HL Deb 08 July 1969 vol 303 cc906-19

3.2 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)

My Lords, I beg to move that this Report be now received.

Moved. That the Report be now received.—(Lord Hughes.)

On Question, Motion agreed to.

Clause 2 [Provision of museums by education authorities]:

LORD DRUMALBYN moved Amendment No. 1: Page 4, line 45, leave out ("the transferee") and insert ("a transferee who had notice of the said trust or condition at the time of the transfer")

The noble Lord said: My Lords, this Amendment: concerns a comparatively small point. I should like to apologise to your Lordships for the fact that three of my Amendments are starred. The reason for that is that the noble Lord, Lord Hughes, was good enough to write to me about some of these points, and it was not until I received his letter that I was able to put clown these Amendments, which I did only yesterday.

The point here is a simple one. It is a question of a museum to which an object has been transferred by an education authority having or not having the right to dispose of that object if it is no longer of any service to it. The Bill says, in effect, that if under the trust or condition under which the object was passed to the education authority no power to dispose of the object is given to the education authority, then any museum to which that object is transferred would have to hold the object on the same trust or condition. That means that the museum could not dispose of it even although it did not have notice of the trust or condition at the time when the object was passed over to it. That would seem to me to be wrong. It may be that the clause is not intended to have that effect and would not have that effect under law, but that is not what the clause appears to mean, and it seems to me to be as well to make it explicit. I beg to move.

LORD HUGHES

My Lords, the effect of the Amendment which has just been moved by the noble Lord, Lord Drumalbyn, would be to make trusts and conditions under which an education authority holds an object apply after the authority had transferred the object to a museum only where the governing body of the museum had notice of the trust or condition. The Amendment is unacceptable on two grounds, and I am quite certain that it is not the intention of the noble Lord, Lord Drumalbyn, to bring the first of these into effect. The first ground on which we think it would be wrong if conditions or trusts were to be allowed to disappear on the transfer of the object in question to a third party is that the original donor of the object is entitled to be sure that the trust or condition cannot be defeated except by an application to the court. In seeking to protect the owners of museums taking objects from education authorities from latent trusts or conditions the noble Lord has, in the view of the Government, gone too far, because if the body are notified of the existence of the trust and accept it under the conditions of his Amendment, the trust would continue; but if, on the other hand, it was desired to defeat the object of the trust all that has to happen is that the receiving authority is not so notified. They then take the object, and the conditions of the trust have disappeared. I think this would be quite wrong. If a person creates a trust he is entitled to see that it continues to be operated unless the courts agree to set it aside, and it ought not to be possible to set it aside by an arrangement of this kind between exchanges of the object.

The second point is that we do not believe that there is need to give the transferee any protection against the emergence of latent trusts and conditions. In the first place, it is unlikely that a public authority would seek to conceal such a trust or condition from another authority. In the second place, people taking possession of objects ought to be on their guard and inquire whether any trust or condition exists. I would suggest that the very existence in the Bill of a reference to trust or conditions under trust is such, especially having regard to the discussion which has taken place in your Lordships' House on this subject, that a question about trusts will be an almost automatic one which will be asked by museums in any circumstances where they think it is even remotely possible that a trust might exist. For those reasons, I cannot advise your Lordships that this is an Amendment which would improve the Bill.

THE EARL OF SELKIRK

My Lords, I am very disappointed with the noble Lord's reply. I should have thought that this was a safeguard for the items which were passed to the museum in trust. If they are passed without any notification, what assurance has either the donor of the gift or the museum itself that they know the conditions under which the object is held? The noble Lord raised what I should have thought was rather a quibble when he said that by putting in the words "a transferee who had notice", the object of the trust is defeated. I should have thought it was very doubtful indeed that that was the case. All you have to do is to add a sentence; that is, instead of saying, "who had notice of the said trust", to say, "and who will be given notice of the trust". That would certainly not be any condition, and it would put an obligation on the local authority to see that the proper information is available to the museum if for no other reason than to safeguard the object itself and to make quite certain that the museum knows exactly what the position is.

LORD HUGHES

My Lords, I do not wish to enter into an argument with the noble Earl about what is the proper interpretation of these words. All I can say is that the advice I have received from my legal advisers is that if these words are included, the receiving museum will be freed of the obligations of the trust without any further recourse to the law, and I did not believe, and I do not believe, that it is the intention of the noble Lord, Lord Drumalbyn, that that should take place. However, that is the advice that I have received.

