Lords Sitting of 23 June 1988

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Truro.): The CHAIRMAN OF COMMITTEES on the Woolsack.

Air Transport: Europe
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether they will make a statement on aviation matters discussed and decisions taken at the meetings of the European Community Transport Ministers' Council held on 14th/15th March, 25th/26th April and 20th/21st June.
Viscount Davidson: My Lords, the only aviation matters taken by the Council itself were reports by the Commission on relations between the European Community and the European Civil Aviation Conference, and on a proposed amendment to the 1983 Inter-regional Air Services Directive. Both matters were referred back to officials for further work. In addition, at a separate meeting on 20th June Ministers exchanged views on air traffic control capacity.
Baroness Burton of Coventry: My Lords, believing that the most effective and radical solution to the problems of European aviation in the 1990s must be an effective co-ordination between the European Community and those European states not in the Community, will the Minister tell the House whether that Answer in general covers the possibility of such discussions? Does he agree with me that the present civil aviation package is only transitory and that we must expect further liberalisation?
Viscount Davidson: My Lords, I agree entirely with the noble Baroness on her last point. Work carried out in the European Civil Aviation Conference on market access and air fares had a substantial influence on the EC aviation package. The two organisations will continue to work together to achieve the maximum liberalisation in air transport throughout Europe.
Lord Underhill: My Lords, the Minister referred to the question of control. Do I take it that the Transport Ministers' Council considered the problem which has been increasingly mentioned in all circles: the overcrowding of air space and the possibility of a European air control system? Has that been considered? Was consideration also given to the growing complaints of the congestion at certain airports, particularly those in certain European countries due to charter flights interfering with scheduled flights?
Viscount Davidson: My Lords, the mechanisms for co-ordination and co-operation certainly exist, principally through the International Civil Aviation
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Organisation and Eurocontrol. The House might like to know that the reason I am answering this Question is because my noble friend Lord Brabazon of Tara is spending three days at Eurocontrol on a fact-finding mission prior to chairing the permanent commission of Eurocontrol on 5th July.
Baroness Burton of Coventry:My Lords, can the Minister tell the House whether he knows the date of the next meeting of the Transport Ministers' Council? While being gratified at the part affirmative (if not wholly affirmative) Answer to the first Question, did I understand the Minister to say that what I had asked about— the co-operation between the two different groups of countries— would be under discussion?
Viscount Davidson: Yes, my Lords. I hope that I can fully satisfy the noble Baroness by saying that the Greek Presidency is planning to hold transport councils in October and December of this year. But we need not wait until then. We shall continue to build bilaterally on the liberalisation contained in the December package, as we have done in the recent agreement with Ireland.
Lord Northfield: My Lords, can the noble Viscount make clear what is really holding up liberalisation in key routes such as London to Paris? Is it not a scandal that the regular fare— the return round trip Paris fare— is £ 170, even if one is only going for the day? That is the cost of flying across the Atlantic. Can the Minister make clear whether it is British Airways, the British Government, Air France or the French Government which is stopping real competition and liberalisation on that route?
Viscount Davidson: My Lords, I am not sure whether I can answer that question. But I can assure the noble Lord it is not the British Government.

British Rail Stations
3.5 p.m.
Lord Gainford Lord Gainford asked Her Majesty's Government:
How many British Rail stations have been reopened since 1979.
Viscount Davidson: My Lords, 25 stations have been reopened by British Rail during this time.
Lord Gainford: My Lords, I thank my noble friend the Minister for that concise Answer. Has he information to to how many stations British Rail plans to reopen within the next year or so, and whether there are plans for any new stations to be opened?
Viscount Davidson: My Lords, I understand British Rail has plans to reopen or open a further 60 stations over the next three years. The House might like to know that 77 new stations have been opened since 1979.
Lord Underhill: My Lords, will the Minister say what part Section 20 grants by the passenger

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transport authorities have played either in the opening of new stations or in the reopening of old stations? I mention the new procedure. The reopening of stations which have been closed no longer means going through a complicated process. Has this assisted the reopening of stations?
Viscount Davidson: Yes, my Lords. I can confirm both of those facts. The decision to open or reopen a station is a management matter for British Rail. The only criterion the Government operate is that any new station or service should not place an additional call on the PSO; that is, it should not be a burden on the taxpayer.
Lord Broxbourne: My Lords, does the Minister agree that whatever the importance of the reopening of stations, there is a prior importance in the clearing up and improvement of existing stations of which the nearby Victoria station is a notorious example?
Viscount Davidson: My Lords, I travel from Victoria, and I find that each week it has improved.
Lord Cledwyn of Penrhos: My Lords, will the Minister say how many of the 25 stations to which he has referred are in Wales? Will he further confirm that the station of Llanfairpwllgwyngyllgoger-y Chwyrndrobwll-Llantysiliogogogoch is open and will remain open?
Viscount Davidson: My Lords, I can confirm that that particular station is still there. I have a list of the 25 stations which reopened. Without being able to pronounce them, I can certainly see that Blaenau Ffestiniog has reopened. The last one on the list is Ynyswen which I presume must be in Wales.
The Earl of Stockton: My Lords, can my noble friend the Minister tell the House whether there is any danger that the railway station at Stockton-on-Tees is to be closed? This is, after all, probably the most famous railway station in the United Kingdom.
Viscount Davidson: My Lords, I take note of my noble friend's interest in that station. I am afraid that I shall have to write to him on that point.
Viscount Mountgarret: My Lords, while hearing with gratitude the news of the number of stations being reopened, I should like to ask the Minister whether he is able to confirm that stations will not then be closed down thereby negating the good work done, particularly in the Settle and Carlisle areas.
Viscount Davidson: My Lords, I have a note on that but I cannot find it. Closure only takes place if a station has become uneconomic. Since 1979, British Rail has closed 32 stations.

Slavery: Press Report
3.9 p.m.
Lord Gisborough Lord Gisborough asked Her Majesty's Government:
Whether they have any evidence that slavery continues to be practised in certain African countries, as alleged in the Sunday Express on 5th June.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, we are aware of reports of continuing slavery in certain African countries. Slavery is among recently reported human rights violations about which we and our European partners are making strong representations.
Lord Gisboroughx: My Lords, I am grateful to my noble friend for that Answer. Does he agree that the charge made in the press report is very serious and quite detailed? In view of the approaching 150th anniversary of the Wilberforce Anti-Slavery Society, will he continue to make investigations and strong representations?
Lord Trefgarne: Yes, my Lords, we shall certainly do so, both in our bilateral contacts with countries in Africa and also in multilateral fora such as the United Nations.
Lord Tordoff: My Lords, speaking as one who has not read the report in the Sunday Express, perhaps I may ask the Minister to inform the House whether that newspaper is for slavery or against it?
Lord Trefgarne: My Lords, I invite the noble Lord to look at the cutting in the Library.
Lord Renton: My Lords, is my noble friend aware that the exploitation of indigenous peoples, particularly in South America and parts of Africa, causes great anxiety? Does his Answer mean that the Government will support those countries within the United Nations that are trying to overcome that exploitation?
Lord Trefgarne: My Lords, we have been supportive of the various initiatives in the United Nations which have sought to outlaw and hopefully to put an end to those evil practices.
Lord Molloy: My Lords, successive British Governments, both Labour and Conservative, have always taken the lead in initiatives against the horrid practice of slavery. Will the Minister assure the House that Sir Geoffrey Howe will make representations to ensure that that evil practice is wiped out everywhere, thus maintaining the principle subscribed to by successive British Governments?
Lord Trefgarne: My Lords, I believe that the history of the United Kingdom's opposition to those evil practices, as the noble Lord rightly calls them, is second to none, starting, as we have been reminded, almost 150 years ago.
The Earl of Cork and Orrery: My Lords, is the Minister aware that the Anti-Slavery Society, which I believe was founded by the grandfather of the noble and learned Lord, Lord Wilberforce, is still highly active in the field? Do the Government keep in touch with that society, which can provide them with an enormous amount of information on the deplorable practice of slavery?
Lord Trefgarne: Yes, my Lords, we are in touch with all relevant organisations and we provide what help we can.
Lord Cledwyn of Penrhos: My Lords, is the Minister aware that the Abolition of Slavery Society reported to the United Nations that in parts of the Sudan small children have been bought and sold for £ 10? Have the Government heard of that and what steps are they taking to abolish that abominable practice?
Lord Trefgarne: My Lords, we have seen the reports to which the noble Lord refers. However, I cannot offer any independent confirmation of them. We make appropriate representations on a bilateral and multilateral basis.
Lord Gisborough: My Lords, where slavery is proved and where governments are not taking action against it, does the Minister advocate collective international pressure against such countries?
Lord Trefgarne: My Lords, I am reluctant to answer a hypothetical question of the kind which has been put to me by my noble friend. However, as I said earlier, I believe that our reputation will withstand any scrutiny.

