 11 to 18, to that of a senior school with an age range of 14 to 18 would clearly be significant. But if, for example, a primary school which hitherto had never admitted pupils before the age of five years decided to do so as opportunity occurred, as many schools already do, the elaborate public notices procedure would hardly be warranted. Similarly, at the other end of the range, with the trend of voluntary staying-on after the leaving age, secondary schools are constantly extending their age range as pupils stay on for advanced work in schools where it has not previously been provided.

As for changes in character involving a change in the ability range of the pupils admitted, the Court of Appeal said, in effect, that in its judgment this was not such a fundamental change as to constitute, under existing legislation, the replacement of an existing school by a new one. The Court specifically instanced the change of a grammar or secondary modern school into a comprehensive school. But I think that there would be wide support for the view that a change in the ability range of a school—particularly in the cases cited by the Court of Appeal—is no less a fundamental change of character than any change of sex composition or of age range and one no less likely to warrant public interest. It is therefore proposed that it should be treated as a significant change under the proposed new provisions and therefore subject to the public notices procedure. In this respect the Bill goes beyond the judgment of the Court of Appeal.

In each of these cases the question whether the change in the function of the school is substantial or not is a question of fact and a question of degree, the answer to which is a matter of judgment depending essentially on educa- tional and administrative considerations. As I mentioned earlier, the Education Acts already contain provision for the determination of the question whether the alteration of the premises of a school is so substantial as to amount to the establishment of a new school, which, again, is essentially a question of fact and of degree. Any question of that kind now has to be determined by the Secretary of State under Section 67(4) of the 1944 Act. This procedure has been found over the years to be both effective and uncontroversial. The Bill proposes accordingly in Schedule 1, paragraph 3, that henceforth Section 67(4) should apply to significant changes of character as well as of size.

Opportunity has been taken to provide, by means of Clause 2 of the Bill, for a middle school to be established by a significant change in the age range of an existing maintained school or by bringing an existing independent or direct grant school into the maintained sector, in each case by means of proposals under Section 13 of the 1944 Act. This change is one of form only, since such changes can be made under existing law, but only through the artificial procedure of formally closing the existing school and opening a new one. By treating the conversion of an existing primary or secondary school into a middle school as a significant change of character (rather than the establishment of a new school) the Bill brings proposals for middle schools into the procedural framework for dealing with other forms of proposals affecting existing schools.

My Lords, as the Explanatory Memorandum to the Bill indicates, the proposals to which I have so far referred are those in Clauses 1 and 2, and the consequential amendments to existing enactments specified in Schedule 1. Subsections (1) and (4) of Clause 1 are the validation proposals: they provide that, with effect from April 1, 1945, a change in the character of a school or any move or alteration in the school premises is not to be treated as involving the discontinuance of the school or the establishment of a new one. Subsections (2) and (5) introduce the new procedure for the future which I have described, and have the effect that after the Bill becomes law any proposal to make a significant change in the character or size of a school shall be subject to the procedure of notices under Section 13 of the 1944 Act. Clause 2 deals with proposals for middle schools.

Finally, my Lords, I turn to Clause 3. This concerns school premises and standards of accommodation. Under the existing law, when proposals for a new school have been approved plans and specifications of the premises have to be submitted to the Department. The Bill enables the Secretary of State to dispense with the submission of plans and specifications, at his discretion, where the new school is to be established in premises which were in use as a school at the time when the proposals for the new schools were approved. My right honourable friend would continue to require plans and specifications in these cases when substantial alterations to the premises were proposed or when he himself had insufficient information, but there is clearly no point in requiring plans and specifications in regard to premises where no substantial alterations are being made.

The existing law enables my right honourable friend to make regulations prescribing standards for school buildings and it contains provisions which enable him to relax those standards in certain circumstances. In parallel with the procedure for dispensing with specifications and plans which I have just described, subsection (2) of the clause has the effect that when a new school is established in the premises of an existing school, any relaxation applicable to the premises shall continue. The power to relax the standards under certain of the provisions of the existing law is exercisable only if it is necessary because of a shortage of labour and materials". That formula is no long appropriate, and subsection (3) substitute a reference to the need to control public expenditure in the interests of the national economy". A brief reference is required to subsection (4) of Clause 3, which supersedes Section 109 of the 1944 Act. It will enable a local education authority, with the Secretary of State's approval, to provide temporary additional accommodation for a voluntary school, until such time as permanent accommodation is provided for it in a building programme. Moreover, where the additional accommodation results in a significant enlargement of the school, the notices procedure will apply and opportunity will be given for public objection. This power will be particularly valuable in promoting the reorganisation of voluntary schools on comprehensive lines as well as in easing the continuing pressure of building resources.

