HL Deb 14 July 1981 vol 422 cc1121-71

3.2 p.m.

The Minister of State, Scottish Office (The Earl of Mansfield)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Mansfield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Duty of education authority to comply with parents' requests as to schools]:

Lord Ross of Marnock moved Amendment No. 1:

Page 2, line 2, at end insert— ("( ) if the number of pupils being educated or to be educated in the specified school or at the same stage of school education in that school as that at which the child would be placed in pursuance of his parent's placing request has reached the maximum number, if any, fixed in relation to that school or stage by the education authority under section 28B(1)(c) of this Act;").

The noble Lord said: I think it would be useful to the Committee if we took Amendments Nos. 1 and 2 together. Before I begin may I apologise to noble Lords who have not studied the Bill very carefully. They will find it very difficult indeed to follow. Indeed, I wonder whether both Houses should not have a look to see whether or not their procedure in respect of Bills and discussions on Bills should be changed if Governments and draftsmen are going to carry on in the way they have done in the case of this particular Bill.

Clause 1, with which we start, incorporates into the principal Act eight new sections. Generally speaking, when we come to the Question, Whether the clause shall stand part?, we go through those parts and get from the Government an understanding of what each clause means; and points of confusion are cleared up. But how can we do this with eight separate sections all lumped together in one clause? That is Clause 1. Clause 4 incorporates 11 new sections. Indeed, last week, in respect of England and Wales, we had the full Bill given a Second Reading, a whole day's debate, and probably a part of another day—and this again in this strange, codified way.

Of course, this will be helpful when we come to consolidation, but from the point of view of discussing a Bill in this Committee and going through it, how can you do adequate justice to a coherent discussion on the Question, Whether the clause shall stand part? when that clause consists of 11 sections? Of course, Clause 6 incorporates four new sections; so there you have three such clauses which we are supposed to discuss on the Question, Whether the clause shall stand part? People get very worried about the amount of time that Scots take in your Lordships' House, although they were very anxious to retain the discussion of Scottish business and did not want it to go to an Assembly in Scotland. How on earth are you going to do justice adequately, on the Question, Whether the clause shall stand part?, in the case of three separate clauses when these three clauses incorporate 23 new sections? I think that if draftsmen continue in this way and the Committee allows them to do so, we really ought, when discussing a clause of eight new sections, to discuss the new sections one by one on the Question, Whether the clause shall stand part?, and that is a point that I think the Procedure Committee might well consider.

When we come to the amendment that I have set down, it deals with a part of Clause 1, which is the so-called parents' charter. Governments—and this happens to Governments of both sides—must now proclaim great slogans in relation to what they are doing. We must have great new charters. This one is the parents' charter in respect of selecting a school to which their child may go or be transferred at various stages of his career. I have been interested in Scottish education for a long time, and I can assure Members of this Committee that there never has been any doubt about parents' rights in respect of Scottish education. They have been in Act of Parliament after Act of Parliament, and were finally in the 1960 Act and then the 1980 Act.

The parent has the right of choice of school, and there are only two qualifications. This has been so for decades. The two qualifications are, first, that the education so selected should be in keeping with the educational needs of the child, and, secondly, that it should not cause unreasonable expenditure on behalf of the local authority. The fact is—and this came out on Second Reading—that in respect of, say, Strathclyde, I think that out of thousands of appeals against the selection of the local education authority only about a hundred were refused. The same thing was true in Central Scotland. I do not think there was even that number. Over 95 per cent. of the parents were satisfied with the fairness of the local authority. This is traditional in Scotland. But, no, we must have a new charter.

So the new charter lists, for the first time, the reasons which will be acceptable eventually to the courts as to why a local education authority should refuse parents a specified school in respect of their child. As soon as you list A, B, C and D, you get less flexibility—flexibility which is working fine at the present time. There has been no great body of appeal against it; so to some extent there will be a certain measure of restriction on parental choice, probably more so than there is under the present system, because it may well be that local education authorities who in the past were fairly free, fairly flexible, especially in the present situation, may now decide to go by the letter of the law.

So far as I can understand it, there was little or no disagreement in respect of the qualifications that were put down to parental choice. There was agreement between COSLA, the Convention of Scottish Local Authorities, and the Government. This went through the other place in Committee without a change; and then, at the last minute, on Report stage, an amendment was brought in by the Government, without consultation with the local authorities, which had virtually agreed the clause, and these two paragraphs which are in my Amendments Nos. 1 and 2 were dropped from the Bill.

At the present time, the position with falling rolls—and these falling rolls apply to secondary schools as well as primary schools—is that the Government are pressing local authorities to rationalise their school accommodation. Local authorities are busy working with the Government at the present time. There was a working party and advice was given to the education authorities in respect of primary schools, which "feed" secondary schools, and in respect of those secondary schools, in order to be able to get rid of the accumulation of different sites, hutted accommodation, extensions and outside main buildings, which cost a very considerable sum of money for maintenance and keeping in existence. The local authorities have been co-operating with the Government in order to get rid of them.

The only way that they can plan ahead is to say that this will last a certain length of time: "The maxima roll for this particular school will be so many". Now the Government, having enshrined that as one of the reasons why they could say to a parent, "I am sorry, the maxima has been reached", take it out of the Bill. If you take that out of the Bill, it means that the local education authority cannot plan ahead in respect of what provision is going to be made in areas for secondary schools and primary schools.

So we are getting uncertainty. This has to be sorted out on appeal eventually by the sheriff, whereas it was part of the statutory obligation laid upon local authorities that they would fix the maxima and it allowed them to get on with it. This is unfair. I have read the discussions that took place between the Minister and the local authorities. The Minister said on one occasion that there is no great change in what is being done. In other words, it started out by being window-dressing.

We are putting into statutory form the best practices of the local authorities in Scotland. But now, where local authorities can see their way ahead to plan and save money to make the best use of their teachers by taking these things out, it leaves the whole situation vague and the balance has shifted from the local authority to what may well be an unreasonable parent and it may mean keeping in existence, at considerable expense, the hutted accommodation and rendering nugatory the forward planning that the local authority can do.

If the local authority is going to plan education in its area—it has the responsibility for this, not the Government—it has to look seven years ahead. When a child starts school which school will it go to after it finishes its seven years of primary education? What will happen in the five years after that? It is a long way ahead; but if there is no stability in respect of what it knows it can do then that planning is completely undermined. I do not know whether the Government realised when they made this change without consulting the local authorities the damage that they were doing.

It is not political; it is common sense. Bearing in mind the attitude of the Scottish local authorities over this period in relation to placing children, the schemes they presently have to work by have to be approved by the Secretary of State. I am sure Members of the Committee will have noticed the paper which may be obtained from the Printed Paper Office in relation to the transfer scheme of the Lothians.

I remember the Minister in Second Reading saying that one of the reasons why they were doing this was because the Lothians had not been so good lately. I do not know whether he realised it, but the Secretary of State for Scotland approved—not on 7th April, that is my birthday!—on 8th April of this year a scheme modified by the Secretary of State as satisfactory for the transfer of pupils. So the matter, if there was anything wrong, has been put right. But if we must replace something which is satisfactory, which I think we are doing, let us do so with the agreement of all the people concerned and not imbalance the procedures to the disadvantage of improving education at the present time, With spare accommodation at the present time children are moving from one zone to another, and local authorities are approving that.

It is very seldom that a parental choice is turned down. These are the facts of Scotland at the present time. This charter waiving is not improving matters. It may be politics but it is not good education. I beg to move.

3.16 p.m.

The Earl of Mansfield

May I first deal with the point as to the construction of the Bill. I have no doubt that those Members who have knowledge of these matters will know and appreciate that the Bill owes a lot to the distinguished Committee which was chaired by my noble friend Lord Renton. I for one appreciate that at first blush when one comes to look at a Bill such as this it reads somewhat differently to what one has been brought up to read. It could be said that it is more difficult to understand at first reading.

If I may say so, the noble Lord rather overstated his case. Regarding debates on "clause stand part", as the noble Lord knows very well, that is quite a good way of discussing the merits of an entire clause. It is only one way of doing it. In this particular instance, let me take Clause 1 of this Bill simply as an illustration of what I mean. If, for instance, the noble Lord wished to discuss new Clause 28B in isolation or if he wished to go further and invite the Committee to exercise it from the Bill, there is absolutely nothing to stop him putting down an amendment to that effect. For the purposes of the debate and of focussing the minds of Members upon whatever the noble Lord wishes to bring out, there is absolutely no difference between having a short Clause 1, or Clauses 2 and 3 and saying, "leave out Clause 2" and doing it in this new and different manner, taking it part by part. I cannot accept that the quality of our debates is in any way going to be prejudiced by the form in which the draftsman has composed the Bill.

Now I come to the actual amendments. The noble Lord queried whether these particular provisions in the Bill are necessary. As I told him on Second Reading—and I do not believe that I have to repeat myself—the unfortunate facts of the matter are that, as the rolls go down, so do the apparently uncontested choices which parents make. Putting it another way, the education authorities are making life more difficult for those who wish to choose the school at which they wish their child to be educated.

My right honourable friend has had a great deal of complaint from those who are disaffected. In the case of Lothian, there is evidence that a lot of people are simply not bothering to apply. They know full well the reaction they will get from the education authority. Therefore, in my submission, there is every reason why this legislation should be brought up to date so that everybody, and not least the local authorities, should know where they are.

Turning to Amendments Nos. 1 and 2, the noble Lord, Lord Ross, is quite right: provisions identical with these amendments were deleted on Report in another place and there has been a certain outcry, if that is the word, or possibly pressure from the Educational Institute of Scotland and the Convention of Scottish Local Authorities for their restoration. The absence of such provisions in the Bill—and one must be sure about this—means that an authority would not be able to refuse a request by a parent for his child to attend a particular school on the grounds that the school or the state of education in which the child would be placed had reached any maximum number imposed by the authority. If I may say so, the noble Lord went wildly further than the meaning of the effect of this part of the clause. The noble Lord in effect does nothing more nor less than seek to restore these grounds for refusal for a placing request in the Bill.

In our view, the absence of such provisions in the Bill does not materially affect the balance of interest in favour of parents making placing requests and away from education authorities; and parents, even in the absence of such provisions, will have an absolute right of choice of school because there would be the implications for expenditure or the efficient provision of education in the event of capacity being exceeded. In other words, the various exclusions in the new Clause 28A(3) play just as much part. In addition, the circumstances under which placing requests could be refused on the ground that the school or stage of education had reach a maximum imposed by the authority are really largely covered in these other grounds of refusal to which I have just referred. They would operate in the case where acceding to the request would entail the authority in significant expenditure on extending or altering the accommodation or facilities in the school or, for instance, where it would entail the employment of an additional teacher.

The decision in the other place that provisions identical with these amendments should be deleted was taken in view of the widespread misinterpretation of their intentions which was becoming apparent. The view had arisen that the maximum roll fixed by an authority would not be open to challenge by parents and that the authority would have an absolute and unchallengable right to refuse a request where the maximum had been reached. It was being said that authorities could have used these provisions to deny access to the so-called "popular" schools. Of course, that was a view which was quite mistaken; but under the Bill a parent may refer a decision by the education authority refusing his request to an appeal committee, and thereafter to the sheriff if the appeal committee confirms the authority's decision. If a parent's request had been refused because a maximum had been reached, the parent could have argued to the appeal committee and to the sheriff that the maximum roll had been fixed too low and they could have upheld his request if they agreed with that view. Nevertheless, as confusion had arisen on that point, it seemed best to the Government to remove any confusion on Report in another place, and the best way of doing that was to delete from the Bill the provision of maximum rolls. So I would suggest to the Committee that this was a right and sensible decision. What it has done is to remove from a possibly recalcitrant authority what I might call a bogus decision for refusing a request—

Lord Ross of Marnock

A bogus decision?

The Earl of Mansfield

If the noble Lord will listen, he can of course come back in a few seconds, but—

Lord Ross of Marnock

I just wanted to make sure whether the noble Earl the Minister did say "a bogus decision".

The Earl of Mansfield

Yes, I think the noble Lord's hearing was perfectly accurate on this occasion. But let me clear up one other possible confusion. The deletion of these maximum roll provisions by the Government does not mean that the authorities will be prevented from calculating maximum rolls or intakes from the schools; but it does seem that the fact that a maximum roll had been reached will not be a legitimate ground for refusal of a placing request under the new Clause 28A(3), and authorities may continue to calculate such maximum rolls informally as part of their administrative arrangements and planning. They may well indeed be of assistance to parents who are considering the likely availability of places in a school. Therefore I reject the claim by the noble Lord, Lord Ross, that education authorities will not be able to plan ahead. What this amendment in another place meant was that they can plan ahead just as well and just as easily as they could before; but, as I said, it will remove a possible rather unfortunate let-out for an education authority which was trying to deny parents the essential right of choice which we believe they should have.

Baroness David

I think the Minister has argued against the amendment very much in the terms I expected, partly by saying that there are enough safeguards in the Bill in subsection (3)(a), but I would say there is a situation where you could have too many children in a class but four or five more will not mean there has to be an additional teacher, and four or five more in a class would not mean that accommodation had to be altered. It can mean that the education provided for that class will be not nearly so satisfactory. Indeed, I should have thought that although the authorities can still plan, if there is not some power behind the plan and some muscle in the law, their planning can be really turned to nothing. The Government are always asking local authorities to be economical and to close schools. If you are going to plan for a closure you have to plan very far ahead. It needs excellent planning, and if there is no back-up in the law it is going to be extremely difficult for the authorities. I would strongly support the amendment.

Baroness Elliot of Harwood

I have listened with great interest to what has been said because I spent quite a long time of my life as chairman of an education committee, doing the sort of planning which the noble Lord, Lord Ross, speaks of and which was necessary, particularly in a rural area, when the population changed. Numbers might go down and it was therefore necessary, rather reluctantly on my part, either to amalgamate two rural schools or to close one and take the children to a school in a nearby town. But it did not really worry the education authority, because in fact they only did it because it was necessary and because the parents wanted it, and therefore it all went quite smoothly.

Of course I realise it is quite different organising things in an area where the population is very small: when you get to cities like Glasgow or Dundee you are in a very different position. On the other hand, the population in schools is going down, as we all know. The birth rate is going down and there are fewer people to cater for. How long it will last we do not know, because populations fluctuate; but I think the Government are right in giving full opportunities for parents to choose schools and to have a safeguard, which is that if conditions in an industrial area become very difficult to fulfil they will have opportunities for making different arrangements. But, on the whole, this is a fairly simple and straight forward way of dealing with the matter.

I do not think it is necessary to get very excited about the fact that it is interfering with the parents or the local authority, because the co-operation between the two—certainly, in areas that I know in Scotland—has always been very good. This will make it easier and is, on the whole, quite satisfactory. So I support the Government in this clause and in the general principle of parental choice which they are continuing. I agree with the noble Lord, Lord Ross, that, of course, we have always had parental choice in Scotland. That has been going on for years and has, on the whole, worked very well. This decision will not interfere with that principle, and it may improve on it. So I support the Government in this matter.