Sunday Trading
3.15 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether the Enterprise and Deregulation Unit has investigated the effect on enterprise generally, and on the profitability of the tourist industry in particular, of the present state of the law on Sunday trading.
Lord Beaverbrook: My Lords, the Enterprise and Deregulation Unit looks for ways to reduce unnecessary burdens on business in all areas of government. The unit has therefore taken a close interest in the implications of Sunday trading laws for enterprise and tourism alongside the Home Office, which has departmental responsibility but has not undertaken any specific study.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that unambiguous reply. Are the Government weighing the economic consequences of the maintenance of our crazy system of Sunday legislation?
Lord Beaverbrook: My Lords, my noble friend is right to say that the anomalous situation as regards
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Sunday trading clearly has economic consequences. It is well known that the Government continue to favour complete deregulation of Sunday trading. However, they will consider carefully any practical compromise short of complete deregulation if and when a consensus can be achieved.
Lord Graham of Edmonton: My Lords, I am sure that the Minister and his colleagues will not be panicked by any well-heeled pressure group into taking precipitate action and will subscribe to the view that it is better to get it right than to get it soon. Can the Minister provide the House with an update on the views given to it by his noble friend speaking for the Home Office, who said only a month ago that consultations were taking place among interested parties in order to achieve the best possible consensus?
Lord Beaverbrook: My Lords, the noble Lord and my noble friend are as one on the matter. The Government are continuing to consult interested organisations to find a practical solution to the problem. The next step is for interested parties to reach agreement on a compromise if insufficient support remains for complete deregulation.
Lord Lucas of Chilworth: My Lords, does my noble friend agree that it is for the Government to give a lead in the matter? Are there any plans to produce a discussion document upon which decisions can be made and the Government can assess the chances for the consensus of which he has spoken?
Lord Beaverbrook: My Lords, the consultations which are currently taking place may lead to the production of a document. However, my noble friend will remember that the Government took a substantial initiative two years ago. Unfortunately, that initiative did not pass into law.
Lord Hailsham of Saint Marylebone: The Scribes and Pharisees got at it!
The Lord Bishop of St. Albans: My Lords, perhaps the noble Lord will clarify whether it is the view of the Government that the character of Sundays should be conditioned solely by enterprise profitability, economics and the tourist industry.
Lord Beaverbrook: My Lords, the point of the consultations which are taking place is to establish the strength of feeling on a number of fronts. No doubt the right reverend Prelate will make his views known to the Home Office.
Lord Hailsham of Saint Marylebone: My Lords, would it not be wise of the right reverend Prelate to cast his eyes north of the Border and study the legal position of Scotland to see whether his condemnation is justified?
Lord Beaverbrook: My Lords, the issue was discussed at great length two years ago. I do not intend to cover that ground again now. Certainly the situation north of the Border seems to work reasonably well.
Baroness Carnegy of Lour: My Lords, do the Government have comparative figures for the situation under the existing laws of Sunday trading in Scotland and that in England and Wales?
Lord Beaverbrook: My Lords, such figures are difficult to work out when no specific guidelines are available. I shall attempt to help my noble friend. However, I do not have any figures with me at the moment.
Lord Williams of Elvel: My Lords, is it not the case that the most enterprising business and that which is most oblivious of regulation is the one which in this sector is most liable to offend against Sunday trading laws? Does not that make the whole situation untenable? Will the noble Lord tell the House when the Government will give a lead on what sort of compromise may be available?
Lord Beaverbrook: My Lords, as I have said, the Government took a substantial initiative two years ago. Many hours were spent debating the matter both in your Lordships' House and in another place. The matter came to a halt. At the moment consultations are taking place. Perhaps they will lead to a document being issued.
Lord Boyd-Carpenter: My Lords, does my noble friend recall that the events of two years ago, to which he properly referred, were not unconnected with the activities of the well-heeled pressure groups about which the noble Lord opposite has warned him?
Lord Beaverbrook: My Lords, I understand that that was the case although I was not myself involved in the discussions.
Lord Mackie of Benshie: My Lords, is the noble Lord aware that the view that Scotland consists of a large area which on Sunday is riotous, with trading and everything else going on, is entirely mistaken? Is he also aware that there are many communities in Scotland which prefer a peaceful Sunday to making a profit?
Lord Beaverbrook: My Lords, I think that the noble Lord's comments show that there are many different tides of opinion in this matter.

Business
3.20 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Education Reform Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Third Reading of the Access to Medical Reports Bill and the Committee stage of the Community Health Councils (Access to Information) Bill will be taken.

School Boards (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.
Tor Bay Harbour (Oxen Cove and Coastal Footpath, Brixham) Bill
Read a second time, and committed to an Unopposed Bill Committee.

Education Reform Bill
3.21 p.m.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.— (Baroness Hooper.)
On Question, Motion agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 134:
After Clause 20, insert the following new clause:
("Employers' right to manage.
Chapter 1A: Rights and Responsibilities in relation to Employment matters
(".—(1) The local education authority shall, in relation to staff employed at any institution to which a scheme under sections 28 or 129 applies (except teaching staff at a voluntary-aided school) enjoy the rights and retain the obligations of an employer to manage in respect of the matters set out in subsection (2) below.
(2) The rights and obligations of the employer referred to in subsection (1) above include—

(a) the right to make the final determination in respect of the appointment and dismissal of staff; on the basis of any recommendation from the governing body under subsection (2)(a) of section (Role of Governing Body) below.

(b) the right to make the final determination in accordance with subsection 2(b) of section (Role of Governing Body) below in respect of suspension and other disciplinary matters;

(c) the obligation to establish a procedure for the purpose of securing that no governing body makes (or neglects to make) any payment which would contravene the requirements of the Equal Pay Act 1970 or the Sex Discrimination Act 1986;

(d) the obligation to maintain appropriate appeals machinery, and to afford members of staff following discipline or dismissal proper access to it;

(e) the right to deploy staff within the overall complement of the authority in a manner designed to secure the efficient provision of education; and

(f) the right to make the final determination in respect of the complement of staff to be maintained in each institution, in relation to their numbers and grade, in accordance with section 34(1) of the Education (No. 2) Act 1986.").

The noble Lord said: My Lords, it may be convenient if the amendment is taken with Amendments Nos. 132, 133, 135, 203, 207, 416 and 432. It may also be for the convenience of the House if I indicate that the intention is that Amendments Nos. 132 to 135, if they meet with the agreement of the House, should be included in the Bill in the order in which they appear on the Marshalled List and not in numerical order because something appears to have gone wrong with the numbering of the amendments.
The purpose of the amendments is to attempt to deal with the position as regards the laws of employment in the situation where there is delegated financial management of schools and colleges. We on this side of the House do not regard this as a party political group of amendments but as an attempt to