My Lords, I have taken some time in describing the Bill. Although it had its origins in the Enfield controversy, it is in fact a technical and, I venture to suggest, a largely non-controversial measure. It has a twofold purpose: first, to regularise a number of actions and decisions by local education authorities, made and taken in good faith, which had been put in doubt by the decisions of the Courts; and, secondly, to broaden the terms of reference to Section 13 of the 1944 Act so that it no longer has to operate within the narrow concepts of closing existing schools and opening new ones. In parallel, the Bill provides for power to dispense with the full requirements of the building regulations in those cases where a new school or an enlarged one is to operate in existing buildings. All in all, I think that the Bill will bring an added flexibility and realism to the operation of Section 13, and it is on this basis that I commend its Second Reading to your Lordships. My Lords, I beg to move.

Moved, That the Bill be now read 2a.—(Baroness Phillips.)

3.3 p.m.


My Lords, I am sure your Lordships will be very grateful to the noble Baroness for having given us a clear explanation of what is, as she said, a rather technical and difficult Bill, though none the less an important one. May I say straight away that I have no quarrel with the Bill, which is a useful measure for putting right what went wrong in the past, and for making sensible provision for the future. There is one respect in which the Bill is unique, and I venture to suggest a very good precedent, and that is in Schedule 3 where, as the noble Baroness pointed out, the chief enactments are reprinted with the amendments made by the Bill in heavy type. This makes it extremely easy for those of us who are not lawyers to follow what is going on and what the Bill actually proposes. I hope that this procedure will be used as a precedent for other Bills which consist mainly of amendments to other Acts; it is of enormous value.

As the noble Baroness explained, this Bill has two functions, one being to regularise decisions taken in the past. As she explained, the Court of Appeal ruled that a change of age range, or a change in sex composition, was so fundamental a change as to constitute the discontinuance of one school and the setting up of a new one, and therefore brought into operation the requirements of the 1944 Act for giving public notice and time for objection. This decision changed the interpretation previously put upon the law, and the Bill is necessary to validate a number of decisions taken by various Governments and by local education authorities in the past. This is retrospective legislation, as the noble Baroness said—and indeed it is stated in the Explanatory Memorandum. I know that your Lordships like to look carefully at any measures which are retrospective. But whereas some retrospective legislation is wrong, other can be justified; and this, I think, is a case in which it can be justified.

Clearly, retrospective legislation is likely to be indefensible where it makes unlawful an act that was perfectly lawful at the time it was done. Here is the exact opposite. Here is a case where Governments and local authorities acted in good faith, thinking that they were working in accordance with the law as it was then interpreted. The law has since been reinterpreted in a different sense, and I believe that this is a correct use of retrospective legislation to regularise and validate actions that were taken in perfectly good faith. I am sure that as individuals we should welcome such legislation where we had acted in good faith and according to the law as it was interpreted at the time. If there were a reinterpretation of the law, I am sure that we should welcome, as it were, an Act of indemnity to legalise the position.

In this particular case retrospective legislation is especially right, because the Bill goes on to put into statutory form the ruling of the Court of Appeal. In fact, as the noble Baroness explained, it even goes a stage further than the Court of Appeal went. They ruled that age range or sex composition changes should require the procedure of public notice. The Bill adds a change in the ability range of the school, which is specifically aimed at covering comprehensive schools. I am sure that we shall all welcome the chance given to people locally to raise their objections upon the establishment of a comprehensive school.