Lord Ross of Marnock

I am sorry about the reply from the Government, which was very unhelpful indeed. I begin to wonder why on earth the Government put in these two sections in the first instance. If there has been any confusion or any misunderstanding, it is the Government's decisions that created it. They put in the sections. They discussed clause stand part in Committee; they went through it week in and week out, and there was no indication from the Government that there was any dissatisfaction or any raising of the standard of parental revolt in respect of the oppression of local education authorities. Indeed, I think that the confusion is in the minds of the Government themselves.

The trouble starts with their having embarked upon this charter in this way. Once you make things statutory, you introduce restriction. But having done that, you have to be fair in respect of the powers that you put in—powers in respect of parental choice and powers in respect of the right of the local authority to decide. I was very disappointed, once main, and I am afraid that this happens with Bill after Bill that we discuss. I have described the Minister before as the master of the infelicitous phrase. He gave us another today—the bogus decision; it is the local authority that is bogus, because it makes the first decision. Then there is an appeal structure which the Minister is setting up in this clause and in Schedule 1. He is now saying he has no faith in that, because local authorities will make bogus decisions.

I wonder whether the noble Baroness, Lady Elliot, still agrees that there is co-operation between all the parties concerned, when a Government Minister speaks in this way. I do not know whether it was in his brief or whether it was off his cuff. In future he had better scrub his cuffs before he comes into this Committee. The noble Baroness was talking about a situation which exists, and I referred to it and praised it. It is traditionally Scottish. The fact is that there is no overwhelming demand for this kind of thing. There may be one or two people, but there are probably one or two people whom you will never satisfy, and who will not be satisfied with what the Government have said.

But the Government sat down with the local authorities, hammered it out and said "This is all right" and they were quite satisfied with it. I was satisfied with it, local authorities were satisfied with it and, except for one or two, parents were satisfied with it. So the Government made a change. It is unfair to castigate local authorities for making bogus decisions. It is just not true. The figures for Lothian, which I quoted on Second Reading, do not justify that. If there was a deterioriation in the circumstances, the fact is that the Secretary of State approved a transfer scheme—I do not know whether or not he consulted the Minister of State—in the month of April, three months ago. I have it here, but I do not want to delay the Committee by reading it all. He was so satisfied with the scheme that he approved it, with modification, as is his right. Then the Government come along with this kind of thing. The speech insults all local authorities by talking about bogus decisions. We come down to the position that the Government have used this as a let-out.

Any Act of Parliament is subject to interpretation by the courts and the right of appeal to the sheriff was always there in Clause 1. He himself could have made his judgment about the rightness or wrongness of the maxima laid down. But, at least, it was a guide, not only in relation to transfer schemes, but also in relation to forward planning and to where a local authority is going to close a school or to get rid of accommodation that is useless.

We see it with secondary schools all over Scotland. They want to be able to get rid of useless accommodation, but they will not be able to do so, if a parent comes along after they have suggested maxima, which are related to getting rid of accommodation which should be wiped out, and says "You have got a hut there and you can use that." It is not a question of making changes in respect of accommodation; it is making changes to get rid of accommodation and to rationalise the scheme, now that they have the opportunity; and now that they have the opportunity there is more freedom in relation to parental choice. These are the facts. The Government have got it muddled and are being unfair to local authorities.

I am afraid that I am not at all satisfied with the Government's justification of what they have done. There is no explanation as to why they did not consult local authorities—who had already agreed this—when they went down to the other place on the Report stage and made this change. I hope that I shall have the support of quite a number of your Lordships in the Lobbies, to make the Bill what it was when the Government first printed it and set out this power.

3.37 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 132.

Ardwick, L. Longford, E.
Bacon, B. McCarthy, L.
Birk, B. McCIuskey, L.
Bishopston, L. [Teller.] MacLeod of Fuinary, L.
Blease, L. Maybray-King, L.
Blyton, L. Milford, L.
Bowden, L. Oram, L.
Briginshaw, L. Pargiter, L.
Clancarty, E. Parry, L.
Cledwyn of Penrhos, L. Peart, L.
Collison, L. Phillips, B.
Cooper of Stockton Heath, L. Ponsonby of Shulbrede, L.
Cudlipp, L. Reilly, L.
David, B. Ross of Marnock, L.
Davies of Penrhys, L. Shinwell, L.
Elwyn-Jones, L. Stewart of Alvechurch, B.
Gaitskell, B. Stewart of Fulham, L.
Gregson, L. Stone, L.
Hale, L. Strabolgi, L.
Henderson, L. Strauss, L.
Houghton of Sowerby, L. Taylor of Gryfe, L.
Hughes, L. Taylor of Mansfield, L.
Jenkins of Putney, L. Wells-Pestell, L.
John-Mackie, L. Whaddon, L.
Kaldor, L. White, B.
Leatherland, L. Wootton of Abinger, B.
Lee of Newton, L. Wynne-Jones, L.
Listowel, E.
Llewelyn-Davies of Hastoe, B. [Teller.]
Airey of Abingdon, B. Kinloss, Ly.
Alexander of Tunis, E. Kinnaird, L.
Ampthill, L. Lawrence, L.
Atholl, D. Lindsey and Abingdon, E.
Auckland, L. Long, V.
Avebury, L. Loudoun, C.
Avon, E. Luke, L.
Balfour of Inchrye, L. Lyell, L.
Barnby, L. Mackay of Clashfern, L.
Beloff, L. Mackie of Benshie, L.
Belstead, L. Macleod of Borve, B.
Berkeley, B. Mancroft, L.
Buccleuch and Queensberry, D. Mansfield, E.
Marley, L.
Byers, L. Mayhew, L.
Campbell of Alloway, L. Mersey, V.
Campbell of Croy, L. Morris, L.
Cathcart, E. Mottistone, L.
Clitheroe, L. Murton of Lindisfarne, L.
Clwyd, L. Noel-Baker, L.
Crathorne, L. Norfolk, D.
Cullen of Ashbourne, L. Northesk, E.
Dacre of Glanton, L. Nugent of Guildford, L.
Daventry, V. Nunburnholme, L.
De Freyne, L. O'Hagan, L.
Denham, L. [Teller.] Onslow, E.
Donaldson of Kingsbridge, L. Porritt, L.
Dormer, L. Rathcreedan, L.
Drumalbyn, L. Redcliffe-Maud, L.
Dudley, B. Renton, L.
Eccles, V. Richardson, L.
Ellenborough, L. Roberthall, L.
Elles, B. Rochdale, V.
Elliot of Harwood, B. Rochester, L.
Exeter, M. Rugby, L.
Faithfull, B. Sainsbury, L.
Falkland, V. Saint Brides, L.
Ferrers, E. St. Davids, V.
Ferrier, L. St. Germans, E.
Fortescue, E. Saint Oswald, L.
Gage, V. Sandys, L. [Teller.]
Gardner of Parkes, L. Seear, B.
Garner, L. Selkirk, E.
Gladwyn, L. Shannon, E.
Glenarthur, L. Sharples, B.
Glenkinglas, L. Skelmersdale, L.
Gormanston, V. Sligo, M.
Gowrie, E. Soames, L.
Greenway, L. Somers, L.
Gridley, L. Spens, L.
Grimston of Westbury, L. Stamp, L.
Grimthorpe, L. Stedman, B.
Hailsham of Saint Stodart of Leaston, L.
Marylebone, L. Strathclyde, L.
Hampton, L. Strathspey, L.
Hankey, L. Sudeley, L.
Hillingdon, L. Thurso, V.
Hives, L. Trefgarne, L.
Holderness, L. Trenchard, V.
Home of the Hirsel, L. Vaux of Harrowden, L.
Hooson, L. Vickers, B.
Hylton-Foster, B. Vivian, L.
Ilchester, E. Wade, L.
Ironside, L. Westbury, L.
Kilmany, L. Wilson of Langside, L.
Kilmarnock, L. Winstanley, L.
Kimberley, E.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 2 not moved.]

3.50 p.m.

Lord Ross of Marnock moved Amendment No. 3:

Page 4, line 18, leave out paragraph (c).

The noble Lord said: I beg to move Amendment No. 3. Paragraph (c) relates to the regulations which the Secretary of State is going to draw up to determine: the kind of information which is to be so published or which is to comprise the information so made available or supplied to parents". The suggestion was made to explain how things should be done in respect of Clause Stand Part and new clauses. It is purely and simply a device, and it is not one which I am very happy about or satisfied with. I am using that device in respect of a subsection which allows the Secretary of State by regulation to prescribe or make provision for the determination of the kind of information to be supplied to parents who are looking around for a school for their child. This may be a primary school or a secondary school. I want to find out from the Government the nature of that information.

We are asking local authorities to economise, but we are giving orders to them to publish. I do not know what is meant by "publish". Is publication to be by leaflet or by prospectus for every school, or is it just to be information which is to be made available to parents on demand? So far as I can see, no guidance is given here. I want the Government to tell me what information they think it is necessary for parents to have which is not already given by local authorities. In Scotland, local authorities make absolutely plain what their transfer schemes are. I instanced the one at Lothian which was published recently. That scheme is quite clear, it is available here, and it is dated 8th April 1981. This is the local authority which has been condemned by the Government. It says: The local authority, the council, shall make available on request from any parent details of their policy for settling priorities". This is to be on request from any parent. But that is not what is set out in paragraph (c). Are there to be two lots of information? Is there to be information which is published to everybody and is there to be information which must be given on demand?

Can we be given some information in addition to that already there? I will read what it says here. The Lothians have got to publicise, to give to parents, their policy for settling priorities for admissions: Where the number of out of zone applications for a particular school or for a particular stage of secondary education exceeds the places available the council shall deal with such applications in accordance with their policy on priorities for admission". What other information is there? Is it the colour of the headmaster's hair? His temper? His reputation? The discipline in the school? Is it all the various activities of the school? They are all the kind of things that some people might want to know, but I presume that in the mind of the Government as well as the odd parent—and I do not use the word "odd" in any qualitative way—there is the kind of information on which they might want to make their determination as to whether the school is satisfactory for their children. So may we have the thinking of the Government in relation to subsection (2)(c)?

Is it for examination records? There can be nothing more misleading than examination records, as any teacher will tell you. This might well be a piece of useful information to be published—the policy of the school in respect of examinations. Some schools will only present children for examinations if they know that they are going to pass, so they turn out a 100 per cent. record. To my mind every child who has made a study of a subject has a right to go forward for examination. He may not do very well but at least he should have the opportunity. Or there are the others who take the more liberal point of view and put forward every child in the class to see how they all do. They may do very well and yet not get a very high mark in the examination.

That is for one year, but what about the next year? Any teacher will tell you that he can have a terrible class one year but the following year he may have a class of brilliant pupils, so the record changes from year to year. It is not a matter that will do anything other than confuse parents if they only ask for selective information in this respect. I hope the Minister will be able to tell us what is in the Government's mind. What is the information that has to be laid out in regulations that the parents have a right to know generally and in relation to particular requests from parents? I beg to move.

Baroness David

I wonder whether I may ask one further question before the Minister replies. In what form is this information to be given? Is it going to be in a brochure for each school? Who is to pay for that: is it to be the school or the authority? It might come to quite a considerable sum. I should be glad to have answers to those questions.

The Earl of Mansfield

I am grateful to the noble Lord, Lord Ross, for raising this matter. Of course, my right honourable friend's letter which was dated 8th April accompanied a decision on the transfer scheme which had been the subject of an intense debate and a great deal of negotiation as between Lothian and the Scottish Education Department. It is only indirectly connected with this particular provision.

The Government have made it clear all along that, in order to exercise a reasoned choice of school, parents will need to have certain information made available on the general educational arrangements of authorities and on individual schools, and the purpose of this particular new subsection (3)(c) is to enable the Secretary of State to prescribe in regulations the kind of information to be made available to parents to assist their decision. My right honourable friend the Secretary of State has published a consultative paper which sets out proposals for regulations on information to be made available to parents. Of course, a number of schools already publish such information, sometimes in the form of quite an intensive brochure and that is naturally done at the expense of the local authority.

When my right honourable friend drew up his proposals he sought, on the one hand, to provide for the reasonable needs of parents, and on the other hand, to keep to a minimum the possible additional burden on education authorities. Naturally enough, the proposals have been criticised by local authorities on the ground that they laid down too much detail; and on the other hand by representatives of parents, who have asked that additional items should be added. My right honourable friend therefore has the task of giving careful consideration to all the comments which he has received. The fact that some bodies think that the proposals go too far and others think that they do not go far enough seems to suggest that the balance is probably about right although there may well be room for improvement in the detail.

The noble Lord, Lord Ross, asked—or at any rate implied—whether this was not a matter which could be left to the discretion of the education authorities as opposed to being the subject of a paragraph in a subsection of the Bill. The Government take the view that it is essential to the proper operation of these new provisions in Clause 1 of this Bill that parents throughout the country should have a right to the same information about the general arrangements made by the authority and about individual schools. There will be room for schools to put their own individual gloss on the material they produce, but to prevent misleading comparisons the basic facts they incorporate should cover the same items in each case and this the regulations will achieve.

So far as the timing of all this is concerned, although we think it is essential that the Secretary of State should have power to prescribe in regulations information which is to be made available to parents, we do not intend to be unreasonable in what we ask authorities to do. The Convention of Scottish Local Authorities have expressed their concern to my right honourable friend the Secretary of State about the difficulty of preparing all the information set out in his consultative paper in time to have it available early in 1982.

Ideally the information should of course be available then, since it is still my right honourable friend's intention—subject always to the further progress of the Bill through this House and its enactment in due course—to bring the provisions of the Bill with regard to placing requests and the right to appeal if those requests are refused, into operation by February and March 1982 respectively, in time for the start of the procedure for allocating places for the 1982–83 school session. Nevertheless, my right honourable friend has accepted that authorities would have difficulty in implementing at one and the same time the new requirements with regard to booklets of general information for parents, brochures on individual schools, and so on.

The Scottish Education Department have, therefore, informed COSLA, today I think, that the major part of the requirements relating to information for parents will not be brought into operation until January 1983. I hope that this will allay at any rate part of the concern. So far as the detail of the requirement is concerned, the type of information which will be provided, the Government will study COSLA's comments with care before the regulations are made in due course. In so far as the proposed requirements merely reflect existing good practice in many areas, much of the information parents may want is already available, and I hope that wherever possible it will be given to those who ask for it, even though there will be no statutory obligation to provide it in the initial year of the operation of the new procedure.

I think no one could deny that in this particular instance the Government have paid and are continuing to pay most careful attention to the views which have been expressed and no doubt will continue to be expressed by the convention. I would hope, therefore, that the Committee would feel satisfied that there has been a due meeting of minds so far as the Government and COSLA are concerned, at least on this ground. So far as the question asked by the noble Baroness, Lady David, is concerned, I hope I have answered her as to content. As to cost, there will be no change from the present arrangements.

