Lords Sitting of 8 October 1981

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford

Personal Statement: The Earl of Onslow
The Earl of Onslow: My Lords, with the leave of the House I should like to make a brief personal statement. I very much regret that yesterday in a supplementary question I breached a long-standing custom of the House that Members of another place should not be mentioned by name, or otherwise identified, for the purpose of criticism of a personal nature. I desire unreservedly to apologise to the House and to the right honourable Member of another place to whom I referred for this breach of custom of this House.

The Closed Shop
3.8 p.m.
Lord Orr-Ewing: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what plans they have for altering the present law on the closed shop as a result of the ruling by the European Court of Human Rights.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, the Government are currently considering further changes and will announce their proposals in due course.
Lord Orr-Ewing: My Lords, since the present Government will be most reluctant to bring in a Bill to give retrospective justice to the closed shop victims, have they noted the fact that, according to an article by Helen Jackson in The Times on 29th August, as many as 400 people have been sacked and a number of these have suffered very greatly? Will the Government consider ex gratia payments in cases of real and proven hardship arising from the McCarthy/Wedderburn Acts of the 1974–76 period?
The Lord Chancellor: My Lords, the Question related to changes in the law and I think that the priority must be to deal with the situation set up in relation to the three current cases before the European Court, but I shall take careful note of what my noble friend has said and see that it is brought to the attention of my right honourable friend.
Viscount De L'Isle: My Lords, since the Court of Human Rights in Strasbourg decided under Article 50 of the Convention that the question of material losses, legal expenses, non-material damage, both pecuniary
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and moral, suffered should be referred to the Chamber of seven judges, will the noble and learned Lord undertake to secure that the sums due should be paid in full once the quantum has been decided, without the expensive postponements to which the victims have been subjected in the course of five years' proceedings?
The Lord Chancellor: My Lords, I am terribly sorry that I did not hear every word that my noble and gallant friend said, and I have not read the full judgment of the court in detail. I understand that it gave us until 13th October, which is only next week, to state in principle whether we would be prepared to enter into a friendly settlement. I am informed by my right honourable friend that that deadline will be met, and I think that my noble and gallant friend can be reasonably hopeful. But of course in the absence of agreement the matter would have to be decided by the court itself.
Lord Rochester: My Lords, is it still the Government's view that legislation on the closed shop should be directed towards remedying identified abuses of the existing law, rather than immediately outlawing the closed shop altogether? In that connection since our debates on this subject six months ago have there come to light any further cases of employers making it a retrospective requirement that their employees should be trade union members?
The Lord Chancellor: My Lords, as regards the earlier part of the noble Lord's supplementary question, I think that, with respect, I must ask him to await any Government statement that might be forthcoming. As the noble Lord knows, this is the season of the year when the Queen's Speech is coming up and I ought not to anticipate its contents, if indeed I knew them. But presumably there will be a statement reasonably early in the new Session. As regards the latter part of the noble Lord's supplementary question, it was only within minutes of coming into the Chamber that I received from him notice that he was likely to ask it, and, if I may, I shall make inquiries and write to him.
Lord McCarthy: My Lords, does the noble and learned Lord agree that so far as the Question asked by the noble Lord, Lord Orr-Ewing, is concerned, there can be no case for altering the present law since the European Court took a decision on the basis of the previous law, which the Government have now changed and which, I understand, the Secretary of State said, on the publication of the European Court's decision, would in fact cover the case very well?
The Lord Chancellor: My Lords, it is of course true that I warned the previous Government—I see the noble and learned Lord sitting almost exactly in the place from which I rose when I warned him—that they would be in dead trouble with the European Court if they went on with their 1976 Act, and I proved to be right on that occasion. I do not wholly accept what I thought to be the rather simplistic view put forward by the noble Lord who has just asked a supplementary question. We did of course remedy the more obvious abuse in our 1980 legislation, but that does not mean

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that further changes might not be desirable in the light of the reaction to our Green Paper, for instance. I should prefer to leave the question open until we can debate the matter more fully.
Lord Molloy: My Lords, is it not a fact that the changes in recent industrial legislation have meant that many working men and women find it much more difficult than hitherto, because of the change of the law by this Government, to obtain justice at industrial tribunals? For example, in some instances they have to wait a year, whereas hitherto they had to wait six months. The number of these cases runs into hundreds, whereas the case referred to the European Court of Human Rights involved two people. My last point is this. I am sure that the noble and learned Lord the Lord Chancellor would agree that they made it specific in their report that in no way were they judging the rights or wrongs of the closed shop.
The Lord Chancellor: My Lords, part of that question has nothing whatever to do with the Question on the Order Paper. There were three railwaymen, unless I am mistaken, and not two, in the case recently before the court. It is true that they were very careful not to prejudge in either direction the legality of the closed shop as such under the European convention. They left it open to themselves to come to either conclusion in the future when the point directly arises, if it does. So far as I understand the summaries of the judgment that I have seen, they placed their ruling in the particular case on the words of the convention and the particular circumstances of the case, but that does not at all mean (if I have the sense of the judgment right) either that they will or that they will not outlaw the closed shop as such.
Viscount St. Davids: My Lords, would the noble Lord not agree that one of the main troubles of this closed shop business is that many of the unions that operate a closed shop have political opinions, views and objects; and would there not be something to be said for allowing the closed shop in areas where such political views were not aired? In particular, of course, I am thinking of student unions, and others. Is there not some ground for saying that closed shops might possibly not be legal, indeed, unless it were possible for people to join them without being forced to partake in views with which they disagreed?
The Lord Chancellor: My Lords, I think this is precisely the sort of speculation which we ought to avoid until the Government make their statement. I think that what I can say is that of the three cases which came before the European Court, I understand that in two of them, but not in the third, the complainants had objection to the policies of the group of unions in one respect or another. But in the third they simply thought that the union was an incompetent and inefficient body which did not look after its members.
Lord Elwyn-Jones: My Lords, in relation to the words of admonition which the noble and learned Lord addressed towards me when he was in this place,
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is it not the case that Mr. Fawcett, the British member of the Commission, who has had long experience in these matters, strongly agreed with my approach and not with the noble and learned Lord's; and (although I am not sure about this) was that not also the position of the British member of the court? I am not as certain about that as I am about the first point I made.
The Lord Chancellor: My Lords, whatever he thought—I am afraid I do not know what the answer is—the majority of the court, 18 to 3, decided that I was right and that the noble and learned Lord was wrong.
Lord Campbell of Alloway: My Lords, would my noble and learned friend the Lord Chancellor not agree that this majority judgment of the European Court of Human Rights, taken as it was on a stale statute which no longer represents our law and taken as it was in relation to a situation where the employers implemented the closed shop practice at the instigation of the union, really affords no assistance to our future developing law, which in any event surely must have some regard to the situation where certain employers implement the closed shop contrary to the wishes of the trade unions? Furthermore, would my noble and learned friend the Lord Chancellor not agree that the judgments of this court do not easily adapt into the form of a United Kingdom statute?
The Lord Chancellor: My Lords, I know my noble friend's very wide learning on this branch of the law and also his very valuable experience in it. It is of course true that the judgments were on the 1976 statute and not on the present law of the United Kingdom. I think, therefore, that one has to read the judgments with very great care; and from the summaries I have seen I do not think they are very easily summarised with accuracy. I think we are wise to be careful before we make any definite proposals, especially, as I say, with the new Session coming up; and I would ask my noble friend to remember that my right honourable friend, to whom I will pass on his very valuable comments, has been in office only a very few days and is faced with a very wide range of highly complex and controversial questions. I think he must have time to think about this and to advise the rest of his colleagues as to how he should like us to act.
Lord Orr-Ewing: My Lords, may I ask my noble and learned friend whether he understands that we have taken some comfort from his flexibility of mind and of his showing great sympathy that future legislation may be adjusted to make things clearer than they are at the moment should that be necessary after reading the judgment; but that for most people what is now important is speed in satisfying with compassion the three railwaymen who have been waiting for five years? I have a tragic letter in my hand from the Frost family who have suffered severely. If my noble and learned friend is aware of these facts, will he speed up the scheme?
The Lord Chancellor: My Lords, I am grateful for what my noble friend has said. I will pass his com

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ments on to my right honourable friend who, I know, has at least as warm a heart as I have.

Publicly Owned Land: Development
3.21 p.m.
Lord Gainford: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much publicly owned land has been identified as available for development in the land registers so far published.
The Earl of Avon: My Lords, some 20,000 acres of publicly owned unused or under-used land has now been registered in the districts so far designated. Almost half has potential for development, and about a fifth is on the market or being prepared for development or use.
Lord Gainford: My Lords, I thank my noble friend for that encouraging Answer. Can he give any information as to how quickly Her Majesty's Government will implement any plans they have and, knowing that some of the land will be considered for housing, are there any plans available for the areas that are obviously unsuitable for housing?
The Earl of Avon: My Lords, it is an early stage to go into details of what development there will be, but it is intended to build on the success already achieved. The remaining 330 districts in England will be designated and it is intended to publish all registers by April 1st, 1982.
Lord Underhill: My Lords, may I ask the noble Earl whether the Government have any plans to compile similar information on unused and under-used land in private hands which may be sat on in the hope that there may be increased land values?
The Earl of Avon: My Lords, no. It is not intended to do this on, the grounds that private land is already, as it were, for values that it must have, turning over very quickly. It does not sit idle as this public land has.
Lord Gisborough: My Lords, can the noble Earl say what is the estimated lack of revenue to local authorities throughout the country as a result of this long underdevelopment or lack of development of available land?
The Earl of Avon: My Lords, I have no exact figures but I think we would all agree that it has been a national scandal that all elements of the public sector should have allowed so much land, often in the heart of great cities, to have been sterilised for so long for lack of positive action. These registers we hope will eradicate dereliction and decay and also enhance a great base of local government and make the cities more attractive places in which to live.
Lord Wallace of Coslany: My Lords, can the noble Earl say how much of this publicly owned land is
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owned by local authorities who are unable to build houses that they want to build because of Government policy?
The Earl of Avon: My Lords, again I have no figures with which to answer the noble Lord directly, but this is central heartland which has been left idle. I do not believe that any council would have left it idle for housing.

Arms Control and Disarmament: Publicity
3.26 p.m.
Lord Brockway: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what they have done to implement the undertaking given in the Final Document of the United Nations Assembly Session on Disarmament (May to July 1978) that they would "give priority to the preparation and distribution of printed and audiovisual material relating to the danger represented by the armaments race".
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Lord Trefgarne): My Lords, in August 1979 the Government took the lead in launching a regular arms control newsletter, nine issues of which have so far been published. The Government have also published fact sheets covering defence and disarmament policy. Ministers continue to speak frequently on arms control and disarmament issues.
Lord Brockway: My Lords, while thanking the Minister for that reply, would he not agree that these documents have a very limited circulation? May I ask in particular what has been the Government response to the United Nations recommendation that Dr. Waldheim's experts' report should be widely distributed? Is the Minister aware that that report records that there are now over 1 million warheads carrying nuclear weapons, that a nuclear weapon has been made 4,000 times as destructive as the bomb at Hiroshima and that there are enough explosives for three tonnes to fall on every man, woman and child on earth?
Lord Trefgarne: My Lords, I do not want to underestimate the importance of the various publications I have referred to but the proper answer to the difficulties, terrible threats and risks to which the noble Lord refers is the effective moving forward of the various arms control and disarmament negotiations which are in prospect at the present time. The TNF talks will begin at the end of November; the MBFR talks are going on in Vienna but not achieving much progress and, above all, there is the forthcoming resumption of the CSCE review conference in Madrid where the French conference on disarmament proposals will be top of the agenda.
Lord Jenkins of Putney: My Lords, are the Government aware that there is widespread concern throughout Europe at President Reagan's recent rearmament decisions, and that there will be widespread opposition in this country if the Government follow the same mistaken course?
Lord Trefgarne: My Lords, the policy which we seek to follow is to provide adequate security for our country and, above all, to contribute as best we can to the deterrents offered by the Western Alliance.
Lord Nugent of Guildford: My Lords, can my noble friend say what action Her Majesty's Government can take to secure the distribution of this material in countries behind the iron Curtain, including Soviet Russia?
Lord Trefgarne: My Lords, as my noble friend well knows and, I suspect, is inviting me to say, it is exceedingly difficult to get such documents circulated behind the Iron Curtain; that is why the CSCE process is important.
Lord Morris: My Lords, would not the limited circulation of these documents be a reflection of their value?
Lord Trefgarne: My Lords, it is not so much a matter of getting them circulated; there are plenty of copies available for anyone that asks. The problem is to get people to read them.
Lord Renton: My Lords, can the noble Lord say what proportion of the nuclear warheads referred to are held by Russia?
Lord Trefgarne: A very substantial proportion, my Lords.
Lord Paget of Northampton: My Lords, surely, with the shortage of educational material and books of all types are not documents of this sort a little unnecessary? If there is a single subject upon which all humanity is agreed, is it not that the arms race, and in particular the nuclear arms race, is dangerous? When there is a shortage of materials do we have to spend this money in going on telling them so?
Lord Trefgarne: My Lords, I think that the documents I have referred to serve a useful if limited purpose, but one does not want to overestimate or underestimate the effects that they can achieve.
Baroness Trumpington: My Lords, will my noble friend agree that it might be a good idea if the subject matter of these documents were aired on the World Service of the BBC?
Lord Trefgarne: My Lords, what is broadcast on the World Service of the BBC is a matter for the BBC itself. I do not have any influence over that.
Lord Brockway: My Lords, while appreciating that the United Nations' recommendation about the distribution of the experts' report is quite recent and
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that it is a long document, would the Government consider responding to the United Nations' recommendation by distributing a summary of it to the whole of the British people?
Lord Trefgarne: My Lords, I am not certain quite what it is intended to put in the next edition of the arms control and disarmament newsletter to which I have referred, but it may be that such a summary could find a place there.

The Parliamentary Commissioner
3.30 p.m.
Lord Winstanley: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will amend the Parliamentary Commissioner Act 1967 so as to enable complaints to be referred to the Ombudsman by Members of both Houses of Parliament.
The Chancellor of the Duchy of Lancaster (Baroness Young): No, my Lords. The Parliamentary Commissioner is there to help Members of the House of Commons discharge their responsiblities as the elected representatives of their constituents, and the 1967 Act accordingly provides for complaints to be made only through Members of the House of Commons.
Lord Winstanley: My Lords, may I thank the noble Baroness for that informative reply, which sets out all the facts? May I ask her whether she agrees that it is high time that noble Lords in this House stopped reinforcing the widespread public view that there is but one House of Parliament? May I also ask her whether she is aware that many noble Lords and noble Baronesses are frequently involved in matters of injustice and maladministration which come within the scope of the Ombudsman? For them to have to seek out a Member of the other place in order to put the complaint is surely undesirable and ought to be unnecessary. Finally, may I ask the noble Baroness whether she agrees that it is timely today to remind the great British public that Parliament is now sitting, by virtue of the fact that this House is sitting whereas the other place is not?
Baroness Young: My Lords, on the first and third point that the noble Lord, Lord Winstanley, has made I shall of course take every opportunity to remind members of the public of the work that the House of Lords is currently doing and continues to do throughout the year. I believe that to be important. On the specific point that he has raised, he will know that when the Bill was going through another place this matter was raised on an amendment and was defeated. When it has subsequently been looked at it has always been the view that the object of this is to enable a Member of Parliament to perform his duties more effectively, particularly where the operations of the Executive affect his constituents. I see no reason for altering that at this stage.
Lord Byers: My Lords, may I ask the noble Baroness this question: Since Members of this House have access to the Crown, just as Members of the House of Commons have access to the Crown, would it not be logical that matters involving Members of this House and any members of the public should be remitted to the Ombudsman?
Baroness Young: My Lords, I do not believe that this is quite the same parallel. It is very important to emphasise that, regarding the raising of questions by members of the public, they do not necessarily have to do this through their own Member of Parliament. They can go to any Member of Parliament if they believe they have a point which they wish to put forward.
Lord Kilmany: My Lords, arising out of a previous question, may I ask my noble friend whether she would agree that Members of your Lordships' House are just as capable of recognising cases which should be investigated by the Ombudsman? They are just as capable as Members of another place. Would it not be in the public interest that we should have equal facilities to do so?
Baroness Young: My Lords, I take the point of my noble friend; but, as I indicated in an earlier reply, this matter was raised during the passage of the Bill in 1967 and it was then turned down. I do not think that the particular reason that was given has been invalidated, because it rests on the basis of the Bill.
Lord Molloy: My Lords, may I ask the noble Baroness to bear in mind that, since the creation of the first Parliamentary Commissioner, when the rule that only Members of another place could make submissions to him and no one else was written in, two additional Parliamentary Commissioners have been appointed, one for the National Health Service and one for local government? Regarding the Parliamentary Commissioner for local government, an ordinary member of the public can write and complain or ask for help direct. Does it not seem that there is now a reasonable case to support the submission made by the noble Lord, Lord Winstanley?
Baroness Young: My Lords, I certainly note all that the noble Lord, Lord Molloy, said and I am very glad to feel that he thinks that this House has such a useful role to play.
Lord Byers: My Lords, I wonder whether the noble Baroness would reconsider the reply that she gave to me, because it may unwittingly be misleading. Am I not right in thinking that the convention in another place is still as it was when I was there? A constituent should take up a matter with his or her own Member and not with any Member. That convention is a very important one. If it is not obeyed, a lot of difficulty occurs in another place.
Baroness Young: My Lords, I am advised that the Act allows complaint to be made to any Member of the House of Commons and that, if an individual cannot persuade his own Member to take up his case or if the
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individual does not want to ask for his own Member's help, he can approach any other Member of Parliament. I am sorry if there was any misunderstanding about my earlier answer.
Baroness Wootton of Abinger: My Lords, would the noble Baroness have in mind that a great number of persons make complaints through their Member of Parliament addressed to the Ombudsman and are dissatisfied? Members of this House frequently get a second round when the dissatisfied person comes back and asks: "Can you not do something about this?" Is it not right that we should be available even as some form of a court of appeal, so to speak, where a constituent does not feel he has been satisfactorily supported or his case satisfactorily put to the Ombudsman by his own Member of Parliament?
Baroness Young: My Lords, I take the point that the noble Baroness has made, which has been raised by other Members of your Lordships' House. I note the strength of the feeling on the subject. I can only reiterate that when this matter has been looked at on other occasions it has always been felt that the primary responsibility for defending the citizen against the Executive does rest with the Member of the House of Commons and the Government share these views.
Lord Wilson of Langside: My Lords, will the noble Baroness acknowledge that one of the reasons why the 1967 Act did not fulfil the expectations which many of us had of it was the undue restriction to complaints made through Members of the House of Commons? Would she not acknowledge that Lord Winstanley's suggestion would go far to correct this? In the second place, would a simple amendment to the 1967 Act not suffice?
Baroness Young: My Lords, I do not feel that I can usefully add anything to what I have already said. I will of course look carefully at all the points that have been raised. I feel that it would serve no purpose to reiterate the argument that I have already made to the House.