The reason why I would resist any alteration is that which I have stated, that we do not believe it is necessary. Local authorities, education committees, and the like, are public bodies; museums are, for the most part, if not entirely, public bodies. They do not set out to deceive each other. Why should we proceed to write our legislation on the basis that, either wittingly or unwittingly, they will do so? I prefer to work on the basis that it will be standard practice to ask whether there are any trust conditions attaching to an object. It is a fairly simple exercise, and it does not need the writing of a sentence into an Act of Parliament to ensure that that is done.

LORD DRUMALBYN

My Lords, I am grateful to the noble Lord for his explanation, and I am also grateful to my noble friend for the legal aid which he has given me in this matter, which is valuable. The whole problem here is the possibility of error or omission. That is what I was trying to cover, although I may not have covered it correctly. I was not for one instant suggesting that an education authority should seek to conceal any trust or condition, let alone set out to deceive a transferee; but it is possible that an error or omission might take place in all good faith, where the transferee asked whether there was such a condition. The purpose of this Amendment is simply to free the transferee from any consequences that might follow from an error that was not his own. I do not want to pursue this matter, but I wonder whether the noble Lord would have another look at it before the next stage, to make certain that some such protection is not needed. My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 [Power of education authorities to make payments to persons providing education, etc.]:

LORD HUGHES moved Amendment No. 2:

Page 7, line 28, leave out from beginning to ("payments") in line 30 and insert— ("( ) Notwithstanding paragraph (c) of subsection (1) above, the approval of the Secretary of State shall not be required for the making by an education authority, by virtue of the power conferred on them by that paragraph, of")

The noble Lord said: My Lords, Amendments Nos. 2 and 3 hang together. The first of these drafting Amendments makes it clear that an education authority's power to make payments to the managers of schools, other than public schools, in respect of in- dividual pupils whom they are sponsoring, derives from Section 25(1)(c) as set out in Clause 6, and is not an additional power conferred by Section 25(2). Amendment No. 3 is consequential. Because Section 25(2) is expressed as an additional power, there might be some doubts whether paragraphs (a) and (c) of Section 25(1) were intended to cover the power of an education authority to make payments in respect of pupils whom they are sponsoring and who are to attend schools belonging to another education authority or schools other than public schools. The purpose of these Amendments is to remove these possible doubts. My Lords, I beg to move.

LORD DRUMALBYN

My Lords, these are obviously useful Amendments and I would certainly raise no objection to them.

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move Amendment No. 3.

Amendment moved— Page 7, line 39, leave our ("or subsection (2)")—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 8 [Power of Secretary of State to require education authority to fix a single school commencement on leaving date]:

LORD DRUMALBYN moved Amendment No. 4: Page 9, line 14, after ("may") insert ("by order made by statutory instrument")

The noble Lord said: My Lords, this is an Amendment of rather more substance. We discussed in Committee an Amendment to empower the Secretary of State to authorise an education authority to fix a single date for commencing school attendance, or a single school leaving date, in place of two or three in a year, if, and only if, the Secretary of State was requested to do so by the education authority. I argued then that it was wrong to give the Secretary of State power without consulting Parliament to compel every education authority to fix a single date, either for commencing school attendance or for school leaving, as he could quite easily do under the amendment in the Bill to the 1962 Act, simply by requiring each education authority to fix a single date.

It seems to me that before taking such a step, which, especially in the case of the school leaving date, would affect a very wide range of the populace, it is not enough merely to consult education authorities and teachers' associations or the Scottish T.U.C., as the noble Lord said had been done in the present case. Such a step would affect the whole nation. In particular, it would affect industry and commerce as well as the individuals concerned. I therefore suggested if he wanted to do that that the Secretary of State should introduce legislation. The noble Lord replied that if legislation was required it might take years before an opportunity arose to introduce it. I admit that there is force in that argument, and although I still think that it would be the proper course for the Secretary of State to come to Parliament for these powers, I have put down this Amendment as a compromise.