Lord Ross of Marnock

In other words, the cost will be met in the usual way, through the rate support grant, to the extent of whatever the particular local authority receives. It may be anything from 60 per cent. to maybe, in the Orkneys and Shetlands, about 95 per cent., which still leaves the local authority to find 5 per cent. The noble Earl will be aware that at the present time there is considerable pressure being exercised by the Secretary of State on local authorities to cut down the amount of money they are spending, and he should be very conscious indeed that here, within this section, is a demand on the local authorities to spend money. The noble Earl says it is not going to be applicable until January 1983, which means it would then be available for the 1983–84 intake of children. So parents are going to be denied the benefits of this great new charter—which, as I suggested earlier, is quite unnecessary, but if we are going to have it, let us look at it—for another three or four years or so.

The noble Earl says the Government do not intend to be unreasonable. With all due respect, we have no guidance on that because he has not told us anything. He told us that there had been discussions with COSLA in respect of the proposal. Well, we knew that. Those discussions, I thought, had finished. In many cases, the Government, having discussed with COSLA, having come to agreement, changed the matter in another place in respect of the last amendment. But now the noble Earl says, "we shall not be unreasonable". Can we trust the Government in respect of being unreasonable or otherwise? Certainly there are many people who feel that, at the present time, in respect of pressures on local authorities to reduce expenditure, the Government are already unreasonable. To come along now with another scheme that is going to cost them money, with no guarantee that they are going to get increased amounts of money to meet that cost—a scheme which the Government are going to say must be carried out, is itself unreasonable.

The noble Earl has not given us any indication at all of what the details are. He talked about brochures and booklets, all of which cost money, all of which the local education authorities cannot readily provide. As a matter of fact, at the present time and under the pressure of the Government to reduce expenditure on education, this is the kind of thing that is being cut, desirable as it is from a parental point of view. In come the Government, and say, "This is going to be mandatory, you have got to do it. We are going to produce regulations; we are not going to give you the money or guarantee the money, but you have got to do it." If they try to raise the rates, the Minister will use his draconian powers under the last Local Government Act which was passed a month ago to ensure that they cannot put the rates up.

Local government in Scotland is becoming quite chaotic by the muddling meddling of this Government. These powers and the suggestion put in here are quite reasonable, but there is nothing reasonable in the lack of co-operation, which it has come to, between the Government and the local authorities in respect of paying for desirable activities. I am afraid that this is far from satisfactory. Can the Minister take another opportunity of justifying to us the kind of details he feels are essential? I spoke about examinations and examination results. I can assure him there are certain authorities in Scotland who see this great new charter as something with which they are going to hammer the local authorites and hammer certain schools, and create unpopular schools and show how others are so wonderful, which could be done by issuing misleading information.

I want to know what kind of thing is going to be in the mandatory information that local authorities or schools have to supply. Can the noble Earl tell me clearly what is the nature of the information that is to be made general and give an estimate of the cost of that? Can he give details about the kind of information a particular school has to supply and what is likely to be the cost of that?—because I can assure him that, so far as I know, headmasters at the present time are considerably restricted in respect of the expenditures they can incur applicable to their own particular school. If the noble Earl can give me that information I shall be very grateful.

The Earl of Mansfield

I am sure the noble Lord would not expect me to go into the details of what has yet to be worked out. As I have tried to say this is a matter upon which there is quite intense controversy as between those on the one hand, who say that the proposals in the consultative paper are far too wide, and those, on the other hand, who say that they are rather too narrow. The Government have to steer a course doing the best they can between the differing points of view.

I think, if I may say so, that it is possible to make rather heavy weather of this. The noble Lord, with his vast experience, will know the sort of brochures. That was the noble Baroness's word and I am not sure I like it too much, but I cannot think of a better one; I think "information pamphlet" would probably be a better phrase. I have just got to hand the rather attractively produced Rector's Report, as it is called, of the Garnock Academy for the session 1980–81, which lists the school in general, the area, details of the staff/parent liaison, the curriculum, organisational matters, external examinations, extra-curricular activities, rules for visitors and miscellaneous. I am just quoting from the contents page near the front. It is, indeed, 29 pages of excellently produced, but not expensively produced, information material. May I say as extra consolation—if that is the right word—for the noble Lord, Lord Ross, that the Financial Memorandum in paragraph 1 makes it plain that, in fact, additional provision has been made for the additional expenditure which will fall on education authorities on producing the information which will be mandatory by virtue of this subsection.

I should like to think that this is a sensible provision which we are including. If we are to have parental choice—and I think that almost everybody in the Committee would agree that that is an excellent provision —and if we are to tidy up the law, so to speak, and make it uniform throughout Scotland, it is obvious that parents must be given approximately the same sort of information and the same amount of information whether they live in Lerwick or Gatehouse-of-Fleet. This is the type of way, taking due consultation that we hope to achieve it. I hope that, with that explanation, the noble Lord will see fit to withdraw his amendment.

Lord Ross of Marnock

No, I am afraid that I cannot do so. The Government say that they are steering a narrow course and they talk about heavy weather, but they have not told us anything. They have told us that there is controversy over this matter, but discussions are still continuing and the Government have not made up their mind. It is a bit much for the Government to ask for powers and to ask for the trust and confidence of this House, or any other House, in respect of education matters in Scotland in respect of which they have no majority and no mandate and say, "Leave it to us, we are steering a narrow course. We must not make heavy weather of it".

I am not satisfied at all about the Government's activities in respect of this matter. I thought that I would receive a reasonable answer. It is no good coming along and suggesting that what they do in the Garnock Academy, which I know very well, and which I applaud, is their justification. With all due respect, the noble Earl should have told us about the schools that produce nothing, not about the ones that are doing something satisfactorily. After all, once they get going in respect of this it may well be that the Director of the Garnock Academy will not have the money to produce this well-produced, efficiently produced and not too expensively produced report at the end of the session. No, I am not satisfied about this at all, and I think that the Government could have gone a bit further in informing the Committee. I must press my amendment to a Division.

4.13 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 123.

Ardwick, L. Hughes, L.
Bacon, B. Jenkins of Putney, L.
Beswick, L. John-Mackie, L.
Birk, B. Kaldor, L.
Bishopston, L. Leatherland, L.
Blease, L. Lee of Newton, L.
Blyton, L. Listowel, E.
Bowden, L. Llewelyn-Davies of Hastoe, B. [Teller.]
Briginshaw, L.
Brockway, L. Lloyd of Hampstead, L.
Brooks of Tremorfa, L. McCluskey, L.
Bruce of Donington, L. MacLeod of Fuinary, L.
Cledwyn of Penrhos, L. Maybray-King, L.
Collison, L. Milford, L.
Cooper of Stockton Heath, L. Mishcon, L.
David, B. Molloy, L.
Davies of Penrhys, L. Noel-Baker, L.
Elwyn-Jones, L. Northfield, L.
Gaitskell, B. Oram, L.
Hale, L. Pargiter, L.
Hatch of Lusby, L. Parry, L.
Houghton of Sowerby, L. Peart, L.
Phillips, B. Strabolgi, L.
Ponsonby of Shulbrede, L. [Teller.] Strauss, L.
Taylor of Mansfield, L.
Reilly, L. Wells-Pestell, L.
Rhodes, L. Whaddon, L.
Ross of Marnock, L. White, B.
Stewart of Alvechurch, B. Winterbottom, L.
Stewart of Fulham, L. Wootton of Abinger, B.
Stone, L.
Ailesbury, M. Killearn, L.
Airedale, L. Kilmany, L.
Airey of Abingdon, B. Kimberley, E.
Alexander of Tunis, E. Kinloss, Ly.
Alport, L. Lawrence, L.
Ampthill, L. Lindsey and Abingdon, E.
Atholl, D. Long, V.
Auckland, L. Loudoun, C.
Avebury, L. Lyell, L.
Avon, E. McAlpine of Moffat, L.
Baker, L. Mackay of Clashfern, L.
Balfour of Inchrye, L. Mackie of Benshie, L.
Banks, L. Macleod of Borve, B.
Barrington, V. Mancroft, L.
Bellwin, L. Mansfield, E.
Belstead, L. Marley, L.
Berkeley, B. Massereene and Ferrard, V.
Campbell of Alloway, L. Mayhew, L.
Campbell of Croy, L. Mersey, V.
Cathcart, E. Mottistone, L.
Clitheroe, L. Murton of Lindisfarne, L.
Clwyd, L. Newall, L.
Colwyn, L. Norfolk, D.
Crawshaw, L. Northesk, E.
Cullen of Ashbourne, L. Nugent of Guildford, L.
Daventry, V. Nunburnholme, L.
De Freyne, L. O'Hagan, L.
Denham, L. [Teller.] Onslow, E.
Derwent, L. Orkney, E.
Dormer, L. Orr-Ewing, L.
Drumalbyn, L. Perth, E.
Dudley, B. Porritt, L.
Ebbisham, L. Redcliffe-Maud, L.
Eccles, V. Renton, L.
Ellenborough, L. Rochdale, V.
Elles, B. Rochester, L.
Elliot of Harwood, B. Rugby, L.
Elton, L. Saint Brides, L.
Energlyn, L. St. Davids, V.
Evans of Hungershall, L. St. Germans, E.
Exeter, M. Saint Oswald, L.
Faithfull, B. Sandford, L.
Falkland, V. Sandys, L. [Teller.]
Fortescue, E. Seear, B.
Gage, V. Selkirk, E.
Gardner of Parkes, Ly. Sharples, B.
Glenarthur, L. Skelmersdale, L.
Glenkinglas, L. Soames, L.
Gormanston, V. Somers, L.
Gowrie, E. Stamp, L.
Greenway, L. Stodart of Leaston, L.
Grimston of Westbury, L. Strathclyde, L.
Grimthorpe, L. Strathspey, L.
Hailsham of Saint Marylebone, L. Sudeley, L.
Terrington, L.
Hampton, L. Thurso, V.
Hillingdon, L. Trefgarne, L.
Hives, L. Trenchard, V.
Holderness, L. Vaux of Harrowden, L.
Home of the Hirsel, L. Vickers, B.
Hylton-Foster, B. Vivian, L.
Inglewood, L. Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.21 p.m.

Lord Ross of Marnock moved Amendment No. 4: Page 7, leave out lines 19 to 21 and insert ("the Secretary of State").

The noble Lord said: With this amendment I think that we can take one or two of the following amendments which deal with exactly the same point. It may well be that I have not covered all the instances where I wish to omit mainly the word "sheriff" and apply instead the words "Secretary of State".

First, there is the decision by the education authority; then there is an appeal to an appeal committee. Thereafter, according to the Bill, there should be a further appeal to the sheriff. I know that all the assembled lawyers on the other side o the Committee—indeed, maybe behind me—will approve that the sheriff is the right person to decide the school to which a child should go. For my part, I think that it is wrong to bring the sheriff into this kind of adjudication. That is why I have suggested that instead of the sheriff we should adopt the Secretary of State for Scotland.

It is not unusual that the Secretary of State should be brought into these matters. Indeed, who better knows just what is in his mind in respect of regulations about the transfer schemes that he has to approve and in relation to, as he sees it, the fairness of local authorities? However, it may well be that I am wrong. If a Secretary of State can, through his mouthpiece in this place—the Minister of State—describe the decisions of local authorities before they have even made them as "bogus decisions", it may well be that the Secretary of State, so advised, is not exactly impartial. It may be that I am wrong in suggesting that this should go to the Secretary of State.

But Secretaries of State change and so do Ministers of State—Ministers of State probably quicker than Secretaries of State. Indeed, I used to work out statistics about the mortality rate of the various departments of the Scottish Office, and those with the heaviest mortality rate were the junior Ministers and the Under-Secretaries of State. There are still some Secretaries of State here. I see the noble Lord, Lord Home of the Hirsel, who was, I think, the first Minister of State for Scotland. It is nice to think that despite his other concerns, his most onerous concerns in his long political career were those when he was Minister of State for Scotland. But Ministers of State change more frequently—I shall not go into all the statistics here—and there is justification for a change when off-the-cuff statements, such as we have had today about bogus decisions by local authorities, are made.

On a more serious note, from my experience in this kind of field, where it is a question of a parent and a child applying for a particular school and being turned down, appealing through the appeal procedure as set up under this committee, being turned down again and then taking the matter to the sheriff, by that point it becomes a matter of public concern to the parents and it may well be an embarrassment to the child. I know this to be so in particular cases because there has always been the right to go to the sheriff on a point of law, and that will still remain. But from the point of view whether or not the decision is right, that is a matter that can properly be handled by the Secretary of State. He has handled this kind of thing in the past and, to my mind, there is no justification for taking it to the sheriff, quite apart from the fact that it means legal proceedings. It probably means an expensive procedure for someone who is not in receipt of legal aid. I presume that legal aid will be available in such a case. But it will be expensive from a state point of view, and also perhaps from a parental point of view.

However, from the point of view of principle, I am in favour of the Secretary of State dealing with this final appeal. I know that the Scottish Office has given advice on matters of this sort before. It could do so again. I am perfectly sure that there will not be all that many cases that will involve great expenditure on the part of the department itself. That is the simple reason for this amendment. It is a simple amendment to get rid of the law so far as this is concerned and to leave the matter with the Secretary of State, with the advice that is available to him, with the inquiry that he makes in ensuring that everything has been carried out properly. If all that were done, I am perfectly sure that his word would be accepted as decisive in this final matter of appeal. I beg to move.

The Earl of Mansfield

First, I should like to deal with the personality part of this. Of course, junior Ministers in the Scottish Office are indeed mortal; some Secretaries of State run through more junior Ministers than others. I think it depends on how they are treated. I am not quite sure what the record of the noble Lord, Lord Ross, in this direction happens to be. I rather detected the wish being the father of the thought in this connection, but I hope that I was wrong about that.

Lord Ross of Marnock

No, the grandfather!

The Earl of Mansfield

The noble Lord founded his argument on two bases. I think that he was longing to say that the sheriff was not an appropriate person to hear these appeals. But not least because of the presence of his noble friend Lord Mishcon behind him, and the presence of my noble and learned friend Lord Mackay of Clashfern beside me on the Front Bench, I do not think that he quite dared to. But, again, if it is his unspoken wish in this connection, I must say to him that my contention and that of the Government in this particular instance—and we are talking about a second stage of appeal where the parents have, as it were, been turned down by the education authority and by the appeal committee—is that it is peculiarly proper that, in fact, a sheriff should entertain this form of appeal. The parents will be frustrated and, after the appeal committee, they have no other recourse unless—as they can at the moment—they withhold their child from attending school until the authority serves an attendance order, and then they can be summonsed before the sheriff anyway. I hope that the noble Lord will agree that to that extent—however we may disagree about the mechanics of the operation—the present arrangements will be an improvement, in that damage to a child's education may well be caused by sometimes prolonged absence from school while these things are worked out.