Business of the House
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. Subject to the progress of the Report stage of the Education (Scotland) Bill this afternoon, the House will adjourn for a short period at approximately 7 o'clock.
My Lords, I should also like to make an announcement about next week's business. It has been agreed through the usual channels, and after consultations, that the House need not sit on Monday of next week, 12th October. The third and final day of the Report stage of the British Nationality Bill will be taken on Tuesday, 13th October. Consideration of Commons Amendments to the Matrimonial Homes (Family Protection) (Scotland) Bill, which was to have taken place as first business on Tuesday, will now take place on Wednesday, 14th October, before the Third Reading of the Education (Scotland) Bill.

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I apologise for any inconvenience that this change may cause to any noble Lord; but perhaps I should point out to the House that, so far as the British Nationality Bill is concerned, it had in any event been expected that the Report stage of that Bill would have been continued on Tuesday of next week and this has been reflected on the Order Paper for some time.
Lord Brockway: My Lords, may I ask what will happen to those of us who have Questions for Monday which were put down in the expectation that the House would be meeting? They are important Questions and there is no available time to put them during the rest of the Session. Will the Government provide some facility by which those Questions, rightly on the Order Paper, shall be considered?
Lord Denham: My Lords, I have apologised to the House for any inconvenience that this would cause. I did in fact have the noble Lord, Lord Brockway, among others, in mind when I did so. It is always difficult when business goes rather more expeditiously than one feared; and when there is an opportunity for the House not to sit on a Monday, or, more reasonably, on a Friday, the difficulty of Starred Questions which have been put down for that day always arises. It is very bad luck on those noble Lords who are hit in this way. I believe the House would agree with me that where the other business can be organised in such a way that the House does not have to sit on a particular day the factor of four Starred Questions should not weigh too heavily when taking the decision whether or not the House should sit.
Baroness Vickers: My Lords, would it not be possible to provide Written Answers? Then everybody would know the Answers and it would settle the anxieties of those who have put down the Questions.
Lord Denham: My Lords, I am most grateful to my noble friend Lady Vickers for reminding me that that is of course possible. Also, any noble Lord who has another Question down for reply between now and the Recess, and who believes that a Question lost is relatively more important, can always switch his Questions.

Broadcasting Bill [H.L.]
3.41 p.m.
The Lord Chancellor: 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 (on Re-commitment).—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on Re-commitment) accordingly.
[The LORD ABERDARE in the Chair.]
Clauses 1 to 66 agreed to.
Schedules 1 to 7 agreed to.
Schedule 8 [Transitional provisions and savings]:
The Lord Chancellor The Lord Chancellor moved the following amendment:
Page 81, line 26, leave out paragraph 9.
The noble and learned Lord said: This is a purely technical amendment. As drafted the Bill took account of the possibility that existed then that the British Telecommunications Bill would not be in force when this Bill came into operation—this Bill being a consolidation Bill. But the British Telecommunications Act is in force now, and has been for some little time. Therefore, the provision relating to that is otiose and should be deleted from the Bill. I beg to move.
On Question, amendment agreed to.
Schedule 8, as amended, agreed to.
Schedule 9 agreed to.
House resumed: Bill reported with the amendment.

Education (Scotland) Bill
3.43 p.m.
Report received.
Clause 1 [Duty of education authority to comply with parents' requests as to schools]:
The Minister of State, Scottish Office (The Earl of Mansfield)The Minister of State, Scottish Office (The Earl of Mansfield) moved Amendment No. 1:
Page 7, line 25, after ("section") insert ("—(a)").
The noble Earl said: My Lords, it may be for the convenience of the House if I also speak to Amendments Nos. 2 and 3 at the same time that I move Amendment No. 1. The House may recall that we had a stimulating debate during Committee stage over the privacy of hearings where a parent makes an appeal to the sheriff under the new Section 28F of Clause 1 against the refusal of his placing request. The noble Lord, Lord Ross of Marnock, expressed concern in Committee about the harmful effects of the publicity of sheriff court proceedings on a child and his parent. Several noble Lords, including the noble and learned Lord, Lord Wilson of Langside, supported this view and in response to the arguments which were brought out in debate I undertook to reconsider the matter, and that I have done.
I said at the time, and I am sure that most if not all noble Lords agreed, that the welfare of the children concerned should be the paramount consideration which has to be considered at all times. The matter has been fully reviewed and the present amendment provides that any hearing which the sheriff might decide to conduct in consideration of an appeal on the placing request shall be heard in private. I should indicate that it would not be possible, as the noble and learned Lord, Lord Wilson, suggested in Committee, to provide by regulations under the sheriff court rules that hearings should be in private. This is because the Bill provides that appeals on placing requests shall be dealt with by the sheriff on summary application and will therefore fall outside the sheriff court rules.
In proposing this amendment, I am aware that some noble Lords share the view held by what one might call consumer groups that open hearings are a good thing, because education committees would have to defend themselves in public and the proceedings may be of considerable interest to other parents. This view was put fairly forcefully in Committee by the noble Lord, Lord Mackie of Benshie, on the last occasion. This is an argument with which one may have some sympathy, but nevertheless the Government's view is that on balance it is outweighed by the potential damage to the parents and children who will be the subject of the publicity. It is in the light of these considerations that I commend this amendment to the House, beg to move.
Lord Ross of Marnock: My Lords, I believe that these first two amendments are purely drafting amendments and that the substance of the amendment is contained in Amendment No. 3, which refers to the sheriff holding the appeal in chambers. Let us be perfectly perfectly clear; the hearing will be private, the press will not be present, and all that will happen is that the discussion and the decision will take place in private and will then be announced to the press. I can understand the concern some people may have about the lack of a public hearing, but from my own experience of even the present machinery a public hearing can lead to considerable embarrassment and distress in respect of the children involved and perhaps the parents do not always think about this aspect at the time. The parents may be able to bear a certain amount of publicity if it arises but their children may not. On balance I believe this amendment is right and I am certainly prepared to go along with it.
The Earl of Mansfield: My Lords, the noble Lord, Lord Ross of Marnock, is of course right when he says that the substantive amendment is Amendment No. 3.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 2:
Page 7, line 26, leave out ("and") and insert ("(b)").
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 3:
Page 7, line 34, at end insert (";and (c) shall be heard in chambers").
On Question, amendment agreed to.
Clause 2 [Provisions supplementary to section 1]:
Lord Lyell Lord Lyell moved Amendment No. 4:
Page 11, line 40, at end insert ("or of a local education authority in England and Wales").
The noble Lord said: My Lords, with the leave of the House I should like to speak also to Amendments Nos. 5 and 37. Amendment No. 37 is a consequential amendment; it is the penultimate amendment on the Marshalled List. I hope it will be evident from the remarks I shall have to make that Amendment No. 37 does hang with the others—
Lord Ross of Marnock: And 14 and 16.
Lord Lyell: My Lords, if the noble Lord, Lord Ross, will have patience for a moment, I think they are coming later; they are part of another grouping. I am sorry I was not able beforehand to let the noble Lord, Lord Ross, have a note of how the groupings were going to be made. However, if I could now deal with Amendments Nos. 4, 5 and 37, I think the House will agree that what I have to say about those is quite enough for the moment.
These amendments are all for the removal of doubt that might otherwise arise about the duty of an education authority to provide for a child from outwith their area whose parent may ask for a place in one of their schools. Under the provisions of new Section 28A, education authorities will be under an obligation to accede to a parent's request that his child should be admitted to a particular school except where one or more of the specified grounds of refusal apply. Those grounds do not include solely the parent's area of residence; and we do not believe that an authority should be able to refuse a parent's choice of school simply because the parent lives outside the catchment area for the school.
The Government have made plain to the Convention of Scottish Local Authorities that they believe the same principle should apply across local authority boundaries. That is, an authority should not be able to refuse a placing request simply because the child concerned comes from outwith their area. Of course, they will be able to give priority to children from their own area, but if there is still room in a school after they have met the needs of those children they should not be able to refuse a place to someone from across the regional boundary or from across the Border. In accordance with this policy, the new Section 28A of the 1980 Act contained in Clause 1 of the Bill is expressed in general terms relating to a placing request made by any parent, not confined to a parent living in the area of the authority to which the request is addressed.
It has been suggested to my noble friend that there may be an inconsistency between the new Section 28A and the existing Section 23(1) of the 1980 Act, which could be interpreted as empowering, but not requiring, an education authority to make provision for a child resident in the area of another education authority or a local education authority in England and Wales. Lest it be argued that this gives authorities a degree of discretion over whether they should or should not cater for such a child, Amendment No. 37 seeks to add an additional subsection (6A) to Section 23, to make plain that nothing in that section affects an authority's duty to accede to a placing request and make provision for a child from outwith their area.
The removal of any possible doubt in relation to the obligation to accede to a placing request brought to our attention, however, an inconsistency in the Bill as now before your Lordships. Clause 2 amends Sections 50 and 51 of the 1980 Act, which impose certain duties on authorities in certain circumstances to provide board and lodging, transport or travelling expenses, so that these duties do not apply in relation to children belonging to the area of another education authority. In other words, any duty to provide transport and so on will rest on the home authority, and the duty will apply only in relation to the school of that authority's choice; if a parent chooses to send

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his child to a school run by another education authority, that second authority will have no responsibility for transport or accommodation. The Bill is, however, inconsistent in disapplying the duty only in relation to pupils who belong
"to the area of some other education authority".
The correct terminology in relation to authorities in England and Wales is of course—and I think the noble Baroness, Lady David, would agree—"local education authority". Amendments Nos. 4 and 5 remove this inconsistency and put any parents in England and Wales who choose to send their child across the Border on the same footing as parents in Scotland. I beg to move.
Lord Ross of Marnock: My Lords, there is one thing about the noble Lord: if he wants to blind us with science he will do it. As I understand it, subsection (4) simply says:
"(4) the duty imposed by subsection (1)(a) or (b) above does not apply where the pupil belongs (in accordance with section 23(3) of this Act) to the area of some other education authority."
I thought everyone would understand that; but evidently the complication comes in as regards England and Wales. I do not know who cast doubt upon this, but there is no doubt in my mind or any layman's mind that any education authority, whether it be a local education authority or something else, is other than in the education area to which the child belongs.
I think it is quite otiose; I think it is quite unnecessary; but on the basis that the usual thing happens—where there are five words let us make it 12—the draftsmen want to be absolutely sure. That is what is happening here. I mentioned other amendments. It is exactly the same point in the other amendments, although they are starred amendments. The noble Lord, Lord Lyell, could have saved himself an awful lot of trouble. I hope he does not give us that splurge again, most of which was not related at all to the amendment. I think it is quite unnecessary, but it is harmless.
Lord Davies of Leek: My Lords, I should like to point out that I believe that by adding these amendments we are making the Bill flocculent and woolly. As regards including Wales, I can see a fractious, irritable Welshman over the Border being peevish and demanding that he is taught his national language in a Scottish school, if we are not careful, so that the citizen's rights are protected. Is the Minister sure that this is making the Bill clear and giving more freedom to the Scots?—because if we Welshmen get up there, some of us ultra-nationalists, though I am not one myself, we might demand to be taught Welsh in Scottish schools.
Lord Lyell: My Lords, I hope the noble Lords, Lord Ross and Lord Davies, would accept that the purpose of my somewhat lengthy remarks was to clarify a doubt which had been presented to the Government in this rather narrow field. I hope the noble Lord, Lord Ross, will accept that. He may object to the length of my remarks, but surely he should know that we do have to take care where doubt has arisen. I promise him, as I promise the rest of the House, that I will curtail my remarks in respect of later amendments.
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I am sure he will be the first to appreciate that.
As far as the noble Lord, Lord Davies, is concerned, I do not think there is much that can be done to prevent the fractious Welshmen, and perhaps it would be outwith the scope of this Bill that there should be floods of Scots who wish to learn Welsh in Wales. That situation may arise, but perhaps the noble Lord, and indeed education authorities in England and Wales, may wish to ponder it, but it is outwith the scope of this Bill.
On Question, amendment agreed to.
Lord Lyell Lord Lyell moved Amendment No. 5:
Page 12, line 32, at end insert ("or of a local education authority in England and Wales").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 4 [Children and young persons with certain special educational needs]:
3.59 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 6:
Page 14, line 13, leave out ("in their area") and insert ("belonging to their area (in accordance with section 23(3) of this Act)").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 6, and I shall speak to Amendments Nos. 7, 12, 14, 16 and 36 at the same time. These amendments are starred. I apologise for the fact that the House has had them put forward at a late stage in the Bill's passage and the fact that they are starred today. I am afraid that I have to confess that they are a result of defects in drafting which have now been noticed, but which until earlier this week have escaped everybody's attention. So that, speaking for the Government. I can say that we are glad to have had the defects pointed out to us. It is, of course, easy in a long and complex Bill to have defects such as these left unnoticed. Nevertheless, I tender the Government's apologies.
The noble Lord, Lord Ross, is, of course, very nearly completely right. These amendments are on a parallel, but not identical, point to the amendments which my noble friend Lord Lyell moved a short time ago. The object in each case, so far as these amendments are concerned, is to change a reference to children and young persons living in an area into a reference to children and young persons belonging to an area. It comes about that it can be important by virtue of these reasons.
Where handicapped children and young persons are concerned, it is not uncommon for education authorities to seek placements, especially residential placements, outside their own area. The basic responsibility for these children and young persons, however—whether they are placed in public sector schools or in independent schools in another area—remains, and must remain, with the authority to whose area they belong. It has never been in anyone's mind to try to transfer the responsibility to the authority into whose area they have come. I hope that with that explanation the House will accept the amendments. My Lords, I beg to move.
Lord Ross of Marnock: My Lords, I do not know who discovered it very late, but this will change the words "in their area"—that is, the local education authority's area—into the words "belonging to their area (in accordance with section 23(3) of this Act)". I used to be concerned about English and I do not know that children belong to an area. I do not know that they belong to anyone. But if they belong to anyone, it might well be to their parents. Belonging to an area is rather a colloquialism and, to my mind, is no more precise than "children in their area" which is precise and correct. I think that we are being far too finicky and bending over too much to the whims of draftsmen. Certain styles and fashions come along in respect of draftsmen. The draftsmen change and so do other things. I do not think that this is worth bothering about, but if it pleases the draftsmen and, if it pleases unquestioning Ministers, let it be.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 7:
Page 14, line 16, leave out ("in their area") and insert ("belonging to their area (in accordance with section 23(3) of this Act)").
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 8:
Page 15, line 8, after ("fails") insert ("without reasonable excuse").
The noble Earl said: My Lords, in speaking to this amendment I should also like to speak to Amendment No. 11. It may well be that it will be convenient for the House to do just that, because I think that the noble Lord, Lord Ross, and I are united in our desire to improve this part of the Bill. It is just a question of how one goes about it.
I gave an undertaking to the noble Lord, Lord Ross, in Committee to consider ways of ensuring that, in the assessment of special educational needs, compulsion will be a last resort. I think we all agree that the machinery for compelling parents to bring their children for assessment should be invoked only where the parents' failure to act has been without reasonable excuse. So what must be decided by the House is how to bring this about.
There is what I might call the Ross-Hughes approach and the Government's approach and, on reflection, I think that I still prefer the Government's approach which was tabled a day or two before the noble Lord, Lord Ross, tabled his amendment. I say that for two reasons. First, the amendment of the noble Lord, Lord Ross, is directed at keeping parents out of the courts for as long as possible. I can see that at once—
Lord Ross of Marnock: My Lords, may I say at this point that I do not know whether the noble Earl appreciates, in jumping to Amendment No. 11 and discussing it, that there is an error there which is probably due to my bad writing. It refers to a "sound opportunity" but it should be a "second opportunity"
The Earl of Mansfield: Yes, my Lords. I know that the noble Lord does not always appreciate the reasons why I criticise his amendment. I am bound to say that I was not even going to mention that. It was
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obvious that there was a misprint somewhere, due either to the noble Lord or to the Printed Paper Office. It was perfectly obvious that he meant "second". Some of his arguments could sometimes be sounder, but not on this occasion.
As I was saying, the amendment which is tabled in my name, as opposed to that tabled by the noble Lord, Lord Ross, will take effect at an earlier stage by delaying the moment at which the parent is even faced with the prospect of legal action by service on him of a notice under Section 61(1) (b). I think most noble Lords will agree that authorities should not wield a big stick until attempts to persuade the parent to act in the interests of his child have been made and have failed.
My second reason for preferring the Government's amendment is that the amendment which I propose has greater simplicity, while the noble Lord's amendment is somewhat cumbersome and will add a degree of complexity to what is already a somewhat cumbersome procedure. The introduction of the qualification about reasonable excuse at the stage that I propose will have the effect which is aimed at by the noble Lord, Lord Ross, in his amendment, because the education authority cannot find out whether or not the parent has a reasonable excuse without contacting him, and, if he has an excuse, any authority would obviously prefer to give the parent a second chance rather than invoke a court. So it is in those circumstances that I move this amendment and I very much hope that the House will agree. My Lords, I beg to move.
Lord Ross of Marnock: My Lords, I am grateful that the Government have at least listened to the arguments that were presented in the Committee stage. The noble Earl says that he has made a change in paragraph (b) at the tope of page 15. However, he will appreciate that "without reasonable excuse" was always there, but the application of a judgment in respect of a reasonable excuse was left to the court.
If the noble Earl will turn his eyes downwards to subsection (4), he will see that that reads:
"If any parent on whom a notice has been served under paragraph (b) of subsection (1) above 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."
It is all this procedure that I am concerned about. The noble Earl now says that, if a parent fails, the authority will be determining whether it is without reasonable excuse, and will then go on to serve the notice. The only defence is that which has been taken away from them by the so-called judgment of the authority; namely, "without reasonable excuse". If they had had a reasonable excuse the matter should never have gone to the extent of the notice.
If the noble Earl could assure me that putting these words, which are already in the Bill, into paragraph (b) means that there will be hesitation and that they will send somebody to discuss the matter with the parents, that is all I want. I consider that it is in the interests of parents and children that they should submit their children for this examination as early as possible. Anybody who knows anything about family situations when parents suddenly discover that their children may need special education will be aware of the

