Education (Scotland) Bill

HL Deb 21 July 1981 vol 423 cc141-69

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 again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE- in the Chair.]

Clauses 9 to 11 agreed to.

Clause 12 [Education in social work establishments]:

[Amendment No. 37 not moved.]

Clause 12 agreed to.

Clause 13 [Provisions relating to Examination Board]:

Lord Ross of Marnock moved Amendment No. 38: Page 39, line 36, leave out paragraph (c).

The noble Lord said: This is a very simple amendment to a very important clause. I do not know whether English Members realise it, but for nearly 20 years we have had in Scotland a corporate and statutory body which conducts all examinations in the secondary schools in Scotland and awards certificates. What the Government propose to do here is to make changes in respect of the composition of that board and in respect of its financing. I think there is general agreement about both purposes but one question arises on page 39, line 36, where the amendment is made to the principal Act to include "educational advisers" among those from whom the Secretary of State can select members of the board.

Quite frankly, I do not know what educational advisers are. It is not defined anywhere. I presume that they advise local education authorities and so, to that extent, they are employed by education authorities, but, as we already have the power of the Secretary of State to take into consideration and to select representatives of the education authorities and also the directors of education, it seems strange to me that we should single out these strange people called "educational advisers" to be specifically mentioned in this way. Perhaps the Minister of State can enlighten me, but in the meantime I beg to move.

The Earl of Mansfield

The intention of the Government in adding representatives of the further education sector, educational advisers and the independent and grant-aided sectors, as was set out in this clause, was to take into account all the interests of the SCE examination board, which has merged since the composition of the board was laid down by the 1963 Education (Scotland) Act and consolidated in the 1980 Act.

In recent years—it may be since the noble Lord, Lord Ross, left office, I know not,—educational advisers have played an increasingly effective and indeed an important part in the development of the school curriculum, and we consider that they merit separate representation on the board. It may be that one should perhaps distinguish the distinction, as it were, between directors of education and the educational advisers who perform a different role as employees of education authorities. Their duties are different to those of directors of education, or indeed teachers, each of whose interests are already separately represented on the board. I am advised that legally they cannot be represented on the board without the Bill saying so—which it does—and therefore we have specifically mentioned them. In those circumstances, I hope that the noble Lord will be content and will see fit to withdraw his amendment.

Lord Mackie of Benshie

I should like to ask the Minister of State whether he means psychologists and that sort of expert adviser.

The Earl of Mansfield

No, I do not. These are employees of the education authority whose role is to examine the functioning of schools within their spheres of responsibility and to advise. They have nothing to do with any outside body, still less do they have special skills, such as those of psychologists. They do not examine the pupils; they examine the working of the schools and make recommendations, very often to headmasters.

Lord Ross of Marnock

Are they on the staff of the directors of education? I always thought that the inspectors in Scotland were central inspectors, came under the Secretary of State for Scotland, had their being within the Scottish Office and were not local authority people. I thought they would have done the kind of job to which the Minister of State was referring—in fact I know that they do that kind of job.

There is no definition, either in this Bill or in the principal Act, of "educational advisers". We have little or no guidance from the Minister of State, but he did say that they were employed by the education authorities. The Act—the original Act—says this: appointed by the Secretary of State from amongst persons nominated by, or by bodies appearing to the Secretary of State to represent the interests of, the universities…education authorities". So they are included within that, and quite frankly I do not see the point of giving them a separate opportunity of representation. It is not an important point, but I hope that the Minister of State will look at this before the next stage of the Bill. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ross of Marnock moved Amendment No. 39: Page 40, line 16, at end insert ("and in the case of education authorities the cost of presentations shall not be passed on to the parents of those pupils who have been presented").

The noble Lord said: I mentioned earlier that a change is being made in the sense of financing the examination board and, whereas at the moment the Secretary of State allocates certain financial responsibilities among the local authorities and he himself also can put some money at their disposal, he seeks now to change that and to place it all in the hands of the local education authorities and on the independent schools (which come in for the first time), on the basis of the number of pupils presented for examination.

On the face of it, that seems fair but we have to be careful in respect of that because it may well be that some people, in order to inflate the percentage of passes, since their cost is related actually to presentations, may reduce their actual presentations. This happens with headmasters at the present time. I feel that every child who has received a course of instruction leading up to an examination should have the right to sit, and I do not want to see any barrier to that. Then of course the local authorities themselves, since now their costs in respect of payment for the board will be dependent on the number of pupils they present for examination, may deliberately reduce the number in order to reduce their cost, and we should not take that risk.

Thirdly, there is the fear in some people's minds that, with the Secretary of State relaxing his grip upon this, one might even find that some local education authorities—and it may well be that independent schools already do it—would pass the cost of presentation on to the parents of the pupils. At the moment local authorities are urged by the Government to save money on this and that; we see the cutting down of stationery and books and so on. It may be that the local authorities could say, "All right, charge every pupil who is being presented and make them pay for the examination ". These are dangers I want to avoid. That is why this amendment, No. 39, is moved: to ensure that the cost of presentation shall not be passed on to the parents of those pupils being presented. It is a simple precautionary amendment. I beg to move.

The Earl of Mansfield

The effect of the noble Lord's amendment would be to introduce a provision into the 1980 Act which expressly prevented education authorities from passing on to the parents of pupils in education authority schools the charges which the authorities pay to the board in respect of the examinations for which pupils are presented.

There may be some misunderstanding about this. I well appreciate the noble Lord's concern, but the amendment is unnecessary for this reason. If he looks at Section 3 of the 1980 Act he will see that, subject to certain minor exceptions, school education is to be provided by authorities without payment of fees. Accordingly the authority has no power under the existing provision to charge fees for examination presentations. I am informed that, from the legal point of view, if this amendment was written into the Bill—in other words, to provide that no such power is to be available to authorities—one might by this amendment be setting up a proposition that such power does in other situations exist. Therefore not only is the amendment unnecessary, it is indeed undesirable.

I should perhaps state that in the independent and grant-aided school sector, where the school authorities are entitled to pass on examination charges to parents, of course they may do so if they wish. But under the provisions of our assisted places scheme relief in appropriate cases is brought so far as pupils attending those schools under the scheme are concerned. I hope, therefore, the noble Lord will agree that his amendment is not necessary.

Lord Ross of Marnock

I think that is very good news. Concern has been expressed by various teaching organisations about this. Far be it from me to take this Government down a dangerous path; they are very fond of treading such paths anyway. I hastily seek to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Lord Ross of Marnock moved Amendment No. 40: Page 41, line 14, leave out subsections (7) and (8).

The noble Lord said: This amendment deals with the exclusion of subsections (7) and (8). This is the provision which is taking away the obligation of the Secretary of State to make grants to the examination board. The obligation is there at the moment and they are taking it away as from such time as this part of the Bill becomes law. In Scotland, with the implementation in whole or in part of those relevant sections of the Munn and the Dunning Reports, we are faced with considerable possible changes in the education structure, both in curriculum and examination. I think it would be unwise of the Government at this stage to take away from themselves this power to make a grant towards the work of the board. After all, the board is really the creature of the Secretary of State; he virtually does the appointing. By regulation he controls everything they do. It may well be that he is going to ask them to do a lot more in the future. I know they will be prepared to undertake it. They work from a fairly newly constructed building in the south of Edinburgh. It was purpose built. They do a splendid job. I want to see them carrying on that job and not getting into any haggle about expenses.

The Government have this power. They do not need to use it, but they should have the power if at some time it is necessary to make grants to the examination board. I think they are unwise to give this power away. Although I can understand the desire of the Treasury to limit the possibilities of expenditure, I think they should retain the power—not necessarily use it, but retain it. That is the purpose of the amendment. I beg to move.

The Earl of Mansfield

There is nothing sinister about these two subsections of this particular clause, as I hope to show the noble Lord, Lord Ross. The purpose underlying subsection (7) is, first, to remove any doubt about the power of the Secretary of State under Section 129(6) of the 1980 Act to attach conditions to grants given by him in the past to meet the obligation to the Scottish Certificate of Education Examination Board; secondly, to enable him in the future, with the board's consent, to vary or revoke any such conditions. So far as subsection (7) is concerned, the amendment would delete it from the Bill.