The Amendment lays down that the Secretary of State should make an order by Statutory Instrument to require the education authority to fix single dates, and the Secretary of State would then be giving Parliament an opportunity, if it so wished, to debate the order and even to reject it. Admittedly, the Amendment would require the Secretary of State to make an order even if he was requested by a single education authority to allow it to fix a single date; but, for my part, I think that would be a good thing. It would enable Parliament and the people of Scotland to know that this innovation was being introduced and where it was being introduced. If the Government think otherwise, it will then be open to the noble Lord at the next stage to introduce an Amendment of his own, or, indeed, to have an Amendment to this Amendment introduced into this Bill when it returns to the Commons, distinguishing the procedure to be followed on a single application by an education authority from the procedure to be followed if the Secretary of State wanted to introduce a change throughout Scotland—doing it education authority by education authority.

I submit that it would be wrong to leave the Bill as it is. I suggest that Parliament has a right to be consulted before changes of this character are imposed on a large scale. It is not enough to have private and confidential discussions with educational interests, or even with the T.U.C. These are matters which affect the lives and livelihoods of a great many people, and they are matters, I submit, for Parliament. Parliament ought not to give the Secretary of State a blank cheque to fill in wherever he pleases, in such a case as this. My Lords, I beg to move.

THE EARL OF SELKIRK

My Lords, I hope that the noble Lord will be able to accept this Amendment. During the Committee stage he started by saying that he did not really want this power, but he gave us no reason at all why he was asking for it. He said that it is conceivable, as is always the case, that at some future date he might want the power; but, on that basis, it seems to be asking a lot of Parliament to give the Government powers which they do not want but which at some conceivable date in the future they might require.

The noble Lord emphasised that he wanted the Secretary of State to retain the initiative, but my noble friend's Amendment gives him the full initiative for which he asked. That is all he asked for during the course of the Committee stage. The noble Lord said that legislation might be over-elaborate for something of this character, and I concede that. But the procedure adopted here is a very simple one, indeed. It is a procedure which we follow very day and which causes no difficulty at all. What I take exception to is the fact that the Government are asking that the Secretary of State should have power to go into the office and write an order, without consulting anybody whatsoever—neither the local authority, nor Parliament nor anyone else. The noble Lord made some very interesting remarks about Prime Ministers appointing sensible Secretaries of State, and said he was sure that no Prime Minister in future would ever appoint a foolish Secretary of State; but that is really not quite good enough. The Government are asking for powers which they do not really want and it is much wiser, as I think the noble Lord would agree, to take this step only after full consultation. But as the Bill stands there is no need for any consultation at all. What we are asking for here is simply that this order should be brought to the attention of Parliament. It is quite a big step; and I suggest that to do this would not inconvenience the Government, but it would avoid giving the Government powers which they do not want and as to which they have no clear picture either of their purpose or of when they would use them. I hope the noble Lord will find it possible to accept this Amendment.

LORD HUGHES

My Lords, the remarks just made by the noble Earl persuade me that I must look at what I said on the Committee stage, because if I said that the Bill gives powers which the Government do not want I must have expressed myself very loosely indeed. What I had intended to say, and what I hope I did say, was that the Government had no expectation of needing these powers at this stage, and it might be that they would never need them, but circumstances could be such that the power might be necessary; and Parliament frequently legislates for something which is possible, and does not confine itself to legislating for that which is probable.

On the second point, I looked again at my remarks about Prime Ministers not appointing foolish Secretaries of State, and while I must generally adhere to that I should not wish to elaborate on it, because it almost implied that I approved the appointment of every Secretary of State for Scotland that there has ever been. As I have had great cause to disagree with some of the predecessors of the present one, that takes me into rather difficult territory. But at least one knows that the Prime Minister does not proceed on the basis that he is appointing somebody who will act in a foolish fashion, which was all that I intended to convey. I was not giving any overall approval to everyone who had been appointed in the past.

However, there are many occasions upon which Ministers—not merely the Secretary of State for Scotland but Ministers throughout Government—have to act under legislation which does not lay any specific obligation on them to consult anybody but upon which, in the proper exercise of their duties, they realise that it is wisest to do the job in the simplest fashion rather than in the most difficult fashion, and that consultation often makes it easier for all concerned. If we were therefore to assume that consultation is going to take place only where it is explicitly written into a piece of legislation, we should be altering the whole chain of Ministerial relations with public authorities and with the general public. I say this because I have emphasised, and I wish to emphasise it even more, that there will be the very full consultation which the noble Earl has said is desirable—and that will not be affected in the least by the inclusion or the omission of the Amendment which has just been moved by the noble Lord, Lord Drumalbyn.