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resistance to that idea by the parents, probably for the best reasons in the world. However, to a local authority bureaucrat it may not be a reasonable excuse. This is why I prefer my own amendment.
I am sorry if my arguments do not always meet the nicety of precision judgments that the English legal mind of the Scottish Minister demands. However, I can assure him from my own experience of this kind of case that it is far, far better to be assured that somebody suitable will visit the parents, discuss the matter with them and persuade them that they should do this. That is why I suggest that there should be a second opportunity for them to comply. If, however, the Minister is not prepared to move, I am not going to argue about it. I have made my case and I think it has been accepted by the Government, so I do not know why they are being so stubborn about it and why they are cluttering up the Bill. They have already got the phrase "for determination by the court". I find it very difficult to justify putting it in again before they send out the order. They are almost making a judgment at that point and depriving that person and the court of the one area of decision that they can make.
The Earl of Mansfield: My Lords, the noble Lord, Lord Ross of Marnock, rather spoiled his argument with the last few sentences. There is nothing between us on this. It is not a question of cluttering up the Bill or a clause of the Bill. As I said at the beginning, the noble Lord and I are as one. We want to give every opportunity to society to help the parents of children who in many cases will need a great deal of help. Sometimes it is not easy to help the particular parents involved.
I am not going to lecture the noble Lord. We think it is much better for the contact between the education authority—who, from my local government experience, are usually extremely sympathetic and not faceless bureaucrats—and the parents to be at an early stage. Therefore the difference between my amendment and that of the noble Lord is that mine bites, if that is the word, before the Section 61(1)(b) notice goes out—long, long before anybody is thinking in terms of courts or anything like that—whereas if the noble Lord's amendment is written into the Bill it will be at almost the door of the court. I do not think that is the right way to do it and this debate has fortified my resolution. If the matter actually goes to court, as the noble Lord will see from subsection (4) the court has of course to serve exactly the same notice. That is to say, there is still the phrase "without reasonable excuse". Therefore the defence which is afforded to the parents is just as good. However, this is less cumbersome and I believe that it will be more in the interests of parents and children to deal with the matter in this way.
On Question, amendment agreed to.
4.15 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 9:
Page 15, line 32, leave out ("14") and insert ("21").
The noble Earl said: My Lords, I see that the noble Baroness, Lady David, is leaving her place. This is
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another compromise which I move in respect of debates which took place in Committee—and may I say a Scottish mind in English law, because it had to be rather more remunerative, not an English mind. The noble Baroness, Lady David, moved a manuscript amendment—I say that as a matter of fact and not of reproach—to extend from 14 to 29 days the minimum time to be given to parents to express written views on their children's special educational needs while they are being assessed. In parenthesis, I was rash enough to say that I could not understand why anybody should choose 29 days. The noble Baroness said, "Well, that's what the English did" and I was properly put in my place. However, I jumped up again to find out why they did it, and originally, apparently, it was a period of 15 days. They said, "Let's give them a bit longer; we'll add a fortnight". And 15 and 14 comes to 29, which does not really make it any more logical.
In drafting the provision in Clause 4 relating to assessment and recording the Government have had to maintain a proper balance between the avoidance of delay, which is in nobody's interest, and the giving of proper time and opportunity for parents to make their contribution. As in so many other fields, experience shows that when a minimum period is prescribed it very often comes to be regarded as a norm, and the tendency of an over-generous minimum therefore slows down the pace of administration to an unnecessary degree. So we looked at it again, as I undertook to do, and concluded that a period of 21 days would be right.
If I may speak to the noble Lord's amendment (Amendment No. 10, I think it is) he has sought to extend the period to 28 days. I would put the argument on these lines. I would ask the noble Lord to bear in mind the considerable length of the process from the time that a child's special educational needs are first detected to the time when provision to meet them can be made. I should be very sorry to see this process extended. I hope therefore that on reflection the noble Lord, and possibly the noble Baroness as well, will agree that we have done what I undertook to do—in other words, to examine the matter again—and that we have sought a compromise which, for the reasons I have given, is the proper one. I beg to move.
Lord Ross of Marnock: My Lords, I think the Minister of State has been fairly generous over this. He has realised that the Government were wrong and he has gone half-way. I know he is concerned about the length of time the process takes and that he does not want to prolong it, but one must remember that a great deal of this process is outwith the control of the parents. To give to the parents who are concerned about the future of their children the designation of being recorded and to the type of education which may well be on offer a matter of 14 days is, to my mind, far, far too short.
After all, think of the poor Secretary of State. If there is any process more protracted than that of determining teachers' salaries I should like to know what it is, because even there it could go to arbitration. Award is made and, believe it or not, within this same Bill we are prepared to limit the latitude given to parents to 14 days whereas the Secretary of State is given 35 days. It is still in the Bill, so let us have

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no talk about the prolonging of this, that and the next thing. I think the general ideas in respect of the position in England, where they added on a fortnight, was probably quite right. I am not fussed about the actual number of days, whether it should be 21 days or 22 days. We want a reasonable time and, to my mind, 21 days, which has now been suggested by the Minister of State, is far better than 14. I am prepared to accept that and I shall not move my next amendment, which suggested 28 days.
Baroness David: My Lords, as the Minister has mentioned my name, I should like to say that I am pleased that he has looked at this again as he said he would and has at least improved it to a certain degree, if not quite so far as we should have wished. When I mentioned 29 days before, it was because that was the Government's choice of time. It was not an Opposition amendment but what the Government decided to put in. At any rate I am very pleased about what has happened.
On Question, amendment agreed to.
[Amendments Nos. 10 and 11 not moved.]
4.22 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 12:
Page 16, line 6, leave out ("in which the child resides") and insert ("to which the child belongs (in accordance with section 23(3) of this Act)").
The noble Earl said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Davies of Leek: My Lords, this is the amendment about "belongs" again, and that is why I used the word "flocculent"—cluttering it up. It looks as though when they were drafting the Bill they must have listened to that old comedian who used to sing, "When I've had a couple of drinks on a Saturday, Glasgow belongs to me". I do not see the semantics of that being half as clear as this phrase, "in which the child resides". Why alter that? That seems clear enough. In the past the Scottish education system has been so wonderful—it has been one of the best in the world—and I am sorry that this Bill in a certain way is clouding parts of the clarity of the Scottish education system, particularly the amendment to Clause 6, which comes later.
The Earl of Mansfield: My Lords, if my mind was not so addled these days I should reply to the noble Lord in Latin, because it would be so much easier to explain than it is in English, but as it is I cannot attempt it and I dare say that as a result I am being merciful to the shorthand writers. The fact of the matter is that the purpose of this amendment is to distinguish between children who are physically in an area and children who belong to an area. It may well be that at first blush this is a matter of semantics but, when it comes to the question of who is to pay for education for children who are placed in this manner, then it is far from being a semantic issue. It becomes a very real issue and that is why, in order to distinguish between the two types of children, this amendment had to be made, even though I appreciate that to the noble Lord, Lord Davies of Leek, it does not add to
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the Bill and moreover at first blush does not improve it.
Baroness Wootton of Abinger: My Lords, can the noble Earl explain what would be the position if a child was not residing with his parents in a particular area, possibly because he was not getting on well with his parents, and had gone to live with an aunt in another area? To which area does that child belong?
The Earl of Mansfield: My Lords, may I say that we are talking about schooling rather than holidays?
Baroness Wootton of Abinger: My Lords, I meant for some considerable period, say for several months, including holidays and school.
The Earl of Mansfield: My Lords, the child belongs to the area where in the normal course of events it resides with its parents. If for some reason, either through ill health or because it is not getting on with its parents, it goes to reside in another area for the school holidays—I shall write to the noble Baroness if I am wrong about this but I do not think I am—it obviously does not disturb the legal position with regard to that child's education one little bit, and therefore it makes no difference.
On Question, amendment agreed to.
Lord Lyell Lord Lyell moved Amendment No. 13:
Page 17, leave out lines 37 to 39 and insert—
("(3) An education authority shall ensure that the provision made by them under this Act for a recorded child or a recorded").
The noble Lord said: My Lords, this is a relatively short amendment in which we would suggest a change of wording which puts beyond doubt the responsibility of an education authority towards a child who has a record (and as a technical term we call it a recorded child) or young person. This responsibility is not to be confined to those whom the education authority themselves record or for whom they make direct provision of education. The wording now proposed establishes the right of the recorded child or young person to provision for his special educational needs even if he moves from the area of one education authority to another or is placed by an authority in a grant-aided or independent school. With that brief explanation, I beg to move.
On Question, amendment agreed to.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 14:
Page 24, line 41, leave out ("in their area") and insert ("belonging to their area (in accordance with section 23(3) of this Act)").
The noble Earl said: My Lords, this is one more in the same series. I was going to say to the noble Baroness that we can return to the subject of being in or belonging to, but she disappeared, so for the moment I beg to move.
Lord Ross of Marnock: My Lords, if the Minister of State has some new wisdom to give us in respect of "belonging" as a case of "in" I think he really ought to divulge it because he left us all rather mystified by his last intervention. There are many children in

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Scotland who do not normally reside with their parents; there are many who are brought up by their grannies because their parents are elsewhere. Do they belong to the area where their parents reside or do they belong "in the area"—which were the words which seemed to be offensive and had to be taken out? It is surprising how even the Minister of State comes back to the original words when he wants to clarify what he means. Can he help us again?
The Earl of Mansfield: My Lords, I think it comes about if one looks at Section 23 of the Education (Scotland) Act 1980. That, and regulations made under that section, provide for the education of pupils who find themselves in one area—that is to say, in the area of one education authority—although they belong to the area of another education authority.
May I illustrate it in this way? Under this new legislation it would be perfectly possible for the parents of a child residing in Berwick-upon-Tweed, for reasons which may be perfectly good so far as they are concerned and indeed quite understandable, to say that they want their child to be educated, let us say, in Dunbar. Looking at the noble Lord, Lord Davies of Leek, I really do not think we need to worry too much about the Welsh language. I think that there may well be cases of people, due to the new mobility of labour, for instance, who want their child to be educated either in England or in Scotland because they themselves have been brought up in whichever country it is. For the purposes of education they will be in Dunbar but they will belong to Berwick-upon-Tweed. It is that point that these small amendments are now tidying up because there were drafting errors and in fact the position was not made plain. That is the purpose behind these amendments.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 15:
Page 25, line 18, leave out ("12") and insert ("6").
The noble Lord said: My Lords, this amendment relates to the time that must elapse before parents can submit the child for a review. The present provision refers to the
"decision to record the child … earlier than the expiry of the period of 12 months from the date of that decision";
in other words, parents might wish a review earlier than that. I have suggested that it should be six months. I know the Government feel that, after this long process and having got the parents to submit the child to examination for determination about special educational needs, a year should pass before there is a review. My feeling is that it may well be that we should give the parents an entitlement to request the authority to make the review earlier than that. I suggest six months rather than a year. It is a simple amendment and I think a humane one from the point of view of the parents. It may well be that the parents will not wish to exercise this right, but let us give them the chance, because we want to keep the parents with us in respect of what is best for the child. I beg to move.
The Earl of Mansfield: My Lords, I entirely sympathise with the motivation behind the noble Lord's
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amendment. I hope to show that in fact the consequences of accepting this amendment may not be quite so desirable as the noble Lord might suppose. We are dealing here with two classes of parents; that is to say, parents who are dissatisfied with the decision, and, secondly, parents of a child whose condition dramatically improves. Let me take the first class first, that is to say the dissatisfied parents. When a child is recorded the parent who disagrees with the decision may refer through an appeal committee to the Secretary of State. That would mean in effect that the re-examination of the initial decision would take up to three or four months. The amendment would give the parents, in a case where the Secretary of State had confirmed the authorities' decision, the right to start the whole process again after about another two or three months. I suggest that that is really in no one's interest, least of all in the child's, and it would place an intolerable burden on the professional staff who would be involved in all this. What it comes to is that the Government are of the opinion that a parent who is still dissatisfied by the Secretary of State's endorsement of an authority's decision—that is what it comes to—should be entitled to initiate further consideration only some 8 to 9 months later.
May I stress two points. First, if recording is to be taken wholly in the interests of the child, in the overwhelming majority of cases it will be with the wholehearted co-operation of the parents. Secondly, authorities have no reason to persist in unwanted and unnecessary recording, and they need not wait for a parental initiative; they are required to review their recording decisions whenever it is expedient in the discharge of their functions, which means in this context whenever the interests of the child so dictate.
So in the second example I gave—that is to say apart from the dissatisfied parent—the child whose condition dramatically improves, the duty on the authority will be to create, as it were, a new situation and consider the recording. The whole thrust of the legislation is for the co-operation of parents and authority in making provision for special educational needs. I come back to what I said about bureaucratic control. I think I certainly would give credit to the authorities to have the compassion and indeed the goodwill to make this new system work, and I do not believe they will unreasonably persist in a demonstrably wrong decision against the wishes of the parents.
It may be that the noble Lord had been looking at the English legislation when he came to move this particular amendment. What I want to say here—and in the absence of the noble Baroness, Lady David, I think I need scarcely say it—is that the two systems are entirely different. The 12-month reassessment in the English legislation is an absolute right so far as Scotland is concerned. In England the local education authority is required to comply only if it considers it appropriate to do so. So, despite the difference of approach, the provisions in both countries are really exactly the same. It is in that sense that I suggest we have got it about right, and I would ask the noble Lord to withdraw his amendment.
Lord Ross of Marnock: My Lords, I have enough trouble looking at and trying to understand the