I would argue that a sheriff is an entirely suitable and appropriate person to deal with these appeals. He has in the course of his duties many cases of a family nature, as they are now called, concerned for instance with custody of the children of the family, and he is well able to weigh up representations as to the interests of the child, as to the parents' wishes, as to the administrative difficulties which those wishes might cause, and the financial problems which might be caused to the authority in giving way to the parental wishes.

Naturally one hopes that there will be very few of these appeals to the sheriff, and one hopes that parents will be satisfied that their cases have been properly heard and are fairly dealt with by the appeal committees. But I myself, and indeed the Government, have every confidence in the sheriff's competence to deal with those few cases where parents want to pursue matters to a second stage of appeal. May I answer a small point which the noble Lord, Lord Ross, made? Yes, of course, legal aid will be available to parents if all their circumstances meet the necessary requirements.

Now I want to turn the coin over, and I hope demonstrate that the Secretary of State really would not be an appropriate appellate body in matters of this kind. The noble Lord, Lord Ross, if I may say this in parenthesis, said that he would be wholly satisfied if the Secretary of State was, as it were, the final arbiter in a matter of this nature. I wonder whether in fact his honourable friends in another place would agree with him in their comments which they made to the particular junior Minister who happens to deal with education in Scotland and who, in effect, within his competence under the Secretary of State, would deal with this sort of appeal.

The Secretary of State has never had any involvement in these kind of disputes concerning which school a child should attend. I do not think it would be at all easy to set up the machinery, nor indeed would it be appropriate to involve him at this juncture. The sheriff in effect will have to hear oral evidence. The matters probably will concern local issues involving the highly individual circumstances of parents and children; localised questions about particular schools, and the sort of education that a particular school provides. Assessments would have to be made of the reasons given by parents for their choice of school; the ground of refusal given by the authority, and the overall circumstances of the case.

I must not pique the noble Lord, Lord Ross, any further than I have already this afternoon, but one of the things which the sheriff will have to weigh up is how valid the grounds of refusal by the education authority may be. The likelihood is almost certainly that oral evidence will be required, and the sheriff can make use of existing practices and existing expertise. For both these reasons, first that I believe that sheriffs are peculiarly well equipped both mentally and in their capacity as a sheriff to hear these cases, and, secondly, because I do not think that the Secretary of State has either the facilities or should have a locus in this particular instance, I must ask the noble Lord on reflection to withdraw this amendment and the amendments which are identical in form. If he does not, I hope the Committee will agree with me and decide accordingly.

4.35 p.m.

Lord Ross of Marnock

I was interested in what the Minister had to say about my off-the-cuff reference to junior Ministers and mortality. He will be disappointed to know that mine were also well treated; that even those who served me in 1964 are all alive and well. I am afraid that cannot be said for all the Under-Secretaries of State who served Conservative Ministers. I remember at least two old friends of mine dying in office. But I will not trouble the Minister of State with these morbid details of Gil Leyburn and Dick Brooman-White and others. Let no one think that the Secretary of State for Scotland has the easiest of jobs, but it is certainly sometimes much more difficult to serve under one and see legislation through, and I really took exception to the reference made to the present Under-Secreary of State in charge of education. Political matters apart, I think that the noble Earl should not have made that oblique reference that people would not be satisfied that he was handling matters in respect of appeals.

The noble Earl suggested that I should think about this again. I have thought about this. I remember a case where parents took matters to a sheriff court in relation to the placing of a child. I can also remember the amount of publicity that was given in the local papers. It was very unfair indeed. The parent was following out what were his rights. But the publicity he got, the publicity the child got, did not do that person any good. He was in a professional capacity, and as a matter of fact he left Kilmarnock very soon after. He is a friend of mine, and I still know him well.

My feeling started from that time, that where you have a child involved in an appeal in respect of a school, it is far better to be held in the confidential area first of the appeal committee set up under this Bill, or as it was already there approved by the Secretary of State; and then certainly not, if there must be another appeal, to the sheriff. It is at that point that you get local publicity, and local publicity on a point like this can be embarrassing and harmful in respect of the attitude taken up by the public, and it may well be by local newspapers, and all that arises from that. I have thought about it, and it is because I have thought about it that I came to the conclusion that this could be done, and should be done, by the Secretary of State.

It is done in other instances by the Secretary of State. In fact we shall be coming to it in the course of this Bill, because appeal to the Secretary of State comes in later on in respect of special educational needs, although certainly in the placing of the school once again it goes to the sheriff. I shall be back on the same point when we come to that matter. The noble Earl suggests that it is the wrong thing in respect of which the Secretary of State should come in. Who is it who is drawing up the regulations? Who is it who has laid down the grounds on which the parent should be refused the specified school placement for the child? It is the Secretary of State.

Then who better knows what he intended, both in language and in spirit, as to whether or not it has been right and fair? Who is it who has taken out the maxima that was enshrined in the statute? It was the Secretary of State and his advisers. Therefore, he should know exactly whether the local authority are being sufficiently flexible in relation to the circumstances. He has the inspectors of schools. Remember, inspectors of schools in Scotland come under the Secretary of State; in England they come under the local education authority. We have a more centralised system in Scotland, so from that point of view all the information can be with the Secretary of State in quite a short time, and he with his advisers can take the necessary decision.

When I think of all the other decisions a Secretary of State has to make, I assure the noble Earl that this would not be the most onerous. I do not anticipate, under the present procedures or under the procedures as they will be when Clause 1 passes into legislative form, that there will be all that many cases, and I am sure that the Scottish Office and the Secretary of State could adequately deal with them. It is not the junior Minister but the Secretary of State who carries the can, so let us not have any remarks about not being happy with a particular Member of Parliament who happens presently to be an Under-Secretary dealing with this matter. I should be quite happy to leave it with him, because he will be properly advised; I know most of the civil servants at the Scottish Office and I have always had the highest regard for them. Indeed, I would say that the quality of civil servants in Scotland is very much higher than elsewhere; we draw on the cream, not from English public schools but from Scottish public schools, which are really public, and we are proud of that.

As for the Secretary of State not having any locus in this matter, if there is one man who should have locus and concern here, concern to see that right is done, it is the Secretary of State. In my view he is the right man, and the sheriff is very much the wrong one. Not that the sheriff could not come to an objective decision; it may be that the sheriff is not familiar with all the local circumstances. Mainly from the point of view of the effect on the parent and the child from the attendant publicity that will always occur if this matter goes to the sheriff court, it should not go to the sheriff court but should be settled in the way which has far more confidentiality and less likely embarrassment for the parent and child, and indeed for the local authority.

Will the Minister think again about this? I take the matter very seriously. I do not know whether it was raised in another place, and if it is said that it is a bee in my bonnet, then I assure the Committee that that is not because I have anything against sheriffs. I knew most of them, and I have the highest regard for them, but I think this educational matter should be dealt with within the educational structure, from Secretary of State down to education authority. If the Minister is not prepared to say he will think about it again, I am afraid I shall have to press it to a Division.

The Earl of Mansfield

The temptation is always there to say, "Let us move on. I will go away and think about it", but this matter has been considered and thought about very extensively by the Government. It is the overriding policy of this Government to relax the Secretary of State's control over local authority affairs, and therefore even to consider the noble Lord's suggestion in this matter would be contrary to that policy. Beside which, I think the sheriff is the better man to decide at this juncture what could be rather difficult family considerations. Accordingly, I should be misleading the noble Lord if I were to say I would take the matter away and consider it again.

4.45 p.m.

Lord Wilson of Langside

There is another aspect of the matter on which the Minister might usefully reflect. I resisted the temptation to meet any of the arguments presented in support of his amendment by the noble Lord, Lord Ross of Marnock, because I thought the amendment was entirely misconceived. Indeed, I thought the noble Lord was completely wrong—I will not develop the argument because in my view it is self-evident—in suggesting that it was more appropriate that the decision on an appeal from the committee should go to the Secretary of State rather than to the sheriff.

However, the noble Lord made one good point about the effect of publicity on the children and parents. I should have thought it would be a simple matter to provide by regulation, under the Sheriff Court Rules, that these hearings should be in private. The Minister might like to reflect on that possibility to meet the only point of the arguments adduced by the noble Lord, Lord Ross, which had the slightest validity at all.

Lord Hughes

I join the noble and learned Lord, Lord Wilson of Langside, in that suggestion. As the Committee will know, I recently presided over a Royal Commission investigating legal services in Scotland. Something that was very much impressed on us by one of our colleagues, who happens now to be the chairman of the Scottish Law Commission but who then was a judge, Lord Maxwell, was how, in considering divorce cases in particular, judges are more and more taking the view that the important parties are the children. I apologise for referring to what was in our recommendations, but we were very much impressed by what he said about the harmful effects of publicity; and it was obvious from what my noble friend Lord Ross said that he was animated more by avoiding harmful effects, both to children and to parents, in his suggestion that the Secretary of State was the better person to deal with this matter. As Lord Wilson said, there is a procedure by which these cases can be handled privately—I suppose by the sheriff in chambers—and if the Minister would undertake to follow Lord Wilson's suggestion, that would deal effectively with one of the points my noble friend made.

Lord Mackie of Benshie

While we should not forget the harmful effects that publicity can have on the child, nor should we forget the good effects publicity can have on education committees, particularly those which are absolutely sure of their own virtue. Therefore, publicity need not always be harmful. On the contrary, the fact of airing something in court often does more good for the future of other children than the actual decision. Indeed, education is now so highly charged with political content that it appears to me that the sheriff in this case is a suitable person to hear the appeals.

Lord Hughes

I do not object to publicity being given to the decision of the sheriff, and if it was adverse to the local authority then the point made by the noble Lord, Lord Mackie, would be made. The harm is done when it involves individuals. While there can be no publicity—because it is easy enough to determine, as in divorce cases, that the children and parents shall not be named in court—if it is in open court one does not know how many people will be present. I do not think any harm would be done in publicising the decision, particularly if the sheriff wants to be critical of the local authority, but that is not a necessary part of it if, as the noble Lord, Lord Mackie, seems to wish, the whole thing were dealt with in public.

Baroness Elliot of Harwood

I support the Government on this issue. It is a long time since I was closely associated with the Scottish Office and the Secretary of State, although there was a time in my life when I was married to a Secretary of State, and never in my life have I seen anyone who has more matters referred to him. I cannot imagine not wanting to cast off some of the work covered in the phrase "referred to the Secretary of State". The Secretary of State has to adjudicate on, and express opinions about, an enormously wide range of subjects, and I should have thought that it would be marvellous to cast off some of the responsibilities to someone else. Undoubtedly the sheriff, if he was a local sheriff, would know the local conditions very well, and if publicity would be detrimental to the parent or child, anonymity could be preserved. I consider that in this instance the sheriff would be a very suitable person to make the final decision, and I support the Government in what they propose.

The Earl of Mansfield

I am very grateful to the noble and learned Lord, Lord Wilson of Langside, for raising this point, and indeed to the noble Lord, Lord Hughes, and other noble Lords who have spoken. The noble and learned Lord will know that under new Section 28F(3) an appeal will be dealt with as a summary application, and that means in effect that the case will be dealt with under such procedure as the sheriff thinks fit. Nevertheless, I feel that the noble and learned Lord has here a real point which we need to consider. Everyone is agreed that the welfare of the children concerned is the primary—indeed the only—consideration, and we shall have to have consultations, not least with my noble and learned friend. Perhaps by one means or another we can return to this matter at the next stage of the Bill.

Lord Ross of Marnock

There are lawyers in front of me and sheriffs behind me, and as a simple layman I am pleased that at last they have entered into the debate on education. I do not think that sheriffs are the best people to make the decisions about a child's education. I do not think that sheriffs are the most suitable people to determine matters relating to a child's age, aptitude and the rest, because it is an educational decision that is being made. Irrespective of what is in the Bill, the parents can take a point of law to the sheriff. That is fair enough. But I do not think that the sheriff is the right person to make decisions on the child's education, on what can be provided, on how the child can be helped, and on the question of whether the expense to the educational authority is reasonable or unreasonable.

Sheriffs are not at present the least employed people in Scotland. Had the noble Baroness read the gruesome reports of the number of cases at present delayed in the Sheriff Court of Glasgow she would be the last person to suggest placing more duties on the sheriffs, who, I gather, are the busiest such people in the whole of Europe. The sheriffs are not unemployed, and are not likely to be unemployed, so far as I can see. In the present situation, it is frightful to think that people would wish on the sheriffs more work—and not necessarily work that they, and they alone, can do; nor indeed are they the best people to do it.

I approve of casting off some of the burdens of the Secretary of State. There is no reason why I should not approve of that, and I have much sympathy for the present holder of the office. The Minister of State said that it was wished to relax the situation in relation to the local authorities. I would ask what was the local government Bill about? It was concerned not with relaxing the position of the Secretary of State vis-à-vis the local authority, but with the Secretary of State becoming increasingly involved in the more important matters relating to local authorities, telling them how they shall or shall not raise their rates, and what they shall do and shall not do. So, if responsibilities are to be cast off, it is a question of who they should be cast off from. The final decision could have been left to the appeal committee that hears the parents' case against the local education authority. That could have been made final, which is the situation in England. I do not necessarily say that we always follow England. It is much more likely that sooner or later England will follow what we do in Scotland, and so keep its lawyers busy.

I am not satisfied with the answer that has been given. The question of the publicity is vital. The likelihood of publicity arises from the fact that the appeals are to be to the courts. If the appeals were not to be to the courts, there would be no worry about publicity. That was my main argument. There would be no worry about publicity under my proposal. I must insist that we take this matter to a Division.

4.55 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 109.