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secure a practical result. We consider that the position set out in the Bill is unworkable and will produce nothing but difficulty, litigation and deteriorating relationships between staff and their employers. By staff I mean both teaching and non-teaching staff.
The position under the Bill is, broadly speaking, that the local education authority remains the nominal employer, but all power to employ, to dismiss and relating to all conditions of employment is passed over to the boards of governors of the schools or colleges They have to obtain the advice of the chief education officer, and in the case of schools of the head teacher, on questions of appointments and dismissals. It is advice which they can reject if they wish to do so.
The Bill provides in Clause 199 that the Secretary of State may modify any enactment relating to employment:
"as he considers necessary or expedient in consequence of the operation of any of the provisions of this Act mentioned… below".
The relevant clauses are 39, 40 and 138 and Schedule 2. The meaning of the words:
"as he considers necessary or expedient in consequence of the operation of any of the provisions of this Act",
depend critically on what the word "operation" might mean. I would suggest that there are two possible constructions.
The first construction is that the legal operation of the clauses is to allocate and delineate the managerial authority between the local education authority and the school governing body under financial delegation so as to define the legal structure of the power of decision-making. The second is much wider. It is the operation in practice of the clause, the day-to-day decision-making of the LEA and school governing body acting within their various powers.
The first construction is very narrow and one wonders why those words are necessary at all if that is the construction which the Government put on them. Under the first construction of what is meant, the only valid application would be to determine whether one was within or outside one's rights. That is unnecessary. The second is much wider and in my opinion it would be open to the court to consider the validity of regulations made under this clause. Under that construction the Secretary of State would have scope to cover and modify all kinds of matters such as the right against unfair dismissal, the right against sex or race discrimination and the right to redundancy payments. All those could be altered by the Secretary of State. That is one major difficulty concerning the construction which a court might place on the meaning of the word "operation" in Clause 199.
The second difficulty arises because the Secretary of State's power to modify, even if the Bill is passed, is qualified, for example, by Article 119 and Directive 75/117 of the Community which relate to equal pay and work of equal value. The Judicial Committee of your Lordships' House in its recent decision in Hayward v. Cammell Laird points to the potential difficulties in that field. The speech of the noble and learned Lord the Lord Chancellor is most instructive
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if one considers the possibility of that kind of situation developing in the educational field.
The Department of Education and Science has issued a consultation paper setting out its intentions. That circular states that Section 186 (which is now Clause 199 of the Bill):
"enables the Secretary of State to make by order modifications to Acts relating to employment where this would be appropriate in view of powers and duties governing bodies will have as a result of financial delegation. Orders under section 186 will be made by the Secretary of State following consultation. For example, given that the governing body of a county, controlled or special agreement school with a delegated budget will be able to require the LEA to give notice of dismissal to a person employed to work solely at the school, it will be appropriate for the governing body to appear before an Industrial Tribunal to defend its action if the dismissed member of staff complains of unfair dismissal. Other examples of the responsibilities which will in practice be exercised by the governing bodies under financial delegation are the duty to give time off work to look for new employment and for ante-natal care, and the duty to allow a woman to return to work after child birth. A Circular will be issued on the Order made under section 186 after it is made".
That will no doubt be most interesting to the governing bodies. However, I suggest that the governing bodies are relatively new. They will be going in to do something for which, according to amendments that we shall be discussing later today, they will require training. It seems quite unnecessary that they should have placed upon them that additional highly difficult, very technical and complicated problem of employment law.
However, further major problems arise in this area. There are difficulties of redeployment and about the relationship between the employer and the employee. It is patently obvious that education authorities need to be able to redeploy staff. That has been an important factor in school staffing in response to changing needs and requirements. Redeployment has been put to considerable use in their response to declining pupil numbers in primary schools. LEAs will need to redeploy staff to tackle the changes in pupil numbers in secondary schools.
Education authorities are constantly being urged to improve planning in order to adjust to falling rolls. In May 1986, with reference to its report entitled Towards Better Management of Secondary Education, the Audit Commission stated:
"LEAs should undertake better manpower planning to manage the number and mix of teachers in line with agreed curricula for their schools".
The changes proposed in the Bill will not assist in this process. They are likely seriously to hinder an LEA's ability to respond flexibly. The whole emphasis of the Bill is that decisions should be taken on a school by school basis. The need to redeploy staff to match the requirements of other schools will not be a priority for individual governing bodies.
Yet the Bill's proposals will make redeployment more important rather than less important. The proposals in the Bill for a national curriculum and open enrolment will demand greater flexibility by LEAs in matching manpower requirements to needs. Obviously, this will require the greater use of redeployment.
The Bill appears to accept that redeployment will continue to be an important tool for local authorities. In the introduction to the Bill, under the heading

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"Effects of the Bill on Public Services Manpower" there is the assertion:
"the overall provisions … should not incur a significant addition to the total Public Service Manpower within the Education Service".
The introduction goes on to say:
"the implementation of the National Curriculum and new admission arrangements for schools may require some redeployment within planned overall teacher numbers".
How the local education authorities will be able to carry out the redeployment is far from clear under these arrangements. Coopers and Lybrand suggested that LEAs could offer redeployed teachers at a discount to governing bodies. That may be a solution which is attractive to accountants but it would not necessarily be attractive to a redeployed teacher. Redeployment should be seen as part of the career development of staff in schools. Offering teachers at a discount will do very little to reassure individual members of staff.
Quite apart from that consideration, the relationship between employer and employee has a whole variety of aspects which do not relate only to dismissal or appointment. There are important matters in respect of the health and safety at work legislation to be considered. There are considerable problems on dismissals themselves. In paragraph 9(2) of Schedule 12 dismissals under regulations made in the Education (Teachers) Regulations are excluded from the procedures for dismissal set out in paragraph 8 of this schedule. That means that when the Government's initiative on changes to qualified teachers status are implemented, decisions covered by the regulations which could lead to dismissal will relate only to conduct and the teachers' health. That immediately raises problems about how such dismissals will be handled, if they cannot be dealt with under Schedule 2 or the Education Act (No. 2) 1986.
The other problem which may well arise concerns the Government's intended legislation or proposals to assist small employers. They have already introduced a change so that maternity provisions do not apply to small employers. This may be thought to apply—and we do not know whether or not it will—to schools. Eighty per cent. of schools have fewer than eight teachers employed in them so there may be pressure put on the Government by governing bodies of such small schools to be spared the application of some parts of the employment legislation along with other small employers. The changes designed to help the small employers clearly dilute the existing rights of individual employees. It will be important to know whether that will be affected by delegated financial management.
I have already mentioned the problems about equal pay. If the LEA remains as the legal employer, it is very difficult to see how one prevents certain problems. If one governing body of a school says that it will pay its cleaner amount X and another governing body somewhere else in the same LEA says that it will pay its cleaner amount Y, it is very difficult to see how there would not be a case under the legislation on equal pay and work of equal value.
Those are just some of the important areas of uncertainty which have to be tackled. The purpose of
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these amendments is to attempt to recognise the problem and seek a solution.
Perhaps I may now deal with the amendments, the first of which proposes to introduce a clause which sets out the rights and obligations of the employer— in other words, the local education authority— and gives that body the right to make the final determination on appointment and dismissal of staff and various other matters. Amendment No. 135 proposes a new clause which gives a statement of the employee's rights and obligations, including his rights to make representation and to have a proper appeal process. Amendment No. 132 proposes a new clause setting out the role of the governing body and where it comes in. It confirms its right to make recommendations in respect of the appointment and dismissal of staff and the right to representation on various bodies.
In Amendment No. 133 there is a power given to the Secretary of State, who may review the operation of employment aspects of local financial management and make recommendations to Parliament; any recommendations shall be subject to consultation. The remaining amendments in this grouping are consequential amendments. Amendment No. 203 proposes to leave out Clause 39. Amendment No. 207 would leave out Schedule 2. Amendment No. 416 would leave out Clause 138, which relates to colleges, and Amendment No. 432 proposes to leave out Clause 199.
We believe that these amendments set out a framework which can work and puts it in one comprehensive whole into the Bill. It is in contrast to the Government's approach, which is to scatter bits of provisions around the Bill rather like bits of scaffolding material left lying in an untidy builder's yard. It is unfortunate that one should have that mess, so to speak.
Two years ago, in the Education (No. 2) Act, Parliament approved changes initiated by this Government in the areas of employment of teachers and the status of governing bodies. The Government changed their mind about how those provisions were to work before the provisions were ever given any trial and brought into use. In our view, with this Bill the Government are setting governing bodies of schools and colleges blindfold into a most dangerous and unncessary minefield. The proposals that we have put forward give some ease of dealing with this situation. I beg to move.
Baroness Seear: My Lords, from these Benches I should like to support the amendment moved by the noble Lord, Lord Morton, but with considerable regret. I had hoped that after the points which were raised rather late one night at Committee stage about the problem with which this attempts to deal, the Government would produce an amendment, guided— as one needs to be guided— by very good legal advice as to how this problem should be handled.
The problem that was highlighted at the Committee stage was the fundamental one that the local authority remains the employer while the governing body is given the powers to make the decisions in relation to employment. Therefore the