To explain matters I have to go back into the history. The Secretary of State's power to give grants to the board has been used primarily in relation to the provision of premises. When the board set about acquiring its existing premises in Dalkeith the Secretary of State agreed to give a grant towards the cost, subject to certain conditions. One condition was that in the event of sale, which had to be at full market value, the whole proceeds were to be surrendered to the Secretary of State. Since it is the Government's intention that the board will in future finance any property acquisitions by borrowing, it is only just that the board should be empowered to use the proceeds of sale of the Dalkeith premises towards the acquisition of new property. The intention is that the Exchequer will recover only such part of the grant for the Dalkeith premises as will not be used by the board for the acquisition of replacement property.

Subsection (7), therefore, removes any doubt that there may have been about the Secretary of State's power to attach conditions to the grant in respect of the Dalkeith property and gives the Secretary of State power to renegotiate the conditions with the Board to accord with this intention. As I say, there is nothing sinister about the inclusion of subsection (7), and of course the conditions of the grant may be varied only with the Board's consent.

So far as subsection (8) is concerned, the purpose behind that is the ultimate repeal of Section 129(6) and thus the repeal of the Secretary of State's power to give grant to the board. The intention is, as I have said, that if the board needs new premises at any point in the future, it will finance that by borrowing. So that the power to give a grant is now not only unnecessary; in the Government's view it is undesirable. Clause 13 seeks to transfer to local authorities full responsibility for control of the board's expenditure. Just as it is no longer appropriate that the Secretary of State should continue to be responsible for approving the board's estimates on behalf of the local authorities who in fact finance the hoard, so it is no longer appropriate that there should be a power in the background to give central Government grant to the board.

Effective control over the board's income and expenditure cannot be exercised if both the board and local authorities have at the back of their minds the fact that, whenever financial difficulties appear to be looming, the Secretary of State is available to bail them out. The Government want to encourage the board and the local authorities in their financial responsibilities and do not think that providing a convenient cushion of funding is the way to do it. As regards future development work by the board, if the noble Lord, Lord Ross, is concerned that the Secretary of State might be unable in future to grant aid desirable examination development work, I can put his mind at rest because the power to make such grants will continue to be provided under the Educational Development, Research and Service Regulations 1946. For all those reasons, I hope that the noble Lord will see the reasons for drafting the clause in that way and withdraw his amendment.

Lord Ross of Marnock

I am not entirely satisfied. I think the matter was relevant to the provision of the new building at Dalkeith. It might well be equally relevant later on, and I do not think anything is gained by the Government's doing what they are doing here. It may well be that the Treasury insisted upon it and the Secretary of State for Scotland could not resist it, or could not resist the idea of being popular with the Treasury in doing something he knows or hopes will cost him nothing and indeed gain them nothing. I think it is unwise, but I will not press the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Remuneration of teaching staff]:

[Amendment No. 41 not moved.]

Lord Ross of Marnock moved Amendment No. 42: Page 49, leave out lines 39 to 47.

The noble Lord said: Clause 14, I may explain to your Lordships, comprehends no fewer than 11 clauses to be put into the principal Bill. In other words, it is a Bill in itself, and it makes sweeping changes on the whole question of the pay and conditions of service of teachers and how in future they have to be made. I do not think there could be anything more important than that, and I regret that we must race through the subject and not examine it all that fully. I may say personally that most of the changes that have been made have my support, and the principal changes arise from a report that was made on education and salaries, a very important report by a noble friend, Lord Houghton of Sowerby, which is a milestone in the history of teachers. One of the recommendations made was that instead of there being two committees, one dealing with Scottish teachers' salaries and one dealing with the service conditions of teachers, they should have only one. Then the report went on to make changes in respect of the membership of that now larger or more important committee.

I think it had the blessing of most teachers' organisations and most people interested at that time, but there has been a break in that unity in respect of some of the things that have been done. I listened with care to all the suggestions about free negotiation of salaries in the public sector which came from the Back Bench and from the Liberal Benches, but I do not think anyone will agree that there is anything in the way of free collective bargaining in teachers' salaries. There are three sides. There are the employers, who are the local education authority, the employees, who are the teachers, and then the Secretary of State comes in too. He is involved in the present situation and he comes into the new situation as laid down here. At the present time, the local education authority, by a concordat or secret agreement—which is pretty well known, so it is not very secret—cannot accept any settlement or come to any settlement without the agreement of the Secretary of State, bearing in mind that the Secretary of State probably bears, through rate support grants, about 64 per cent. of all the cost of reckonable expenditure which comes under that, the greater part being teachers' salaries; so the need for that will be appreciated.

These two amendments, Amendment No. 42 and Amendment No. 43, deal only with one point in respect of teachers' salaries. I am not dealing with the composition of committees or anything else; I am dealing with the important point here of arbitration. At times negotiations fall and arbitration has to be set up. As at present, arrangements for arbitration in future will be made by the Secretary of State, and the new part in respect of this matter is that may he use the services of ACAS. No one objects to that. At the present time, if the Secretary of State wants to set aside the arbitration award, he has to come to the House—it is the same in England—with a positive resolution declaring that because of the national economic circumstances he cannot implement the arbitration award.

In Scotland, we are departing from that. Without any restriction at all, the Secretary of State can refuse to implement an award and the matter only comes to the House if someone in the House raises it under the negative procedure, a prayer. So the restriction on the Secretary of State's not accepting an arbitration award goes: he can turn a blind eye to it, put down an order, and the order must be prayed against. I see the noble Earl, Lord Crawford, there; as Lord Balniel, I think he was not unconnected with the problem when it arose in England; but as your Lordships may remember, these national economic circumstances first came into English legislation, I think, in the sixties and they have remained there. I do not know why the Secretary of State has now decided that he must have a freer hand. He is part of the negotiations; he can virtually veto the negotiations; he sets up the arbitration and can then decide not to accept the arbitration award without any restriction about national economic circumstances.

This is in my view, an important point and one where the House should bend its mind as to whether it is fair or whether we should make the change that I suggest. I do not think I have actually put it in. I have left out this particular subsection and made the change in the next amendment from providing that the annulment is in pursuance of a resolution of either House, to one laying down that there must be an affirmative resolution of the Commons, when I think the onus should be on the Secretary of State, if he is turning down an arbitration award, to come to the House with his positive resolution as he does at the present time.

That is the purpose of the two amendments, and I hope I have not transgressed by trying to speed things up by dealing with the two in one, because I know an important Bill is coming along. These two amendments run together; one is dependent upon the other. That is the main point. It is fairness in respect of Scottish teachers and in respect of the future negotiations. I do not think that it will be helpful if the Secretary of State can run away from the arbitration award in respect of any arbitration authority which he himself set up. I beg to move.

3.30 p.m.

The Earl of Mansfield

There is much in this Bill which is precisely similar to the 1980 Act. We still keep the two committees, one in respect of primary and secondary education and the other in respect of further education. Under the existing provisions, which are basically Section 94 of the 1980 Act, there are four stages. First, the award is intimated to the Secretary of State. Secondly, the Secretary of State must make an order, which attracts no parliamentary procedure, giving effect to the award so far as it recommends changes, unless either House or an affirmative resolution resolves that effect should not be given to the award, and the resolution of each House must be based on national economic circumstances. Thirdly, if both Houses pass the affirmative resolution, the Secretary of State then has to determine what changes should be made. Fourthly, if both Houses do not pass the affirmative resolution, effect must be given to the award.

New Section 97B makes provision for dealing with arbitration awards in a slightly different way. An award is to be notified to the appropriate negotiating committee which will transmit it to the Secretary of State who must inform the committee that he does or does not accept the award. Under subsection (6), which the noble Lord seeks to delete, he is put—if may quote the lawyers' expression— "on terms" as to what he is to do in relation to the notification and subsequent action so far as the award is concerned. If he does not accept it, he may make an order, subject to negative resolution in either House, to set aside the award. If the order is annulled by resolution, the award must be put into effect.