Bernstein, L. Foot, L.
Beswick, L. Gaitskell, B.
Birk, B. Hatch of Lusby, L.
Bishopston, L. [Teller.] Houghton of Sowerby, L.
Blease, L. Hughes, L.
Blyton, L. Jenkins of Putney, L.
Bowden, L. Kaldor, L.
Briginshaw, L. Leatherland, L.
Brockway, L. Lee of Newton, L.
Brooks of Tremorfa, L. Llewelyn-Davies of Hastoe, B.
Bruce of Donington, L. Lloyd of Hampstead, L.
Collison, L. Lovell-Davis, L.
Cooper of Stockton Heath, L. McCluskey, L.
David, B. MacLeod of Fuinary, L.
Elwyn-Jones, L. Milford, L.
Ewart-Biggs, B. Molloy, L.
Morris of Grasmere, L. Stewart of Fulham, L.
Noel-Baker, L. Stone, L.
Paget of Northampton, L. Strabolgi, L.
Parry, L. Strauss, L.
Peart, L. Taylor of Mansfield, L.
Ponsonby of Shulbrede, L. [Teller.] Wells-Pestell, L.
Whaddon, L.
Ross of Marnock, L. Wootton of Abinger, B.
Shinwell, L. Wynne-Jones, L.
Stewart of Alvechurch, B.
Airey of Abingdon, B. Kinloss, Ly.
Alexander of Tunis, E. Kinnoull, E.
Alport, L. Lawrence, L.
Avon, E. Lindsey and Abingdon, E.
Baker, L. Long, V.
Balerno, L. Loudoun, C.
Banks, L. Lyell, L.
Barnby, L. McAlpine of Moffat, L.
Bellwin, L. Mackay of Clashfern, L.
Belstead, L. Mackie of Benshie, L.
Berkeley, B. Macleod of Borve, B.
Boothby, L. Mancroft, L.
Campbell of Alloway, L. Mansfield, E.
Campbell of Croy, L. Marley, L.
Cathcart, E. Massereene and Ferrard, V.
Clitheroe, L. Mayhew, L.
Colwyn, L. Mersey, V.
Craigavon, V. Mowbray and Stourton, L.
Crawshaw, L. Murton of Lindisfarne, L.
Cullen of Ashbourne, L. Newall, L.
Daventry, V. Norfolk, D.
de Clifford, L. Northesk, E.
De Freyne, L. Nugent of Guildford, L.
Denham, L. [Teller.] Nunburnholme, L.
Derwent, L. O'Hagan, L.
Drumalbyn, L. Onslow, E.
Dudley, B. Orkney, E.
Eccles, V. Orr-Ewing, L.
Ellenborough, L. Perth, E.
Elles, B. Rathcreedan, L.
Elliot of Harwood, B. Renton, L.
Elton, L. Roberthall, L.
Falkland, V. Rochdale, V.
Ferrier, L. Rochester, L.
Fortescue, E. Rugby, L.
Gardner of Parkes, B. St. Davids, V.
Glenarthur, L. St. Germans, E.
Glenkinglas, L. Saint Oswald, L.
Gormanston, V. Sandys, L. [Teller.]
Greenway, L. Seear, B.
Grey, E. Selkirk, E.
Gridley, L. Sharples, B.
Grimston of Westbury, L. Somers, L.
Hailsham of Saint Marylebone, L. Stodart of Leaston, L.
Strathclyde, L.
Hampton, L. Strathspey, L.
Hanworth, V. Sudeley, L.
Hillingdon, L. Swinfen, L.
Hives, L. Terrington, L.
Holderness, L. Trenchard, V.
Hooson, L. Vaux of Harrowden, L.
Hylton-Foster, B. Vickers, B.
Killearn, L. Vivian, L.
Kilmany, L. Westbury, L.
Kimberley, E. Wilson of Langside, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.4 p.m.

[Amendment No. 5 not moved.]

Lord Ross of Marnock moved Amendment No. 6: Page 7, leave out lines 35 to 38.

The noble Lord said: Let me cheer up the Government. Amendments Nos. 7, 8, 9, 10 and 12 will automatically fall because of the decision that we have just made; but Amendment No. 6 is to leave out the words: On good cause being shown, the sheriff may hear an appeal under this section notwithstanding that it was not lodged within the time mentioned in subsection (3) above". In other words, it has got to be in within 28 days, which I should think is a fair time to give anyone to make an appeal to the sheriff; and allowance is duly made in subsection (3) for posting on Friday or Saturday, when it is presumed to have arrived on the Monday next following. So, with all that time it is difficult to understand exactly why subsection (4) is there. What kind of circumstances would there be that enabled more time to be given, or would justify the discretion being exercised so that the sheriff could go on and hear an appeal in spite of the fact that it had not been "timeously" received by him, to quote a word from a previous statute? I beg to move.

The Earl of Mansfield

I can give the noble Lord one or two examples which I think will show that in fact the subsection is perfectly logical and fair in its intention. For instance, if an appeal is lodged out of time because the parent is ill, or because the child's parents are abroad during the period in question—on holiday, for instance, or working abroad—and whoever is looking after the child cannot get the necessary instructions from the parents in time to lodge the appeal within the prescribed time limit. In my experience almost all appeals to legal authorities have an escape clause so that the appellant, who may be appealing out of time but who may nevertheless not have been at fault, or even negligent, can obtain relief.

Lord Ross of Marnock

I think that is a perfectly satisfactory explanation, and we can all understand it. But here we are into the business of appellants, legal advisers and all the rest of it—just the kind of thing we should not get into in respect of a simple case of a decision about where a child should go to school. However, the Committee has decided that this is how it should be done. I have no objection to the explanation which has been given, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7, 8, 9 and 10 not moved.]

Lord Hughes moved Amendment No. 11: Page 9, line 25, after first ("the") insert ("appeal").

The noble Lord said: Amendment No. 11 is, I think, one which the Minister will accept, because it appears to me to be rectifying an omission. In every other part of the clause, before the word "committee" the word "appeal" appears, but in this particular instance it seems to have been missed out for no reason. Unless for some reason which I cannot understand it is not a reference to the appeal committee but to another committee altogether, then the word "appeal" ought to be inserted. I beg to move.

The Earl of Mansfield

I am obliged to the noble Lord for a constructive suggestion. Far from the heated exchanges of another place we scrutinise legislation here with our customary calmness, and I invite noble Lords to accept this amendment.

Lord Hughes

I am grateful to the noble Earl, and I hope I have not deprived my noble friend of the only time when the Minister gives way.

Lord Ross of Marnock

May I say that I knew the Minister would give way and it would have hurt me, which is why I did not make any appeal to him.

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

Clause 1, as amended, agreed to.

Clauses 2 and 3 agreed to.

Clause 4 [Children and young persons with certain special educational needs]:

5.9 p.m.

Lord Ross of Marnock moved Amendment No. 13: Page 14, line 3, leave out ("an education authority") and insert ("the Secretary of State").

The noble Lord said: I am sure it will please the Government and those in charge of the business here to appreciate the way we are getting through this Bill. It will surprise many people. But in Clause 4 we come to an entirely different subject altogether, and it is one which, generally speaking, has the support of everybody in the Committee. It concerns meeting the special educational needs of particular pupils who have specific or complex educational needs.

Much of this stems first of all from the importance of the early discovery of those particular needs which will mean making an assessment of children in nursery school, and I hope acceptance of the need for the assessment of children even under the age of two. This is a new departure that we are making. It is absolutely vital that we get the acceptance of this need by parents, by doctors, by social workers, by teachers and by a whole range of people who come in contact with the children at the various ages and stages.

The Government place the responsibility on the education authority to disseminate information in their area regarding the importance of the early discovery of the special educational need. I am suggesting that that is not a matter purely for the education authority. It is a matter for all these people and all these bodies that I have mentioned, and the person best to undertake this obligation—important from the point of view of meeting the need or getting at the need and persuading people that this should be done—of the early assessment of children who may require special educational treatment, is the Secretary of State.

My amendment that follows applies not to the area but to throughout Scotland. We need a continuing campaign throughout Scotland on this point. It may well be that in some areas some education authorities, some doctors, some local health services, some social work departments are already seized of the importance of this matter. However, there may be other areas where they are not. If we are going to meet the needs of these children we must have the information available to all the people concerned, for that to be distributed and for the persuasive powers of everybody concerned to see that the early assessment is done.

With all due respect, this is not a political point. I have thought long about it. This is something which the Scottish Education Department could do rather than the local education department. I remember that we had a special educational unit; we probably still have it. They are the people to do this. I hope that the Minister will appreciate the reasons why I put this forward. It is for the best reasons in the world: I want this to be successful. But I do not think that we should leave it to the local education authorities. They are pressed for money at the present time. This is something else which is going to cost money. The last matter we discussed, additional information to be given to parents, was going to cost about £300,000. We do not want to leave to chance that this also is going to be met within the rate support grant. If it is within the rate support grant, then the local authority can ignore what the Government want. They are under pressure, and regarding the things that will go, it might be last in, first out. It might be new expenditures which are the ones that will go or will not be undertaken.

The Government really mean this departure in relation to special educational needs. It is a new and very desirable departure and they should take the obligation upon themselves. They have the staff; they have the wherewithal; they have the special advice and they should reach the whole wide public of Scotland through education authorities, through health visitors, social workers and everybody concerned, so that the pressure of information and the pressure of need should be brought to the parents and families to have these early assessments made.

That is the reason why I move the amendment. I hope that it is one which the Government will think about. Unfortunately, we are now at the point where the Government want the Bill within a fortnight. I am glad that I have just heard the Minister say "No"; that he is prepared to take time. Probably what I heard, that we were going to consider the next stage of this Bill in a week's time, is wrong. I am glad of that. It will give me more time to write down the necessary amendments that we have to put down arising from the helpful answers that we have had from the Minister of State.

This matter is important; we want it to be a success, and the best way is for the Government to accept the responsibility and, through the officers they already have, to mount this publicity and keep it going. It will be essential to review this year after year until it becomes something accepted in respect of the welfare of children. Parents, doctors and everyone else should look out for the first sign of the possibility that a child may require special educational needs. I beg to move.

5.17 p.m.

Baroness Elliot of Harwood

I entirely agree with the noble Lord, Lord Ross of Marnock, on the great importance of notification a very early age of any disability or handicap in children, whether mental or physical handicap. That is extremely important. It is only after many years of publicity from voluntary organisations dealing with the mentally handicapped, the autistic or whatever the handicap may be, that the public are becoming aware of the great importance of finding the disability as early as possible and trying to find out, through doctors, education and so on, the best way to handle the children that are handicapped.

I do not agree that the local authority, with the education committee and the social work committee, are not the best people to do it. Speaking from my own experience, in our education area we had people—both teachers and social workers—who were continually on the alert to find out the best way of helping the severely handicapped or the children who might become worse if they were not treated early, and so on. I cannot imagine the Secretary of State being able to do it anything like so well as the local people: the local committee, the local authority, knowing the local conditions under which people live, their neighbours, and so on.

The responsibility should be put on them to find the children and then, after that, it is the responsibility of the education committee or the social work committee, as it may be, to find the right way of treating these children. I do not agree that this is a matter which should be done through some central authority. It is a job that should be done—and is done—locally, by people who know the area, the children and conditions. I support the Government in their view on this.

Lord Ross of Marnock

The noble Baroness has misunderstood what is at stake here. It is not the action to be taken in respect of the children; we are dealing only with the dissemination of information: It shall be the duty of an education authority to disseminate in their area information as to the importance of the early discovery…". It is only information. May I say to the noble Baroness that things have changed since she was on a local authority. There may well have been a school medical service then.

This is why I suggest the importance from the information point of view of letting people know, letting parents know; and they can only get to know through a variety of organisations of people who are in touch with the families. It should not be left purely to the local education authority; it should be a matter that the Secretary of State should take up, and so on.

The Minister of State can correct me if I am wrong, but we have got an education unit—that is another thing that this bright Government have probably got rid of in order to save a few pounds or so. To my mind, it should be the responsibility of the Secretary of State, as it is in many other cases, to disseminate information. He has a wonderful information office: I was amazed at the amount of money that office managed to build up in the period between 1970 and 1974 when there was a lapse—but we can forgive the public—and there was a change of Secretary of State. But the one thing they did build up in expenditure when they were cutting other things was the information service, the cost of films and all the rest of it. They have the people and they can probably do it far, far better than leaving it to the local education authorities.

I think the noble Baroness will know the pressure that the local education authorities are under at the present time through rate support grant. The Government can lay down priorities as to how that rate support grant is spent. They provide the money and then the priorities in respect of where cuts are made, and where cuts are made they are made by the local education authorities. What I am afraid of is that local education authorities will not embark on this expenditure or, if they do, will quickly cut it; but if the duty is laid on the Secretary of State for Scotland he will need to carry it out as one of his prime responsibilities.

Baroness Elliot of Harwood

I thank the noble Lord for that intervention. It may be that I am not as up-to-date as I ought to be, but the general principle that it is the local people and the local authority who can both disseminate information and know where the information should go is, I think, still the most important thing.

The Earl of Mansfield

I was interested to hear the reasons advanced by the noble Lord, Lord Ross, as to why he seeks to transfer to the Secretary of State a duty which is long established, as he himself will know. This clause in fact restates, though with distinct differences, Section 60(2) of the 1980 Act. In fact this is a duty which has rested with the education authorities since 1945 and it reflects the need and the opportunities, which my noble friend Lady Elliot has emphasised, for local communication.

The Government are not aware of any dissatisfaction with the location of this duty and the way it has been carried out. There was no suggestion made that the duty should be transferred to the Secretary of State by the Warnock Committee, for instance; and in the widespread consultation processes that have followed that report and during these legislative proposals which have been discussed, again there have been no suggestions made that there should be any transfer of this nature. Both directly and in association with other agencies such as health boards and voluntary bodies, we believe that education authorities can get the message across to individual parents much more readily than in fact the Secretary of State can. They can display the basic information needed by worried parents; they can make that information available locally and can tell such people where to seek help for their child. We do not believe it would be appropriate to withdraw those requirements which have been working so well for so long at this stage.

Of course central Government has a part to play. They can promote a general awareness of the importance of early educational intervention, and in the guidance which he will issue on the discovery and assessment of special educational need, my right honourable friend the Secretary of State for Scotland will certainly emphasise the part to be played in all this by public services concerned with children's welfare. But that would be no substitution for the direct communication with parents which the Bill requires education authorities to continue and which we think should continue.

The noble Lord, Lord Ross, mentioned a special education unit—yes, I am sure the noble Lord realises that it is the Health Education Unit—and this kind of role is not a job for that unit, as I am sure he appreciates. If the Secretary of State were to take on this duty he would also have to take on extra staff. But that is by the way and is perhaps just clearing up a point of misunderstanding. So far as the noble Lord, Lord Ross, is concerned, it does not detract from the argument, and I hope that on reflection he will agree that it would be better to leave matters as they stand.

Lord Ross of Marnock

No, I am not entirely satisfied. We have experience of the Health Education Unit and the campaigns that from time to time they carry out throughout Scotland. It would be all very well if we were satisfied that the job is being properly carried out at the moment; but from the fact that we put this amendment down here at the present time and that the whole problem has been highlighted by Warnock, makes it, I think, more conceivable to ensure that the job is done and the responsibility left with the Secretary of State. Of course there could be national campaigns in respect of the information, but part of that is to inform the local education authority what they have got to do, and also to tell the local health authority what they have to do.

Certainly at nursery school age and in primary schools, the teachers and the education service are in touch with respect of the parents and the children and see what special educational needs are required for a child; but in the ages before that it is not the education authority which is responsible or which could be in direct touch. It is much more likely to be the social worker, the health visitor or the local general practitioner. It goes wider than education and it may well be that we have been slipping up because we have not highlighted the importance of the matter at the present time. Certainly the guidance is going to be given by the Secretary of State—to whom? It is going to be given not to one of those agencies but to the whole lot of them, I trust.

That is why I think the initial responsibility should rest with the Secretary of State. Certainly, from a parliamentary point of view we have no one to question about it. He would be responsible, though not necessarily would he do all the work. He would pass the work along to the local education areas and to the health boards and, through them, to health visitors, to nurses and to those visiting the family and, it may well be, to the general practitioners as well.