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difficulties of Scottish legislation without looking at English legislation, and I do not propose to start looking at English legislation. I will continue to give a reasonable scrutiny to Scottish legislation. I am very disappointed to discover that the Scottish Office is not as efficient as it used to be. I am sure that the noble Lord, Lord Campbell of Croy, would have been staggered to hear that it is going to take three months for the Secretary of State to consider any appeal. Surely that is not true. I do not believe that my Member of Parliament, who is now the Secretary of State, is so burdened that he cannot deal with one of these appeals in less than three months, with all the advice available to him and advice which is going to be available to him under this new system. There will not be all that many appeals.
I had hoped that this compassionate trend that has suddenly come across the Minister of State would continue into this clause. He met us half way with the last one, and I thought if I proposed six months he would say nine months. But no, compassion just eased out and the spirit of compromise died. The Minister says, "No, it must be 12 months, because after the process goes through there is an appeal to the Secretary of State; the decision has already been made and the appeal is against that decision, and he will take three months. That will be only three months left". I am sorry, but I do not believe it is going to take as long as that for the Secretary of State to make up his mind.
The Earl of Mansfield: My Lords, I am sure the noble Lord would not want to mislead the House. It is not a question of the appeal sitting in the Secretary of State's in-tray for three months. There is reexamination by the appeal committee; it has to go to this body first for a complete re-examination of all the issues before it goes to the Secretary of State for final determination.
Lord Ross of Marnock: My Lords, I am perfectly sure that this will follow on fairly smoothly and that the process will not take as long as three months. That is the implication of what the Minister of State said. The only person who he mentioned was the Secretary of State; he did not mention the other aspects of the appeal procedure. I am perfectly sure that they will not take as long as that.
We cannot work this system without the consideration and co-operation of parents and we should welcome the fact that parents are interested. I know of so many cases of this kind where the parents are not interested; they will not have the child dealt with and they turn their backs on the child. Sadly that is true, but where we have parents who are showing concern let us give them credit for being concerned about the well-being and proper education of their child and let us not turn them down at any particular point. If they feel that a review is essential before a year, then we should allow it. We all appreciate the fact that there could be circumstances in which a child could so improve that changes would be required to be made in respect of the recording. So much the better; no one doubted that. However, I am concerned about the parents who are still pressing, who are not satisfied with the decisions which have been taken
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and who are being denied a review before 12 months.
The Minister of State will have another chance to consider the matter. We shall have the Third Reading some time next week. He has time to think again and if he cannot go the whole way with me to six months then there is the possibility of nine months. I have no intention of pressing this matter to a Division but I shall allow the amendment to be negatived.
On Question, amendment negatived.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 16:
Page 25, line 36, leave out ("in their area") and insert ("belonging to their area (in accordance with section 23(3) of this Act)").
The noble Earl said My Lords, I have already spoken to this amendment I beg to move.
On Question, amendment agreed to.
4.43 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 17:
Page 27, line 13, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, I beg to move Amendment No. 17. Many words have been spoken on the particular subject of "may" and "will" and I see that the former Secretary of State agrees with me about that. Mind you, I have not spent much time myself on the rather esoteric subject of whether "may" is the same as "will" or "shall".
However, here we are dealing with regulations in respect of the new procedure about the form of the record, the nature of the information to be entered thereon, the procedure to be followed and the period for which a record must be preserved. It says at paragraph (e):
"the persons to whom an education authority—
(i) shall".
It is mandatory there. However, right at the start we see that the Secretary of State does not need to introduce the regulations at all. If ever there was a case for having the regulations made mandatory this is it. I just cannot understand it. Even in amendments which are to be made later on by the Government it is mandatory; he has got to do this, that and the next thing. I think that we should make it mandatory right from the start that he has got to introduce the regulations. Indeed, they are very important. They are important from the point of view of the child, the parents and from the point of view of the Government if they really mean business. They are going to introduce regulations and in that case it really should be mandatory and say that they "shall" by regulations prescribe (a), (b), (c) and (d). I beg to move.
Lord Lyell: My Lords, from the opening remarks of the noble Lord, Lord Ross, I thought that the House was due for a fairly long explanation. However, the noble Lord has spelled out the reasons for his amendment and it seems that the question of whether to use either the word "may" or the word "shall" is one that both in this particular Bill and in others gives rise to much anxious and vexatious debate.
As the noble Lord, Lord Ross, and indeed my noble friend Lord Campbell will both be aware, the principles underlying the choice of the word even in this Bill

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are very complex and very often not easy to apply. However, we tend to accept the point of view that the provisions relating to the form of the record would be incomplete if regulations were not made and also we would accept that it follows from that that the word "shall" could well be argued to be more appropriate in this case than the word "may". I am sure that it will give the House the greatest pleasure, not to mention the noble Lord, Lord Ross, that we are very happy to accept this particular amendment.
Lord Ross of Marnock: My Lords, I am happy to accept that but I am appalled that it reached this stage of the Bill before the Government realised the need for a change. I am not being ungracious. I am perfectly sure that the noble Lord, Lord Lyell, had not given his full attention to the matter. He was more concerned about things that were happening to the Government—changes and all the rest of it—or he, indeed, would have had the amendment down himself. However, I am very grateful to the noble Lord for the help which he has given in respect of this matter.
On Question, amendment agreed to.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 18:
Page 27, line 29, after ("Record;") insert ("persons with this right of access shall include parents").
The noble Lord said: My Lords, I beg to move Amendment No. 18. Here we come to the question of the disclosure of the record and what is in the record. We must remember that we are dealing with a very narrow section of people who have been declared to be suffering from very complicated and it may well be troublesome disorders for whom special educational facilities have been put down.
I think it is important that we should watch the extent to which there is disclosure of the record itself. Of course later on the Government have an amendment about the extent of disclosure: it could vary with different people and be disclosed in different ways to different people. However, it is important that among the people who should have access to that record, and it may well be a changing record, are the parents of the child. I know that the Minister will say, "Ah, they will get it. It is all right, they will have access", but there is nothing as far as I can see in the Bill that says that they will do so. The Secretary of State is going to determine the persons to whom an education authority may disclose a record and the manner of such disclosure. The point which I am making is that after the provision about disclosing a record it should say:
"persons with this right of access shall include parents".
It is as simple as that. It is the question of a parental right to know what is being recorded in respect of their child. I beg to move.
The Earl of Mansfield: My Lords, the noble Lord's arguments relate equally to his next amendment, Amendment No. 19, although that is on a slightly different point. Let me say at once that I am fully in accord with the noble Lord's intention; that is, the need to establish the rights of parents in relation to disclosure of the record of needs. However, I hope
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to show the noble Lord that to put that in the way that he suggests into the Bill is not, in fact, necessary.
The Government have published proposals for the regulations on the handling of the record of needs in the form of a consultative paper and copies of that are available in the Library. I do not know whether the noble Lord has had an opportunity of consulting it or looking at it, but if so he will see, particularly in paragraph 15, that precisely what he wants is proposed.
The regulations will make absolutely clear the right of parents, of young persons acting in their own behalf and also of the parents' adviser, as we have called the "named person", to have access to the record. Indeed, the regulations will confine the right of access to those persons, though there will also be provision for disclosure, through the supply of a copy of the record, to persons involved in the consideration of a formal reference about the recorded child or young person. Therefore, the matter will be dealt with under regulations. Indeed, if the noble Lord, Lord Ross, looks at new Clause 62(2), he will see that, in effect, what he wants is there in statutory form.
I could leave the matter there, but perhaps I could speak to his next amendment, Amendment No. 19. In exactly the same way, the regulations will specify the extent to which parental consent shall be a prerequisite to disclosure in those instances where the authority has discretion. This is covered in the consultative document. To encapsulate in a few words the recommendation of the consultative document, we have suggested that an authority should have absolute discretion in relation to disclosure to a teacher involved with a child, the school doctor, a social work or health board official or someone engaged in research. In any other case we have proposed specifically that the authority must be satisfied that disclosure is in the interests of the child or young person, and also that they must have the written permission of the parent or of the young person himself. That is statutorily, so to speak, in new Clause 65A(3). That gives the Secretary of State the power to prescribe regulations.
Therefore, if I may say so, the thoughts and the motivation of the noble Lord, Lord Ross, are entirely at one with the Government. The matters which he would like to see written into the Bill are already, as it were, in the consultative document. No doubt in due course my right honourable friend will make them take the form of regulations. Therefore, I suggest that as regards this amendment we could leave matters as they stand.
Lord Ross of Marnock: My Lords, I think that as far as it goes that is very good news indeed. It now remains for the Government to go forward from the consultative document and put their suggestions into actual regulations. Of course we give them power to produce the regulations; indeed, we now state that it is mandatory that they shall produce the regulations.
I am sorry but I have not seen the consultative document. The Library is a wee distance from Scotland. The Scottish Office sends me all sorts of things, but I would have welcomed a copy of this document. I think that those in the Scottish Office might well have been aware, from what I have said in

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Committee, of my interest in respect of this particular Bill. Anyway, the document is in the Library now, and between now and the next stage of the Bill I shall certainly look at it. However, from what the Minister of State has said, it seems that he has it just about right.
I am also concerned about the control that the parents will continue to share with the authority over the safeguarding of the confidentiality of that record. After all, it is their child and there may be occasions or events that take place that would lead others to seek to get at that file for their own particular purposes. We can understand the need for access in respect of research, but there are other people whose curiosity is not so well founded and understandable. I am grateful to the Government for what they have done and for what they have promised to do in respect of the regulations; namely, that the parents shall have access and that access can only be given to other people with the knowledge and the consent of the parents, apart from the particular cases that were mentioned by the noble Lord the Minister of State. Therefore, in this instance I have no hesitation at all in suggesting that I should withdraw Amendment No. 18 and not move Amendment No. 19.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
4.56 p.m.
Lord Lyell Lord Lyell moved Amendment No. 20:
Page 27, line 34, after ("may") insert—
("—

(i) under paragraph (c) of this subsection, prescribe different procedures in different circumstances;

(ii) under paragraph (d) of this subsection, prescribe different periods in different circumstances; and

(iii) ").

The noble Lord said: My Lords, I am sure that your Lordships will be happy to hear that this is a technical amendment. It places beyond any doubt the power of the Secretary of State to prescribe differently where he might find that there is a need to match different circumstances in making regulations governing the handling and the preservation of this document, which is known as the record of needs. I assure the House, and especially the noble Lord, Lord Ross, that such flexibility is necessary. For that reason I commend the amendment to your Lordships.
On Question, amendment agreed to.
Lord Lyell Lord Lyell moved Amendment No. 21:
Page 27, leave out from beginning of line 37 to ("four") in line 39 and insert—
("(2) Regulations under subsection (1) above shall provide that a Record shall include").
The noble Lord said: My Lords, the noble Lord, Lord Ross, will see—as I am sure the rest of your Lordships will see—that this amendment is starred, and I apologise for the fact that it is in substitution for an earlier amendment. It is consequential upon Amendment No. 17, which was moved by the noble Lord, Lord Ross, and which dealt with the words "may" and "shall". We were happy to accept that and this is a consequential amendment. Therefore, I beg to move.
On Question, amendment agreed to.
Clause 5 [Assisted places at grant-aided and independent schools]:
4.59 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 22:
Page 29, line 26, leave out line 26.
The noble Lord said: My Lords, we now change the subject and come to the assisted places scheme. The help that will be given by the Government in respect of assisting people to attend private schools —and that is what they are in Scotland; they are not public schools; they are private schools—is limited. Despite all that the Government say about the beneficial effects of this, how generous they are and what an opportunity it would be for certain people, they certainly limit those who can afford to take advantage of this by cutting out the support for those children who would have to pay boarding fees. In other words, the only children who will be able to go there will be those who live within about 25 miles, because after 25 miles the Government do not intend to support, to the full extent, travelling expenses.
I do not like the scheme; I think that it is a terrible scheme. The educational system in Scotland was much healthier when it had a true democratic tradition. It was slightly tainted by the support that was given not to individual children but to actual schools when we had the grant-aided system. The grant-aided system money was given to the schools and enabled the schools to reduce fees all round, or help to do that, and enabled people, so the argument went, to be able to afford them. But here it is now given to actual pupils. This is introducing into Scotland this model of charitable status of selected children which is familiar in England but which we did not know in Scotland, and I think it is a retrogade step. But if the Government really mean it, if they are going to make it available to all children, the very fact that they are not going to pay boarding fees means that there are certain children who will not even be able to aspire to become one of the selected few.
Now of course the Government will tell me that this would cost so much more. It would mean that fewer children would be able to take advantage—that is not the word I would use; be able to attend—and be educated in such a school. But if they really mean what they say then the boarding fees should not become a barrier. Take, for instance, the Roman Catholic children. There are not all that many Roman Catholic private schools. There is a big one in Glasgow of course. People used to travel from Ayr to Glasgow, which is over 25 miles, and now they would be required to pay, or meet the difference, and all the rest of it. That is only one aspect of it. But outside the large conurbations in the Highlands there is no school near the people and so virtually by the fact of the uneven distribution of the schools that are participating a tremendous number of children will not have the opportunity of even thinking about this type of education. This is part of the nonsense of referring to the availability of this for everyone. It is not. It is very limited in what it is doing.
I am just testing the Government out. If they want to make it available for more people then they will need to wipe out this bar on payment of boarding fees. The only way some children could take advantage

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of this in a particular school—and we have heard much about parental choice of schools—would be to pay boarding fees. There are some schools with no day pupils. I think Gordonstoun will make available certain scholarships on its own without the scheme. But that is not true in all cases.
I am testing the Government in respect of their sincerity and what they mean about this political move. It is politics and not education that we have here. I am perfectly sure it has been wished upon the Scottish Office. It is not something that was thought up there. I am testing them. I say leave out this exclusion of boarding fees. When they talk about affording it generally to people, we do not know what parents or what children are going to be able to take advantage of this yet. We will come to that later on. But the fact that they are not going to pay boarding fees will be a stumbling block to many children. I beg to move.
Lord Davies of Leek: My Lords, I should like to say a word on this amendment, and particularly on the possibilities of the child that can benefit from this provision. As I said earlier in a short speech, and this will be short, at one time those of us who knew anything about education considered the Scottish system of education probably among the very best in the world, and the opportunity for the child who has the ability should not be taken away here. I sincerely hope that my noble friend on the Front Bench will be listened to in this case, and that the Minister will think again about this issue of charging and boarding fees. I do not want to exaggerate and take the time of this noble House. I only stand up to back that point of view as someone who is sincerely interested, and believes that education is of fundamental importance to these islands.
The Earl of Cromartie: My Lords, I should like to say a few words on this. The noble Lord, Lord Ross, knows very well that I live in the far north and that I have been on education committees in local government for some considerable time, although I am not any longer. I would put one point of view. Where you get, say, the South-Western coast of Sutherland, or Wester Ross, you have a boarding scheme of sorts already and it is not always very satisfactory. Those children have to come in a long way; in the case of Sutherland to Golspie, or to Ding-wall in the case of Ross and Cromarty.
Sometimes it works quite well. But I think that the noble Lord, Lord Ross, will probably agree with me that not all hostels are 100 per cent. satisfactory. It so much depends on who looks after them. I do not think that it would be a bad thing if parents had this opportunity. I know exactly what the noble Lord, Lord Ross, is getting at and in some ways I agree with him. But in a case like that if parents say, "Look, we are prepared to sacrifice a certain amount to get our child to something we know is possibly good", say Gordonstoun, or whichever school it may be, I do not think it is altogether a bad idea.
Lord Ross of Marnock: My Lords, surely one of the barriers to that is the fact that at the moment in regard to the hostel system where it is necessary and has been
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developed in the outlying areas of Scotland, they do not pay for the hostels. The cost of boarding in a public school—as the English call it, while we in Scotland call it a private school—is very high indeed. By virtue of the fact that the Government will not pay boarding fees under this scheme children—it may well be in those areas where there is a justification for it—are thereby shut out from participating in the scheme because the schools are not there. If they go to them they would need to board. If they need to board they have to pay; if they have to pay they cannot even think of it. It is the weakness in the Government's own scheme.
I am not supporting the Government's scheme, but I am seeking to show that unless the Government change their mind fewer children will be able to participate. They do not need to spend any more money on it. They will be using the amount of money available for fewer children, but it may well be that with fewer children you will get a better spread of children throughout the country. That is what I was seeking. I think that the noble Earl—I nearly said of Ross and Cromarty—Lord Cromartie himself has the experience and he will appreciate that the actual cost of boarding that would need to be met will be a stumbling block.
The Earl of Mansfield: My Lords, I did not interrupt the noble Lord, Lord Ross, but I will say that this is a Report stage and I am going to confine myself to one speech per amendment. We discussed an identical amendment in Committee, where of course the noble Lord was perfectly free to intervene as often as he liked, and did so. I was waiting to see whether he would adduce any new arguments on this occasion, but I am afraid my wait was in vain.
Of course, I do not discount the arguments in favour of the boarding system and the payment of boarding fees under this or another scheme. There are many reasons why residential accommodation may be desirable in a particular case. As things are at the moment Scottish parents, or parents of children resident in Scotland, who want residential education for their children have to pay very high fees in the normal course of events.
If the assisted places scheme could be extended so as to open up the possibility of residential places for children from lower income families, there would of course be a real gain, but unfortunately that is not practicable at present. This scheme is an innovation, as the noble Lord, Lord Ross, has acknowledged, although he does not like it. The resources available are very limited and are likely to remain so in the immediate future, so we must develop the scheme in a balanced and orderly fashion, above all having our eye fixed firmly on meeting the greatest need for the greatest number of children.
The cost of boarding is far greater than the cost of day tuition and, if the scheme were extended to the remission of boarding fees, a great many children who have now been admitted to independent schools under the scheme would be denied that opportunity. It is too early to give any precise indication of what is likely to happen—because the schools are, even now, completing their returns—but it is no exaggeration to say that the likelihood is that over 800 children in