In empowering the Secretary of State to prevent an arbiter's award having effect, the clause substantially re-enacts Sections 93 and 94 of the 1980 Act. These amendments, whatever their intention, apparently deprive the Secretary of State of any role in relation to arbitration awards. I am sure that the noble Lord, Lord Ross, does not actually seek to achieve that, because if subsection (6) is deleted from the Bill, the Secretary of State would have no role to play at all. As I have said, the power to overturn an arbiter's award already exists, and in current economic circumstances there is every justification for retaining it. For instance, employers could be faced with an arbitration award which could not be met without increases in rates or financial savings which unacceptably reduce standards of service. In that event we should consider it reasonable for the Secretary of State to set aside a pay award and to substitute one which employers could more readily meet. Any action by the Secretary of State would still be subject to parliamentary scrutiny, and I do not suppose that he would be allowed to exercise this power without explaining his reasons to Parliament.

The next matter which the noble Lord seeks to achieve is, in effect, to cut this House out of such scrutiny. I see no justification for confining the power of parliamentary review merely to another place. I suppose it could be said that money will be involved because we are talking about pay. But I maintain that this House has a legitimate interest to scrutinise the Secretary of State's exercise of the power to set aside an arbiter's award. I should have thought that, in fact, teachers would take some comfort in the thought that under these conditions the Secretary of State's order could be brought under review in either of two places. I say that particularly for this reason: that in so far as another place is concerned, where the Government of the day have their majority, if the matter is raised by virtue of a prayer, it is inconceivable—or almost inconceivable—that the Secretary of State will not achieve his way. I should have thought that your Lordships' House, with certain independence of thought and action—which we see demonstrated all too frequently—could bring to bear a much more thorough-going review with a much more uncertain end as regards a vote. As I have said, that could bring some comfort to teachers who were dissatisfied with the Secretary of State's action.

Therefore, for all these reasons, I consider that the Secretary of State should maintain his role, as he does at the moment, as is set out in subsection (6), and that it would not be appropriate to remove, as it were, the jurisdiction of both Houses in respect of a negative resolution, as they have at the moment.

Lord Ross of Marnock

I think that the Minister of State did his best with a bad principle. To attack the correctness or otherwise of my amendments and their effect is fair game, but I did not anticipate that he would rest upon that. I thought that he would give us some great new discovery in respect of the Secretary of State. I do not object to the present position. I had to work under it when I was Secretary of State. It says: If in any case where any recommendations of arbiters have been transmitted to the Secretary of State under subsection (1) above"— that is, the principal Act— each House of Parliament resolves that national economic circumstances require that effect should not be given to the recommendation and so on. That is his power at the moment to set aside an arbitration award.

Under the present Bill and this particular subsection which I suggest should be changed, the Secretary of State has a very different power indeed. According to the statute, he merely decides to set aside the arbitration award. There is no restriction about national economic circumstances. That was the only argument that the Minister of State used; I took down his phrase— "the present economic circumstances". If that is the case, why not put the same phrase in the subsection as is in the present subsection? That is all I am concerned about at the present time.

Turning to the second point about this decision not to implement an award, I still think that it is quite wrong that it should be done on the basis of a negative resolution. As I understand it, we accept that if they deal with a negative resolution in another place we do not bother with it here at all. In fact, I cannot recollect any negative instrument coming up for consideration here. That is the position of practice rather than the position of law. Therefore, I wanted to strengthen that to ensure that in one House the decision would be taken on the basis of a positive resolution. In other words, it is the Government who must bring it forward. I will gladly change that to both Houses if that is the feeling of the Committee, and shall certainly do so at the next stage of the Bill.

Meantime, I think that what the Government are doing is wrong. If they mean to set aside arbitration on the basis of national economic circumstances, they should do in this Bill what they did in the last Act—put in that phrase absolutely clearly. It was something that resolved a very considerable difficulty in respect of teachers on both sides of the Border before, and I think we should keep it there. If the Minister of State cannot give me a more satisfactory answer on the principle, I feel that I must take this to a Division.

The Earl of Mansfield

It is difficult to see in what way any Secretary of State could come to either House, if this matter was raised by way of a prayer, and justify the rejection of an arbiter's award unless it was in the context of national economic circumstances. He could not, so far as I can conceive, think of any other reason. Any discussion, any debate which took place either in your Lordships' House or in another place against an order by a Secretary of State would be bound to touch on the question of economic circumstances because, as I have said, the only reason which the Secretary of State could give for refusing to accept the arbiter's decision would be that the national economic circumstances do not justify an award of an increase of salary as recommended by the arbiter. It really seems to me that what the noble Lord is complaining about is that the previously affirmative resolution procedure which, of course, has its place—but I do not think necessarily has its place in this type of situation should be preserved. That is another matter. However, I see no reason why we should keep the words, "national economic circumstances" in the Bill when, if one stops to think about it, they are really—I shall not say "not justfied"—not necessary in these circumstances.

Lord Ross of Marnock

That really is very disappointing. They are in the 1980 Act. They were put there at a time when we decided to set aside both in England and Wales and in Scotland the award or to have the power to set aside the award. It was specifically stated that they would only depart from the award on that basis. If these words are not there, then whether the Minister of State likes it or not—and he is a lawyer—for any reason at all the Secretary of State could set aside the award. He cannot deny that. If he says—and he has repeated it—that the only situation that he can foresee is that it will be set aside only on the basis of the national economic circumstances, then surely the words should be there. That is the case. It would not cost him anything, but he certainly would satisfy or allay the suspicions of many people connected with education who do not like the change that is being made and who wonder why it is being made. Therefore, if he cannot give me any better answer than that, then I am afraid that I had better divide the Committee.

3.43 p.m.

On Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 120.

CONTENTS
Airedale, L.	Lee of Newton, L.
Amherst, E.	Listowel, E.
Ardwick, L.	Llewelyn-Davies of Hastoe, B. [Teller.]
Balogh, L.
Banks, L.	Lloyd of Hampstead, L.
Barrington, V.	Longford, E.
Beaumont of Whitley, L.	Mackie of Benshie, L.
Beswick, L.	McNair, L.
Birk, B.	Melchett, L.
Bishopston, L.	Milford, L.
Blease, L.	Mishcon, L.
Boston of Faversham, L.	Northfield, L.
Brockway, L.	Oram, L.
Byers, L.	Paget of Northampton, L.
Chitnis, L.	Pargiter, L.
Clancarty, E.	Peart, L.
Cooper of Stockton Heath, L.	Phillips, B.
Cudlipp, L.	Pitt of Hampstead, L.
David, B.	Rochester, L.
Donaldson of Kingsbridge, L.	Ross of Marnock, L.
Elwyn-Jones, L.	Sainsbury, L.
Ewart-Biggs, B.	Shackleton, L.
Fisher of Rednal, B.	Shinwell, L.
Foot, L.	Stewart of Alvechurch, B.
Gaitskell, B.	Stewart of Fulham, L.
Gardiner, L.	Stone, L.
Gifford, L.	Taylor of Gryfe, L.
Gosford, E.	Taylor of Mansfield, L.
Hale, L.	Thurso, V.
Hampton, L.	Underhill, L.
Hanworth, V.	Vernon, L.
Hatch of Lusby, L.	Wallace of Coslany, L. [Teller.]
Henderson, L.
Hooson, L.	Walston, L.
Howie of Troon, L.	Wells-Pestell, L.
Hughes, L.	Whaddon, L.
Jacques, L.	White, B.
Jeger, B.	Willis, L.
Jenkins of Putney, L.	Wilson of Langside, L.
John-Mackie, L.	Wilson of Radcliffe, L.
Kaldor, L.	Winstanley, L.
Kilmarnock, L.	Wootton of Abinger, B.
Leatherland, L.

NOT-CONTENTS
Abinger, L.	Bellwin, L.
Alport, L.	Belstead, L.
Ampthill, L.	Berkeley, B.
Auckland, L.	Boyd of Merton, V.
Avon, E.	Bradford, E.
Balfour of Inchrye, L.	Bridgeman, V.