That is the purpose of my suggestion and I think it would be much more likely to be successful. Of course, the question of money would not arise. It would not be a question of priorities of the local education authorities. The duty is placed by Parliament on the Secretary of State, and he would need to be answerable to this House and to the other place for how he is conducting it. I still think that is probably the best way of doing it, especially in these present days, and if the Government are not going to think again I am afraid we will need to tread the Lobbies.

Lord Taylor of Gryfe

I wonder whether it would be possible to avoid treading the Lobbies. There has been a good deal of that on this Bill, and I hope that we shall divide on matters of fundamental importance. This amendment refers to an administrative device, and I am not convinced, having heard the argument, that questions of important principle arise. I am influenced, as a former member of an education committee of a local authority, by the fact that these committees are fairly close to the needs of the communities which they serve, and are probably in a better position to advise and disseminate information according to the needs of a community.

The noble Lord, Lord Ross of Marnock, has said that if we transfer this responsibility to the Secretary of State it will enable Parliament to question the Secretary of State. I presume that Parliament—although the noble Lord has much more experience than I have in this regard—questions the Secretary of State on the whole area of educational responsibility in Scotland, and it is no excuse for the Secretary of State, on any occasion, to say that a local authority is not carrying out its duty.

In Scottish local government, at the moment, we are in a very interesting phase. We are in a period when the powers of the Secretary of State and the local authorities are running into some difficulty. I should have thought that this device, which decentralises responsibility, might have appealed to the noble Lord, Lord Ross of Marnock, rather than the centralisation of authority in St. Andrew's House. I appeal to him to accept the explanation given and to save us from treading the Lobbies.

Lord Ross of Marnock

That is a very touching appeal from my noble friend. But I can assure him—and he will be the first person to appreciate it—that education authorities take different views of their responsibilities. As you go through Scotland, you find that what appeals to one local authority as important does not have a similar appeal to another local authority. If you appreciate the importance of this for, say, a child in Orkney, the Western Isles, the Borders, Glasgow, Edinburgh or anywhere else, you want to make sure that something as important as this is not left to the whims of local authorities.

This, to me, is a matter of principle. We are starting new ground. Hopefully, all we are doing is providing the framework. We are not providing the money. We are not even given the kind of assurances about the use of existing monies that were given by the Secretary of State for Education in England and Wales. We in Scotland have already been told that no more money will be available for this great new charter to meet the special educational needs of unfortunate children. I want to get it right. I do not want to leave it to individual local authorities to decide "We are going to spend money on this or that".

We place the responsibility on the Secretary of State and he must do it. No question of rate support grant arises with him. He gets his grant direct from the Government. You could call his record, in respect of spending money, a better one or a worse one. But, proportionately, he spends far more money than the local authorities who are dealing with education, local government and everything else. Their record in saving money is far better than the Secretary of State's. It may be that his extra expenditure is related to the extra duties placed upon him by Parliament. He cannot dodge them. I suggest that this is one of them. It means that he works through all the bodies; not just the education authority, but the health board as well.

As I suggested, it is at an important part of a child's life that you want an assessment. The health board is more in touch with the family than the education authority. That is why I suggest that it should be the Secretary of State. If we really mean to make a start and get the structure right in relation to the education of the handicapped—be they physically or mentally handicapped, or seriously or not quite so seriously handicapped—who have special educational needs, the first requirement is to get through to the parents the importance of an early assessment. It is sometimes not easy for the parents to accept that, but it must be done and it can be done only with co-operation.

The person who will achieve co-operation with all these bodies in Scotland is the Secretary of State, because he is the Minister for Health and the Minister for everything else in Scotland. He can unify the approach and can use all these agencies which he has at his command, be they health, education or anything else. It would probably not be appropriate in England, where there is a diversity of various Secretaries of State coming in. But where you get the one all-wise and all-powerful man at the top, embracing about seven different departments which each require their own Ministers in England and Wales, it is a very different matter.

We have the chance to do it right in Scotland. Let us take the chance to do it right. I think that it is a matter of greater principle than my noble friend believes, and I hope he appreciates that I am not nitpicking about this. I am concerned about getting the right structure and getting the advance. All we are getting now is the structure. Let the structure be right. If we cannot do all the other things that we want to do in respect of educational needs, we can surely get started with the business of getting the assessment and getting the proper dissemination of information.

5.37 p.m.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 52; Not-Contents, 102.

Ardwick, L. Kaldor, L.
Barrington, V. Leatherland, L.
Beswick, L. Lee of Newton, L.
Birk, B. Llewelyn-Davies of Hastoe, B.
Bishopston, L. [Teller.] Lovell-Davis, L.
Blease, L. McCarthy, L.
Blyton, L. McCluskey, L.
Bowden, L. MacLeod of Fuinary, L.
Briginshaw, L. Molloy, L.
Brockway, L. Morris of Grasmere, L.
Brooks of Tremorfa, L. Noel-Baker, L.
Cledwyn of Penrhos, L. Parry, L.
Collison, L. Peart, L.
Cooper of Stockton Heath, L. Pitt of Hampstead, L.
David, B. Ponsonby of Shulbrede, L. [Teller.]
Davies of Penrhys, L.
Elwyn-Jones, L. Ross of Marnock, L.
Ewart-Biggs, B. Shinwell, L.
Fulton, L. Stewart of Alvechurch, B.
Gaitskell, B. Stewart of Fulham, L.
Hale, L. Stone, L.
Hatch of Lusby, L. Strauss, L.
Houghton of Sowerby, L. Taylor of Mansfield, L.
Hughes, L. Whaddon, L.
Irving of Dartford, L. Wootton of Abinger, B.
Jeger, B. Wynne-Jones, L.
Jenkins of Putney, L.
Airey of Abingdon, B. Hylton-Foster, B.
Alport, L. Killearn, L.
Ampthill, L. Kilmany, L.
Annan, L. Kilmarnock, L.
Avon, E. Kinloss, Ly.
Baker, L. Lawrence, L.
Balerno, L. Lindsey and Abingdon, E.
Balfour of Inchrye, L. Long, V.
Barnby, L. Loudoun, C.
Bellwin, L. Lyell, L.
Berkeley, B. McAlpine of Moffat, L.
Caccia, L. Mackay of Clashfern, L.
Campbell of Alloway, L. Mackie of Benshie, L.
Cathcart, E. Mancroft, L.
Chitnis, L. Mansfield, E.
Craigavon, V. Massereene and Ferrard, V.
Crawshaw, L. Mayhew, L.
Cullen of Ashbourne, L. Mills, V.
Daventry, V. Mottistone, L.
de Clifford, L. Mowbray and Stourton, L.
De Freyne, L. Murton of Lindisfarne, L.
De La Warr, E. Norfolk, D.
Denham, L. [Teller.] Northesk, E.
Derwent, L. Nugent of Guildford, L.
Dormer, L. Orkney, E.
Drumalbyn, L. Orr-Ewing, L.
Dundee, E. Perth, E.
Eccles, V. Rawlinson of Ewell, L.
Ellenborough, L. Renton, L.
Elles, B. Rochdale, V.
Elliot of Harwood, B. Rochester, L.
Faithfull, B. St.Davids, V.
Falkland, V. St. Germans, E.
Ferrier, L. Sandford, L.
Fortescue, E. Sandys, L. [Teller.]
Fraser of Kilmorack, L. Seear, B.
Gainford, L. Selkirk, E.
Gardner of Parkes, B. Sharples, B.
Geoffrey-Lloyd, L. Stodart of Leaston, L.
Glenarthur, L. Strathclyde, L.
Gormanston, V. Taylor of Gryfe, L.
Greenway, L. Thomas of Swynnerton, L.
Gridley, L. Thurso, V.
Grimston of Westbury, L. Tordoff, L.
Hailsham of Saint Marylebone, L. Tranmire, L.
Trenchard, V.
Hampton, L. Vaux of Harrowden, L.
Hanworth, V. Vickers, B.
Hillingdon, L. Vivian, L.
Hives, L. Westbury, L.
Holderness, L. Wilson of Langside, L.
Hunt, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 14 not moved.]

5.46 p.m.

The Earl of Mansfield moved Amendment No. 15: Page 14, line 22, after ("Record") insert ("of Needs").

The noble Earl said: While moving this amendment, I should like to speak to Amendment No. 18. It may be for the convenience of the Committee if I also turn my attention to Amendments Nos. 16, 17 and 19, which stand in the name of the noble Lord, Lord Ross of Marnock, because they are all on the same subject. I express at once my appreciation to the noble Lord, Lord Ross of Marnock, for putting down his amendments. My reason for saying that is because the amendments which we have tabled are based on his proposal and I hope that they will have precisely the same effect. I shall explain in a moment why it comes about that we have not simply accepted his amendments.

The objection to the term "Record" was expressed in another place and I think the noble Lord, Lord Ross of Marnock, referred to it on Second Reading. Some people seem to feel strongly about the use of the term "Record". Others do not feel anything at all about the use of such a term. For myself, I see little force in the objection. I do not think that the word, "Record", necessarily can be taken to mean a criminal record; it can mean a number of different things. However, I have to realise that there are some people for whom it is a natural association of thought. If such a term is to be brought into general use in the practical administration of the education service for handicapped children, then one must clearly, if one can, improve it if such an improvement is desirable. Therefore we are happy to attempt to do so.

Building upon the noble Lord's suggestion, we prefer the terminology "Record of Needs" because the document in question will be a good deal more than simply an assessment. I am sure that the noble Lord will appreciate that a record of assessment looks back, whereas a record of needs looks into a child's future. The record will contain the education authority's proposals as to the measures to be taken to meet the child's special educational needs, and usually it will contain a proposal about school placing. For that reason, no one would feel that "Record of Needs" is a less acceptable term than "Record of Assessment", as proposed by the noble Lord, Lord Ross of Marnock.

We have made the amendments in subsections (2) and (3) of new Section 60 rather than in subsections (2) and (4), with the omission of subsection (3) which is what the noble Lord, Lord Ross of Marnock, suggested. The reason for this is that for drafting purposes it is desirable to retain subsection (3) as the authoritative interpretation of the word "Record" and of other expressions associated with the word "Record" which very frequently appear without any qualification in the succeeding provisions of the Bill. So I hope that the noble Lord—and indeed the Committee—will feel satisfied with the amendments, which represent a constructive reaction to the very helpful suggestion which in effect the noble Lord has made. I beg to move.

Lord Ross of Marnock

I am very grateful to the Minister for his remarks about my amendment timeo Danaos et dona Ferentes. I am beginning to wonder what is behind all this. The fact, of course, whether we like it or not, is that "record" has a connotation, especially when one starts to talk about a child with a record. I think the people most concerned about it would be those who at present know nothing about it but would suddenly discover in two or three year's time that they had a child who had a record.

I am afraid I am not entirely satisfied even with my suggestion; probably "record of assessment of needs" would be the proper thing. In England they dispense with that altogether and use the word "statement". It does not convey much of the meaning of what has happened, but it gets round the difficulty of the word "record" and it may well be that there is some justification for them departing from "record" and using the word "statement". I do not know whether the Scots thought about this and decided that they would not follow the English in respect of this, but probably in deciding simply to call it a record they were wrong.

The Minister disappointed me when he decided to keep in subsection (3). One only has to read subsection (3) to realise that it should never be in a piece of legislation: In this Act, unless the context otherwise requires, 'record', when used as a noun means a record open and kept under subsection (2) above and 'recorded' and other cognate expressions shall be construed accordingly". What does that mean to ordinary people? Of course, it all stems from the fact of' using the common word "record" instead of a unique phrase which would be self-explanatory and probably less offensive. I do not think we have met the difficulty by saying "recorded needs", although it really stems from the assessment, which is why I have suggested "record of assessment".

However, I am happy that the Government have gone as far as they have done, and even admitted that they have thought about it. One can only accept that and hope that they will not stop thinking about it because I do not think it is satisfactory yet. I shall not bend my mind to it, since, according to the Minister of State, we shall have more than a week to think of our next clutch of amendments for Report stage. I know that the noble Lord, Lord Taylor of Gryfe, is away, but the noble and learned Lord, Lord Wilson of Langside, is here and he is a master of phraseology and is much more familiar with "record" in its more generally accepted criminal sense. A "child with a record" is usually considered to have a record of truancy or of being at school and misbehaving. I hope he may be able to think of a more felicitous phrase—I cannot ask the Minister to get a felicitous phrase—to meet this particular purpose.

But let the Minister not weary in well doing. He has made a start and I am prepared to drop my amendment in favour of the one that he has put forward, but we should remember that we have scattered all through this clause "recorded children". I do not think there is any humanity in our draftsmen and certainly very little imagination as to how families will react to having a "recorded child" in the family. One only has to say these things aloud to appreciate how wrong they are, so let us not be satisfied with the position we have reached. However, I suggest that we accept the Minister's amendment, and I do not propose to move mine on this subject.

Lord Mackie of Benshie

I think there is a valid point about "record". Is there any reason why we should not use the word "assessment"? We might simply use "assessment of needs", perhaps explaining it in subsection (3) as to what exactly it means.

The Earl of Mansfield

I hesitate to answer the noble Lord because really it is a matter of literary taste. I do now know whether he followed the proceedings in another place, but they managed to occupy themselves on this subject for longer than one would have thought possible and even such words as "log" were suggested. I do not know how seriously that was put forward, but if one says to oneself "a record of needs" it seems to me to take away the unpleasant connotation, if such exists, of the single word "record". There is no point of principle about this, still less of obstinacy on the part of the Government, and we shall be delighted to consider the matter afresh, although I really think it is a matter of literary preference.

Baroness David

Was the word "statement" considered and turned down and, if so, why?

The Earl of Mansfield

Yes—we thought the English got it wrong! I think I can say without fear of contradiction that nobody liked the idea of the word "statement". It did not convey what is being done to try to help the child in these circumstances, but I consider that "record of needs" is better than "statement".

On Question, amendment agreed to.

[Amendment No. 16 not moved.]

The Deputy Chairman of Committees (Lord Dement)

I must point out that if Amendment No. 17 is agreed to, I shall not be able to call Amendment No. 18.

[Amendment No. 17 not moved.]

The Earl of Mansfield moved Amendment No. 18: Page 14, line 26, after ("Record") insert ("of Needs").

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Baroness David moved manuscript Amendment No. 19A: Page 15, line 32, leave out ("14") and insert ("29").

The noble Baroness said: I hope that, as I am going to suggest altering the number of "14" to "29", which is what it is in the English Bill, the same remarks will not be made as about the word "statement". In exactly the same place in the Bill which deals with England and Wales the number "15" was changed to "29" during the Committee stage of the Bill and that is the period during which parents have a chance to make representation. I think that 14 days is an extremely short period of time in which to receive a letter, to consult and to get advice and to respond and 29 days would seem much more reasonable. Perhaps I might remind the Minister that, when speaking to Amendment No. 6, the sheriff may hear an appeal under this section notwithstanding that it was not lodged within the time mentioned". That was 28 days. I think the Minister made a very good case for the length of time there. It seems there is an equally good case for changing "14" to "29" here. I beg to move.