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local authority in the last resort carries the legal can for the decisions and mistakes which may have been made and sooner or later inevitably will be made by boards of governors which have the right in this legislation to make the appointments.
This is no party point. It is an endeavour to make the Bill clear on a matter of considerable importance for the operation of the scheme. I had hoped that the Government would themselves produce an amendment which would resolve this difficulty of the split of responsibility between the local authority and the school. It seems to us that the Government have wanted to go the whole hog of giving the governors full responsibility for running the schools with all responsibility for employment, and everything which that entails, but felt unable to do so and kept the responsibility with the local authority. That is the Government's problem, not ours. We would not have done it in this way.
However, I must point out some of the difficulties which have been referred to by the noble Lord, Lord Morton. There is the difficulty of redeployment. The noble Lord has dealt fully with that. There are the difficulties which arise in connection with redundancy and unfair dismissal— cases which can take the employer to an industrial tribunal and which can lead to penalties being imposed upon the employer in the form of payments ordered by the industrial tribunal to the employee. The local authority will not have made the initial decisions; the board of governors will have made them. The board of governors could make decisions which proved to be an illegal use of moneys but the liability for this would fall on the local authority. The members of the local authorities could even, in an extreme case, be surcharged for mistakes which had been made, errors which had been committed, by the governing bodies.
This is not a small matter that we are asking the Government, with the aid of their legal advisers, to sort out. One had very much hoped that this would take place.
On the equal pay issue, it was over the issue of equal pay for equal value that the question arose which highlighted the problem with which we are now attempting to deal. It is a fact that it is more complicated and more threatening, especially since the Cammell Laird decision in the House of Lords, than it was even when we first discussed it at Committee stage. The point of the equal value decisions is that there are jobs which can be compared which at first sight do not seem to be in any way the same or broadly similar.
However, we are not dealing with the same or broadly similar now; we are dealing with equal value. In the Cammell Laird case it was a supervisor in charge of, I think, catering who claimed comparability with a foreman in building, and won on grounds of value.
I suggest that it is very easy with the many schools within a local authority for a board of governors to appoint somebody comparable to the supervisor of catering, whose job could be compared with someone in charge of building (in a school of which that board of governors is not even aware) and can make an
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appointment with a level of pay which runs them into an equal value case. These cases are difficult. They are extremely difficult to anticipate.
I had hoped that the Government would explore the issue by this time; perhaps they will tell us that they have. If they have done so, it would be good to hear it at this stage.
There is this possibility of help over the equal value issue. Under the legislation the comparisons have to be within the same establishment. I am not aware whether that means only within a single school, which would at least minimise the danger, or whether it means that because there is a single employer it remains within any school which is the responsibility of that local authority. If the phrase "in the same establishment"— which is in the equal pay legislation— can be interpreted to mean that an establishment is a single school, the problem still remains but is greatly reduced in scale. But if it is for every school within the purview of that local authority, the difficulties that are likely to be raised are great. I hope that the Government's lawyers will give them good advice on this.
It is not for us to say precisely what ought to be done. We have tried to point the problem out to the Government. I had hoped that by this time the Government would be able to provide a solution. However, this is the best that we can do without the advantage of the Government's legal advice. I am very glad to support the amendment.
3.45 p.m.
Lord Hylton: My Lords, these amendments appear to set out in a clearer and helpful way the rights of both employers and employees. However, they relate only to those schools which will remain within the control of local education authorities. I suggest that similar problems will occur if and when schools opt out and move into grant-aided status.
This matter does not appear to be covered in Clauses 50 and 51, as one might expect, or in the schedules. It may therefore be that the scope of these amendments needs to be widened. Would the Government care to comment on that and say whether they have yet thought about the status and the rights and responsibilities of employers and employees once grant-aided status has been achieved?
Earl Baldwin of Bewdley: My Lords, I wish to speak chiefly about one aspect of these amendments. Amendment No. 134 provides in subsection (2)(e):
"The right to deploy staff within the overall complement of the authority in a manner designed to ensure the effcient provision of education".
The noble Lord, Lord Morton of Shuna, has already said something about this. I emphasise it because it illustrates clearly some of the hidden difficulties that one gets into if one divorces power from responsibility in management matters in schools.
An inescapable feature of the maintained school system, though not of the independent sector, is that pupil numbers fluctuate from year to year. Since staffing is linked to pupil numbers, staff numbers fluctuate also. It is very rare indeed for a secondary

929
school to keep the same staffing complement year on year. For a long time now the trend has been downwards as the effects of a low birth rate work their way through the system. This means that schools regularly have to shed staff.
One of the virtues of a system of local schools such as we have at present is that authorities can look after the interests of their employees when, for no fault of their own, they are threatened with unemployment. This is not a matter of incompetent teachers. That is a separate issue for which procedures are available. It is a matter of there simply not being a second German set to teach so that a modern language teacher is suddenly without a timetable and faces redundancy. He or she— I shall say "he" and be done with it on the principle of that time-honoured footnote which proclaimed that in this context man embraces woman— may welcome redundancy. Some do, but many do not. This is where the managing powers of the employer come in. As a last resort, if market forces and persuasion fail, the local authority can ensure that teacher another job with a reluctant head and governing body. They are reluctant, as often as not, because, quite understandably, they would have preferred the usual free choice of candidates.
The redeployment season is an agonising time for all those concerned in it, not least for the education officer to whom teachers' livelihoods are entrusted. But it is a necessary one if staff are to be dealt with humanely. I am sure that Marks and Spencer do no less if staff need to be laid off in some of their branches. Under the free-for-all of local financial management, this will be no longer possible.
The LEA will technically still be the employer, but with no power to behave as a good employer should. If any of your Lordships believes that the good will of autonomous schools will extend to taking on board voluntarily their neighbours' hard luck stories you underestimate the freedom that schools have traditionally been used to enjoy in appointing their own staff. I believe this is an important issue for teacher morale in future and it shows something of the unwisdom of the Government's approach to the employment aspects of the Bill.
Yesterday I heard the Minister say that falling rolls would give LEAs the chance to redeploy teachers effectively. I should love to know how she thinks that can be achieved when their powers to manage their workforce are taken away.
Finally, I should say a word about Clause 199, which was Clause 186. As drafted it is so wide that even the Government must feel a twinge of embarrassment at its sweeping phrases. It means that the Secretary of State may by order make any changes he wants in the application of any law relating to employment in schools and colleges under delegated financial management.
Julian Haviland writing in the Independent called it the "outstandingly offensive example" of the remarkable number of clauses which take the form of:
"the Secretary of State may by order have power to do what he thinks best about this, once he has had time to work it out"
Or
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"It shall be for the Secretary of State to determine, as soon as he sees which way the wind is blowing, the smartest way out of this potentially nasty hole".
He quotes what he calls the:
"impeccable constitutional principle that no minister, even if all-wise and all-good, is to be trusted with one ounce or one word more of statutory power than he can show he needs to discharge his duties".
When we sought late on the last night in Committee to narrow the clause to what the Government in Standing Committee J in another place had actually said they wanted from it— namely, the protection of the rights of employees— we were told that any such wording would make for difficult distinctions. That struck me as one of the worst arguments imaginable: a civil servant's answer if ever there was one. Of course it is legally more taxing to define a Secretary of State's power than to give him carte blanche. But you do not let the tail wag the legislative dog for that reason; not in a democracy anyway.
If the Government find Clause 199 too difficult to amend, the best thing we can do is to abolish it entirely and start again from the beginning with the employment issues. That is what these amendments set out to do and on that basis I commend them to your Lordships.
The Earl of Swinton: My Lords, I believe that perhaps the noble Earl is being a little pessimistic over this. There is an existing analogy at present. which is that of aided schools. About a fifth of the schools in the maintained system are aided and I am the governor of an aided school. I know that technically we are empowered to appoint the teachers that we believe are best for the school, but in fact at times of redeployment when the county has been in trouble it has come to us and asked us whether we minded taking on a teacher who required redeployment. That happens. It has not only happened in the school in which I am a governor but it has happened fairly widely throughout our area. I believe this can exist perfectly well within the system.
Earl Baldwin of Bewdley: My Lords, with the leave of the House, that may be the noble Earl's experience, but mine is rather different. There are indeed some schools that play ball in that way, but there are a large number that do not and that poses problems.
The Earl of Swinton: My Lords, may I remind noble Lords that this is not a Committee stage?
Earl Russell: My Lords, the noble Earl, Lord Swinton, gives us some reason for optimism, but he speaks about a present situation. In discussing the Bill we are concerned with the future. It seems to me that that opens an area of doubt. We have here an amendment which results from a genuine doubt about what the Bill means. It is where we have— I shall not say a contradiction, because I do not think that is true— a potential divergence between one area of the Bill and another. On the one hand we have in the national curriculum clauses a need for a specific number of teachers of specific subjects in specific places. The Minister said yesterday in col. 776 that this will create a considerable need for redeployment.