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Scotland will avail themselves of this scheme, and we regard that as a real advance.
What I have said does not mean that there are no boarding places available at all. A number of Scottish boarding schools have expressed a desire to participate in the scheme on the basis that, if the tuition fees are paid under the scheme, boarding fees will be met by the school from other funds. We had all this out in Committee. I understand that the nine schools in the scheme which are exclusively boarding schools have taken about 50 pupils in the current session in this manner. It is a very small number but it is a considerable achievement to have obtained even that number in the first year of the scheme. Incidentally, the noble Lord said there were no such schools in the Highlands. Gordonstoun is not in the Highlands but is knocking at the door.
Lord Ross of Marnock: My Lords, may I ask the noble Earl to say how many pupils have been taken into Gordonstoun? The last figure I saw was nil.
The Earl of Mansfield: I do not have that information, my Lords. The noble Lord said there were no schools in the scheme in the Highlands, not merely boarding schools, and I am saying that Gordonstoun is knocking on the gateway; Fort Augustus is actually in it, and if Rannoch is not in the Highland Board area, it certainly does not lie, as I know to my cost, on a piece of flat ground.
The scheme is getting off to a very good start. That is obvious. Although we should like to extend it and advance more quickly, we cannot at the moment see our way to changing the scheme so as to cover boarding fees, and it would be totally unrealistic to amend the Bill in the way suggested.
I now have information to answer the question asked by the noble Lord, Lord Ross. I am informed that six pupils have gone to Gordonstoun as boarders in the way I illustrated. For all the reasons I have given, I hope the noble Lord, who has frankly admitted that he does not like the scheme or anything about it, will see fit to withdraw the amendment, or else that the House will not write it into the Bill.
On Question, amendment negatived.
5.15 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendments Nos. 23 and 24:
Page 29, line 33, after ("fee") insert ("or charge").
Page 29, line 48, after ("fees") insert ("and charges").
The noble Lord said: These are drafting amendments, my Lords. The Bill refers to any fee charged being excessive in the view of the Secretary of State, and I am here suggesting that it should not merely be "fee" but should be "fee or charge". Indeed, the regulations produced by the Government refer to fees and charges. Amendment No. 24 refers in the plural to fees and charges, whereas No. 23 refers to them in the singular, but the purpose is the same, namely, drafting and aiming for sheer accuracy. I beg to move.
The Earl of Mansfield: My Lords, I appreciate that the noble Lord, Lord Ross, wishes to add clarification
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to the Bill, but I am advised that in this instance it is not required. We must go first to Clause 5(7) because there at the beginning is the reference to fees. It is clear from reading that subsection that fees there include charges, since the subsection specifically says that the fees in relation to which the assisted places scheme is to have effect exclude
"such other charges, if any, as may be prescribed by regulations".
It would be meaningless to talk about excluding charges by regulations if they have not been excluded in the first place, and it is clear therefore that the word "fees" in subsection (7) includes charges, and that must also relate to the interpretation of the word "fees" in subsections (8) and (9). On that basis, any reference to "fees" in the following subsections must also include charges. Therefore the amendment, although no doubt well intentioned, is unnecessary and surplusage and I could not accept it.
On Question, amendments negatived.
5.18 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 25:
Page 30, line 5, after ("the") insert ("method of selection and").
The noble Lord said: My Lords, the preliminary Marshalled List got this point wrong, but it was later corrected. I am here suggesting that in the regulations which the Secretary of State will produce in respect of the assisted places scheme, there shall be included the method of selection. We have been told that there is a limited amount of money and that 800 people have already been selected. The House will be interested to know that although we are passing the legislation, the scheme is already in operation. As a matter of fact, the regulations have already been produced, not under this Bill but under another enactment, yet we have no idea how those 800 people (mind you, the suggestion was that there would be 1,200, so we are about 50 per cent. short of the Government's hoped-for tally) have been chosen.
Now, my Lords, remember what has been said right from the start:
"There is no restriction according to the ability of the child. The decision on whether the child will benefit will depend upon whether the family is on a low income".
So how has the selection been made? Has it been made in relation to the poverty of the children? The words that I have quoted were the words of the Secretary of State for Scotland, at Second Reading on 12th February 1981, at column 1015 of the Commons Official Report—
"The children who benefit may be of any ability—good, bad or indifferent. The common factor is that their families will all have low incomes…."
How is the selection to be made?—and that question should be easier to answer now that 800 have been selected. How have they been selected?
In fairness to the House, and in fairness to the Secretary of State, who said that it is really low income that counts, we should know what is being done. This was held forward as a great privilege that was being offered to people. In fact, at one time they were to "benefit from" it, but we managed in this House to change that phrase. I know many people who have gone to independent schools, or public schools as the English call them, who certainly did not benefit from

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whatever education they received there. It was probably to their detriment rather than to their benefit, and people in their biographies keep on saying how much they failed to benefit from that kind of education. But at any rate, it is being wished on a certain number of Scottish children, contrary to the Scottish tradition.
How were the 800 chosen? Can we be told how many of their parents are on social security? The one thing we can be sure of, says the Secretary of State, is that the family is on a low income; not a relatively low income, but a naturally low income. Therefore I should have thought that the lower the income, the greater the chance of this great privilege of a Scottish independent school education. But we have been given no indication as to how the children would be selected. Surely it is not good enough to leave this to the schools. It is not the schools who are paying the money, it is the public, and the public have a right to know whether selection is being carried out fairly. We have already been told that it does not matter about the child's ability.
Of course, in the first instance some of these schools were set up as charitable trusts, a long time ago. I have been doing a little reading about Glasgow recently. I remember doing the same thing in respect of Edinburgh and the schools that were set up for the poor burgesses, or the sons of poor burgesses. They later became great pillars of society so far as education was concerned, as many changes were made through this House and another House in the 19th century. But let us not forget how they started.
Here we come along for low incomes. How has the selection been made? Has it been checked in any way by the Secretary of State?—because he has a duty to this House, he has a duty to himself, having declared that what really matters is that:
"The children who benefit may be of any ability—good, bad or indifferent. The common factor is that their families will all have low incomes…."
I hope that the Minister of State appreciates that I want to maintain the integrity and dignity of the office of the Secretary of State for Scotland. I know how, when it comes to the Second Reading of a Bill, civil servants will wish upon a Secretary of State certain words, and many Secretaries of State faithfully read out the words. So the trap is there. It was laid by the Scottish Office itself. How are they checking to see that the families with the lowest income were chosen? Eight hundred have been selected. How many applied? Was the first priority the lowness of the income, or was it something else? Was it ability, or was it ability and then income? I think that we are entitled to know, and certainly we are entitled to see whether or not in the actual administration of the assisted places scheme the Government have maintained the stance that was declared by the Secretary of State:
"whether the child will benefit will depend upon whether the family is on a low income".
My Lords, I beg to move.
5.25 p.m.
The Earl of Mansfield: My Lords, by this amendment the noble Lord, Lord Ross of Marnock, would seek to place on the Secretary of State for Scotland the duty, and indeed the obligation, to prescribe a method
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of selection for schools participating in the assisted places scheme. I suppose that he would have to lay down conditions with which they would have to comply in selecting the pupils who were to receive assistance under the scheme. The noble Lord, Lord Ross, was pretty careful not to go into any details of this bureaucratic nightmare, and one can well understand the reason why. At any rate, the Government have absolutely no desire to go down any such path.
I believe that one of the chief virtues of the independent sector of education is that it provides parents with the widest possible variety of choice. That widest possible variety of choice extends to the admission arrangements, and schools are completely free to admit pupils in any way that they think appropriate. The fact that the fees, or a proportion of them, are to be paid by the state as opposed to the individual parent is really neither here nor there. Obviously, proper methods of accountancy have to be pursued. But on the question of selection the Government take the view that it is for the schools to select as they see fit, and we have no intention of trying to interfere with that. To the extent that that was the point that my right honourable friend was making perfectly plain in another place on the Second Reading of the Bill, I for one totally agree with what he said, if I may respectfully do so, and would not seek to add to it. What is plain, because of the regulations, is that the parents who attend schools under the scheme will come from families of modest means; otherwise they would not qualify—
Lord Ross of Marnock: Pupils, not parents.
The Earl of Mansfield: Most pupils do not have any means at all. But be that as it may, as I understand it, the means test is not to be on the pupil so much as on the parent. The family income must be £4,766 or less, and as I said when speaking on a previous amendment, the results are not, by any manner or means, all in. But I can tell the House today that of the third or so of the results that we have received up until now about 50 per cent. of the children will be admitted to school on what I might call a full remission basis. So as of today, and on the basis of the results in so far, that proportion are from families whose incomes are of the order that I have described. So if there is any allegation (which I rather thought the noble Lord, Lord Ross, might make) that the scheme would be used to advantage better off families, and that schools would operate their admission schemes so as to favour such families, I would say that it does not seem as if the situation is going to be like that. In fact, one can say that so far there does not seem to be any economic bias at all—and that, of course, is as it should be.
I return to the amendment. If the Secretary of State were to impose some sort of discipline (if that is the word) on admission procedures, then of course it could not be done by regulation. The only way one could do it would be on a school by school basis, by altering the conditions attached to the determination. That is in effect the individual contract between the Government and each school which participates in the scheme; and that is provided for in the new Section 75A(3)(b). But there is no evidence that any

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such conditions would be desirable, and it is not the Government's intention to impose any such conditions.
Baroness Phillips: My Lords, before the Minister sits down—or, if he has already done so, he will with the leave of the House reply—as a matter of practical politics, he referred to a sum of £4,000. I had not heard any figure referred to previously throughout the discussions on this Bill. Is that gross income or is it what is now colloquially known as "take-home pay", which would be rather different?
The Earl of Mansfield: My Lords, with the leave of the House—and I am not speaking from an intense knowledge of this—these things are usually decided neither on gross nor on take-home pay. They are determined on gross pay with a number of deductions which may be made for certain purposes.
Lord Ross of Marnock: My Lords, if I may enlighten my noble friend I can give her all the information she wants about that (I shall probably do it privately) but the term that is used in the tables is "relevant income". Although the low income that is suggested, after which certain remissions take place, is, I think, £4,250, the actual cut-off figure is somewhere about £10,000 a year, at which figure there is no entitlement to remission at all. So 50 per cent. of the 800 that we have heard about are not of the poorest. I doubt whether they have the information about the financial circumstances of all the 800; and I should like to know what the noble Earl's sample is and which particular schools they came from, because they are much more likely to come from an industrial area than from the other areas. But it means that even there 50 per cent. are not of the poorest.
I do not think it is good enough for a Minister to come along with a scheme and say, "We are going to spend millions of pounds of the Government's money"—and we must remember that this scheme is only starting. It will cost more as it goes on year after year; and as the sum in respect of the assisted places scheme grows the sum that is presently paid in respect of the grant-aided schools goes down. I think the sum will probably be somewhere about £5½ million. We have to remember that this is at a time when the Government are telling local authorities in Scotland, in considerable detail, where they must save money on education; at a time when they are taking local authorities to task for sums very much lower than this, and are depriving the public sector of education of much-needed money for books and for remedial classes. That is the sort of thing which is being cut—and here we are going into the charitable line.
The Government say, "Yes, we are going to make this money available, but we are going to have nothing to do with how that money is divided out among people". They have already said—and let me quote it again:
"There is no restriction according to the ability of the child. The decision on whether the child will benefit will depend upon whether the family is on a low income".—(col. 1015.]
Leaving it in that particular way could mean that particular schools, having received applications and having looked at the relevant incomes of parents,
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could pick the parents who are on higher incomes but who would still get some help under the assisted places scheme. There is no guarantee under the scheme; and we are being told by the Minister of State that he is certainly not going to interfere with how this money is spent. It is said, "We accept no obligation to the public as to whether or not this is being spent on the lowest income groups who have applied".
I do not think it is a matter for congratulation that 50 per cent. of them are on the £4,000 mark or are below the £4,000 mark. It was the Secretary of State—it was not me, or anyone on this side—who said that the people who would benefit would be the low income groups. According to what even the Minister says, from the information he has 50 per cent. of them are not the lowest income groups. Indeed, the lowest income groups could not take advantage of this because of all the obligations that are in attendance at independent schools, and the charges that are not going to be met by the Government. I think I instanced them before. I have a whole list of what is demanded if you go to Rannoch School, which the Minister of State attended. The cost of a kilt—and my figures are two years old—would take up the whole of the total, which is £80, which is the maximum that is allowed in the first year. That is the kilt without the jacket.
I think the noble Earl, Lord Cromartie, will have a fair idea of exactly what a kilt and a jacket cost—and these are obligatory wear at this particular school. He can take it from me that there are many people on low incomes who, knowing the other obligations which are on their child attending an independent school in Scotland, could not even begin to suggest, much as they would like it, that their child could go to such a school, because they could not meet the other expenses. That is why this is a terrible scheme. It is outside the whole traditions of Scottish education, and is indeed a sham. It is politics, and nothing else.
The Minister of State can take pride, as can others, in the glories of their educational system, but it has never been part of the glories of the Scottish tradition; and when it comes to it, to do this at a time when you are depriving the education authority of Ross and Cromarty of improving the positions in their hostels that the noble Earl spoke about and knows about, this is not the sense of priorities in education that we in Scotland like.
I still think the Government have an obligation to take part in and lay down how the children are selected. It is their scheme, not the scheme of the schools. If you ask me, the schools would rather have carried on grant-aided, where they got the money in respect of the whole school. They are not enjoying this. They like the money; they like the support they are getting, I suppose. But I can assure the Earl that I do not think another place will let the Government get away with this. They will want to know how much money is being spent on each particular school, and will try to find out how the Government have carried out the promise that they made, that the criterion for entry would be low income. It obviously is not, and the Government do not care. This is one amendment that I do not think I can let go. I think this is one on which I should insist that the Government meet their obligations in respect of answering to the public as to how the money is being spent.
5.39 p.m.
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 39; Not-Contents, 94.

DIVISION NO.1

CONTENTS

Ardwick, L.

Jenkins of Putney, L.

Balogh, L.

John-Mackie, L.

Beswick, L.

Leatherland, L.

Bishopston, L.

Llewelyn-Davies of Hastoe, B.

Boston of Faversham, L.

Molloy, L.

Briginshaw, L.

Oram, L.

Brockway, L.

Peart, L.

Brooks of Tremorfa, L.

Phillips, B.

Bruce of Donington, L.

Ponsonby of Shulbrede, L. [Teller.]

Collison, L.

Cooper of Stockton Heath, L.

Ross of Marnock, L.

Crowther-Hunt, L.

Sefton of Garston, L.

Davies of Leek, L.

Stewart of Alvechurch, B.

Elwyn-Jones, L.

Stewart of Fulham, L.

Ewart-Biggs, B.

Underhill, L.

Gaitskell, B.

Wallace of Coslany, L. [Teller.]

George-Brown, L.

Hale, L.

Wells-Pestell, L.

Houghton of Sowerby, L.

White, B.

Jacques, L.

Wootton of Abinger, B.

Jeger, B.

NOT-CONTENTS

Airey of Abingdon, B.

Lindsey and Abingdon, E.

Alport, L.

Long, V.

Ampthill, L.

Loudoun, C.

Auckland, L.

Lyell, L.

Avon, E.

Malmesbury, E.

Banks, L.

Mancroft, L.

Belstead, L.

Mansfield,E.

Campbell of Alloway, L.

Margadale, L.

Chelwood, L.

Marley, L.

Cockfield, L.

Massereene and Ferrard, V.

Coleraine, L.

Mersey, V.

Colville of Culross, V.

Milverton, L.

Colwyn, L.

Monk Bretton, L.

Cowley, E.

Montomery of Alamein, V.

Crathorne, L.

Mowbray and Stourton, L.

Cromartie, E.

Newall, L.

Cullen of Ashbourne, L.

Norfolk, D.

Davidson, V.

Nugent of Guildford, L.

De La Warr, E.

Onslow, E.

Denham, L. [Teller.]

Orkney, E.

Dilhorne, V.

Pender, L.

Drumalbyn, L.

Platt of Writtle, B.

Dundee, E.

Redmayne, L.

Ebbisham, L.

Renton, L.

Ellenborough, L.

Richardson, L.

Elliot of Harwood, B.

Rochdale, V.

Elton, L.

Sandford, L.

Fairfax of Cameron, L.

Sandys, L. [Teller.]

Ferrier, L.

Seear, B.

Gainford, L.

Sempill, Ly.

Garner of Parkes, B.

Skelmersdale, L.

Garner, L.

Spens, L.

Gormanston, V.

Stanley of Alderley, L.

Hailsham of Saint Marylebone, L.

Strathclyde, L.

Strathcona and Mount Royal, L.

Hankey, L.

Harris of Greenwich, L.

Sudeley, L.

Harvington, L.

Swansea, L.

Hemphill, L.

Thorneycroft, L.

Henley, L.

Trefgarne, L.

Hives, L.

Trenchard, V.

Hornsby-Smith, B.

Trumpington, B.

Hylton-Foster, B.

Vaux of Harrowden, L.

Kemsley, V.

Vickers, B.

Killearn, L.

Vivian, L.

Kintore, E.

Wakefield of Kendal, L.

Kitchener, E.

Ward of Witley, V.