Buckinghamshire, E.	Loudoun, C.
Camoys, L.	Lucas of Chilworth, L.
Campbell of Croy, L.	Lyell, L.
Chelwood, L.	McFadzean, L.
Chesham, L.	Mackay of Clashfern, L.
Cockfield, L.	Macleod of Borve, B.
Coleraine, L.	Mansfield, E.
Colwyn, L.	Margadale, L.
Cork and Orrery, E.	Marley, L.
Crawford and Balcarres, E.	Massereene and Ferrard, V.
Crawshaw, L.	Melville, V.
Croft, L.	Merrivale, L.
Cullen of Ashbourne, L.	Mersey, V.
Daventry, V.	Milverton, L.
Davidson, V.	Montgomery of Alamein, V.
De Freyne, L.	Mountgarret, V.
Denham, L. [Teller.]	Moyne, L.
Dilhorne, V.	Murton of Lindisfarne, L.
Drumalbyn, L.	Nathan, L.
Dundee, E.	Northchurch, B.
Ebbisham, L.	Nugent of Guildford, L.
Effingham, E.	O'Neill of the Maine, L.
Ellenborough, L.	Rankeillour, L.
Elles, B.	Rawlinson of Ewell, L.
Elliot of Harwood, B.	Reigate, L.
Falkland, V.	Renton, L.
Ferrers, E.	Rochdale, V.
Ferrier, L.	St. Aldwyn, E.
Fortescue, E.	St. Davids, V.
Fraser of Kilmorack, L.	St. Germans, E.
Gage, V.	Saint Oswald, L.
Gainford, L.	Sandford, L.
Geddes, L.	Sandys, L. [Teller.]
Glenkinglas, L.	Seebohm, L.
Gormanston, V.	Selkirk, E.
Greenway, L.	Sharples, B.
Gridley, L.	Skelmersdale, L.
Grimston of Westbury, L.	Soames, L.
Halsbury, E.	Spens, L.
Harmar-Nicholls, L.	Stodart of Leaston, L.
Hatherton, L.	Strathcarron, L.
Hawke, L.	Strathclyde, L.
Henley, L.	Strathspey, L.
Hillingdon, L.	Sudeley, L.
Home of the Hirsel, L.	Terrington, L.
Hornsby-Smith, B.	Teviot, L.
Hylton-Foster, B.	Thomas of Swynnerton, L.
Kilmany, L.	Trefgarne, L.
Kimberley, E.	Trenchard, V.
Kinloss, Ly.	Vaux of Harrowden, L.
Kinnaird, L.	Vickers, B.
Kintore, E.	Vivian, L.
Lindsey and Abingdon, E.	Wakefield of Kendal, L.
Long, V.	Willoughby de Broke, L.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 43 and 44 not moved.]

3.51 p.m.

On Question, Whether Clause 14 shall stand part of the Bill?

Lord Ross of Marnock

As I have said, this clause itself brings within its orbit 11 clauses. It makes considerable changes in respect of how in future we are going to conduct the negotiations in respect of teachers' salaries. There was one thing in the present situation that is not brought in, and I was really surprised that that should be so. We have not found a name for the new body, and they are to be given the power to christen themselves. I wonder what they will come up with, but I am sure that all suggestions will be considered.

The other point is that hitherto there has always been an independent chairman of the Scottish Salaries Committee. In this case there is no indication at all that there is to be an independent chairman. When we come to questions like salary negotiations, or whether or not we should set up arbitration, I think an independent chairman can be invaluable. I should like therefore to ask the Government in the first instance why they have decided not to have an independent chairman.

The second point is one that I mentioned in passing; that is, the relationship between the local authority representatives and the Secretary of State's representatives on this committee. I said before—and although it is called a secret concordat, there has been very little secret about it—that there was very close contact between the Secretary of State's representatives on the Scottish teachers' salaries committee, and indeed they would not look at any settlement unless the Secretary of State agreed. That was the understanding. I think I have a right to ask the Minister of State as to whether that understanding still exists.

This committee does not at the present time work on the basis of a simple majority. A majority of the teachers' side works independently, while the employers' side act really on the say-so of the Secretary of State. By no manner of means can it be called free negotiations. This is a complicated business. This is why I think there should be an independent chairman and why I think the whole question of arbitration, to which we had to resort on more than one occasion, is so important. That is why I divided the Committee. I shall have another look at that one before we come to the next stage and consider whether I can find more suitable words so that people could vote with me with a freer conscience in an endeavour not to make nonsense of the Bill.

On this point can we be given an indication by the Government as to whether the present basis of the relationship between the local authorities and the Secretary of State will continue? There has been considerable difficulty between local authorities and the Secretary of State. As a matter of fact, at the present time in another place the Secretary of State is moving against one of the more important other local authorities in respect of their burden of rates. It may well be that we will not have the same kind of co-operation between the Secretary of State and the local education authorities that we have had in the past. Perhaps we could have some information about these two particular points: first, the independent chairman, and secondly the relationship between the Secretary of State and the local education authorities in the way they intend to conduct the negotiations under the new committee and the new procedures.

The Earl of Mansfield

May I deal first with the matter of the chairman, and whether or not he is independent? As I understand the position, the existing negotiating bodies work quite effectively with chairmen who are chosen from among their own members. For example, the Scottish teachers and the Special Service Conditions Committee. Therefore, that seems to the Government at any rate a matter which is working quite well and does not need to have any more elaborate statutory structure.

Lord Ross of Marnock

May I interrupt the Minister of State there? We are now going to have only one committee, and it means that the powers that the Secretary of State has in respect of salaries he will also have in respect of conditions of service. At the present time, on conditions of service, there is no agreement with the local authorities that the Secretary of State has a veto, so we shall have a very different set-up in respect of what is in the Bill. It should not be related to one particular committee working very well which does not have an independent chairman. The important committee has an independent chairman.

The Earl of Mansfield

I have related it, and gave one example, but I think that the principle is the same. The view that we take is that there is no need to have a more rigid and less flexible machinery. I think I can encapsulate the noble Lord's second question by saying that he questions the relationship of the committee with the local authority. The Secretary of State is, as I understand it, going to publish a memorandum or other piece of paper, and this is going to be discussed with COSLA, if they wish it. No doubt this will be one of the matters which they would wish to go over. I do not think that I can help the noble Lord any further than that. So far as the procedures of the committee are concerned, such matters as voting, and so on, will relate to their own standing orders, and we think it is a matter for them to draw up their standing orders as they think fit.

Lord Ross of Marnock

I hope that the Minister of State will agree with me that the present situation under the Education (Scotland) Act 1980 is that a chairman is appointed by the Secretary of State as an independent person. That has been so for a long time, and I do not see any justification for a departure from that. To suggest that it works quite well in respect of the other committee which deals with conditions of service is a very different matter, and the conduct of that committee is very different indeed from that of the Teachers' Salaries Committee. The Teachers' Salaries Committee is now taking over that responsibility, and it is probably all the more important that the chairman should be an independent person. That is the first point.

When the noble Earl says that a memorandum will be produced and there will be discussions with COSLA (which is the local authority association), will he answer one question for me? Is there, or is there not, an agreement presently existing between the representatives of the local education authorities on the salaries committee and the Secretary of State that no settlement is reached without the say-so of the Secretary of State? That is a very important question and if the Minister's answer is "Yes", then what will be the future position under the new set-up?

The Earl of Mansfield

I tried to answer the noble Lord. He may not agree that the situation we shall set up is the best one in the circumstances, and if he does not, then it is his privilege to disagree, and if he tables an amendment at the next stage or seeks to divide your Lordships on whether this clause should be part of the Bill, then that too is his privilege. But as a question of policy I must tell him that so far as chairmen are concerned this is the policy which we have adopted. I do not think I can help the noble Lord further.

Lord Ross of Marnock

I set out to be conciliatory and understanding and I told the noble Earl that I agreed with the main changes being effected by the Bill arising from the Houghton Committee. Getting rid of an independent chairman is not a main change, but it could be important, and I hope the Minister will give some thought to the matter between now and the next stage of the Bill. Meantime I shall not hold up the progress of the Bill or seek to get rid of the whole of Clause 9; but I hope that by the next stage we will be given some information as to how salary negotiations have been conducted up to now and how they will be conducted in future.

