HL Deb 18 November 1976 vol 377 cc1566-73

28 Clause 5, leave out clause 5.

The Commons disagreed to this Amendment for the following Reason:

29 Because the Commons consider that the Secretary of State should have power to control the exercise by local education authorities of their functions in relation to the provisions of education in non-maintained schools.

29ALord BEAUMONT of WHITLEY to move, This this House doth insist on Amendment No. 28 to which the Commons have disagreed.


My Lords, I beg to move that this House doth insist on Amendment No. 28, to which the Commons have disagreed. I am glad to see the resistance of the Government Front Bench is weakening.




My Lords, not only have they actually given us during the course of this debate an Amendment—or at least half an Amendment—but the noble Lord, Lord Donaldson of Kingsbridge, who earlier on in the proceedings was telling us that what he told us three times was true, is now reduced to saying that what he has told us three times is enough. That is a significant change. Let us get it clear that the object of this Bill is to establish the comprehensive principle nationally. We on these Benches believe that the Government are right to do so, and have the right to do so. In doing it, it is absolutely certain that they will take away from local authorities—using that in the widest sense of the term, any kind of devolved authority—some powers and put them into the bank of the central Government. That in itself is bad. There will probably be general agreement in your Lordships' House that there needs to be more devolution and not less, more control at local level and less by Whitehall and Westminster.

Nevertheless, we are absolutely behind the Government in saying that if they feel that they need this Bill to have a national system of comprehensive education, then they must have it. But is Clause 5 necessary for the establishment of the comprehensive principle? We on these Benches will listen with great care to the answer. But my answer is, No. I do not believe that in the foreseeable future—and by that I mean a long way ahead, 20 or 25 years, which is quite long enough to be legislating in this House—anyone can imagine a local authority having enough money to send enough children to independent schools to breach the comprehensive principle. That means a large number of children. Even if they had the money, and even if their local electors did not turn them out—because I agree it is difficult to turn out councillors on a one issue point—there is a remedy. That is a remedy of the district auditor.

The district auditor was recommended as a remedy by the last Secretary of State before this Bill was brought in. If it was dubious, then, no matter whether he would have had the power to disallow the one or two authorities of this country which make a habit of sending quite a lot of children to independent schools, nevertheless I submit that, once this Bill is passed into law, it is clear what the intention of Parliament is; that is, to establish the law that there is a national comprehensive system. Then the power of the district auditor in these cases will be a satisfactory resort. I do not stand by that; I put that forward as an argument.

My main argument is that it is inconceivable that any local authority would have the money. resources and will to put so many children into independent schools to breach the comprehensive principle. The Amendment has nothing to do with independent schools; it has to do with freedom for local education authorities to do as they want to do, what they see fit for individual children in individual cases with money at their disposal.

I have said before in the debates in your Lordships' House that there appears to be a conflict of paranoia, fears as to what local authorities may get up to on the one hand, and fears as to what an evil—or perhaps I should say a "misguided"—Secretary of State may get up to on the other hand. I think the balance here is definitely for the paranoia against the Secretary of State, because whereas I cannot believe, for the reasons I have stated, that local education authorities are likely in any way to breach this principle, it is by no means inconceivable that a future Secretary of State—not the present one—would use this as a weapon to cut all the links between local education authorities and independent schools. Under Clause 5 that could be done.

Your Lordships have spent a great number of hours discussing whether private practice in the National Health Service should be separated from public practice. It is right that you should have spent a lot of time discussing this extremely important matter. It would not be right that this should be dealt with by a back door entry. It would be extremely wrong for that to happen. That is, as I say, the effect of Clause 5.

It may be right or it may be wrong that we should have this partnership between the local education authority and the independent sector. I happen to think that so long as we have the independent sector it is certainly right. What is absolutely certain is that it must not be decided as a subordinate part of a Bill dealing with something else. I believe that Clause 5 is harmful in that it takes powers away from local education authorities and gives them to Whitehall. I believe that it is dangerous because it opens up the door to the dangers which I have outlined. I believe that it is unnecessary because I do not believe its absence will leave any loophole which can break open the comprehensive principle. I believe that this is the one Amendment upon which we should insist. I beg to move.