931
At the same time we have a local autonomy, a local control over appointment, which will make that redeployment potentially very much more difficult. Thus we want to know what will happen here. The position of the local authority seems to me to be somewhat unenviable. The local authority's role is being reduced to the position of responsibility without power— the prerogative of the charwoman throughout the ages. I believe that much clarification is needed and if we do not have that clarification we shall be left saying of the Government what Nicholas Hartsfield said of King Henry VIII, that he was
"Like one who would throw a man from the top of a high tower and bid him stay where he was half way down".
Baroness Blatch: My Lords, assumptions have been made during the debate that schools somehow operate in isolation. That is far from the practice both now in the present system and as proposed in the new system. A good local education authority and a school should share the same objectives— that is, to deliver the best possible education to the children, which means employing the best possible staff available to teach the children. If that is a shared objective of both the local authority and the school, and if the local authority also employs, as most of them do— I cannot think of a single local authority that does not— a personnel department both to advise and to help, and in the education department has an advisory service both to advise and support, I see no problems. I cannot think of a better place to make determinations about the competence or otherwise of a teacher than at the level at which the teacher operates, which is at the school. Therefore it would be a keystone in the management process for both the head teacher and the governing body to have a direct interest in whether a teacher was performing adequately.
In the case of redeployment, since I have been involved in local government and certainly in my own authority, I accept entirely all that has been said about a caring employer, about caring for the needs of teachers who need to be redeployed and that everything possible should be done by the authority to secure future employment for that particular teacher. I also regard it as important that the receiving school should not have a teacher imposed upon it because the authority is deemed to have an absolute obligation to redeploy that teacher come what may. Competency is not the only factor in the employment of a teacher. Fitting into the team of a school, fitting into the ethos of a school, accepting the ways of a school, accepting the chemistry between the staff and children are absolutely essential factors.
We talk a great deal about the rights of teachers and we should be concerned about that. But the children also have rights. Those rights are to have the best teachers available. The better the chemistry among the staff, the school and the children, the more effective will be the teaching of the children. One cannot discount that. It is absolutely essential that if we are now to empower governing bodies with the responsibility of delivering, consistent with all the requirements of the Bill, then we must leave them
932
with the responsibility to employ the best available staff.
I do not share the concerns of noble Lords opposite who are very suspicious that local education authorities will be working somehow quite distinct and separate from the school. I believe that come the new Bill, and come it will, the role of the local education authorities, despite what noble Lords opposite may think, will be strengthened. Their roles and responsibilities are to see that schools are delivering consistent with the Bill. The role they will play in making sure that local authorities are supported, advised and helped to achieve their objectives will also be helped. I do not have those suspicions. I do not nurture the risks involved. At the end of the day there is a raft of legislation which will bind everybody concerned, whether it is a school governing body, a head teacher or a local education authority that is instrumental in either redeploying a teacher or making a teacher redundant for one reason or another.
The legislation would also come into force and protect the rights of the teacher and the school. It is important that the initial action that will be taken at school level should not be taken in isolation. Before arriving at that process it is essential that one deals with the relevant departments of the local education authority. The mechanisms by which the decisions are arrived at will be a material part of the evidence which must be supplied to a tribunal. Again, at the end of the day the teacher's rights would be preserved in law.
I am a firm believer in putting responsibility and power at the point of operation— at the school. As regards this issue I have more trust in local education authorities sharing the objectives of producing the best education for the children and employing the most appropriate and able staff available. It is that relationship that one must work at and if it is right I believe that the Bill has much more going for it. I have witnessed the unhappiness on the part of a school where, in its protection of a teacher's rights, an LEA has in redeployment imposed a teacher on a school when almost everything about that redeployment has been wrong. The results have been most distressing not only for the school but also for the teacher. I do not share the suspicions that have been mentioned by noble Lords opposite and I hope that this part of the Bill will receive a fair wind.
Lord Dormand of Easington: My Lords, I should like to ask the noble Baroness a question before she sits down. Her first point concerned "getting the chemistry"—that is the phrase she used—between a teacher who may be transferred to a school and the ethos of the school. Although I believe that she exaggerates the case, I do not think that one could disagree with the principle. How can one know whether a transferred teacher will fit into the ethos or provide the right chemistry when the teacher has not set foot inside the school?
Baroness Blatch: My Lords, with the leave of the House, which I believe I must have in order to reply to the noble Lord— with or without the leave of the House I shall respond— I believe that the assumption

933
is being made that everything happens in isolation. Enormous agencies are at the disposal of schools in order to help in a situation such as that described by the noble Lord. In the case of redeployment, a local authority carrying out its job properly will make sure that the teacher is introduced to the school. However, I believe it to be absolutely essential that the receiving school shall make the appointment. In other words, if it is the will of the local authority it should be required to meet the teacher, but at the end of the day it should make the judgment as to whether the teacher is the right one to employ in the school. If the school is given the responsibility of delivering education consistent with the requirements of the Bill, I believe that at the end of the day it should be given the responsibility to employ the appropriate staff.
Lord Rochester: My Lords, when the subject of employees' rights was discussed in Committee, the noble Lord, Lord Trefgarne, made two comments which I believe to be of significance. First, he said that on Report the Government would bring forward an amendment requiring that, before any order was made by the Secretary of State under what is now Clause 199 to modify enactments conferring rights on employees, there should be consultation with local authority employers, trade unions and bodies representing the interests of the governing bodies of voluntary schools. As my noble friend Lady Seear has already observed, it is a matter of great regret that that amendment has not been tabled and that we are not able to discuss the matter in connection with these amendments.
The second point made by the noble Lord, Lord Trefgarne, which interested me was that LEA representatives were reassured when they were told that in the case of unfair dismissal the governing body must answer for its actions before an industrial tribunal because of the operation of Clause 199.
Arising out of that statement I should like to ask the Minister what other rights now enjoyed by employees under various enactments are to be treated in the same way by the operation of Clause 199. The Government must have given some thought to the matter. If they are unwilling to specify in the Bill what rights are to be treated in this way surely we are entitled to hear now what rights, other than those pertaining to unfair dismissal, the Secretary of State has in mind.
Baroness Hooper: My Lords, we cannot accept these amendments. We believe that they are completely contrary to the principles of financial delegation and local management of schools. We see the problem to which the noble Lord, Lord Morton of Shuna, drew our attention as capable of resolution within the provisions of the Bill. I assure the noble Baroness, Lady Seear, that we have considered the points which were raised and discussed during the Committee stage.
The substitution of the new clauses for the provisions of Schedule 2 and Clause 138 would leave the governing bodies of schools and further education colleges in the impossible position of having important responsibilities for the
934
management of an institution without the authority to take the necessary decisions.
Governors would be responsible for the overall management of the schools' finances by virtue of the rest of the provisions in the Bill on financial delegation, but these new clauses, if accepted, would mean that they would not be able to take key decisions on the way in which by far the largest part of the budget is spent. The opposition parties have said that they are very sympathetic towards local financial management, yet these amendments suggest that their commitment is rather limited. If governors are to have real responsibility they must have the powers to go with that responsibility.
We have made it clear throughout the passage of the Bill that it is our firm view that effective control over key staffing issues must be central to any proper scheme of financial delegation as staffing accounts for 75 per cent. to 85 per cent. of the total expenditure of each institution. Otherwise the freedom given to governors to deploy resources in pursuit of their priorities will be a very limited one and could soon lead to frustration and disillusionment. Accordingly, we believe that governors must have the crucial say in respect of staff numbers, appointments, discipline and, on the occasions when this proves necessary, dismissals.
The Coopers and Lybrand report on financial delegation which has been quoted stated quite unequivocally that:
"Delegation of responsibility for teaching staff is fundamental to the success of any scheme of local financial management schools".
The report also emphasised that numbers of non-teaching staff should also be within the competence of the school. The fact that further education colleges already have in many cases a considerably wider degree of discretion than would result from the wording of the clauses tabled by the noble Lords and the noble Baroness only adds further force to the Government's stance.
It has been suggested that the Bill will strip LEAs of any role as employers and managers of the teaching force and other staff in institutions. The Bill gives the governors of schools and colleges the crucial say on such staffing issues as appointments, the number of staff at the school and decisions on disciplinary cases and on dismissals should they be necessary. We make no apology for that. I agree with my noble friend Lady Blatch that it is wrong to suggest financial delegation will mean no role for LEAs.
I should like to remind noble Lords that existing practice is that many staffing decisions are devolved to the school level. Consultation between local education authorities on the one hand and governors and head teachers on the other hand has always been important. There are those who suggest that the new balance of responsibilities between governors and the LEA is unworkable. Yet for the 20 per cent. of LEA-maintained schools which are aided schools the governing bodies have had the effective responsibility for staffing decisions throughout the last 40 years. That was pointed out by my noble friend Lord Swinton. In view of the high esteem in which aided schools are held, it is clear that there is no reason to