This is an important matter for ratepayers, local authorities and everybody else. The Secretary of State puts in a figure as to the cash limits in the rate support grant for salary pay increases he is prepared to meet. In the last rate support grant for Scotland he said he was prepared to meet increases in pay up to 6 per cent. However, when it came to a teachers' settlement, the settlement was 7.6 per cent., which meant that the local authorities through their rates had to find the extra 1.6 per cent., which was considerable. However, at present in another place he is telling them they cannot increase their rates.

I want to know what the Secretary of State will do in future negotiations. He has the power of veto now, and while he allowed that 7.6 per cent. settlement to go through, he did not provide the wherewithal to local authorities to meet it. What will the situation be in future? Will he control the settlement from the local authority side? I hope the Minister will find that information for us before the next stage of the Bill, although in the meantime I do not propose to divide the Committee on this important and, on the whole, desirable clause.

The Earl of Mansfield

I can answer the noble Lord to this extent before we move on. The previous Administration, of which the noble Lord, Lord Ross, was a distinguished member, consulted a number of bodies in 1976 and it was envisaged that the Secretary of State would exercise statutory control over the amount of pay settlements. My right honourable friend has decided not to include provision to that effect because it is considered that the local authorities and other employers concerned are capable of taking, and indeed should take, responsible decisions on what pay offers they can make within the resources available to them, and we feel it should be left to them to make their own decisions. As to whether the existing agreement will continue—which is really what the noble Lord is asking about—these arrangements were negotiated outside the statutory framework and it will be a matter of negotiation as to whether they continue, as I told the noble Lord, and I cannot at the moment anticipate the outcome of those negotiations.

Lord Hughes

Reverting to the matter of the arbiter's award, which was the subject of my noble friend's amendment, I must admit that I voted less for his Amendment No. 43 than against what the Minister said in rebuttal of it because, frankly, I could not understand the logic, or lack of logic, in what he said on the matter. I think the Minister was correct in saying that if Amendment No. 43 had been carried it would have deprived the Secretary of State of power to reject an award of an arbiter, and the way in which my noble friend spoke to his amendment made it perfectly clear that it was not his intention to deprive the Secretary of State of power, but that it was his intention that the Secretary of State's power to reject an award should be limited in the way it is under the present law, namely limited by the needs of national circumstances.

The Minister's reply I could not understand because he said it was inconceivable that the Secretary of State would put an order forward for any reason other than that. If that is the case, then there does not seem to be merit in removing that from the law when it has worked satisfactorily up to the present because, as far as I can see, it can do nothing other than create suspicion in the minds of teachers that the Secretary of State is contemplating turning an award down for other reasons altogether. If the Minister of State is correctly interpreting the view of his right honourable friend the Secretary of State and there is no other reason for seeking to set aside an arbiter's award, I do not see the logic in taking that expression out of the Bill.

The second reason why I was unhappy about the Minister's reply was that he gave no justification whatever for substituting the negative for the positive procedure. I agreed with him when he said there was little doubt that under an affirmative resolution the Secretary of State, given the majority the Government have in another place, could be practically certain of getting his resolution approved. But he went on to say that that was a good reason for the order also coming before your Lordships' House, which was more independently minded and where the Government could not have that absolute certainty. I have no doubt that the noble Earl had at the back of his mind what happened last year on an education procedure. The Government came a lovely cropper in your Lordships' House on the subject of school transport, about which your Lordships showed an independent attitude.

I agree with the noble Earl that such an order should come before both Houses of Parliament, but I cannot see, in the absence of any explanation from him, why he is substituting the negative for the affirmative procedure, because the affirmative procedure makes it certain that the order will be discussed in both Houses (or in one House if that is the way it is put) whereas under the negative procedure, as we know from the past, something has been allowed to slip through because, perhaps coming at a very busy time, it has not been noticed. People cannot miss an affirmative resolution; they can, regrettably, miss a negative one. I therefore hope that at the next stage my noble friend will table an alternative amendment or amendment the effect of which will be to maintain in the Bill the present position. In those circumstances, given that the Minister appears to accept the basic restriction which would apply for the rejection of an arbiter's award, I hope that he might find it possible to keep the Bill as the present law stands.

On Question, Clause 14 agreed to.

Clauses 15 to 21 agreed to.

Schedule 1[Appeal Committees]:

4.10 p.m.

Lord Wilson of Langside moved Amendment No. 45: Page 53, line 28, leave out ("by more than one.").

The noble and learned Lord said: This is a very short and simple amendment, and it might be convenient to the Committee if it be considered along with Amendment No. 46, which deals with related and not dissimilar matters. Although the amendment is short and simple, its purpose is to remedy two very serious defects in the constitution of the appeal committees provided for under Clause 1 and Schedule 1 of the Bill. The appeal committees will, of course, hear appeals against decisions of the education authority on placement requests and other matters.

The first defect in the provisions of the schedule emerges from paragraph 4 of the schedule, and the consequence of the provisions of that paragraph would be that the appeal committee could be composed of a majority of members of the authority or of the education committee. As your Lordships will readily appreciate, that is objectionable on two grounds. It is objectionable first of all because it offends against a quite fundamental and elementary principle of Scots law, and no doubt of English law, too: that it is not appropriate that you should be judge in your own cause or your own appeal. The purpose of the amendment is to ensure that there shall never be on the appeal committee a majority of members of the authority or of the education committee.

As it stands, the provision is objectionable on a second ground; namely, that inevitably an appeal committee so constituted would be unlikely to command the confidence and respect of appellants, and I should think it not unlikely that that would promote something of a tendency to take appeals further, to the sheriff, as can of course be done under the Bill. There are many reasons why one would hope that the number of appeals from the committee to the sheriff, to the formality of a court, be kept to a minimum. That is more likely to be achieved if the committee is so constituted as to command confidence, which I find it difficult to believe it would command if a majority of its members were members of the authority or the education committee.

The purpose of the second amendment, Amendment No. 46, is simply to bring the Bill into line with the similar provision in the English Act of 1980 and to ensure that the chairman of an appeal committee shall not be a member of the education authority. That I should have thought would commend itself to most, if not indeed all, Members of your Lordships' Committee, and as I understand it, it is the position under paragraph 1(5) of Schedule 2 to the Education Act 1980. I beg to move the amendment which stands in the names of the noble Earl, Lord Selkirk, and the noble Baroness, Lady Elliot of Harwood, and in my name.

The Earl of Selkirk

I am grateful to the noble and learned Lord, Lord Wilson of Langside, for raising this question. It seems to me that there is here a weak link in what I understand to be one of the major objects of the Bill; namely, to enable parents to take a greater interest and to play some part in the placing of their children. There are, I think, about 10 or 12 articles in the Bill, all of which come to the bottleneck (if I may so call it) of the appeal committee. This point was raised by my noble friend Lord Balerno on Second Reading, and I believe that my noble friend Lord Mansfield had a shade of sympathy. He said, "Well, of course, there are two things that you must remember. One is the sheriff, and the other is that you might involve the local authority in some expense". I should like to say a word or two about both of those points.

First, in regard to expense, I would say that the only expenditure which could arise here would be insignificant. That is laid down quite clearly in new Section 28A(3)(b). Therefore, if there was any significant expenditure it would be illegal for it to go forward. I do not know what is meant by insignificant expenditure, but I suppose that it means buying a chair or perhaps a table, or adjusting an electric bulb. It is quite clear that there is to be no structural change and certainly no additional teacher is to be employed. So I think that the argument about expense carries no weight whatever.

The other question is: What else can the sheriff do Of course, he has to see that the law is obeyed. He then has what I must say is a rather peculiar power, which I think could possibly be interpreted in different ways. But in the ordinary course of events, if there is an appeal he will confirm the education authority's decision; that is to say, he will go against the appellant. That is laid down in new Section 28A, on, I think, page 10 of the Bill. The first thing he must do is to see that the law is observed. That is fair enough; I agree. Secondly, when it comes to supporting the local authority, the sheriff must ensure, that, in all the circumstances, it is appropriate to do so". That means that any appellant must show that the action of the local authority has been inappropriate. It is not a question of being better or less good, or wiser or less wise, or more convenient. It must positively be shown as having been inappropriate. I do not know what is meant by inappropriate. Perhaps it could mean sending a girl to a boys' school, or sending a child of the wrong age group to a particular school. Perhaps that would be inappropriate. But, with respect, I would say that it must be something very near to being unreasonable or totally undesirable. In other words, I think that the appeal to the sheriff is of very little importance. It will not be used much, it should not be used much, and it will not be much use to parents.