However, the object which the noble Lord has in mind would not in fact be attained by the Amendment. It would not mean that the matter would be discussed by Parliament. My advice, having regard to what the noble Lord has said, is that the Amendment would serve no useful purpose. An order made by Statutory Instrument is not subject to annulment in pursuance of a Resolution of either House of Parliament as, under Section 144(4) of the Act, Regulations are. The Amendment, I am informed, therefore, would not serve as a curb on the actions of a Secretary of State, as the noble Lord presumably intended. The advice which I have received is that it would merely add a rather pointless formality to the proceedings and would serve no useful purpose whatsoever. In those circumstances, I cannot possibly advise your Lordships to add these words to the Bill.

LORD DRUMALBYN

I am grateful to the noble Lord for his explanation. In point of fact, I originally drafted the Amendment with the words "by Regulations", but I was advised that an order would also attract (as I think it is called) the Statutory Instruments Act. Subsection (5) of Section 144 is obscure on this matter. But the purpose of this Amendment is that the matter should be brought before Parliament. I do not think that in his reply the noble Lord has dealt at all with that purpose. In those circumstances, I beg leave to withdraw the Amendment and will introduce it in a revised form at the next stage of the Bill.

LORD HUGHES

I am grateful that the noble Lord has agreed to withdraw this Amendment as it will not accomplish the purpose he has in mind. I must say, however, that I do not expect to change my mind at the next stage.

Amendment, by leave, withdrawn.

Clause 10 [Handicapped children]:

3.27 p.m.

LORD DRUMALBYN moved Amendment No. 5: Page 14, line 34, at end insert ("or required under paragraph (b)").

The noble Lord said: My Lords, this is a small point. We discussed this matter on the Committee stage, and the noble Lord has been good enough to write to me about it. He seems to be quite satisfied that the words in the Bill at the present time are sufficient. It is a matter that concerns the right of a parent to appeal against the decision of an education authority. On page 14, at line 29, it says: … not to revoke the decision, in which case, if either the review was carried out in pursuance of a request made to them by the parent of the child by virtue of paragraph (b) of subsection (1) above"—

that is, in the new Section 66 which this Bill introduces to replace Section 66 of the Act— or the parent was invited. under paragraph (a) of subsection (2) above, to submit the child for medical and psychological examination in connection with the review, …".

The point is quite a simple one: that this seems to any ordinary person reading it deliberately to exclude the case where a parent has not responded to that invitation and in consequence the education authority has required him to submit. This is one of two cases—there is another that I am coming to—in which it seems to me that if there is a doubt it is much better to make the position clear and explicit. I had no doubt whatsoever in my mind when I read this; and I am sure that many other people will say when they read it, "The parent is not given a chance to appeal if he fails to respond to that invitation". The noble Lord says that the mere fact that a parent has received an invitation under the clause as it stands would give him the entitlement. That may be, but it is not apparent on the face of it, and I think we should make it absolutely clear. I beg to move.

LORD HUGHES

My Lords, I think it is fair to state that Parliament never deliberately puts into a Bill words which it is certain serve no useful purpose—and that would be the effect of this Amendment. The point is that the Bill makes it perfectly clear that where an invitation has been extended to the parent, that invitation gives him such a right, whether he accepts the invitation or not. If he accepts the invitation, the noble Lord agrees that it is perfectly clear in the Bill that his rights proceed from there; but if he does not accept the invitation and the authority proceed by compulsion, that does not alter the fact that he has originally been invited, and the rights which attach to that invitation still remain with him.

The noble Lord says that this might not be clear, presumably to a parent, on his reading it; but very few, if any, of the parents who are involved will go and look up the Education (Scotland) Act 1969, search through it for the appropriate clause to find out what exactly their rights are and then decide that they do not understand them. This will be acted upon by the local authorities concerned, whose legal advisers, I have not the slightest doubt, will have no difficulty in arriving at the conclusion that they are bound to act on an invitation extended, whether the invitation is accepted or not. For these reasons I am advised—and noble Lords will notice that this is the third Amendment on which I have used the words, "I am advised"; I do so deliberately; it is not something that I have thought up but the result of legal advice that I have received—that in this case the words of the Amendment are unnecessary and serve no useful purpose whatsoever.