Lane-Fox, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.47 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 26:
Page 31, line 4, after ("making") insert ("or requiring").
The noble Lord said: My Lords, this is a purely drafting amendment. I do not think that in all cases the school makes the provision; sometimes it requires the provision and lays down what it wants. This is purely a matter of accuracy of drafting. I can assure the noble Earl, the Minister, that it is an absolutely harmless amendment. It is not a deep-laid plot to undermine the whole substance of the Bill if accepted. I beg to move.
The Earl of Mansfield: My Lords, I fully accept that anything that the noble Lord proposes, if it is not beneficial, will be harmless. The trouble with this amendment is that it is defective. It seeks to allow the schools, incompletely, at that, to require the provision of certain things instead of making such provision themselves; but new Section 75B(1) empowers the Secretary of State to require schools to provide certain things and does not carry with it a related power to the schools themselves to require the provision of those things by another party. In the absence of such power the proposed amendment has no foundation and would not be sufficient in itself to confer such a power on schools. I hope that the noble Lord will appreciate that his laudable ambition to improve the Bill would do no such thing.
Lord Ross of Marnock: My Lords, I have no doubt that the improvement would be minuscule, so bad is this particular clause. I do not want to take up the time of the House but, having in my hand the Government's own statements in respect of the actual allowances for the assisted places scheme, I assure the noble Earl that in many cases they do make allowances for things that are required by the school as obligatory where, for instance, the school does not provide them but requires them and they have to be provided by somebody else. Believe it or not, the Government make provision in their scheme for payment in respect of those things. So if we had more time I would certainly carry on with this. But it really does not matter so much. If the noble Earl wants to pass through an inaccurate Bill, so be it. It may well be that everyone will be as ignorant as he is in respect of its inaccuracies and no one will worry about it. That being so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Consultation on, and consent for, changes in certain educational matters]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 27:
Leave out Clause 6.
The noble Lord said: My Lords, this amendment is to leave out Clause 6. Nothing could be plainer than that. If we leave out Clause 6 it means that the present situation regarding the Government's powers in respect to changes in schools and the closure of schools would

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remain as they are. What happens here is that the Government are relaxing their grip upon local authorities. I know that local authorities will find this hard to believe, but they are giving them more freedom in a field in respect of which there is a certain measure of unpopularity.
At the present time in Scotland—and I dare say it is happening elsewhere—local authorities are having to close schools, primary schools in the first instance and later it will be secondary schools, because of the drop in the school population. At the present time no school in Scotland can be closed without the consent of the Secretary of State. But he is relaxing that. He says: "Carry on; you can close the school; you do not need to refer to me so long as you consult this, that and the next thing."
However—and this is important—this freedom is only applicable to schools under the jurisdiction of the local authority if they are non-denominational schools. What we are talking about is Catholic schools and the Roman Catholic hierarchy will still have the ultimate possibility of intervention by the Secretary of State saying "No, you cannot" to the local authority. At the present time the Secretary of State can say "No". It does not matter what the school is, denominational or non-denominational, but after we pass this clause then his right to interfere will be only in relation to non-denominational schools.
If my amendment were accepted, the Roman Catholic schools would not be obstructed. They would have the protection that they possess now, but also the non-denominational schools would be protected. I am trying to save the Government from themselves. I heard a BBC presenter the other night talking about the closure of seven schools in Aberdeen. They were saying they had to see Mr. Fletcher (who is the Minister in charge of education in Scotland) quickly because if this Bill was passed then it would mean that the power of the Secretary of State to intervene would be over. That was said on BBC television in Scotland and it is not accurate.
The right of the Secretary of State to intervene will be unchanged in respect of denominational schools. The freedom to the local authorities is only in respect of non-denominational schools. I do not know whether your Lordships' House appreciates just exactly what the conditions are at times in Scotland in respect of these matters. Whoever agreed to this clause from the Roman Catholic hierarchy was very foolish indeed. I believe where there is harmony then let it remain—and there is harmony in Sctoland in respect of this—but if you agree to something that puts you in a position of privilege as against the other schools, then there is a possibility of there being difficulties at some time in the future. I know that it is unpopular for the Secretary of State. He does not want to intervene in the closure of schools now.
I remember this House on the subject of rural education and the closure of rural schools in England and Wales as well as Scotland. It was felt that there should be some safeguard, that the Secretary of State for Education in England and indeed the Secretary of State for Education in Scotland should be concerned about that. I remember a fight that was made by the noble Baroness, Lady Elliot, in respect of the closure of a certain school in the Borders. She need
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not think that she has any power to bring pressure on the Secretary of State after this goes through. Unless it is a Roman Catholic school, she is wasting her time. It is purely a matter for the local education authority.
Of course, it is an unpopular step to take and the Secretary of State wants to get out of this because more and more schools are being closed and he does not want to intervene. To my mind he should have left things as they were and faced up to the music so far as carrying out his obligations under the present statute and made his mind up about whether a school should be closed or not. Eventually he is going to create more trouble potentially between the denominations—and we can do without that kind of trouble. We very nearly had it in the Gorbals of Glasgow. Some way was found round it. It may well have been that it was not the best solution. It may well have been better for that to have been dealt with in the knowledge that the same kind of intervention by the Secretary of State would be there for both types of school.
That is why I suggest this amendment. I am not going to press it. I am hoping against hope that the Secretary of State and the Scottish Office would have seen sense during the intervening few months since we discussed this matter; but I have my doubts about that. They have been worrying about "may" and "shall" and their assisted places scheme and how well that was going, and the rest of it. They have said, "It is all right; we need not worry about the House of Lords. They are not concerned about Scotland and Scottish education ". Indeed, in many respects they are not. They are always waking up too late in respect of what is happening in many of these particular fields. The Government would have been wiser to forget all about Clause 6 and left things as they were. I beg to move.
The Earl of Mansfield: My Lords, I can assure the House and the noble Lord, Lord Ross, that the question of the relaxation of the Secretary of State's present control over proposed changes and such matters as school closures is one to which the Government have given very close attention over a considerable period of time. I have to tell the noble Lord that we remain firmly of the opinion that the education authorities should be given discretion since they are best able to judge what is appropriate for their area. In Bill after Bill, where the Government have taken powers to regulate the activities of local authorities where such activities are not in the public interest, the noble Lord has inveighed against the Government and spoken about a negation of local democracy; that local government is in effect dead and is ruled by diktat by my right honourable friend the Secretary of State, sitting in his desk at St. Andrew's House.
Lord Ross of Marnock: My Lords, the Secretary of State does not sit in his desk, surely?
The Earl of Mansfield: In accordance with our general policy, we are now relaxing controls which are no longer required and are putting decision-making into the hands of the representatives of the people. The noble Lord, Lord Ross of Marnock, then in effect

231
accuses my right honourable friend of a lack of courage for not taking decisions himself—so we cannot win. Let me just explain what this relaxation means and point out one or two errors of fact in the arguments made by the noble Lord, Lord Ross of Marnock.
There must, of course, be safeguards of parental interests in withdrawing this general requirement that the Secretary of State should give approval to school closures. For that reason Section 6 of the Bill requires authorities to carry out full consultations on proposed changes in education arrangements and to take into account any views received for implementing such changes. The clause would also permit the Secretary of State to prescribe in regulations the proposals on which consultations must be held, the persons who shall be consulted, and the manner of that consultation. In fact, as noble Lords may already be aware, we issued a consultative paper earlier this year containing certain proposals; comments have been received and are being carefully studied, and the regulations will be drawn up and issued in due course.
I now come to the matter of denominational schools. If it is the noble Lord's contention that the relaxation of controls applies only to non-denominational schools, that of course is not right. Education authorities will be able to close, for instance, Roman Catholic schools, except where the children would have to transfer to a non-denominational school or alternatively, in the circumstances which are set out in Section 22D. Under that section the Secretary of State's approval will be required if the authorised representative of a denominational body or, in the case of a Roman Catholic school, the Scottish hierarchy of the Roman Catholic Church, satisfies the Secretary of State that an education authority's proposals would result in a significant deterioration in the position of denominational schools compared with the other schools managed by the authority. However, the right to make representations can be exercised only where the education authority and the denominational body concerned have failed to reach agreement after discussion of the proposal. I must emphasise that the Government's aim is not to advantage the parents of children at denominational schools but simply to preserve the balance between denominational and non-denominational education in accordance with the 1918 Act.
I believe that disposes of the argument made by the noble Lord, Lord Ross of Marnock. He did say that there may be what one might describe as the ruthless closure of schools. I do not believe that will happen. An example of an education authority bowing to public pressure can be found in the Highland region, which prepared proposals to close 18 primary schools. There were loud and long protests from the locals and the proposals were withdrawn. The schools were kept open and the rates went up an extra ½p. Similarly, in the spring of last year the Borders region proposed the closure of seven small primary schools. As a result of pressure, six of these schools remained open and the proposals were withdrawn. I would therefore contend that here, as in so many other fields, the local authority will bow to the pressure of its electorate. I invite the noble Lord, Lord Ross of Marnock, to consider the advantages of what we propose, and then perhaps the
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disadvantages which he put forward might not loom so large.
Lord Ross of Marnock: No, my Lords, I am not at all convinced because all the noble Lord the Minister has proved is that in the case of denominational schools there is a right of veto and in event of failure to agree with the local authority, the local authority cannot proceed and the matter must go to the Secretary of State. That procedure applies only in the case of denominational schools and that is the point I am trying to make; that that exception is likely to cause trouble. The Minister spoke about the "ruthless closure "of schools. Local authorities are not ruthless when it comes to the closure of schools, but I know that the Government are ruthless in the pressure that they are putting upon local authorities with regard to the cost of keeping open these schools. I do not want to return to another Bill to produce the figures in respect of the extent to which the Borders region failed to meet its cash limits—or the Highland area either—but the noble Lord the Minister should remember what was said by a noble Lord on the Cross-Benches about the Government's cash limits. The noble Lord can force local authorities into a position where they have to close schools. I can well remember a man who is still in charge of education in Scotland—a junior Minister—telling people that they would have to close schools. It is not going to be popular and now it is going to be left to the local authority. The greater the pressure which is placed on a local authority in respect of rates, the more they will have to act and say, "This year we must do it or the Government will apply the squeeze and withdraw our Rates Support Grant ". This applies in the case of education more than anything else.
I did not say that the Secretary of State lacked courage; I said that the Secretary of State was unwise, and he will be proved to have been foolish in the long run for relaxing these powers. He should have maintained the position in respect of denominational and non-denominational schools as it is at present, which would have been quite satisfactory to the local authorities and education authorities. The education authorities themselves, especially those in industrial areas such as Strathclyde and Central Scotland, where the problem is, are aware that certain extreme people could cause trouble of a kind which we could well do without in Scotland and have been able to circumvent in the past by observing sensible procedures with the safeguard of having the Secretary of State coming in.
We are moving into a time when more and more schools will have to be closed—Roman Catholic schools as well as non-denominational schools. If people find out that it is easier for a local authority to close a non-denominational school than it is to close a denominational school, therein lies the seed of trouble. That is the sole reason for my amendment. People do not know about this distinction at present, and I hope they do not find out in circumstances which could be most embarrassing and difficult for the of State for Scotland. I wanted to echo this warning again so that people will know exactly what the position is and accept it. It may well he that the Scottish Office accepts that this is the way forward, but I do

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not believe it is the way forward and I believe it could be the way into considerable trouble. However, I am not going to press this to a Division and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Remuneration of teaching staff]:
6.10 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 28:
Page 49, line 45, leave out from ("he") to end of line 47 and insert ("shall within 35 days of receiving the said intimation seek the approval of each House of Parliament to a resolution that national economic circumstances require that effect should not be given to the award").
The noble Lord said: My Lords, Amendment No. 28 deals with a very important aspect of Clause 14, where the Government restructure the whole committee position in respect of the determination of salaries and conditions of employment of teachers. To that extent, I think I have given support to what the Government are doing, with one or two criticisms. But when it comes to the position where there is lack of agreement in the committee—remember that the Secretary of State is represented on the committee with employers and teachers representatives—and when there is a complete clash and it has to go to arbitration, I am very much concerned about the fairness of the position.
At the present time there is in statute provision for arbitration procedures and the award of the arbiter is binding upon the employers, including the Secretary of State, and the teachers unless one thing is done. Under existing statutory provision, Parliament must resolve that national economic circumstances require that effect should not be given to the recommendation of an arbiter in order to set aside that award. It is in Scottish legislation and in English legislation. The only reason the Secretary of State can set aside an arbitration award is because national economic circumstances are such that exceptionally he can set it aside. That can be done only by going to both Houses with a positive resolution to do it and giving his reasons.
There is a considerable departure from that in this Bill. The award is made; it goes to the Secretary of State and he can accept it or he can, I think, within 35 days, say that he is not accepting the award and have an order passed through the House on negative procedures. He does not need to give his reasons; he merely says he is not accepting the award. So the whole question of the exceptional nature of rejecting an arbitration award because of the economic difficulties of the nation—all that is wiped out, and the Secretary of State is very much freer to overturn an arbiter's award merely by tabling a statutory instrument which will automatically become effective if the initiative is not taken by either House to annul it. He makes the order. It requires somebody else even to have it raised, and that is, I think, within 40 days.
The Minister of State spoke earlier about lengthy procedures in respect of the determination of what help should be given and the recording of a child who is educationally disadvantaged. Here we are. How long do the negotiations take? How long does arbitration take? Then there are 35 days for him to consider
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whether he will produce an order setting it aside, and that order can lie on the table for 40 days. Goodness gracious! It is going to be months before teachers know the result—and remember if he is turning the award down he has the power under the Bill to make certain changes, so that it is going to be a long, long procedure.
I think it is wrong for them to make this change and take this power. I think they should have rested on the position as it is—and people understood it—that if the economic difficulties were great then the Government must have the right to go to the House and get a resolution passed to set aside the award. They have not done that. The purpose of my amendment is to wipe out the sort of casualness of the Government's attitude towards the award of an arbiter and to put back into statute the words that were already there, to the effect that national economic circumstances require that effect should not be given to the recommendation of the award. That is the sole purpose of the amendment.
I think the Government are going far too far. After all, they are in the negotiations. You have only to look earlier in this particular clause and you will see he has got control of the arbitration machinery. There is no question of an independent chairman or anything of that nature. It is in the hands of the Secretary of State, although he consults some people; and now he takes this easy attitude, on the basis of a negative order, to turning aside the award. I do not think it is good enough and I trust the House will agree with me in respect of that one. I beg to move.
Lord Underhill: My Lords, there are three very good reasons why I, as a non-Scot from metropolitan Essex, intervene in this debate. The first reason is that any Act that is passed is passed with the approval of the whole of this House and not just by Scots. Secondly, there is a great principle involved, and, thirdly, what is happening here could be transferred to England and Wales. There is a great principle, which my noble friend Lord Ross of Marnock has outlined: the possibility and almost the certainty of our present conciliating and negotiating machinery being set on one side by the whim of a Secretary of State. Admittedly, he has to bring an order which can be dealt with by annulment, but we all know how difficult it is to handle something by negative procedure. Therefore, there is a great principle at stake: the question of the powers to be put on one side—the machinery for conciliation on conditions of service.
Thirdly, knowing how the Government deal with various matters and the fear that some of us outside Scotland have that the Government may wish to transfer some of their powers over local authority finance into legislation affecting England and Wales, there is a great fear that this could be introduced into England and Wales, if it is passed. Therefore, those are three very good reasons and I hope that non-Scots will play close attention to what my noble friend has said and agree to the amendment which he has proposed.
6.19 p.m.
The Earl of Mansfield: My Lords, the House will appreciate that Amendments Nos. 29 and 30 are consequential to Amendment No. 28, which is the

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substantive amendment. The effect of these amendments is threefold. First, they require the Secretary of State to present a resolution to Parliament instead of empowering him to lay an order. They substitute an affirmative resolution for negative procedures and they require a resolution that national economic circumstances require that effect should not be given to the arbiter's award.
I do accept, and will bear in mind, what the noble Lord, Lord Underhill, has said. Of course noble Lords in or belonging to England—dare I say it?—are more than welcome to give of their knowledge, experience and opinion on any piece of legislation which affects any part of the United Kingdom. But what I have to say is this. I appreciate that the existing statutory arrangements for overturning arbiters' awards, both those applying to the Scottish Teachers Salaries Committee, and those applying to the Burnham Committees in England and Wales, provide for affirmative resolution and a reference to national economic circumstances. But as I said in Committee, we are, altering a number of existing legislative provisions in Clause 14 of the Bill, in certain cases by general agreement, and I am afraid that I cannot regard the existing statutory provisions as sacrosanct, merely because they are there. To say that we cannot in Scotland improve upon the position because of the status quo in Scotland is going far too far.
As 1 understand it, what the noble Lord is saying is that we must not do anything in case the English decide that it is a good thing to do and follow us. That I do not accept. So far as I know, the procedure has never been invoked either in Scotland or in England, so one cannot say that the procedure possesses any particular merit. There are corresponding arrangements in Scotland, in committees other than the Scottish Teachers Salaries Committee, for overturning an arbiter's award without any parliamentary procedure at all, and those have not been used either. So it is at least reasonable to consider what, in the circumstances in which such a power could be used, would be the appropriate procedure.
What the Bill provides in paragraph (b) is that if the Secretary of State does not accept the award he may within 35 days of receiving the said intimation make an order. I think that the noble Lord, Lord Ross, complained about the possible delay. Of course, that is a maximum which allows for any difficulties. But I anticipate that the Secretary of State would aim to intimate his decision either to accept or, alternatively, not to accept an arbiter's award at the earliest possible opportunity, and, if he did not accept it, he would obviously lay the relevant order as soon as possible thereafter. In recent years, where it has been necessary for the Secretary of State to intimate whether he accepted an award, it has been possible to do it within a matter of a few days. So I suggest that this period of 35 days is not only a maximum, but a maximum which is most unlikely to be used and, in any case, there would not be any unnecessary delay.
The noble Lord, Lord Ross, suggested in Committee that, since the Secretary of State will take part in the initial pay negotiations in the new committees and will have a power of veto over any settlements reached
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there, it should not be made easier for him to overturn an arbiter's award. He suggested, as another relavent consideration, that the arbitration award would emanate from an authority set up by the Secretary of State, and that the existing power to veto in the Scottish Teachers Salaries Committee was negotiated outside the statutory framework. The Secretary of State might seek to renegotiate such an arrangement, but the Convention of Scottish Local Authorities have already indicated that they are unlikely to agree to the replacement of the existing concordat by anything short of a statutory veto, which is not provided for in this Bill.
In other words, we proceed on the assumption that the Secretary of State will not be exercising a veto in the new committees, nor, on the basis of existing practice, will he be responsible for the appointment of the arbitration body to deal with any particular reference. So, in those circumstances, we take the view that the Secretary of State might reasonably seek a somewhat less cumbersome procedure in the event of his wishing to overturn an arbiter's award.
I now come to the point about affirmative and negative resolutions. This is a perfectly fair point which is always made by Oppositions. I made it myself fairly frequently in the years between 1975 and 1980, from the position which the noble Lord, Lord Ross, now occupies. I do not believe that in the particular circumstances which I am explaining an order subject to negative resolution will slip through, if I may use that expression. If any Secretary of State were, in effect, to overturn an arbiter's award, I am perfectly certain that he would then have to face the most searching inquisition in the other place into his reasons for making it. So the nub of the noble Lord's amendment, that there should be an affirmative resolution procedure, is not justified if one takes the circumstances in which an arbiter's award would be overthrown.
I now come to the question of the national economic circumstances and the fact that, under the proposals set out by the noble Lord, that would have to be stated in a resolution. As I have said, the power to overturn an arbiter's award has never been exercised. On the last occasion when we were speculating about this in Committee, I said that I thought that if an award were to be overthrown it would be in exceptional circumstances, and I had no doubt that it would be national economic circumstances which dictated it. One cannot foresee all the circumstances that might arise, but I suppose that a Secretary of State might say that an arbitral award could impose an unacceptable burden on teachers' employers, which would necessitate an unjustifiable increase in rates or the cutting of other services to an unacceptable degree, which might mean that the Government's policy was thrown off course.
But although these directly relate to national policy, they may not be directly national in that sense, and they could, I suppose, not even be economic. So I should prefer that the Secretary of State was not bound in advance to state the grounds for his decision, which might go to the competence rather than the merits of the proposal. He should be given a discretion, which it is quite usual for Secretaries of State to be given. He should exercise that discretion and he