Therefore, the vital importance of having an objective appeal committee is to my mind very strong indeed. If one was having an arbitration with perhaps a big organisation, such as British Leyland, they might say, "Yes, we will have an arbitration, but we will appoint all the arbiters". I do not think that many people would accept that proposition, but that is exactly what is written into the Bill, and I think it a pity because, after all, we all want to gain the confidence of the parents, so that they feel they are getting a fair deal. If they do not get a fair deal, the purpose of the provision will be very largely lost. Here the provision is much more narrowly drawn than is the English provision. We do not necessarily copy the English, but I think that in this respect they are wiser, and I suggest that it would be in the interests of the purpose of the Bill to make the appeal committee more objective than it is at present.

Baroness Elliot of Harwood

I shall add only a few words to what has been said. I support the amendment because it has been pointed out to me by the Scottish Consumer Council that a great many of the parents and other people concerned with the education of children are worried lest the appeal committee is highly biased and has no really independent chairman. This is not in the least a political point; it is purely a practical one; and we are anxious to ensure that the appeal committee contains a majority of independent representatives and that it is seen to be functioning fairly in the eyes of the parents who are appealing against an education authority decision. At the same time, the chairman of the appeal committee should be an independent person and should not be a member of the education committee or authority. He should be somebody who can be quite independent and can view these discussions from an independent point of view.

The point is perfectly simple, and it does not seem to me to have any political significance at all. It is purely practical. I think this is an amendment which will improve the Bill, will improve the respect which the authorities and parents will have for the Bill, and I hope very much that the noble Earl, Lord Mansfield, will accept it.

Lord Mackie of Benshie

I rise to support this very practical amendment. I must say that the Government themselves must have a slight feeling of conscience, because they endeavour to excuse the position by saying that the authority members will not outnumber the other members by more than one. If I may a say so, it is rather like the lassie who tried to excuse her illegitimate child to her parents by saying, "After all, it is only a little one". I really cannot see why the outnumbering by more than one should not simply be left out altogether. One is enough to bias the committee and to put the committee into disrepute, and I hope the Minister will be able to accept the amendment.

Lord Hughes

I am not at all certain why the words appear in the first instance, unless I am totally misreading the schedule. The schedule says that an appeal committee will consist of three, five or seven members. Take a committee of three members. If the authority members are going to outnumber the others by more than one, they might all be authority members—the numbers will be either 2–1 or 3–0. When you get on to five or seven, it does not have exactly the same effect, of course, but I still do not think that this is in fact the right amendment to achieve what the noble Lords are wanting. Because if the education authority is going to be suspected of trying to make certain that the appeal committee backs it up by having a majority on the committee—if that is the way the education authority is going to work—you have got to point out that they also pick the other people who are going on the committee. They are appointing the whole committee.

I thought that part of what the noble Earl, Lord Selkirk, said was really against the whole procedure, because the education authority are choosing the whole committee. If they are going to be doing a bad job because they have a majority of one, if they cannot be trusted to consider the matter effectively, then obviously they are going to make certain that the other people will be people who are likely to back them up in any case. So if there is anything wrong in this, it is giving the education authority the power to select all the members of the committee.

I should have thought that a more sensible arrangement would have been to ensure that the representatives of parents or people who have experience in education, or people who are acquainted with the educational needs of the authority, making up the minority of the committee, should not be chosen by the education authority at all, I would have been happier if a means had been devised for an alternative way of appointing these other people.

Lord Wilson of Langside

The noble Lord, Lord Hughes, raises a point of great interest, and there may be something in it which the Minister wishes to consider. But may I point out that, of course, Governments appoint judges and Governments still litigate before judges; and local authorities appoint stipendiary magistrates and still expect them to behave judicially—and by and large they do. The point I am making is that there is all the difference in the world between the situation where members of the tribunal are actually members of the education authority and where they are, albeit appointed by the local authority, not members of the authority or a committee.

Lord Hughes

On that point, I might say that it is perfectly true, of course, that judges are appointed. But the Secretary of State does not appoint a number of judges exceeding a number of other judges by one to sit alongside them.

4.25 p.m.

The Earl of Mansfield

These two amendments in fact fall to be considered separately. I appreciate that the noble and learned Lord, Lord Wilson of Langside, has run his arguments in together, no doubt with the perfectly laudible intention of saving time, but I think I must address myself to each one separately. If I may first deal with the point made by the noble Lord, Lord Mackie of Benshie, the noble Lord, Lord Hughes, has of course shot my fox. If the noble Lord, Lord Mackie, had in fact read Schedule 1, he would have seen that an appeal committee can consist of no more than three persons from among those appointed by the authority under the schedule. Therefore, as the noble Lord, Lord Hughes, said, it would make nonsense of that if the majority from the local authority, so to speak, was more than one.

I think my first general point is that as an ex-county councillor I really resent the insinuation of the noble and learned Lord that in some way all the appeal committees are going to be set up by authorities with intent to defeat appeals, and that the persons who are going to sit on those appeal committees are going to be judges in their own cause, to quote his own phrase, and hell bent on denying satisfaction to the appellant parent. I do not think that they will take such a cynical and misguided view of their role and function.

If one may take an example—and one does not have to go so far as the Court of Appeal—lay magistrates are appointed by my noble and learned friend, and in Crown Courts they sit as an appellate court from decisions of their fellow magistrates in courts of petty session. I have never heard it said that an appellant is denied justice in the Crown Courts, in the old courts of quarter session, because the lay justices inevitably, as it were, rush to the protection of their friends and refuse to believe that they might have erred or in some way misdirected themselves. I see the noble Baroness, Lady Phillips, looking at me, and I hope that she would agree with that contention. It is simply not right to say that the people sitting on these appeal committees are going to be judges in their own cause. They will make it their own casue, in the same way as any unjust judge can, if they so wish, but to start one's argument on that basis is, I think, quite wrong.

The Government have in fact given a great deal of thought to this matter of the composition of these appeal committees; and the next point I have to take up is that of my noble friend Lord Selkirk when he said that in fact the expense which flowed from the decision of an appeal committee would of necessity be insignificant—because it might well be very far from insignificant. In fact, the decision of an appeal committee to uphold a parents' placing request could involve the authority in significant additional expenditure. There might well be the engaging of a new teacher, with all that that implies—not only questions of salary, but all the back-up expense to do with that.

The next matter upon which I take issue with my noble friend is this. Although we have to go to new Section 28E, and although it allows the appeal committee to confirm the authority's decision where one of the grounds of refusal set out in new Section 28A(3) obtains, the committee may nevertheless decide not to do so. in other words, it can weigh up the merits of the appeal and it is not bound by any such considerations as appear in the new Section 28A(3). The authority may therefore, whatever the grounds of appeal may have been, have to place the child in accordance with the parents' wishes, even if this can only be achieved by significant expenditure. As I have said, that can embrace the employment of an initial teacher or it may mean the extension or alteration of facilities or accommodation. Clearly where this could occur then considerations of public money and finance come in. That means that the safeguard of the education authority has to be taken into account as well as the interests of the parents. There is a balance to be held here. Both the public interest and the interests of the parents must be adequately protected. I urge upon my noble friend to reflect that the decision of the appeal committee is not one which will of necessity have insignificant consequences.

The next matter which my noble friend touched upon was the appeal to the sheriff. That, I regret to notice, he dismissed in so many words by saying that he did not think that it would really amount to much and would not be used. That is a matter of construction of the statute. I disagree with my noble friend, as it happens; but the point which I want to make is that after the determination of the matter by the appeal committee then, so far as the education authority is concerned, that is the end of the matter. If the appeal committee comes down against the education authority, they have no further right of appeal. They may be put to this expense, whereas the parents have the right of appeal to the sheriff. They have a further stage by which the case can be reviewed again.