935
believe that giving governors greater responsibilities should undermine schools or preclude a continuing important role for the local education authority.
Under schemes of financial delegation LEAs will take on a more strategic role. They will no longer be able to exercise direct detailed control over the bulk of specific decisions. But they will be determining the total resources available to schools and establishing the basis for allocating resources between individual schools. They will set the framework within which governing bodies will exercise delegated powers.
The LEA will set the tone of education through its articulation of its policies for the service, including its curriculum policy, and through its role in coordinating national and local specific grant initiatives. It will be for the LEA to sustain and support governing bodies with professional advice and guidance on the full range of issues faced by schools.
The LEA will continue to have an important responsibility for the professional development of its teachers through the arrangements for example for in-service training. LEA advisers will have a vital part to play in this process and will report on the performance and achievement of the schools and teachers both to the governing body and the LEA.
In attempting to answer some of the specific points which have been raised perhaps I should start with the question raised by more than one speaker about Clause 199 of the Bill. Of course, we shall have a chance to discuss Clause 199 in due course. Essentially, the clause is necessary so that we can make sure that those who take decisions are accountable for them under the law. For example, if a teacher claims that he has been unfairly dismissed by the governors, it should be the governors rather than the local education authority who appear before the industrial tribunal to defend their decision.
In Committee we undertook to bring forward an amendment to require the Secretary of State to consult certain interested bodies before making orders. That amendment will be on the Order Paper when we come to discuss the clause.
Various questions were raised on redeployment, principally that the Bill will mean that local authorities are no longer able to redeploy as a result of these provisions. Indeed, compulsory redeployment would end, but local education authorities would still have the right to put forward names for consideration by the governing body. The governing body will be required to consider those names and, except in the case of the head or deputy, may select from them without advertising the post. The majority of local education authorities which now have successful redeployment programmes do not in any event compel schools to accept teachers whom they do not want. There is every reason to expect that these local education authorities should be able to continue their successful practices provided that the quality of the candidates put forward is maintained.
There has been specific reference to falling rolls. Again, financial delegation will not in itself make a
936
significant change in the number of teaching posts. It will simply change the arrangements for making appointments. Local education authorities will be able to submit names for consideration and will have a statutory right to offer advice on all appointments.
Since schools are not employers there is no question of their being exempted as small employers from the obligations of the employment law. Similarly, there are no changes on health and safety, as the draft circular makes clear. The circular also makes clear how Clause 199 will work in other respects.
The solution proposed by these amendments to problems which, in my view, have been to some extent invented and certainly exaggerated add up effectively to abolishing financial delegation. In grant-maintained schools the governors are the employers as they are in aided schools. Therefore, there is no need for provisions of this sort regulating the roles of local education authorities versus governors.
The other question raised by a number of speakers concerned the equal pay and sex discrimination Acts. It would be impossible to devise a "procedure" as suggested by subsection (c) which would ensure that no governing body— or anybody else— ever made a payment which contravened these Acts. As we have explained before, we intend to use the power given to the Secretary of State in Clause 199 so that the governors are subject to the provisions of the Equal Pay Act and other provisions of employment legislation. The LEA through the chief education officer will be able to advise governors both generally and in particular cases about their responsibilities in this area. We would expect governors to take careful account of that advice before reaching their conclusions. This is another illustration of the important role of the advice of the CEO.
In conclusion, I hope I have said enough to make it clear that these are very far-reaching amendments, strikng at the heart of financial delegation. The Bill does increase the responsibilities of governing bodies, but it ensures that they will have to consider very carefully advice given by the chief education officer. We believe that increasing the powers of governing bodies and emphasising the strategic role of the LEA provides the right balance of responsibilities to ensure that financial delegation is the success we all want it to be. I therefore urge the House to reject these amendments.
4.15 p.m.
Baroness Fisher of Rednal: My Lords, before the noble Baroness sits down perhaps she can answer a specific question. If a teacher is being transferred to another school and if the conditions being offered to the teacher are different to those of the previous school, will the salary be protected? In other words, a teacher who may be on one grade at one school is transferred to a different school which is willing to receive him. Will the salary be protected?
Baroness Hooper: My Lords, all teachers' salaries will be subject to the national teachers' pay and conditions regulations. I do not envisage the problem raised by the noble Baroness because, as I understand

937
it, a teacher is not compulsorily transferred but will apply to another school. In doing so the teacher will apply under the terms and conditions offered by that other school.
Lord Morton of Shuna: My Lords, I am very grateful to everyone who has spoken in this debate. It is unfortunate that in her response, the noble Baroness has completely failed to see the point at which we are driving. In no sense are we against local financial management. In these amendments we are attempting to arrive at a situation where local financial management can work. Under the Bill as it is we do not consider that local financial management will work; there will be difficulties.
Perhaps I may say to the noble Earl, Lord Swinton, and to the noble Baroness, Lady Blatch, that employment law is totally unnecessary in 90 per cent. or more of cases where people are well treated at work and happy with their employers. One does not then need an employment law at all. The only reason for having an employment law, in eduation as well as anywhere else, is the situation which goes wrong. One has to provide for that situation. It is because the Government consider that they have to provide for the situation which will go wrong that they have the provisions in the Bill. It is also because we consider that those provisions do not meet the situation and will be chaotic that we are putting forward these amendments. I have no doubt that in the majority of cases co-operation will extist. It would exist whether or not there was a Bill, but that is not an answer to the problem of where it goes wrong.
An illustration of my disappointment in the Government's response is that the Minister told us that schools were not employers and therefore they could not be small employers. Fair enough. But that implies that the employer is the local education authority and, as the Bill says, that means that work of equal value anywhere in the area of the employer will be considered under the Equal Pay Act. Therefore, each locally financially delegated school will have to consider the financial provisions for every member of staff everywhere in the local education authority. That is the problem of equal value.
In the case of Hayward and the people employed by Cammell Laird, the plaintiff was a cook. She was compared and was held to be doing work of equal value to that of a painter, a joiner and an insulation engineer. Those are the areas we are going into. That is the sort of area raised by my noble friend Lord Irvine of Lairg, among others, in Committee. I have endeavoured to raise it now. The Government do not appear to have read the speech of the noble and learned Lord the Lord Chancellor in Hayward. The Government are missing the whole point.
In those circumstances there is no point in my attempting to continue the matter any further and I ask the opinion of the House.
4.22 p.m.
On Question, Whether the said amendment (No. 134) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 131.