The Earl of Mansfield

The Committee will understand, this being a manuscript amendment, that the department, and certainly I, have not had an opportunity to consider it as one would wish. There is every difference, of course, between appealing out of time and responding to a notice, but I am not going to weary the House with that sort of semantics. I quite frankly do not know why the noble Baroness chose 29 days, rather than 28; it seems to me an extraordinarily clumsy period of time. I am afraid that all I can do at this moment is respond by saying that, if she will leave it with me, I will take stock of the situation. She might for the record perhaps just tell me why 29 rather than 28, or one calendar month, or something a little neater.

Baroness David

I took 29 because it was the figure which the Government accepted in the other Bill. I shall be very glad, having had the assurance that the Minister will look at this, to withdraw the amendment at this moment.

Amendment, by leave, withdrawn.

6.2 p.m.

Lord Ross of Marnock moved Amendment No. 20: Page 15, leave out lines 38 to 46.

The noble Lord said: Amendment No. 20 seeks to leave out subsection (4) and words before it of this particular clause. I think its new number is going to be No. 61. The words are If any parent on whom a notice has been served under paragraph (b) of subsection (1) above"— that is to say a child of school age— fails without reasonable excuse to comply with the requirements of the notice, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50". I put down this amendment to leave that out to give the Government an opportunity of justifying why they bring in this particular power, that if a parent does not respond, does not present the child for examination and assessment, they resort to this penalty of £50 on summary conviction. I think the less we bring the law and compulsion into this, and the more we have reliance upon persuasion and the effectiveness of the information that has been given out by the area education authority, the better. The information no doubt will include this kind of information as well—that they should be liable to a penalty of £50. I am just probing why the Government feel that this will be more successful with this kind of provision, rather than working on the basis of persuasion. I beg to move.

The Earl of Mansfield

The noble Lord will know, of course, that this is a situation which has existed in special education since 1945. We did, therefore, look very seriously, in considering our new approach to the handicapped and how it should be reflected in educational legislation. I do recognise that the noble Lord's proposal, in effect to delete this provision, would on the face of it be entirely consistent with the idea that one tries to promote partnership between parent and education authority where children have special educational needs. The education authorities that we consulted have stressed their belief that in fact the present informality of the relationship will continue, and indeed no one can recall an instance in recent years of the use of this penalty clause. But the point has been made that mention of its availability has on occasion been effectual in persuading a reluctant or a bad or neglectful parent to take action.

It is a fair point in regard to most penalty provisions that the fact that they have never been invoked does not necessarily mean that they serve no purpose. I think we have to accept the advice of the education authorities on this matter, that while they will always do everything in their power to enlist the co-operation of parents, and have no doubt generally speaking that that co-operation will be forthcoming, they would still wish to be able in the last resort, and in the interests of the children concerned, to point to a specific sanction.

Having said all that, I am bound to say, when one reads the clause that it may be too rigidly expressed. I am sure it is the practice of education authorities to make allowances where circumstances prevent parents from responding to the original invitation to present the child for assessment, and I think this might well be specifically provided for in the legislation. I therefore propose to consider an amendment for Report to establish that the machinery of compulsion, if I may so call it, will not be set in motion unless there has been a failure on the part of the parent and that failure has been without reasonable excuse. I am grateful to the noble Lord, Lord Ross, for directing our attention to this difficult matter in a difficult area. I hope that, on the assurance that I have given, he may at this stage withdraw his amendment.

Lord Ross of Marnock

I am very grateful to the Minister. He appreciates the reasons why I put this down and the attitude I adopted. I think that in the Warnock Report it was stressed time and time again that we shall not make any inroads into this problem and meet the real needs of children unless we get co-operation at every stage. To wield the big stick, and so obviously, not even hiding it behind their back, I found rather offensive, and I did not think it would be helpful in obtaining that co-operation.

This takes us back to the amendment that was moved, certainly belatedly, by my noble friend Lady David about the 14 days, and I think gives more justification for acceptance of that particular amendment. If the noble Earl wants to make it 28 days or 30 days, except in February, when it can be 28, or at other times it can be 31, then so be it. I am glad that he has taken this up. Deterrent, yes, last resort, yes, but this gives the impression that they are going to use it "right away unless". We want to get away from that. I am grateful to the Minister for the attention he has paid to this and his appreciation of the inherent difficulties of the present wording. I look forward to seeing the amendment he will put down at a later stage. I beg leave to withdraw the amendment.

Amendment by leave, withdrawn.

[Amendment No. 21 not moved.]

Baroness David moved Amendment No. 21A: Page 25, line 18, leave out ("12") and insert ("6").

The noble Baroness said: I apologise for putting this amendment down late. This has to do with the review by the education authority of a decision to record information, and in particular it has to do with the parent of the recorded child being able to ask for a review of the record or statement. The Bill as it stands say that they cannot ask for this: earlier than the expiry of the period of 12 months from the date of that decision or the most recent review of that decision". That was also in the Bill dealing with England and Wales which is going through this House at present, but the 12-months period was, in fact, reduced to six months in Committee in another place. Indeed, 12 months is a very long time in the life of a child whose development is very fast. It was thought that six months would be a much more appropriate time after which to be able to ask for a review. I hope, that, if the Minister cannot say at once that he will accept my amendment today, perhaps he will take the same line as he did with the matter of 14 days. I beg to move.

The Earl of Mansfield

This is a matter to which we have given attention already, notwithstanding the noble Baroness and her manuscript amendment. As she has said, this amendment would place on the education authority a duty to review a recording decision every six months, instead of every 12 months, on parental request. Therefore, it would mean that, in order to carry out this duty, they would have to reassess the child, subjecting him, as well as anything else, to a renewed medical and psychological examination.

I am afraid that we disagree with the noble Baroness in her assessment when she says that 12 months is too long a period. We think that it would be highly unlikely that major changes would take place as quickly as that. It could happen that if, for instance, an over-anxious or unreasonable parent insisted on exercising this right, it might be very hard on a sensitive child—and I do put that proposition forward seriously. It certainly, on occasions, could be a waste of scarce professional resources and it could also lead to delay in the initial assessment of other children. I think that we must consider the resources which are available. It is not, therefore, only in the interests of such children upon which I base my argument, but in the interests of other children as well.

I would remind the noble Baroness that authorities have a general duty under new Section 65A(1)(a) to keep cases under consideration and to review their decisions whenever expedient. So although I appreciate her understandable English concern to have uniformity throughout Great Britain, we in the Scottish Office think that the period which we have set is one which will be fair on the child and at the same time make the best use of our limited resources. For that reason, although I understand the motives which prompted the moving of her amendment, I am afraid that I must resist it.

Baroness David

The Minister mentioned the new Section 65A(1)(a), and under that it is when the authority decides that it is expedient. My contention is that it is the parent who probably is seeing the child day in and day out and night in and night out who is much more aware of what is happening to that child than the authority, or even perhaps the teacher who sees the child for part of the day. Therefore, I do not believe that there are many parents who would want to put their children through this unnecessarily. I cannot say that I am convinced by the Minister's response. I still think that it should be possible for the parent to have an earlier assessment and I should like to press this amendment.

6.15 p.m.

On Question, Whether the said amendment (No. 21A) shall be agreed to?

Their Lordships divided: Contents, 47; Not-Contents, 93.

Ardwick, L. Listowel, E.
Balogh, L. Llewelyn-Davies of Hastoe, B.
Beswick, L. Lovell-Davis, L.
Bishopston, L. [Teller.] McCarthy, L.
Blease, L. Milner of Leeds, L.
Bowden, L. Molloy, L.
Brockway, L. Parry, L.
Cledwyn of Penrhos, L. Peart, L.
Collison, L. Phillips, B.
David, B. Pitt of Hampstead, L.
Davies of Penrhys, L. Ponsonby of Shulbrede, L. [Teller.]
Elwyn-Jones, L.
Ewart-Biggs, B. Rhodes, L.
Gaitskell, B. Ross of Marnock, L.
Hale, L. Shinwell, L.
Hatch of Lusby, L. Stewart of Alvebhurch, B.
Houghton of Sowerby, L. Stewart of Fulham, L.
Hughes, L. Stone, L.
Irving of Dartford, L. Taylor of Mansfield, L.
Jeger, B. Wells-Pestell, L.
Jenkins of Putney, L. Whaddon, L.
John-Mackie, L. Willis, L.
Kaldor, L. Wootton of Abinger, B.
Lee of Newton, L. Wynne-Jones, L.
Airey of Abingdon, B. Kimberley, E.
Alport, L. Lawrence, L.
Ampthill, L. Lindsey and Abingdon, E.
Arbuthnott, V. Long, V.[Teller.]
Avon, E. Loudoun, C.
Balerno, L. Lyell, L.
Barrington, V. Mackay of Clashfern, L.
Bellwin, L. Mackie of Benshie, L.
Bradford, E. Mancroft, L.
Campbell of Alloway, L. Mansfield, E.
Cathcart, E. Margadale, L.
Chitnis, L. Marley, L.
Cork and Orrery, E. Mayhew, L.
Craigavon, V. Mottistone, L.
Craigmyle, L. Mountevans, L.
Cullen of Ashbourne, L. Mowbray and Stourton, L.
Dacre of Glanton, L. Murton of Lindisfarne, L.
Daventry, V. Norfolk, D.
de Clifford, L. Northesk, E.
De Le Warr, E. Orkney, E.
Denham, L. Perth, E.
Derwent, L. Rawlinson of Ewell, L.
Drumalbyn, L. Renton, L.
Dundee, E. Rochdale, V.
Eccles, V. Rochester, L.
Ellenborough, L. St. Davids, V.
Elles, B. St. Germans, E.
Elton, L. Sandford, L.
Faithfull, B. Sandys, L. [Teller.]
Falkland, V. Seebohm, L.
Ferrers, E. Selkirk, E.
Ferrier, L. Sharples, B.
Fortescue, E. Skelmersdale, L.
Fraser of Kilmorack, L. Soames, L.
Gainford, L. Stodart of Leaston, L.
Gardner of Parkes, B. Strathclyde, L.
Glenarthur, L. Strathspey, L.
Gormanston, V. Sudeley, L.
Greenway, L. Swinfen, L.
Grimston of Westbury, L. Thomas of Swynnerton, L.
Grimthorpe, L. Thurso, V.
Hailsham of Saint Marylebone, L. Tranmire, L.
Trenchard, V.
Hampton, L. Vaizey, L.
Hives, L. Vaux of Harrowden, L.
Holderness, L. Vivian, L.
Killearn, L. Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

6.23 p.m.

Lord Ross of Marnock

It is not my intention to oppose the motion that Clause 4 shall stand part of the Bill, but there are one or two points that must be made. If we look at the final new section which is part of this clause, new Section 65F, we learn that: the Secretary of State may make regulations prescribing standards and general requirements relating to the conduct of schools making provision for recorded children or recorded young persons". Can the Minister give me any indication as to the nature of those standards and general requirements? Does he imply by that the actual size of classes? Does he imply by that the qualifications of teachers and other forms of guidance and help? Lastly, will the prescribing of these standards mean the expenditure of more money by the local authorities, and how much?

The other point I want to raise arises on the previous page, page 27, in new Section 65D, subsection (1)(e) where it says: the persons to whom an education authority—

  1. (i) shall, at the request of such a person, disclose a Record: and
  2. (ii) may disclose a Record, and the manner of such disclosure".
I cannot think of any uglier conjunction of words which entirely fails to convey the limitations on this very important matter. It would be a good thing if between now and the next stage the drafting of that was looked at, so that the intention should be more clearly expressed than it is at the present time.

There has been concern in respect of this whole field that the parents should be kept informed. Once they have agreed to have the child assessed—and in many cases it will take a bit of persuasion, but for the benefit of the child it is essential—I think that it is essential to keep the co-operation of the parents and that the parents should have access whenever they want to the record of needs, as we now call it, of their child. It does not explicitly say here that the parents shall have access to their child's record of needs. Is it the Government's intention that, in regulations, they will ensure that that record would be available to the parents?

Secondly, who else shall be able to get sight, on demand or as of right, of these records? Once again, I think that the parents should know who is looking at these records. Therefore, to my mind, the parent's rights should not just be their access, but they should know who else is having access. In some circumstances, there might be a case for agreeing that access should only be with the consent of the parents. I hope that the Minister of State is following me in this because I think that it is one of the most serious points as regards the whole matter. We are anxious to get co-operation. We must have the co-operation of the parents. If we have the co-operation of the parents for assessment, they must know the results of that assessment and they must know the results of the assessment of needs—what is on this record of needs—although, indeed, it may be changed over the years. But the parent must have free access to it, and should also know who else has access to it, and the purpose for which they have access.

Before the parents are told this I think that Parliament should have access to the Government's thinking about this. To whom will they disclose, first, "at the request" of that person? Then there is the rather ugly phrase, and you have to go back to the beginning again: the persons to whom an education authority — may disclose a Record evidently without any application at all, and the manner of such disclosure".

The Earl of Mansfield

First, I should like to turn to the new Section 65F, which empowers the Secretary of State to make regulations governing the standards and other requirements relating to the conduct of special schools and other schools making provision for recorded children or recorded young persons. It is intended that regulations will be made under this power and they will extend not only to public schools, but also to grant-aided schools and the independent sector. Obviously, the regulations will have to take account of existing regulations in this field, including the Schools (Scotland) Code 1956, the Schools (General) (Scotland) Regulations 1975 and the Residential Special Schools and Orphanages (Scotland) Grant Regulations 1948.

However, the point that I want to make to the noble Lord is that as regards all these regulations throughout this part of the Bill there will have to be extensive consultation. All the subjects to which the noble Lord, Lord Ross of Marnock, has referred will be the subject of regulations but there will have to be a great deal of consultation with COSLA. So far as the new Clause 65D(1)(e) is concerned, parents will have access to a copy of the report. I can make a firm commitment so far as that is concerned. Who else? Obviously the assessment team will have to be provided with the necessary information, but all these are matters which have yet to be decided.

On reflection, I am sure that the noble Lord will appreciate that there has to be consultation before the Secretary of State is in a position to make these regulations. If I may, I will study the Official Report tomorrow and if there is anything in the speech made by the noble Lord, Lord Ross of Marnock, which I have not covered, albeit rather compendiously, then I will write to the noble Lord before the next stage of the Bill.

6.31 p.m.

Lord Parry

Perhaps your Lordships' Committee will forgive the intervention of a Welsh accent in what is principally a Scottish domestic debate. The principle that I wish to speak to for a moment is a part of this debate but at the same time it is general to two fears which are held in education about this particular section. It is clear that if the noble Lord the Minister has not yet made up his mind and if his principal has not yet made up his mind about who will have access to the information contained in records, the Committee should be aware that a major change has taken place in our accounting system in education and that change is absolutely relevant to the discussions of the Committee at this stage.