This was another matter which engaged us when we came to decide on the way in which these appeal committees should be made up, and because of considerations of public money, among other things, we felt that there should be a majority of one in this particular instance. It was because we felt that parents might feel that an appeal committee was not being objective in turning down their appeal that the further appeal—which I may say the English do not have—to the sheriff was instituted. I regard that as a very real safeguard for the rights of parents.

Then the matter was taken up in relation to the chairman. We are all concerned to see that parents receive a fair and impartial hearing when matters come to be ventilated before the appeal committee. The concern of Members, and their view, is that the object of the exercise that I have set out is more likely to be achieved if the chairman of the appeal committee was not a member of the authority or indeed of the education committee. I believe that one should strike a balance between the interests of parents, the children and the public interest. I say, with deference to the noble and learned Lord, Lord Wilson of Langside— remembering as I do his strongly anti-deviationist stance not so many years ago—that I do not see that we have to follow the English down this particular road unless we feel that it is right and proper so to do. I ask why it should be assumed that a chairman of an appeal committee who is a member of the education authority cannot be impartial. I refute that implied allegation which is implicit in these amendments.

What is essential is that the chairman or any other member of the appeal committee should not be too closely involved with the particular case which is being heard. I would draw your Lordships' attention to paragraph 5 of Schedule 1 which excludes from membership any person involved with the original decision to refuse a placing request. Members of the Committee will also see that paragraphs 6 and 7 of Schedule 1 exclude from membership of the committee persons involved with schools related to the placing request. These provisions provide adequate safeguards of impartiality over this matter.

Then where do we get to? For myself, I think that for the reasons which I have given and argued at fairly considerable length I do not believe that it is right to reject the impartiality of local people and local councillors in the way in which this first amendment implies that they should. But I am bound to say that I recognise the force of the arguments so far as Amendment No. 46 is concerned. If one may use the hackneyed but nevertheless entirely important saw, justice must be seen to be done, even on this particular non-litigious plane.

I am very willing to give considerable thought to that amendment between this and the next stage of the Bill. I am willing to give thought to the previous amendment, too. I am bound to say that I think that the Government are on pretty firm ground there. I should be very interested to hear from other Members of the Committee who have had long experience in the field of local government, whether they share the somewhat cynical attitude of the noble and learned Lord, Lord Wilson of Langside, over this matter.

Lord Mackie of Benshie

May I ask a question in clarification? Did I understand the noble Earl to say in reply that because the parents had a right to appeal, it was only right that the authority should have a majority of one on the initial appeal. In other words, the parents had the right of appeal to the sheriff but the authority did not, and therefore it seemed to him logical that the authority on the first appeal should have a majority of one. If so, it surely is hardly fair that he should try to prejudice the first appeal because the parents have a right to the second.

The Earl of Mansfield

The noble Lord is adept at making thoroughly illogical leaps into the dark. What I said was that in these matters, where there could be significant public expenditure concerned, there has to be full regard paid to public interest as well as the interests of parents and children. I went on to say that in this particular instance the parents have a further right of appeal to the sheriff and that the local education authority (who are, after all, the guardians of the public purse in this connection) do not. They have no further appeal. We thought in those particular circumstances it was right that at the midway point—that is to say, the midway point between refusal of the education authority to give effect to the wishes of the parents and the other end of the spectrum, when the sheriff finally decides—the education authority should be in a majority of one so far as the appeal committee was concerned.

4.40 p.m.

Lord Wilson of Langside

If the noble Earl, as I understood him to say, is prepared to consider both these amendments, then I can proceed accordingly. I am anxious not to delay the House at all, in view of the other important business that is to come on, and to hear what other noble Lords who are experienced in local government affairs have to say on this matter. I am a little concerned that my advocacy is so very had and that I have apparently misled the Minister—and I am sure it is my fault—into thinking that I was making unwarrantable insinuations against people. It was nothing of the kind. I refrained from talking about the importance of justice being seen to be done, because there are plenty of platitudes flying about without my adding to them. What I was thinking of were the parents, who have been told that this is their charter. I can just picture the scene as they come in before the tribunal, because I have seen many court scenes like that, with the mother saying, "Who are these people who have turned down the appeal?" Then the parents hear that the majority of people are members of the education authority. I should have thought that was wrong.

I was not making insinuations. Many of the members might try to be impartial and might manage to be. But it is the impression which is given by this situation that I very much fear. I have been accused of insinuating and of being a deviationist. I was not at all suggesting that a chairman of a local authority could not be impartial. I was saying that in common sense, and out of consideration for the parties who were appearing, it would be better if he were not involved. As for copying the English, I agree entirely with the Minister that we should not always copy the English. But if they are right, there is no harm in doing the same, and I hope that they will do the same for us.

The Earl of Selkirk

What the noble and learned Lord has said only underlines to me the need for a thoroughly impartial appeal committee. His interpretation of subsection (3) on page 2 seems to bear no relation to the words of the Bill. May I read those words? The duty"— that is, to place children— imposed by subsection (1) above does not apply— (a) if placing the child in the specified school would— (i) make it necessary for the authority to take an additional teacher into employment;". He said that it would. I interpreted the Bill as it stands: (ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school". That is, those things that are ideal, so long as the expenditure is insignificant. If the noble and learned Lord interprets the Bill totally differently, then it seems necessary to have an objective appeal committee.

What the noble and learned Lord has underestimated is this. I have been a member of a local authority, as have many others, and there are good and bad members of local authorities. There are very unreasonable local authorities and very unreasonable parents, but in most cases parents will not appeal. We are dealing here with the unreasonable cases, and in those cases justice should be seen to be done. This is no reflection on local authorities; it is merely a sensible way of doing it.

Lord Ross of Marnock

On the whole, after listening to what has been said, I think that I agree with the Government on this occasion. In many ways the amendments are misdirected. After all, the authority appoints and the members who object to the unobjectivity of the committee have had no objection at all to the fact that it is the authority that does the appointing of all the people. This was pointed out very well by my noble friend Lord Hughes. There is something else that people seem to forget about education authorities, and, indeed, about regional authorities, of which the education authority is but one committee: they are a very mixed lot of people. They are not all of the same mind and, at times, they can be guid thrown even against their own colleagues and their own establishment.

One other thing which my noble and learned friend Lord Wilson forgets is that not all members of the education authority are elected. I am sure I do not need to tell Scots members here that there are teachers co-opted on to education authorities, there are Ministers of the Kirk of Scotland, by statute, co-opted on to education authorities and there are Roman Catholic priests co-opted on to the education authorities. So in talking about an education authority, please do not think that you are talking about clashes of politics or anything else, in connection with the appeal procedure. It is just not so.

I had something to say and I should have welcomed a discussion at the right place when we were dealing with appeal committees and further appeals to the sheriff, but nothing was said about them. I quoted the figures for Strathclyde, and about 96 or 97 per cent. of transfer appeals were allowed. The only objection we heard from the Minister of State to the behaviour of any local education authority was in relation to Lothian, and I pointed out that, a month or two ago, the Secretary of State approved a new scheme for transfer that would probably have put right any weaknesses. So the experience at the present time is that the situation is well under control and is satisfactory.

The point is that once you list instructions (a), (b), (c) and (d), as to why you cannot allow a person to be transferred, you get a more inflexible position, and the weakness in the whole transfer scheme, and in the parents' charter, is that there is less flexibility now than there was. But that is in the clause. When we come to it, we can rely on the good sense of local authorities in selecting. I ask your Lordships to remember that in the case of Strathclyde no one who is on the appeal committee can have been there at the original decision or even have listened to the discussion. It is somebody entirely different and entirely new. It might be somebody from an authority far away. Then you have parents and people who, in the opinion of the education authority, are experienced. We are making a mountain out of a molehill here. We have gone out of our way in being reasonable about providing an appeal, and about the whole transfer scheme. I do not know whether anything I have said has been any help at all to the Government, but the matter has been pretty well discussed and agreed, and the balance is just about right.