DIVISION NO. 1

CONTENTS

Airedale, L.

Llewelyn-Davies of Hastoe, B.

Amherst, E.

Lloyd of Kilgerran, L.

Ardwick, L.

Longford, E.

Attlee, E.

Lovell-Davis, L.

Aylestone, L.

McIntosh of Haringey, L.

Baldwin of Bewdley, E.

McNair, L.

Basnett, L.

Mayhew, L.

Birk, B.

Mishcon, L.

Bonham-Carter, L.

Molloy, L.

Boston of Faversham, L.

Morton of Shuna, L.

Bottomley, L.

Nicol, B.

Briginshaw, L.

Northfield, L.

Campbell of Eskan, L.

Oram, L.

Carmichael of Kelvingrove, L.

Pitt of Hampstead, L.

Cledwyn of Penrhos, L.

Ponsonby of Shulbrede, L. [Teller.]

Cocks of Hartcliffe, L.

Darcy (de Knayth), B.

Rathcreedan, L.

Dean of Beswick, L.

Rea, L.

Dormand of Easington, L.

Ritchie of Dundee, L. [Teller.]

Elwyn-Jones, L.

Robson of Kiddington, B.

Ennals, L.

Rochester, L.

Ewart-Biggs, B.

Rugby, L.

Falkland, V.

Russell, E.

Fisher of Rednal, B.

Sainsbury, L.

Gallacher, L.

Seear, B.

Galpern, L.

Sefton of Garston, L.

Gladwyn, L.

Serota, B.

Graham of Edmonton, L.

Shackleton, L.

Gregson, L.

Stallard, L.

Grey, E.

Stedman, B.

Grimond, L.

Stewart of Fulham, L.

Hampton, L.

Stoddart of Swindon, L.

Hanworth, V.

Strabolgi, L.

Hayter, L.

Taylor of Blackburn, L

Hunt, L.

Thurlow, L.

Hylton, L.

Tordoff, L.

Irving of Dartford, L.

Underhill, L.

Jacques, L.

Wallace of Coslany, L.

Jay, L.

Wedderburn of Charlton, L.

Jeger, B.

Wells-Pestell, L.

Jenkins of Putney, L.

Whaddon, L.

John-Mackie, L.

Wigoder, L.

Kagan, L.

Williams of Elvel, L.

Kirkwood, L.

Wilson of Rievaulx, L.

Leatherland, L.

Winterbottom, L.

Listowel, E.

Young of Dartington, L.

NOT-CONTENTS

Ailsa, M.

Caithness, E.

Alexander of Tunis, E.

Cameron of Lochbroom, L.

Allenby of Megiddo, V.

Campbell of Alloway, L.

Ampthill, L.

Carnegy of Lour, B.

Arran, E.

Carnock, L.

Auckland, L.

Colnbrook, E.

Balfour, E.

Cork and Orrery, E.

Barber, L.

Cottesloe, L.

Beaumont of Whitley, L.

Craigavon, V.

Beaverbrook, L.

Cullen of Ashbourne, L.

Belhaven and Stenton, L.

Davidson, V. [Teller.]

Beloff, L.

De Freyne, L.

Belstead, L.

Denham, L. [Teller.]

Bessborough, E.

Donegall, M.

Birdwood, L.

Dundee, E.

Blake, L.

Eccles, V.

Blatch, B.

Eden of Winton, L.

Blyth, L.

Elibank, L.

Borthwick, L.

Elliot of Harwood, B.

Boyd-Carpenter, L.

Elliott of Morpeth, L.

Brookeborough, V.

Elton, L.

Brougham and Vaux, L.

Erroll of Hale, L.

Broxbourne, L.

Faithfull, B.

Butterworth, L.

Ferrers, E.

939

Ferrier, L.

Nugent of Guildford, L.

Foley, L.

Onslow, E.

Fortescue, E.

Orkney, E.

Fraser of Kilmorack, L.

Oxfuird, V.

Gainford, L.

Pender, L.

Gardner of Parkes, B.

Perth, E.

Gisborough, L.

Plummer of St. Marylebone, L.

Goold, L.

Gray of Contin, L.

Porritt, L.

Gridley, L.

Portland, D.

Hailsham of Saint Marylebone, L.

Pym, L.

Rankeillour, L.

Harvington, L.

Reigate, L.

Headfort, M.

Renton, L.

Henley, L.

Rippon of Hexham, L.

Hesketh, L.

Rodney, L.

Hives, L.

St. Aldwyn, E.

Home of the Hirsel, L.

St. Davids, V.

Hooper, B.

Saltoun of Abernethy, Ly.

Hylton-Foster, B.

Sanderson of Bowden, L.

Iddesleigh, E.

Sandford, L.

Johnston of Rockport, L.

Selborne, E.

Killearn, L.

Shaughnessy, L.

Kinnaird, L.

Skelmersdale, L.

Layton, L.

Stockton, E.

Lloyd of Hampstead, L.

Strathcarron, L.

Long, V.

Strathspey, L.

Lothian, M.

Swansea, L.

Lucas of Chilworth, L.

Swinton, E.

Macleod of Borve, B.

Terrington, L.

Malmesbury, E.

Teviot, L.

Mancroft, L.

Thorneycroft, L.

Marley, L.

Todd, L.

Merrivale, L.

Trafford, L.

Mersey, V.

Truro, Bp.

Milverton, L.

Ullswater, V.

Monckton of Brenchley, V.

Vaux of Harrowden, L.

Mottistone, L.

Wigram, L.

Mowbray and Stourton, L.

Wyatt of Weeford, L.

Munster, E.

Young, B.

Murton of Lindisfarne, L.

Young of Graffham, L.

Nelson, E.

Zouche of Haryngworth, L.

Norfolk, D.

Resolved in the negative, and amendment disagreed to accordingly.
4.30 p.m.
[Amendments Nos. 135, 132 and 133 not moved.]
Clause 21 [Admissions to county and voluntary schools]:
Lord Trafford Lord Trafford moved Amendment No. 135A:
Page 16, line 29, after ("is") insert ("more than ten").
The noble Lord said: My Lords, due to the unavoidable absence of my noble friend Lord Jenkin of Roding I rise to move the amendment, but I shall not detain the House for very long because it is a very straightforward amendment. Whereas one welcomes provisions for open enrolment as they can enlarge choice and perhaps enhance standards, to be effective they must also be workable. I would not wish to see these provisions brought into any form of disrepute due to any form of rigidity.
Therefore, the amendment seeks to introduce just a modicum of flexibility without having to invoke the very complicated procedures which are available under Clause 23. The amendment proposes that there should be a margin of 10 places in the relevant age group— not 20 per cent. as allowed under the 1980 Act or even 10 per cent. which could be quite a number in a large school. The standard number is based on the 1979– 80 figures which was what one
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might call a bulge year; namely, the figures were very large. The choice of any year is likely to be arbitrary, but in fact this was a high one.
The draft guidelines that were published the other day, suggest that the situation could be made slightly worse because it would appear that the standard number applies to the total of those admitted in the course of a year. For example, if the number were 180 at the commencement of a year and if 20 left and that 20 were replaced, the figure would not be 180 but 200. It looks as though this figure has been slightly altered.
Since that time there has been curriculum change, and a certain amount of accommodation and policy change which has somewhat altered the size. Without some minimal flexibility some difficulties may be caused. I want the system to work and I believe that this very minor change allowing for a little flexibility will help it to do so. I beg to move.
Lord Morton of Shuna: My Lords, we welcome the amendment as far as it goes in allowing a little more flexibility. Therefore I hope that the Government are prepared to accept it.
Baroness Hooper: My Lords, the intention of my noble friend, as he has explained to us, is that admission authorities should be able to fix an admissions number which would be up to 10 less than the standard number of the school concerned, without the need for any public procedure.
We cannot accept the amendment because the aim of the Government's more open enrolment proposals is that schools should admit as many pupils as they can physically take, if the demand is there. We have taken as the yardstick for judging physical capacity the standard number of a school since this is closely related to physical capacity and all schools have such a physical capacity. It is important that parents should know that the admissions limit represents the actual number of pupils that a school can take. While I understand my noble friend's desire for a little marginal flexibility, I must tell him that, in the Government's view, that would not best be achieved by allowing LEAs and governors to set admission limits which are below the standard number. That would be a departure from the basic principle of more open enrolment policy.
Flexibility is written into the Bill by the provisions it contains for adjusting standard numbers where it is agreed that they no longer reflect true capacity, and for allowing a local decision to raise the admissions limit above a low standard number without reference to the Secretary of State.
Admissions authorities will not be able to set an admissions limit which is below the standard number. If they consider that a school's standard number is no longer a fair reflection of its capacity they must go through a statutory public procedure to have it reduced. We believe that is right, given the restriction in parental choice that such a reduction would imply, even if in respect of only a few pupils. The disappointment felt by the parents of a pupil refused admission will be no less whether he or she is the only one turned down or one of 10 or 20.