LORD DRUMALBYN

My Lords, I find it difficult to believe that that is so; but in view of the fact that the noble Lord was so positive about it and that the effects are likely to be as he said they will be (in this case, as distinct from the case that we are coming to) I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved Amendment No. 7:

Page 43, line 11, at end insert— (". In section 91 (Incidental expenses of education authorities) in subsection (2) after paragraph (c) there shall be inserted the following paragraph— complying with an invitation issued to him '(d) expenses incurred by a parent in or a notice served on him by an education authority under section 64, 66 or 66C of this Act.'")

The noble Lord said: My Lords, the purpose of this Amendment is to secure that expenses incurred by a parent in complying with an invitation issued to him or a notice served upon him by an education authority—and this is a similar point to the one we were just discussing—to submit his child for a medical examination and a psychological examination can he recovered from the education authority. The noble Lord said that that was the intention. Indeed, he said that it was actually done in some cases already. He has been good enough to write to me to say that Section 91 of the 1962 Act gives the Secretary of State power to do this. That section says: It shall be lawful for an education authority to pay such reasonable expenses incidental to the proper discharge of their duties as may be sanctioned by regulations made by the Secretary of State.

Subsection (2) goes on to detail certain kinds of expenses that the education authority are entitled to pay provided they are sanctioned by regulations made by the Secretary of State. That is the law as it is at present.

The first question that I would naturally ask is whether regulations have been made by the Secretary of State. If not, it would appear that if this is the operative section, any expenses that have been reimbursed have been reimbursed ultra vires. I hope that the noble Lord will be able to answer that. The second point is this. The examples of the expenses that the education authority may pay which are given in subsection (2) of Section 91 cover contributions by an education authority "to any association of education authorities" and expenses incurred by the employees of an education authority. There is nothing about expenses incurred by the public. I should have thought it very doubtful whether such expenses can possibly be said to be "incidental to the proper discharge" of the duties of an education authority. An education authority can perfectly well discharge the duties laid upon them by Sections 64, 66 and 66C without paying the expenses of a parent incurred in bringing his child to a medical and psychological examination. So such expenses cannot be said to be "incidental to the proper discharge" of the functions of an education authority. This is another case where it is desirable to make sure beyond any reasonable doubt that the Secretary of State has power to make regulations to empower an education authority to pay such expenses and so to put it into the Bill. I hope that the noble Lord will be able to accept this Amendment. I beg to move.

LORD HUGHES

My Lords, this is a case where I find myself in complete agreement with what the noble Lord wishes to do, as I think I made fairly clear at the last stage. We should prefer not to have an Amendment along these lines because if we specify these particular expenses which an education authority may be authorised to pay as incidental to the proper discharge of their duties we create a certain amount of difficulty by perhaps implying the exclusion of others. The noble Lord queried what could be done by regulations under Section 91(1). The information I have is that these powers are wide and have already been construed as covering a wide range of expenses—including, for example, enabling school pupils to take a suitable part on occasions of public ceremony or rejoicing, and promoting public interest in the educational service. The noble Lord asked whether my statement earlier that the local authorities had paid for expenses in these matters meant that they had acted ultra vires. I should prefer not to go into that. The fact is that they have done so; they have done something which they felt to have been reasonable. As we propose to make regulations under Section 91(1) covering the payment of these expenses, the situation clearly will be beyond any possible doubt so far as the future is concerned.

And we wish to go further. We will also make the regulations cover the analogous case of payment of expenses, in appropriate cases, in connection with medical or dental examinations under Section 58 and 58A, of the Act as amended. I give the noble Lord complete assurance that all that he wishes to do, and something added for good measure, will be accomplished in the regulations which the Secretary of State intends to make. I hope that in these circumstances he will feel that he has adequately secured the protection of those people whose interests he was seeking to further, and that, although we have arrived at it by different methods, the result will be to his satisfaction.

LORD DRUMALBYN

My Lords, the noble Lord has been very much more specific on this occasion than he was on the last. He has specifically said that the Government intend to make regulations in this case. As he also said that the Government have no doubt about their power to do so, and have made similar regulations, if I understood him correctly, applying to other cases of a similar kind, I should like only to thank the noble Lord for having done what I wanted although not in the way in which I wanted. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.