It seems to me, anyway, after many years of teaching, that if the examination system itself is in question, and if the recording system for examinations is itself in question and is changing, as we know it to be, then it must be borne in mind that no one has confidence either that the recording system as at present financed, funded and staffed is equal to the task of replacing or even augmenting the examination system that it is replacing in many areas of education.

It seems to me fundamental that this sea change, this grand change, if I may change my metaphor, which is taking place in the assessment of a pupil's abilities at a level of education in Scotland should not take place if the Minister has not yet made up his mind what form of access to the records there will be, when the records themselves do not satisfy educationalists, teachers or parents that they are truly able to report the ability of a child at the correct age as required under the original Education Act.

Baroness David

Before the noble Earl the Minister replies, I should like to ask a further question about attitudes towards how much information parents will have—information leading to decisions that will appear in the record of needs. Will the parents be given access to the professional reports and to the other evidence on which the assessment was made? I do not believe there is anything in the Bill about whether they will or not, and it will be interesting to know the Government's attitude to this.

Lord Parry

I must apologise because I should have made it clear to your Lordships' Committee that I understand that this falls within the area of special educational needs. It is an area of particular interest to me and an area in which I myself serve, and therefore my intervention came in that context.

Baroness Faithfull

It is a matter of practice rather than putting anything into the Act. My experience of dealing with such children is that if there is complete openness and a relationship between parents and the doctors, schools, social workers, assessors, et cetera, at every stage of the child's development, the parents are not particularly worried whether or not they see the written report. I know that this does not help but I make a plea to doctors, parents, teachers and social workers to have a good relationship and be honest with the parents at every stage.

The Earl of Mansfield

I am grateful to the noble Lord, Lord Parry, for his Welsh thrust. My right honourable friend's mind is by no means made up on this matter. I do not know whether I misunderstood the noble Lord opposite, but I thought he was talking about the examination system when in fact what we are talking about is assessment.

Lord Parry

Perhaps the noble Earl the Minister will kindly give way, since he has asked the question. I was in no doubt in my own mind and I apologise if I left any doubt in the Minister's mind. I was actually saying that the whole examination system is under revision and our assessment of results in the examination system has been in question for some time. Since that is being increasingly augmented by a recording and assessment system it is absolutely vital that we should not introduce doubt into the minds of your Lordships' Committee as to how the Secretary of State shall replace the system.

The Earl of Mansfield

I appreciate what the noble Lord, Lord Parry, has said but all these matters will be the subject of consultation. The noble Baroness, Lady David, asked whether the parents in these instances will have access to professional reports. I am informed that this is firmly opposed in England and I understand that it is not the intention, at the moment at any rate, that parents will have access to professional reports in Scotland either.

Baroness David

That is certainly the position in England as the Bill stands, but I should like to emphasise that all the organisations which deal with the different sorts of handicap are very exercised about this and are absolutely as one in wishing the situation to be changed.

The Earl of Mansfield

I cast no aspersions, but if an amendment had been put down on this particular point then I would have had my tackle straight and I might have been a great deal less ignorant about these fine points. Of this amendment, I can only say that I will repeat my offer to write to the noble Baroness if it appears on reflection that I have not answered any point that she has raised. If we have to come back to this at Report stage, then we shall do so.

Lord Ross of Marnock

I appreciate that there are bound to be difficulties for the Minister of State in explaining what the regulations might be, but, after all, the Minister is putting forward a Government Bill requiring powers to make regulations. It is a wee bit much to expect us to give him a blank cheque to carry on and do all this when he cannot tell us what the regulations will contain.

The Earl of Mansfield

With respect, that is quite un-true. I have said that the regulations will be the subject of consultation, not least with COSLA, and indeed with a number of other bodies such as those to which the noble Baroness, Lady David, referred when she was talking about professional reports. As I understand it, the whole point of a Committee stage of a Bill is that it allows noble Lords to probe the Government about their intentions in detail. The power to make regulations is set out, but what form the regulations will take will be the subject of consultation and agreement—and that occurs frequently in all forms of legislation.

Lord Ross of Marnock

In actual fact, consultations about this Bill have been going on since before the beginning of the year. I thought that there would be some indication of finality about the regulations. This is not the first time that the Government have told us that there is controversy, that the Government are steering a narrow path, or we are making heavy weather. But we as an Opposition are no further forward. I asked a simply question on clause stand part. It would be easy to put down amendments; I could spatter the whole place with amendments. I explained the difficulty about conducting a coherent debate on clause stand part. We have got 11 new clauses. The difficulties are not of my making; they are of the Government's making. We have in these 11 clauses what was an English Bill, and we are expected to hurry up, to get on with it. This is how you treat Scottish legislation, and I am expected to take this place seriously? And noble Lords from Scotland who have been here long enough are prepared to accept it? I have been here for only a year or so, but it is not my idea of how legislation should be dealt with.

I have asked in clause stand part who are the persons to whom the education authority will disclose the record at the request of that person. Who are they? Surely the Government must know at this time. Who are the other people to whom they may disclose a record? It does not say they ask for it. This part of the Bill is so badly drafted, or so vaguely drafted, that even the draftsman should have known that somebody would ask what it all meant. I have not been able to get an answer yet from the Government. They have not even suggested that they would look at the drafting of this. It is quite wrong.

Then when we come to the question of the record itself, and we are in order in dealing with the record on clause stand part, we are told it is going to be in four parts. A summary of the child's impairments. Some of us thought we were getting away from categorisation of children, but here we have gone slightly on the way back to it. A statement of special educational needs arising from that; and then the statement of the measures proposed, and, where appropriate, the nomination of a school to be attended by him.

The noble Baroness, Lady Faithfull—I am sorry she was not here earlier when we were discussing matters relating to familiarising the public with the importance of this, and the importance of early assessment—emphasised the importance, as did Warnock, of the absolute need for maximum co-operation; parents, teachers, doctors, and everyone concerned. That means that you should not hold anything back from parents. They should have a right to know. It is their child. Their child's future. They are the people who are concerned about it. They are the people giving the co-operation. Well, they should be getting it all back.

We have a right surely to ask who are the people who are going to see these records and what the records are going to contain, and why such people have been singled out for the privilege and the right to see these records. That is not much to ask for. I would have thought that the Minister would have been able to tell us that, and not say, "Oh, it is all subject still to negotiation". Remember that regulations are capable of being changed at any time. They must have some initial thought. You start with your initial thoughts. There is many a committee on which I have served where you ask the Government to produce their draft regulations to see whether or not the House agrees with them. But that has not been done in this case. We have been given the minimum of information about something that many people see as a breakthrough. Let us start by having the co-operation of the Government and the Committee itself, and we shall, I hope, be able to make progress quickly.

The Earl of Mansfield

I am always fascinated by lectures from the noble Lord. He finds it difficult to distinguish between primary legislation and regulations. If I told him what was going to be in those regulations before we had consulted, for instance, COSLA and some of the other appropriate bodies, he would have been the first to say that this was a denial of democracy; that it was flouting the rights of parents; that it was Government by diktat; that we had no mandate in the Western Isles, and every sort and kind of argument which he produces so effectively so often. But when I tell him that we are minded to produce these regulations and they will be as a result of consultation and therefore, we hope, by agreement, then of course he has it both ways by saying "Why can't we know now? The Government are not governing".

What I can tell him is what the Government are proposing in relation to this matter of disclosure. This is not to be taken as finality, but it will give the noble Lord an idea of what is in the Government's mind, if that is what he wants. It is part of the consultation document, and it is proposed that the education authorities are to be required to allow access to the record at all reasonable times, first to the parents of a recorded child, and, secondly, to a recorded young person or his parent, if appropriate. Where a reference has been made to the Secretary of State in respect of a recorded decision or to the terms of the record, it will be necessary for an official of the Scottish Education Department to have access to the record.

It is suggested that the education authority will be empowered to disclose the records to the head teacher of the school attended by the child or young person, with the agreement of the head teacher any other teacher at that school who is concerned with the child or young person's education; thirdly, the school doctor; fourthly, an educational psychologist concerned with the welfare of the child or young person; and the medical officer and psychologist who are conducting examinations for the purposes of any review of the recorded decision, or the terms of the records, are also to be required to be allowed access at all reasonable times. Those persons to whom a record is disclosed will be permitted to inspect it and to extract any information which they require.

The education authority, it is suggested, are to be empowered to provide information from the record on request to an officer of the social work authority, an officer of the health board, a children's panel, the child's or young person's general practitioner, an appeal committee which is considering a reference made to them in respect of a recorded child or young person under the appeals provisions in the Bill, or a sheriff who is considering an appeal relating to a recorded child's or young person's school placement. But the education authority would not be empowered to disclose the record to other persons and bodies unless they are satisfied that it is in the best interest of the child or young person to do so, and they have first obtained the written permission of the parent or young person. The Committee will see that this is a somewhat complex and highly technical part of what will be the regulations, which no doubt will have to be thought through in depth.

Lord Ross of Marnock

I think the last speech of the Minister was not technical; it was very informative. It even answered the point I asked on my first intervention as to the cases where the parents' consent would be required. I am sorry he took so long to find that part of his brief. I know it is a long clause, but that is not my fault. I can tell him that he gave the perfect answer, but it is a great pity that he had not been given that answer much more quickly.

I am quite satisfied with that answer. It is the kind of information I sought and asked for. It is the kind of information I never get. It is when I do not get it that the Minister will get a lecture, and he will continue to get a lecture, because I have been the subject of many lectures from many Tory MPs in the Scottish Grand Committee in another place, and it was not all done within the confines of an hour-and-a-half, I can tell him. It taught me that I must know my Bill before coming before Parliament with it so that I might be able to answer any points raised. As I say, the Minister finally gave the perfect answer. Perhaps he will be rather quicker about it as we go on and will not lecture us as we do our duty in examining this legislation.

Clause 4, as amended, agreed to.

Clause 5 [Assisted places at grant-aided and independent schools]:

6.51 p.m.

Lord Ross of Marnock moved Amendment No. 22: Page 28, line 24, leave out ("to benefit from") and insert ("to attend and receive").

The noble Lord said: We have a change of scene and a change of clause and come to the question of assisted places, an import from Scotland into England. We are not blessed—perhaps I should say "cursed"—in Scotland with so many public schools. All our public schools are public; they belong to the people and are run by the education authorities, and I am sorry if, when talking about public schools, I am confusing English noble Lords.

We had for a time grant-aided schools, many of which were semi-independent, many of which were originally public schools and many of which were originally (although they aspired eventually to independent status) charity schools, left for the education of the poor burgesses of Glasgow and Edinburgh, but after a time they burgeoned forth and became different types of school altogether, and some of them salved their consciences by having a few foundation places.

The grant-aided schools in Scotland were supported by the Government with a direct grant, and it will be no surprise to noble Lords to learn that when I was Secretary of State we decided to end that—not end the independent schools (I do not believe in the ending of independent schools and I do not think one could do so, as I said on Second Reading) for many of the independent schools of a particular character carry out a tremendous amount of initiative work in education for special pupils—because there was no real justification for giving money directly to them to enable them to lower their fees for all the people concerned. And to the extent that assisted places deal only with people of certain incomes, it is an improvement, but to my mind not much of an improvement.

I believe that, especially at a time when the Government are short of money and are cutting grants to every education authority in the country, including Scotland, to provide more money to independent schools is an absolute offence to the whole Scottish tradition of education. I am not dealing with the whole wider question; that will come on later amendments, or when we debate the clause stand part. I must say, however, that I am surprised that the Government should try to justify what they are doing by starting the provision with the phrase: For the purpose of enabling pupils who might otherwise not be able to do so to benefit from education at grant-aided and independent schools". Benefit from it? What a presumption to say that anyone would benefit from any school! My amendment is not designed to wipe them out or be a wrecking proposal. It is designed to make things much more factual by saying "to attend and receive" in place of "to benefit from", and I hope the Government will accept it.

Who made the suggestion that every child, or every selected child, would benefit from being at what, in England, they laughingly call a public school, an independent school? To my mind, in some cases it could be positively harmful to them, and there are plenty of examples around to justify that theory. But fancy assuming that everyone will "benefit from" it—not even "in the opinion of the parents" or "in the opinion of the school"; just blandly that they will benefit from it. That is a wrong thing to say and is certainly not a phrase that merits a place in legislation of this character, introducing into Scotland something that is absolutely opposite to the whole tradition of Scottish education.

Even John Knox would be annoyed about it, remembering that he set up the Scottish education system on the basis of freedom for all and the establishment of a school in every parish. Mind you, it was a long time before that was achieved, although he certainly had the right idea. But now to suggest that we must make special provision for some people—we do not yet know who they are or how they will be picked—who might not otherwise be able to so benefit from education at grant-aided schools is wrong, presumptuous, arrogant and, I think, offensive to the 95 per cent. of all other children in Scotland who go to the local school, the ordinary school where my kids went and where I went. Did it do me any harm? I do not say I would have benefited from going to any of the other schools that are lauded in the phrase which the amendment would delete.

Thus, the purpose of the amendment is simply to put the statute right. We are making provision to enable people to receive education, whether or not they benefit. In any event, that is something that only history over a long period of the child's life will tell. The phrase I wish to delete condemns ordinary, public education in Scotland and uplifts, quite unjustifiably, the merits of what I call private education.

The Earl of Mansfield

I am grateful to the noble Lord, Lord Ross, for tabling the amendment. It does not alter the substance of the scheme but it does help to clarify a point which opponents of the scheme seem to have found difficulty in appreciating, and I welcome the noble Lord as an ally in this because the scheme's opponents, both inside and outside Parliament, have tried to sell the idea that the scheme is elitist and alien to Scottish tradition in that it is only for the so-called "brightest" children. As the record in another place will confirm, the Government have always rejected that assertion.

The scheme is aimed primarily at widening parental choice of school for families with lower incomes and not at pupils with the kind of ability which would in any event have secured them a place at a selective school. The only relevance of ability to the scheme is that to qualify for an assisted place the pupil must be capable of benefiting from the education provided at the particular school of choice, which may, of course, be a wholly non-selective school. As the amendment goes some way presentationally towards removing any implication that the scheme is selective, based on ability, I am happy to accept it.

Viscount Thurso

Surprise, surprise!

Lord Ross of Marnock

I am not surprised at all. After all, this is the second amendment we have had accepted, so the people who will be surprised are those who support the Minister blindly on everything, sometimes without even knowing what is being discussed. I said my amendment made the provision much more factual in relation to the scheme. I did not say I supported the scheme. Far from it, and we have other amendments to come about that. However, light seems to have dawned somewhere; they appreciate that they made a mistake, and it took us to put it right.

We shall not weary in well-doing, and there are other amendments that will even further improve the clause, if the Government really mean what they say about parental choice. But I now give due warning that, when we come to consider the Question that the clause shall stand part, I shall move that we do not allow the clause to become part of the caucus of Scottish educational legislation. May I say "Thank you" to the Government for what they have done.

On Question, amendment agreed to.

Lord Denham

I think that we have probably reached the right moment to adjourn, and I would suggest that we resume the Committee stage, if the other business is completed, by 7.50. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.