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should thereafter, as in so many other instances, be subject to parliamentary scrutiny and inquisition. So we have looked at this matter with considerable care. We want to devise a scheme which, if it is ever used—unlike in the past—is fair, reasonably quick and less cumbersome than the scheme of the noble Lord, Lord Ross. I think that this is the way to do it.
6.29 p.m.
Lord Ross of Marnock: My Lords, not surprisingly, when I listened to all those objections about national economic circumstances, I began to wonder who put those words into the statute. It was not a Labour Government; it was a Tory Government. Of course, I followed a very heated battle in England about teachers' salaries and the behaviour of the Government. So the Government put them there. Now they say that this procedure is cumbersome. Why is it cumbersome? Because it is not so easy to throw aside the arbitration award. The Government want something easier. Arbitration has not been used, says the Minister. So he has devised something which he will be able to use. That is great news for teachers, is it not? It is going to be easier for the Government to set aside awards. And it is not limited now to national economic circumstances.
Has there been all this trouble? Of course there has not. I am really surprised at the Minister. He seems to go out of his way to create trouble for himself. There is no professional organisation in Scotland that likes this, accepts it and says, "This is good. Well done, thou good and faithful Minister. We shall vote Tory in future". No. They have all objected to it. The extent to which the Minister has tried to justify this is appalling. He says this is cumbersome and that there is no danger that it will slip through. Of course there is no danger that it will slip through. Does the Minister know how long it takes to deal with a negative order in another place? It comes on after 10 o'clock at night—an hour and a half is the rule. And it is dependent upon somebody putting down that order and noticing it. They certainly will notice it. However, this is very much easier than for the Government to have to come to Parliament with a resolution which requires the agreement of both Houses. There is usually an all-day debate, not just in another place but here as well.
What an opportunity for the noble Lord, Lord Lyell, to shine at that Dispatch Box and show how the Government are defending the national interest! Let us make it easy. Easy for whom? Easy for the Government. In what way? In order to set aside an arbitration award. The Government go out of their way to create trouble. The noble Lord says that because it is done in England it should be done in Scotland. May I tell him, as a matter of history, that this power to set aside an arbitration award began in an English statute passed by a Tory Government and that it was then introduced into a Scottish statute by the same Tory Government.
Let me warn English Members who are concerned about the sanctity of arbitration that ACAS is going to be consulted. I do not know whether the "arbiter" will be made up of two or three people, or more than that number. At one point the Bill talks about ACAS and at other times about an arbiter. This
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will apply to England and Wales, too. Or there will be other Bills—plenty of them—which will again hammer the local authorities.
The noble Lord is concerned about the rates. He is not so much concerned about the rates as about the 70 per cent. rate support grant subvention from the Government for education. That is its cost to the Government. The Government are already involved in negotiations with the local authorities, but there is not going to be a formal concordat as there is at the moment whereby the Government have the power of veto—not by statute but by agreement with the local authorities. The Government say it may well be that they will have to save them. National economic circumstances may well not be involved, but the Government's general policy will be to hammer the teachers, in just the same way as they have hammered the local authorities.
As my noble friend said, this is a very important principle. It is not one which we can let slip. There is a very considerable history of confrontation behind this which was settled by the arbitration machinery, and an overriding power is to be given to the Government to be able to set aside an award made in respect of teachers' salaries. I am sure that the noble Baroness, Lady Vickers, remembers the battles over this principle. There are going to be more battles if the Government depart from it and make it easier for these awards to be set aside by the Government.
In many parts of the Bill I believe that the Government are being more foolish than wise and are building up trouble for themselves. It is obvious that they are not going to change their mind about this, so we have no alternative but to take this matter to a Division.
6.35 p.m.
On Question, Whether the said amendment (No. 28) shall be agreed to?
Their Lordships divided: Contents, 41; Not-Contents, 74.

DIVISION NO. 2

CONTENTS

Ardwick, L.

Lovell-Davis, L.

Banks, L.

McGregor of Durris, L.

Beswick, L.

Molloy, L.

Bishopston, L.

Noel-Baker, L.

Boston of Faversham, L.

Oram, L.

Brooks of Tremorfa, L.

Peart, L.

Bruce of Donington, L.

Pitt of Hampstead, L.

Collison, L.

Ponsonby of Shulbrede, L. [Teller.]

Davies of Leek, L.

Donaldson of Kingsbridge, L.

Ross of Marnock, L.

Elwyn-Jones, L.

Seear, B.

Ewart-Biggs, B.

Sefton of Garston, L.

Gaitskell, B.

Segal, L.

George-Brown, L.

Stewart of Alvechurch, B.

Gifford, L.

Stewart of Fulham, L.

Hale, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L. [Teller.]

Jacques, L.

Jeger, B.

White, B.

Jenkins of Putney, L.

Wilson of Langside, L.

John-Mackie, L.

Wootton of Abinger, B.

Llewelyn-Davies of Hastoe, B.

239

NOT-CONTENTS

Airey of Abingdon, B.

Lindsey and Abingdon, E.

Alport, L.

Long, V.

Ampthill, L.

Lucas of Chilworth, L.

Avon, E.

Lyell, L.

Belstead, L.

Mancroft, L.

Broadbridge, L.

Mansfield, E.

Chelwood, L.

Margadale, L.

Cockfield, L.

Marley, L.

Colville of Culross, V.

Massereene and Ferrard, V.

Cork and Orrery, E.

Monk Bretton, L.

Cowley, E.

Montgomery of Alamein, V.

Craigavon, V.

Mountevans, L.

Cullen of Ashbourne, L.

Mowbray and Stourton, L.

Davidson, V.

Murton of Lindisfarne, L.

De La Warr, E.

Napier and Ettrick, L.

Denham, L. [Teller.]

Norfolk, D.

Drumalbyn, L.

Onslow, E.

Dundee, E.

Orkney, E.

Ebbisham, L.

Pender, L.

Elliot of Harwood, B.

Platt of Writtle, B.

Elton, L.

Redmayne, L.

Ferrers, E.

Rochdale, V.

Ferrier, L.

Sandys, L. [Teller.]

Gardner of Parkes, B.

Skelmersdale, L.

Gormanston, V.

Spens, L.

Hailsham of Saint Marylebone, L.

Stanley of Alderley, L.

Strathclyde, L.

Harvington, L.

Sudeley, L.

Hemphill, L.

Thorneycroft, L.

Henley, L.

Trefgarne, L.

Hives, L.

Trenchard, V.

Hornsby-Smith, B.

Vaux of Harrowden, L.

Hylton-Foster, B.

Vickers, B.

Kemsley, V.

Vivian, L.

Killearn, L.

Wakefield of Kendal, L.

Kintore, E.

Ward of Witley, V.

Kitchener, E.

Young, B.

Lane-Fox, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.43 p.m.
[Amendments Nos. 29 and 30 not moved.]
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 31:
After Clause 15, insert the following new clause:
("Inspection of religious instruction
Subsection (2) of section 66 of the principal Act (exclusion of religious instruction from inspection under section 66(1)) shall cease to have effect.").
The noble Earl said: My Lords, the purpose of this amendment is to remove the prohibition which is contained in Section 66(2) of the Education (Scotland) Act 1980 by which Her Majesty's inspectors of schools are debarred from inquiring into instruction in religious subjects or from examining any pupil in religious knowledge or in any religious subject or book.
The clause presages a change in a longstanding tradition of which many of the noble Lords present, including in particular the noble Lord, Lord Ross of Marnock, will be aware. The tradition stems from the provision of the 1872 Education (Scotland) Act, which is almost identical in its terms to Section 66(2) of the 1980 Act. The original purpose was to prevent the state from exercising an influence on matters of religion in schools. Some would doubtless argue that that should remain a fundamental objective. Others, and I fancy the vast majority, would point to the fact that a number of educational initiatives, particularly within more recent years, have helped to erode the original position. But they would add that proper
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attention to the place in the curriculum of religious education is now being inhibited precisely because the subject is not open to review by Her Majesty's inspectors.
In recent years there have been a number of important developments. These began with the setting up of the Millar Committee in 1968 by the then Secretary of State the noble Lord, Lord Ross of Marnock. The task of the Millar Committee was to review the practices in non-denominational schools with regard to moral and religious education. The two main outcomes of its report, published in 1971, were first that a teacher qualification in religious education was instituted. Secondly, the Consultative Committee on the Curriculum, which is the Secretary of State's main adviser outside the Scottish Education Department on the school curriculum, assumed responsibility for the overall curricular aspects of religious education through its Scottish Central Committee on Religious Education. Both of these events provided an important stimulus to curriculum initiatives in the subject.
More recently the Scottish Central Committee have published curriculum bulletins which have attracted wide interest and debate. Bulletin No. 1 entitled A Curricular Approach to Religious Education was issued in 1978 covering both primary and secondary education. Since then the Scottish Central Committee's responsibilities have been confined to secondary education, in relation to which it published in August this year Bulletin No. 2 on Curriculum Guidelines for Religious Education, which has been distributed widely to all education authorities, among others. In addition, the Secretary of State has just agreed to a joint recommendation by the Consultative Committee on the Curriculum and the SCE Examination Board to institute an SCE O grade examination in religious studies, the first candidates for which will be presented in 1984.
For the primary schools religious education matters fall to a Committee on Primary Education of the Consultative Committee on the Curriculum which has constituted a committee to examine (with particular reference to social, moral and religious aspects) the contributions which relationships at home, in school and within the community make to the education of primary school children.
Over the years these developments have given a significant emphasis to the place of religious education in the school curriculum and have received a general welcome from the many interests concerned. At the same time there has been a growing sense of disquiet that the prohibition on inspection enshrined in Section 66(2), and the absence of any such prohibition for all other subjects, confers a significant disadvantage on the development of religious education as a curricular subject. Whereas the justification for the provision in the 1872 Act and subsequent legislation was the need to place the matter of religious subjects in school outwith the powers of the state, now the argument is that the curricular development of religious education is unduly inhibited by the barrier which has been created. This is a powerful argument which this Government, after lengthy and careful deliberation, and following consultation with various Church and educational interests who were in full support of the

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proposal, have accepted and this has led us to table this new clause.
The clause meets the point of principle that the prohibition on inspection of religious subjects should be removed. Our soundings have indicated that a number of practical issues arise concerning the scope and nature of any inspection arrangements which could be introduced. The Government therefore intend that full consultations on these issues will take place before a commencement order is made bringing the repeal into effect. Given this latter assurance I hope the House will support the introduction of this clause. I beg to move.
6.49 p.m.
Lord Ross of Marnock: This, my Lords, is probably the most important change that has been made in the Bill since its inception. But remember, my Lords, this Bill has been through every stage in the House of Commons: Second Reading, a lengthy Committee stage, a Report stage and Third Reading. It has come to this place and we have had the Second Reading; we have had the Committee stage and here we are on the Report stage, and now we have this new clause introduced at the Report stage, when debate is considerably restricted—as indeed the Minister of State took it upon himself to remind us earlier—and when only one speech is allowed. There is no debate of any kind. And here we are dealing with something that is of fundamental importance to Scotland. I do not say I disagree with it, but let us not deceive the people of Scotland that this has been debated; it has not been debated. I understand that there was an Answer to a Written Question at the end of the Session. I did not know anything about it at all. As the Minister of State will remember, I was preoccupied with another Scottish Bill at that time right up to the very end of the Session, and it was not until 28th September that I saw this on the Marshalled List.
I do not know what discussions the Government have had. They say, "We have had discussions with Churches". I do not know which Churches. I was hoping that the Lord Advocate might have been here to help us, and he would give us the views about his own denomination—a branch, I believe, of the Free Kirk—about this. I should like to know what discussions he has had with the EIS, the Scottish secondary teachers' association, the Scottish Schoolmasters' Association and all the other groups. He has certainly given us no opportunity of having such discussions. I do not know whether or not other noble Lords were apprised that this was coming and given all the arguments.
The Minister of State tells us that there have been discussions before. I was concerned about this, and everyone who has been concerned about religion in schools was concerned about the quality of religion in schools and the actual quantity of it. I set up the Millar Committee quite a long time ago in the late 1960s. And they produced a report and dealt with the very subject of this amendment and came down against what the Government are now doing, for the very best of reasons according to them. The feeling was that if you had an external examination for religious education that would raise the status of religious education, not raise the quality but raise the status,
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put it on a par with other subjects. But it is not the same as other subjects. Religious education is something that should go through the whole school; it should not be confined to a period in the day.
Then there was the question of what religious education was. Was it religious knowledge, was it purely a fact finding examination you wanted? Of course this was suggested to me. Or was it religious studies, and of course this takes you into the realm of very considerably important matters in the secondary schools. There was also the feeling that if you elevated it to that degree it would only be a matter for the clever ones. Was it something that people opted into and opted out of, the way they opt into and opt out in respect of certain other subjects? To my mind, it should not be. To my mind, religious instruction and religious education should be for all and not for a selected few who are going to sit an examination.
So this is not quite the easy matter that the Minister suggested, and it is something that merits very considerable study. In fact this was suggested in the actual report to which he referred, the Millar Report. I cherish my children, and it so happened I had at home a copy of the report and was able to look through and see exactly all that had been said and the importance of what was said. I hope, too, it is clear that, whereas the Millar Report was concerned purely and simply with religious education in non-denominational schools, the Roman Catholic hierarchy were interested in it, but not part of it. That was probably a mistake on my part in not putting them in at the time. But if there are to be external examinations I think the Minister should tell us whether the Roman Catholic hierarchy have changed their mind.
I think that on page 50, paragraph 335, of the Millar Report it said this:
"If any panel or scheme were set up for this purpose…"
that is introduction of an examination—
"it should be noted that the Roman Catholic hierarchy in Scotland will like to be represented on it".
Has that been attended to and looked after and considered by the Government?
There is also the question—as was clear then and we have made some advance in the quality of instruction given—of the extent to which in secondary schools, although there is nothing in statute, as there is in English statute, about whether teachers could opt out of teaching. They can, I believe, according to statute in England, but not so in Scotland. The report was made in 1972, although the Committee was set up very much earlier than that; it was set up a few years before that in 1968. There were indications then that more and more teachers were opting out of teaching religious education in the secondary schools. One of the recommendations was that attention should be paid to the question of a qualification for religious teaching. There has been some improvement in that respect, but we have got to the point of being able to provide adequately for all those who want to sit this examination. I presume this is going to be an external examination, O-level or A-level of the Scottish Certificate of Education. It means considerable work in respect of getting the right teachers, considerable work in respect of getting the right curriculum and getting that curriculum agreed. I think it was made clear that there would need to be a tremendous amount