The Earl of Perth

It is a most unusual situation to have the noble Earl, Lord Mansfield, on the Government side and the noble Lord, Lord Ross, on the Opposition side in harmony against some of the back-benchers of both parties. Clearly, it is very satisfactory to know that the noble Earl will think again, certainly on the second amendment and perhaps on the first, though I am not sure that I would not have done it exactly the opposite way round and been ready to accept the first amendment and not the second. My reason is that if, when a parent goes to the appeal committee, he knows that there will probably be a majority of one on the education authority, he is very much more likely to go to the sheriff if he loses. If, on the other hand, he knows that the first committee is a balanced committee, then the chance of an appeal to the sheriff is very much less. So you may find that, by the very provision that is suggested in the first amendment, there will be less need of an appeal to the sheriff. I find the second amendment very difficult, If the noble Earl will accept the second, that is fine. But if he does not, I do not think it matters too much.

Having said that—I though it was worth while making the point—I leave it to the noble Earl and everybody else who is directly concerned to decide what is to happen, given that the noble Earl said that he would certainly consider again the second amendment and, I hope, the first.

Baroness Phillips

Having just gone through the trauma of sitting on a committee which dealt with a slightly different question—namely, a teacher who was subsequently dismissed and who has now appealed—I support my noble friend on the Front Bench. The important point about any committee is that it should be properly constituted. We cannot in the end obtain objectivity. It is an illusion. Anybody who has sat as a magistrate knows that one's judgments are subjective. You are only in danger when you cheat yourself by thinking that you are not subjective in your judgments. What balances it out is that two other people sit with you. It is unlikely that everybody will have the same point of view on any given issue.

In the anxiety that everybody should have no concern or interest in the case, it seems that we have ended with a jumble which is not properly arranged. In court cases there is the protection of somebody to represent both parties. Here there is what might virtually be called a "kangaroo court", consisting of people with insufficient experience of handling such cases who have finally to make a judgment. This is the danger into which you fall if you are anxious to get people with complete impartiality but no knowledge of the subject. In the end, there will probably be more of the one and less of the other.

I suggest that members of an education authority will certainly be impartial. It is unlikely that they will know very much about a particular school or about particular parents. If we are searching for this will-o'-the-wisp—in other words, if we are looking for people who know nothing about the circumstances—there is an inherent danger.

Baroness David

As I have sat on an appeal committee, perhaps I may say that I have been rather horrified by some of the things which have been said today. I do not think that appeal committees will be tribunals or courts of law. They have got to be listening bodies. It is most unlikely that a vote would ever be taken. As the education authority, a local authority is ultimately responsible for education in its area. I believe that a local authority should have just a balance on the appeal committee.

The appeal committee upon which I sat was composed entirely of members of the education committee. A co-opted member took the chair. During four years there was only one appeal against us to the Secretary of State, and that appeal was turned down. We have to look at the appeal committee not as a court of trial nor as a tribunal but as a listening and attentive body which will decide how a child should be placed according to a little more information which is drawn out in interview. I, too, support the Government.

Lord Hughes

Arising from the argument between the Minister and the noble Earl, Lord Selkirk, I want to ask the Minister about the possibility of increased expenditure being forced on a local authority. The noble Earl quoted from the top of page 2 of the Bill and pointed out that the duty imposed by subsection (1) does not apply. He quoted paragraph (a)(i), which would make it necessary for an authority to have an additional teacher. Section 28E says that an appeal committee may, on a reference under Section 28C, confirm the education authority's decision if they are satisfied by (a) and (b), but if they are not satisfied they must refuse to confirm the decision of the education authority.

In the past when the word "may" has appeared in the Bill it has often been moved that it ought to be replaced by the word "shall". The argument has been that "may" sometimes means "shall". What does "may" mean in this connection? Does it make it obligatory, or does it mean that an appeal committee, even though it is satisfied that one or other of the grounds exists, can still refuse to confirm the authority's decision?—in which case the Minister is right in saying that they can be landed with additional expenditure. This is an important point. There have been so many arguments in past debates about legislation as to what the word "may" really means that I hope the Minister is saying that in this case "may" has the meaning which is taken outside legislation and does not in this case mean "shall".

The Earl of Mansfield

For the second time in this debate the noble Lord, Lord Hughes, has shot my fox. Of the three Members on the Opposition Front Bench who have sprung to the Dispatch Box, two at least are now on my side. I take comfort from this very welcome, though possibly short-lived, agreement with the noble Lord, Lord Ross of Marnock.

To return to the point made by the noble Lord, Lord Hughes, new Clause 28E is permissive. I take the noble Lord, Lord Hughes, one stage further. Over the page it says that an appeal committee may confirm the decision if it is satisfied, first, that one of the grounds of refusal in Section 28A(3) exists. Secondly, it has to be satisfied that it is appropriate to do so. That is the let-out. It gives them what I might call—I am conscious of the noble Baroness, Lady David, and her possible aversion to lawyers—the discretion, notwithstanding that there may be grounds of refusal under Section 28A(3), to refuse to confirm the authority's decision and require the education authority to place the child to whom the reference relates in the specified school.

If my noble friend Lord Selkirk reads it in that way, I hope he will see that this has two consequences. First, it gives to the appeal committee a rather wider role than perhaps he contemplated. Secondly, it has possible financial implications. It could be, for instance, that, in the provision of an extra teacher or in the adaptation of school buildings, there would be financial implications. It is those financial implications which have led to the Government proposing in Schedule 1 to the Bill that the appeal committee should be set up in the way that is proposed and that it should have a majority of not more than one. However, I confirm what has been said by the noble Lord, Lord Hughes.

Lord Wilson of Langside

In view of what the noble Earl the Minister has said, and with the reservation of any right which I have to raise the matter again on Report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Schedule 1 agreed to.

Schedules 2 to 7 agreed to.

Schedule 8 [Transitional provisions]:

The Earl of Mansfield moved Amendment No. 47:

Page 72, leave out from beginning of line 34 to end of line 4 on page 73 and insert— ("2. During any period—

1. (a) after the date of the coming into force of the provision of section 1(1) of this Act inserting into the principal Act the provision which becomes paragraph (d) of section 28A(3) of that Act; but
2. (b) before the date when section 4 of this Act comes into force.

there shall be substituted for the said paragraph (d) the following paragraph— (d) if the specified school is a special school and the child has not been ascertained as requiring special education;". 2A. During any period—

1. (a) after the date of the coming into force of the provision of section 1(1) of this Act inserting into the principal Act the provisions which become sections 28C and 28E of that Act; but
2. (b) before the date when section 4 of this Act comes into force,

the said sections 28C and 28E shall not apply in respect of a decision of an education authority refusing a placing request made in respect of a child who has been ascertained as requiring special education.").

The noble Earl said: Despite its length and apparent complexity, this is purely a drafting amendment of a technical nature. I shall of course explain it, if asked. I beg to move.

On Question, amendment agreed to.

The Earl of Mansfield moved Amendment No. 48:

Page 73, line 30, at end insert— ("3A. Any consultation made or other thing done by an education authority for the purposes of their functions under Part I of the principal Act before the making of regulations under section 22A(2) of the principal Act which would if made or done after the making of those regulations be consultation for the purposes of section 22A(1) of the principal Act or part of the process of such consultation shall be deemed to be such consultation or, as the case may be, a part of the process of such consultation.").

The noble Earl said: This amendment clarifies the transitional arrangements to be made in connection with new Section 22A inserted into the principal Act under Clause 6 of the Bill. The new section requires consultations to be held on the proposed changes in education arrangements of the kind prescribed in regulations.

It would clearly be both wasteful and unreasonable if consultations or other actions by an education authority, which were in accordance with this new section but which were carried out before the Bill becomes law and the regulations are made, would have to be repeated following enactment. Therefore this amendment would provide that, in so far as such consultations or actions carried out before the making of the regulations were in accordance with consultations required to be carried out under new Section 22A, they would be deemed to be consultations held under that new section or part of the process of such consultations. In effect, the education authority would not be required to repeat those consultations a second time. I beg to move.

On Question, amendment agreed to.

Schedule 8, as amended, agreed to.

Remaining schedule agreed to.

House resumed: Bill reported with the amendments.