Moved, That this House doth insist on their Amendment No. 28, to which the Commons have disagreed for the Reason numbered 29.—(Lord Beaumont of Whitley.)

8.19 p.m.


My Lords, I should like to add a word or two to what the noble Lord, Lord Beaumont, has said. I believe that the Government's insistence on keeping Clause 5 in the Bill stems from a fundamental misunderstanding of the reasons which prompt local authorities to take up places outside the maintained sector. This is something on which the noble Lord, Lord Beaumont, has spoken. In essence, authorities take up places in non-maintained schools because they need them: they want boarding places or they have children such as my noble friend Lady Faithfull talked about, bordering on mal-adjustment, children from broken homes or who want to study shortage subjects. It is true that one finds authorities taking up places in schools which have had a hand in educating the children of the area for many years—for centuries even—and everybody is very proud of that link between the authority and the school.

Having said that, I must join the noble Lord, Lord Beaumont, in doubting whether, in these days of very scarce resources, you would find an authority leaving places empty in its own schools—certainly not sixth-form places—in order to take up places at independent schools. To that extent I think the Government are labouring under a misconception if they think authorities are going to drive a coach and horses through the Bill by the taking up of these places. Anyway, it strikes me it has escaped the notice of the Government that the operation of the first four clauses of this Bill will ensure that authorities will not avoid providing comprehensive education because, of course, Clause 4 requires authorities to implement the proposals. I draw the conclusion that it is inconceivable that a local authority forced to reorganise its schools would then pay out unnecessary recurrent expenditure on fees at independent schools in order to educate children in places which they could already have been providing in the schools they have been asked to reorganise. I thought the noble Lord, Lord Beaumont, made a very valid point at a previous stage when he said that this clause has no criteria in it. It certainly leaves a blank cheque to the Secretary of State in this most important field of local authority discretion.

I have one other point, which is this: I am surprised that a Government which have signed the international covenant on economic, social and cultural rights, which expressly requires the signatories to undertake to have respect for the liberty of parents to choose for their children schools other than those established by public authorities, can be bringing a clause of this sort into the Bill. The Liberal Party intend to vote on this Motion and, if I may say so, they have every right to do so, particularly on the strong case made by the noble Lord, Lord Beaumont. Speaking on behalf of my noble friends and myself on these Benches, I have this worry: I believe that to insist on this Amendment alone out of all the Amendments put forward, when so many others may not be so important but have a wider effect, could be interpreted as not being as responsible as perhaps one ought to be in looking at the Bill as a whole. Although I believe that the case put forward by the noble Lord is absolutely watertight, with very great regret I shall content myself this evening with reiterating my hope that before long this Bill and all it stands for is going to be repealed.


My Lords, can the noble Lord explain what he means by "responsible"?


Yes, my Lords, I do not think we should be as responsible as we ought to be in picking out an Amendment which, important though it is, does not have such a wide effect as many other Amendments. I could give the noble Lord as an example Amendment No. 1, which affects really all children who go to school. This Amendment affects about 20,000 children who are in places taken up by local authorities at independent schools.


My Lords, when this Bill was first tabled, Clause 5 was included so that, in order to ensure that local education authorities proceeded as quickly as possible towards full comprehensive education, the Secretary of State could use certain powers which Parliament intended her to have under previous legislation but which, for various reasons we have discussed earlier, could not at present be exercised effectively. They were powers intended to enable her to control the circumstances in which local education authorities provide or support the provision of education in non-maintained schools in three different ways: by giving grants to a school, by taking places at full cost without regard to a parent's means, or by giving income-related help to a parent to pay the fees.