I must confess that I am not quite so happy about Clause 3. The effect of the Court of Appeal ruling brought into operation subsection (6) of Section 13 of the 1944 Act whereby the Secretary of State had to satisfy himself that the school premises conformed to the prescribed standards. Under Clause 3(1)(a) of this Bill this requirement is now confined to the case of newly built schools, and therefore does not apply where a major change takes place in the character of the school. Most of us on this side of the House are very worried and suspicious sometimes of what have been called "botched-up" plans for comprehensive schools, where a number of schools have been combined into one comprehensive school. Often it may be that one of those schools is reasonably adequate in its buildings and provisions as it is at the moment, but inadequate when it is changed in character and becomes part of a comprehensive grouping. I personally remember having had some representations on these lines made to me about schools in Newport. It would therefore seem to me all the more important, when it is proposed to group a number of schools into a comprehensive school, that the Secretary of State should satisfy himself that the premises are up to the required standard.

I hope that my fears are fully covered by the operation of the procedures in Clause 1 of the Bill and by the words in Clause 3, "if the Secretary of State so directs". I presume that in such a case he would so direct and would in fact satisfy himself that the premises were up to standard. But I should be grateful if the noble Baroness would verify that. In general, my Lords, I welcome the Bill and would advise your Lordships to give it a Second Reading.

3.9 p.m.


My Lords, I should like to echo the thanks given to the noble Baroness for the clear way she has explained this brief but somewhat complex Bill. A word perhaps is in season on behalf of those responsible for voluntary schools. I would say that in general we welcome this Bill as introducing a simplification and an element of flexibility which will be valuable, and we welcome especially Clause 3(4) with the extension of powers to the authority to provide, or to assist in providing, temporary accommodation for voluntary schools.

There is only one point that I wish to raise. It has been suggested to me that the phrase "significant change in the character of the school" might, when it is taken in connection with the reference in paragraph 2 of Schedule 1 to the variation in the instrument of government, make it possible for the religious character of an aided school to be changed. This is obviously not the intention of the Bill; in fact the noble Baroness explained the meaning of "significant change" as being educational. Whether it would have been possible to introduce the word "educational" after the word "significant" I do not know, but since the point has occurred to others as being one where misunderstanding might arise, although I believe the intention of the Bill is perfectly clear, perhaps the noble Baroness would consider whether anything further needs to be said on that point. Otherwise we welcome the Bill and believe that it will help the voluntary schools to take an even fuller part in the national system of education.


My Lords, we on these Benches would also like to welcome this Bill and to thank the noble Baroness for her lucid explanation of it. We share with the noble Lord, Lord Aberdare, the possible doubts about Clause 3. On the face of it, there would appear to be a necessity for extra care to be taken with those premises which are already old, and we seek some reassurance on this point.

3.12 p.m.


My Lords, first of all I should like to thank your Lordships and the right reverend Prelate for welcoming this Bill and for the words of commendation which have been given to it. As the noble Lord, Lord Aberdare, so rightly said, retrospective legislation is always viewed with great care, particularly in your Lordships' House, but as he has reminded us this Bill merely puts right a situation which could have been difficult, time-wasting and costly for those local authorities who had already been described as indulging in unlawful actions.

A question on Clause 3 was raised by the noble Lord, Lord Aberdare, the noble Lord, Lord Beaumont of Whitley, and the right reverend Prelate, and perhaps I can give some reassurance on the question of the building standards. My right honourable friend already has a statutory authority laid upon him to satisfy himself about the standard of school buildings, and there is little doubt that in fact he would call for plans where any doubt at all arose. I would also remind your Lordships that there is already power to dispense with building standards on specified grounds where new schools are going into existing buildings. All that the Bill does is to bring the specified grounds up to date. This is achieved in Clause 3(3), and it enables it to be done without plans, but I think I can best reassure the noble Lord, Lord Aberdare, by saying that my right honourable friend will at all times satisfy himself as to the standard of buildings before any major changes are made.

I would remind the right reverend Prelate that only the governors or managers of a voluntary school can make proposals to change its character, so his fears can be set at rest. There is no possibility that a school of a religious character will be affected. As we go through the various stages of the Bill I shall of course be happy to try to answer any other points which noble Lords wish to raise.

It is true to say that comprehensive education is not a political issue, as there are many local authorities of different political colours which have already submitted plans on these lines, so I hope the suggestion made by the noble Lord, Lord Aberdare, that notices would evoke some kind of public reaction only on that score will not be called into question. I am grateful to your Lordships for the brief and welcoming comments which have been made, and I ask that the Bill be now read a second time.

On Question, Bill read 2a, and committed to a Committee of the Whole House.