243
of work done before there could be such an introduction. I have been given no indication from the Government that that work has been done. Shall I ask the direct question? I am sorry to speak so long, because we are not in Committee and I can only make one speech, and this is probably the most important departure from what the Bill was. It is ridiculous that it should come at this stage and come so unheralded. When is it going to start, and what is the nature of the examination?
People may wonder why it is that in Scotland of all places there was this statute, and it is there until we pass this.
"It shall be no part of the duty of a person authorised under this section to make an inspection of any educational establishment to inquire into instruction in religious subjects given therein or to examine any pupil in religious knowledge or in any religious subject or book".
That is not the only thing it says about religious education. It says that there must be religious instruction in Scottish schools. It starts by saying that. Indeed, no local authority—and this is the law and will remain the law—can drop religious instruction in Scottish schools without a poll of the electors. We should not tell the Ministers about polls of electors for any particular purpose in view of what we hear at present. It goes on:
"It shall not be lawful for an education authority to discontinue religious observance".
That was the position. The obligation was on the education authorities to provide the religious instruction but there was no right for the Secretary of State to come in and see whether it was adequate or whether it was being properly carried out. Why was that? It is historic in Scotland that if there was any suspicion that the State was being concerned about religion then there would be another split in the kirk whoever agreed to it. That is the whole history of the Church in Scotland. The original secession, all the other secessions, and the burghers' secession were just because of oaths of loyalty by Scottish Ministers. That was why the state was chary and the people were chary about allowing the state to come into the realm at all of inspecting and laying down what was taught in respect of religious education.
In fact, even in my day as a teacher, in primary school one always had the religious period early or first thing in the morning so that if parents objected—and the power is given in statute to the parents—and wanted to withhold their children they could do so without detriment to the education of the children in respect of other subjects.
The whole thing became very difficult as time passed. Maybe in 1872 families had a connection with the church and children went to Sunday school and what happened in school was supplementary to that. The position today is very different indeed, and it may well be that we are despairing in respect of the actual business of children in church and Sunday school, although I think that there have been indications in the fairly recent past that there has been a greater adherence to that policy. However, there is the danger—and let no one underestimate the danger—that as soon as we make it an examinable subject people will say, "That is not for me", or people will take it as an
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examinable subject and, as soon as they have taken it, drop it at a time when we are hoping that people will be developing not only their religious knowledge but their religious studies.
It was then suggested that religious education would have a better chance to develop in interesting and novel ways if it were not tied to the educational system because the educational system tends to freeze things so that we get less experiment and less novelty. It is obvious from what has been happening, certainly in the fairly recent past—indeed, perhaps the less recent past—as regards methods of religious instruction that it was very unimaginative and not very successful. So the conclusion that was reached by the Millar Committee was:
"We think more harm than good would be caused".
Here we have moved away from that. Certainly there have been developments in respect of teachers. There have been suggestions about curricula. I do not know whether the Government are satisfied that that is enough. There was always the feeling in respect of certain pupils in the higher classes in secondary schools that they had a religious bent and a desire for religious knowledge, and we should not deny them that. My concern is that if we concentrate on that—and it will concern very much the minority of children—then what about the 95 per cent. who are probably more in need of religious instruction probably far better in quality than what they are receiving at present? What are we gaining by the examination system and what are we losing? Has that balance been made by the Government? Can they tell us whether this examination is purely for secondary schools? It must only be for secondary schools—it is an external examination.
What about the quality of the teaching of religious education in primary schools? I wish that more noble Lords would listen to what is the situation in Scotland. In England I gather that the inspectors are local education area inspectors appointed and maintained by those authorities. That is not so in Scotland. In Scotland they have Her Majesty's inspectors who are appointed by the Secretary of State for Scotland and answerable to the Secretary of State for Scotland. They are part of the state system. Are they, when they go into schools as they do, also going to examine and report on the standards of religious education in primary schools?
I hope that noble Lords will appreciate exactly how great is the change that is being made and the lack of preparation that there has been for that change and the lack of public discussion that there has been. I have never heard of it. Why, in the course of dealing with this Bill, should it take so long before we come to this matter? It if had been in the Bill at the start we could have had a proper debate not only here but in another place. However, once I sit down I must be silent because the noble Earl has reminded us that during a Report stage we can only speak once.
I have here just one of the reports. I can assure noble Lords that it is worth reading. It was well argued. There was a seminar in respect of which one headmaster, I think from Lanarkshire, put forward the examination idea and one other headmaster, I think a director of an independent school in Edinburgh,

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put forward the other idea that there should not be an examination. The extent of the variety of argument and the way the committee eventually came to a conclusion was fantastic.
My old friend the Reverend James Currie entered a note of reservation because he thought that there should be an examination. Once again it was a realisation of the great weakness that had come over religious education particularly in secondary schools, because I think that most people who have had experience of Scottish secondary schools appreciate that when it comes to examination time one could forget the religious instruction period—it was given over to study of o her matters. A great deal depends on the headmaster. Was there discussion with the headmasters in respect of this?—because one of the conclusions that the Millar Committee came to was that a great deal depended on the attitude and qualities of the headmasters as to the efficacy and quality of the religious education in their schools.
Has the Scottish Joint Committee on Religious Education discussed this matter? Is it still in existence, or is it one of the Quangos that has been got rid of? They include in membership the Church of Scotland, the United Free Church, the Free Presbyterian Church, the Episcopal Church, the Methodist Church, the Baptist Union, the Congregational Union the General Meeting for Scotland of the Society of Friends, the EIS, the county councils as they were then and COSLA as it will be now. Were all those people consulted and why, if they were consulted, did we in Parliament not get to know what had been going on? Could not they have produced some kind of report so that the Minister of State could come along and say: "Here is their considered opinion of this. Whether or not it is going to take two or three years, we hope to have it established in three or four years".
No one wants more than I to see an improvement in religious education and the interest in religious education in Scottish schools. However, in the past it has been argued that just to include an external examination could do more harm than good. Although it could be to the advantage of a limited number of people who wanted to study it and who can continue in their studies of it, it misses the big question about the adequacy and the nature of the education that is being given to the great majority of people who will not further it from an academic point of view. I think that their interest and our concern about them should be far, far greater than the minority who would follow their bent anyway.
The Duke of Norfolk: My Lords, I should like to assure the House that the Roman Catholic hierarchy of Scotland have been sufficiently consulted and are very pleased with this amendment and grateful for it.
Lord Ross of Marnock: My Lords, the noble Duke means this new clause?
The Duke of Norfolk: My Lords, precisely; the new clause. The hierarchy feel that times have changed, as the noble Lord, Lord Ross, has said, and they very much welcome the Government's interest in the religious education which the new clause will provoke.
7.12 p.m.
The Earl of Mansfield: My Lords, I am very glad to have my noble friend's support for this amendment, No. 31. I do not think that the noble Lord, Lord Ross, is actually against the principle, but he raised a great number of practical questions on the subject of religious education and how it will develop once we have the repeal and once the prohibition, as it were, is no more. The noble Lord has not argued against the principle and no other voice has been raised, so I shall confine myself to answering some of his points, some of which go to detail.
First, I should like to take the question of timing. The noble Lord, quite rightly, said that this was a very important amendment to the Bill and that it is a very important step to take; that the previous position has existed since 1872 and it is being radically changed; and that such a significant step should not be entered on lightly or hastily. In fact, the Government reached the conclusion that the prohibition should be repealed only after serious consideration and in the light of a continuing dialogue which my right honourable friend has been having with representatives of the Churches ever since the Government took office.
The conclusion in principle was reached. It was announced in July and given wide publicity, and a very wide range of bodies were then asked for their views. I shall come to them in a moment. Most of them supported the proposal in principle—many of them warmly; others had no reaction, and I do not think that there were any dissenters. If the noble Lord has not been engaged, as it were, in this, I can only conclude that it is because it has achieved such a very wide measure of agreement and no one said, "Let us use the undoubted ability of the noble Lord to oppose this".
At any rate, the amendment as it stands before your Lordships this evening is the culmination of a very lengthy period of discussion and consultation and if, as the noble Lord seems to allege, the amendment is said to be ill-prepared, hasty or sudden, I reject that criticism. I concede that it is introduced late in the progress of this Bill, but that is not to say that it is not being debated; it is being debated tonight. In that context it will also go to another place and, as an amendment to the Bill, can be debated there.
I should like to tell the noble Lord of some of the bodies which have reacted, such as COSLA, which agreed in principle; we have heard about the Roman Catholic hierarchy from my noble friend; others include the Church of Scotland Department of Education, the Free Church of Scotland and its Special Committee on Education, the Methodist Church in Scotland, the Consultative Committee on the Curriculum, the Scottish Certificate of Education Examination Board, the Education Institute of Scotland, the Scottish Secondary Teachers' Association, the NAS/UWT, the Association of Educational Advisers along with the Scottish Association of Advisers on Religious Education, the Catholic Headteachers' Association of Scotland, the Association of Teachers of Religious Education in Scotland and the Scottish Joint Committee on Religious Education. There were a number of other bodies which did not see fit to reply or to oppose the proposals, such as the Glasgow Jewish Board of Education and the Reformed Presbyterian Church.

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I am trying to tell the House that there have been very extensive consultations and a very general welcome. Naturally, on points of detail, such as the noble Lord has illustrated at length, there are reservations. Naturally, people want to know what will happen as religious education develops. The noble Lord asked a number of questions on that. As I think I told him, there will be an examination at O grade; the syllabus will start in 1982, and the first exams will be held in 1984. The examination will not be compulsory and I can tell the noble Lord that the proposal for an examination was welcomed by the church and educational interests, and the Roman Catholic hierarchy were involved in the formulation of guidelines and religious studies examination proposals.
The question, therefore, is whether your Lordships should, as it were, accept this amendment. I anticipate that anyone looking at the matter will say, "It is high time that there was inspection in schools". Looking at it from a slightly detached viewpoint, one wonders how the reform did not come before. Nevertheless, it has come now. It has come about after prolonged and extensive consultation and a great deal of cogitation over the last two years or so by the Government, and as such I commend it to the House.
On Question, amendment agreed to.
Clause 17 [Transfer to University Courts of certain Universities of power to appoint Principals]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 32:
Lease out Clause 17.
The noble Lord said: My Lords, this is a clause for which we have not heard a word of justification from the Government. I seek merely to give them the opportunity to justify what they are doing. The position in respect of these universities has been that the appointment of the principal was by Her Majesty. I am sure that there must be a very good reason as to why the Government are doing this. If they wanted to make the change, I do not know why they just left it to the University court. On recent events, I think that it might have been much more exciting if they had an electoral court, with various people participating, and extending and widening the democracy of the appointment. It may well be that it would not be all that satisfactory from our point of view. However, I do not think that we should allow a change like this to be made without actually noting that the change is being made in Glasgow, St. Andrews, and Aberdeen, for the appointment of the principal; it being transferred from Her Majesty to the courts.
I know that Edinburgh is a different matter. I think that the town council are involved in this. Did the Government in any way seek to get the agreement of Edinburgh University and town council to a change that would have brought all the universities into line, because this is bringing them into line with the newer universities that are there? There is nothing that the Government should be afraid of in my suggestion that this clause should be deleted. It is purely the technical way of giving the opportunity to the Government to tell us exactly what they are doing and why they are doing it. I beg to move.
The Earl of Mansfield: My Lords, the short answer to the noble Lord's question is that the Government are acting at the request of the three universities involved to remove an ancient anomaly. The clause allows each of the universities concerned to appoint their own principal. This will bring them into line with the great majority of United Kingdom universities, including the four newer Scottish ones, and the vast majority have always appointed their own executive heads. The universities asked for this change and would welcome it. Her Majesty has consented to the proposal. Edinburgh University, which was consulted to see whether it wanted to go along with the other three, said, "No, thank you". It wanted to keep its arrangements as they were, and that it is being permitted to do. The reason for this modest measure of reform is to remove an anomaly at the express wish of the institutions concerned.
Lord Ross of Marnock: My Lords, I think it would be fair to say that it is only an anomaly since we have expanded the university provision in Scotland. It certainly was not an anomaly when all the ancient universities, with the exception of Edinburgh, were in this particular position. There was nothing anomalous about that. Indeed, it may have been just as well. Anyone who reads the history of our universities and of the trials and tribulations and divisions that there were in the senates and the courts of the universities, and the battles that went on over many other things, would appreciate that it was a pretty good anomaly for a long time. It was probably one of the few positions in the university where there was less trouble in respect of the appointment than in any of the others.
I can understand the desire to change it. I do not know how great the desire was. The Scottish Office made the searches and recommended to Her Majesty the name of potential principals in respect of these universities. I do not think it was an onerous job for them, but it may well be that the anomaly having been resolved and the position having now gone to the courts of these universities, for the moment anyway, some people will be satisfied.
I only hope that it is not a return to a sort of internecine war within the courts about competing names. So far as what happened before, there was very little publicity to this kind of thing and there were not embarrassments in respect of the names that were eventually put forward. I sincerely hope that it works as well now that it goes to the courts as it did when the appointment was with Her Majesty. It will be a long time before we find out whether that is the way of things. I would tend not to agree with the noble Earl that this was an anomaly. Far from it. It was the tradition in these particular universities, and traditions that last span the centuries.
Amendment, by leave, withdrawn.
Schedule 1 [Appeal Committees]:
7.25 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 33:
Page 53, line 29, at end insert—
(". A person who is a member of the education committee of the authority shall not be chairman of an appeal committee.")
The noble Earl said: My Lords, this amendment arises from an undertaking I gave during the Committee stage of the Bill to look again at the question of the chairmanship of the appeal committees set up under new Section 28D of Clause 1 of the Bill to hear references from parents on the decision of an education authority refusing a placing request. Your Lordships may recall that in Committee the noble and learned Lord, Lord Wilson of Langside, tabled an amendment providing that a person who is a member of the education authority shall not be the chairman of an appeal committee. That was not acceptable in the terms in which it was drafted since it would exclude all elected members from service as chairmen whether or not they are directly involved with the policies and decisions of the authority on educational matters as determined by the education committee. This would arise because in Scotland the Regional or Islands Council is the education authority.
However, I undertook to take it away and look at it. I was impressed by the arguments that the chairman of an appeal committee should be seen by the parent as standing outside the authority's policies and decisions on educational matters. Several noble Lords made in effect the point that parents must feel that the case has received a fair hearing, and that the chairman must be seen to be impartial in his decision.
I shall not reiterate the points I made in Committee. I accept that public doubts might arise if a member of an education committee can be chairman of an appeal committee. I have also received communications from the Scottish Consumer Council and they had public misgivings on this issue. Therefore, it was in these terms that I cogitated and we came to the present amendment which puts the matter beyond doubt and excludes a member of the education committee from service as chairman. But this would not debar elected members in general who were not members of the education committee. Pointing out, as perhaps I should to the noble and learned Lord, Lord Wilson of Langside, that this amendment parallels the comparable provision in England and Wales, I would commend it to the House. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Application of certain provisions of the Education (Scotland) Act 1980 to recorded children and recorded young persons]:
Lord Lyell Lord Lyell moved Amendment No. 34:
Page 56, line 29, leave out ("an education authority") and insert ("the education authority for the area to which the child belongs (in accordance with section 23(3) of this Act)").
The noble Lord said: My Lords, I hope that, with the leave of the House, I can address myself to Amendments Nos. 34 and 35, both of which are in the name of my noble friend. Earlier today we passed a group of amendments, Nos. 4, 5 and 37. These sought to clarify the duty of an education authority to provide for a child from outwith their area in response to a placing request. The two further amendments which I propose tonight are designed to make an exception to this general principle on grounds which I shall briefly try to explain.
Parents of what we call recorded children have been
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granted the right, which is not available to other parents, to make a placing request specifying a grant-aided or independent school which will make provision for the special educational needs of that particular child.
It is already fairly common for special needs to be met in this way. The specified school may be situated in the authority's own area or in that of another authority. In either case, the authority receiving the placing request will have a duty to finance the child's attendance at the school requested unless one of the specified grounds of refusal applies. Since in such a case the authority's duty will be to give the child financial support, it is clearly appropriate that it should be restricted to the child's "home" authority. It would be wholly unjustifiable to expect, for example, Lothian (or even, as would be possible in theory, what we call a "third party" authority) to pay for a child living in Inverness to attend a special school such as the Royal Blind School in Edinburgh. The amendments provide that a placing request specifying a grant-aided or independent special school will be valid only if it is made to the education authority which, in terms of Section 23(3) of the 1980 Act, is responsible for making provision for the child's education, and in the example I quoted that would be the Highland Region because the child lived in Inverness. We seek, in other words, to clarify the measures we proposed earlier in the day, and I beg to move.
On Question, amendment agreed to.
Schedule 7 [Minor and consequential amendments]:
Lord Lyell Lord Lyell moved Amendment No. 35:
Page 72, line 26, after ("(d)") insert (",28A(1) (as it has effect under Schedule A2 to this Act),").
The noble Lord said: I spoke to this amendment a few moments ago, my Lords. I beg to move.
On Question, amendment agreed to.
7.32 p.m.
The Earl of Mansfield The Earl of Mansfield moved Amendment No. 36:
Page 72, line 26, leave out ("and 51") and insert (",51 and 60 to 65F").
The noble Earl said: My Lords, I spoke to this with the long chain of amendments starting with No. 6. I beg to move.
On Question, amendment agreed to.
Lord Lyell Lord Lyell moved Amendment No, 37:
Page 72, line 27, at end insert—
("7. After section 23(6) of that Act, there shall be inserted the following subsection—
"(6A) Nothing in this section affects the duty under section 28A of this Act or that section as it has effect under Schedule A2 to this Act of an education authority to place a child in accordance with a placing request or authorises them to decline to make for the pupil to whom the placing request relates such provision of school education as is mentioned in subsection (1) above.".").
The noble Lord said: My Lords, this is consequential on Amendments Nos. 4 and 5 to which I spoke at the start of the day. I beg to move.
On Question, amendment agreed to.
Schedule 9 [Repeals]:
Lord Lyell Lord Lyell moved Amendment No. 38:
Page 75, line 38, column 3, at end insert—
("Section 66(2).").
The noble Lord said: This is consequential, my Lords, on Amendment No. 31 which was spoken to earlier by my noble friend. I beg to move.
On Question, amendment agreed to.