The point was simply and solely that this could be used by a local education authority as a way of avoiding their duty to work as quickly as possible towards the provision of education without reference to ability or aptitude. It has been suggested that such a thing is most unlikely to happen, but there have been instances of acute disagreements in the past—I need not give names—and as a matter of interest the number of places taken up by some LEAs at independent schools is quite high. For example, Tameside is planning to take up about 300 per annum; Lancashire, 320; Bexley, 150; Bolton, 500; Brent, 200.

These are not negligible figures. Whether they are legitimate or not is not the point. It was never our intention to suggest there would be any widespread attempt by local education authorities to evade their duties in this way, but we think some might be tempted to do so and we have had experience which reinforces that fear. Much reassurance has been given both here and in another place that the powers reinstated by the clause would be used flexibly and sympathetically. We have repeatedly made clear that all applications to make arrangements relating to the non-maintained sector would be considered on their merits. If I remember rightly, the noble Lord in Committee described my account of how the Secretary of State would use her powers as "positively moving". Additionally, without the restraints this clause could be used to impose, it would be possible for a misguided local authority to take up places at independent selective schools and to incur extra public expenditure unnecessarily at a time when numbers at secondary schools will be falling substantially. Admittedly, there might be a partial solution, as the noble Lord suggested, through the district auditor, but I do not think that would completely resolve the matter. Tameside and perhaps one or two other authorities are contemplating just such action.

Before I end, it is only right to refer to the important constitutional issue which arises on this Amendment. The Education Bill had a majority of 41 on Second Reading in another place and relatively comfortable majorities at every subsequent stage, usually with the support of the Liberal Party. The Government have not been adamant in this House on points of detail. We have agreed to the deletion of Clause 10 and to the insertion of what is now Clause 11 concerning the education of handicapped children. We have accepted the substance of the Liberal Amendment to Clause 2, Amendment No. 17 on today's Marshalled List. We have undertaken to issue a Circular giving guidance to local authorities about the information they should make available to parents, thus meeting the spirit of Amendment No. 21. All these are concessions to views expressed in this House. Let nobody suggest that these things have not been fully discussed here or that no notice has been taken of the views expressed. Is it not time for some reciprocity and some regard for the views of another place, which has so recently rejected this Amendment without even voting on it? I believe it is. I appreciate the intentions of the noble Lord and his friends not to force this issue and I hope very much that the noble Lord, Lord Beaumont, will not feel obliged to do so.


My Lords, the noble Lord, Lord Belstead, said that this was, of them all, a narrow point to choose. I think that is, in a way, one of its forces, because whereas we on these Benches agree with the Government, as we have said so often, about the purposes of their Bill and have not been prepared to see it modified out of existence, and although we have supported the Government in the Lobbies on a number of occasions, we think that this is an individual occasion where a completely different and very important principle is at stake. That is the principle—and I do not put it any lower than that—of devolution, of whether power is to flow unnecessarily to Whitehall and Westminster or whether, on the other hand, it must be stopped and eventually, we hope, turned back. It is for that reason that my noble friends and I have chosen this point on which we say that the Government should give way. I entirely agree with the Government that they have helped us on a number of points. But one or two of those which they quoted were not quite so full-blooded as they made out. They never liked Clause 10, anyway, and to make a virtue of that necessity seems to me a little unfair.

The noble Lord, Lord Donaldson, raised a constitutional point. He said that there is a constitutional issue involved, and so there is. We sent this Amendment, fully argued, back to another place and they did not discuss it. But to say that that is the fault of people who spent two and a half hours discussing a Timetable Motion, or that too much time was spent on Amendment No. 1 on which, I may say, we spent considerable time ourselves, is to beg the issue. The reason why it was not discussed at all when it went back to another place was that the Government had so mucked-up their legislative programme with totally unnecessary and objectionable Bills that they did not have the time to consider our proposals as they should. We are a revising Chamber and we are entitled to expect our Amendments to be considered by another place. There is no constitutional point in this except that,