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Admission authorities will therefore need to consider whether their schools are able to admit up to the standard number or whether they will need to seek a reduction in the number from the Secretary of State. If the standard number is only a few more than the school can accommodate, authorities may wish to consider whether they could absorb the few extra pupils involved within the accommodation available or whether they should seek a reduction. Once the standard number has been fixed in accordance with the provisions, the Secretary of State would not expect to receive applications for it to be varied further unless there had been some substantial reduction in the school's capacity to accommodate pupils.
I hope that, in the light of what I have said, my noble friend will feel able to withdraw his amendment.
Lord Trafford: My Lords, I thank my noble friend for that answer and while not paralysed with ecstasy, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 136:
Page 16, line 30, at end insert ("except in the circumstances set out in subsection (1A) below").
The noble Lord said: My Lords, in the unavoidable absence of my noble friend Lord Peston I move this amendment and I shall speak also to Amendment No. 137 which is also in the name of my noble friend. Both amendments are supported by the noble Earl, Lord Baldwin; one by my noble friend Lady David and one by the noble Baroness, Lady Seear. The purpose of these amendments is to provide flexibility in the standard number for admissions and also to try to find out a little more as regards the thinking of the Government on the relationship between open enrolment, the national curriculum and local financial management.
Amendment No. 137, as your Lordships will see, is quite clearly the major one. It allows a temporary number to be fixed,
"less than the relevant standard number where the consequence would otherwise be— "
and then there follows four classes of conditions which would be met. One of the concerns about open enrolment is that this could result in the less efficient use of LEA resources caused by the imbalance in the number of pupils attending schools. The noble Baroness, Lady Hooper, emphasised this when she said in Committee:
"But it will no longer be possible for the local authority or school governors to refuse admission to a school with spare capacity on the ground that it would be a more efficient use of resources to divert that pupil to a less popular school."— [Official Report, 10/5/88; col. 1004.]
That statement seems to run counter to much of the Government's philosophy as regards the importance of achieving value for money. LEAs will find it necessary to allocate proportionately larger budgets to schools with fewer pupils on roll in order to maintain a satisfactory standard of education provision. On the additional costs of small schools, the draft consultation document Education Reform
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Act Financial Delegation to Schools states at Paragraph 54(d)(ii):
"The Secretary of State will expect LEAs to have regard to the general principle that a formula for financial delegation should take account of the additional cost in small schools of providing a standard of teaching and learning comparable to that available in larger schools."
That is a little difficult to fit in with the statement made by the Minister that schools may become smaller due to the effects of open enrolment. She went on to say at col. 1005:
"There may be a case for providing some temporary additional resources for the school if it makes sense to keep it open".
We just do not know where all this is leading. Does it mean that small schools will require additional resources to regain their popularity? What is the relationship between open enrolment and local financial management in the case of small schools? How are local education authorities supposed to manage their resources efficiently?
The Bill contains no commencement order for open enrolment but we understand that the Government expect this to be introduced in September 1989. It would seem likely that if open enrolment were introduced at this early date and applied equally to all schools, there would be vast potential for disruption and administrative confusion as one school became more popular than its neighbour. Would it not be sensible to phase it in over a period of a few years to give a better chance to local education authorities to equip and staff schools— those which are required to take more pupils— and to make arrangements for schools which will lose pupils? Therefore the purpose of the amendments is to allow greater flexibility. I beg to move.
Earl Baldwin of Bewdley: My Lords, I have put my name to these amendments because, as a local authority man who has had to wrestle with numbers and accommodation problems in schools, I see clearly the dangers of tying intakes so inflexibly to school capacity in the way the Bill seeks to bring about.
At Committee stage I tried to point to the advantages of having a managed system of admission limits which, over a period of fluctuating school numbers often unconnected with the merits of faults of the schools involved, worked for the overall benefit of pupils and children. I know this is hard to appreciate, because the county-wide benefits are subtle and long-term whereas the detriment to an individual school can be very real and bitter. I can only say that from my experience it is so.
This system of managing admissions was made possible by the present Government less than eight years ago, and there has proved to be enough flexibility in it for the vast majority of parents to see their choices satisfied. The amendments would preserve a certain measure of freedom to manage in circumstances which might otherwise work against schools. Subsection 1A(c), for example, provides against the case where there could be a sudden seesaw effect between schools when restrictions are off. It is destabilising to have to cater all at once for a large additional intake of children and teachers, and

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it is even worse if the flow is the other way. Schools need stability more than almost anything else at present— a hollow cry, my Lords. The ability to phase in a sharp increase or decrease in numbers would be invaluable.
We are not asking for very much. The new number would be temporary, and it would still need the Secretary of State's approval though without the stupefying procedures of Clause 23. It is a matter of sensible planning for a transition period, of the kind which the left hand of this Government usually approves of when the right hand is momentarily distracted. I hope it will find support.
Earl Russell: My Lords, in the absence of my noble friend Lady Seear, who is otherwise occupied, I should like briefly to support the amendment. It seems to be yet another case of the Government having potentially divergent objectives. For a long time it has been the objective of the Government to secure what they describe as the more efficient use of resources; otherwise translated as the lowering of public spending. It is also the objective of this Government, as stated, to move in a free market direction, the central objective with which we are dealing.
We suggest that these two objectives are likely to come into conflict not only in the circumstances which we have just been discussing, where there are 10 teachers of French in one place and no teachers of French in another, but also for the reason the noble Earl, Lord Baldwin, has been developing. For planning, one needs a certain amount of predictability. One needs to know roughly what the year's income is before one can have any idea of what one can do with it. In this case income can go up and down like a yo-yo. There is something to be said for having a ceiling and a safety net, a range within which this happens, so that some predictability is possible.
One could imagine a class size where there was no room for children to sit down. I cannot see that that would be an efficient use of resources. On the other hand, one could imagine a class size increased so much that the teacher simply would not know what was going on. If noble Lords think about the comparison between speaking in your Lordships' House early in the afternoon and speaking after dinner they may perhaps recognise that in the second case it is very much easier to get the feel of the House, to know who is reacting to what, and to have some sense of whose toes one may accidently be treading on.
With a limited number of people one knows what is happening. One has a feeling for what is going on. In enormous classes, one cannot. What we have before us opens up the possibility of cutting costs by going over to a form of school mass production. One wonders whether it might perhaps reduce British schools to the level of the British motor industry.
4.45 p.m.
Baroness Hooper: My Lords, these amendments, which suggest that factors other than the amount or use of school accommodation should be taken into account when admission numbers are determined,
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strike at the heart of the Government's more open enrolment policy—that schools should be ready to admit as many pupils as they can physically accommodate. That number must be a matter of fact; a few more, a few less or a temporary arrangement is not the same thing. The House will therefore not be surprised to hear that the Government cannot accept the amendments.
Amendment No. 136 is a paving amendment but Amendment No. 137 prescribes a range of circumstances in which an admission limit lower than the standard number might be set for a school, albeit with the Secretary of State's consent. Most of these concern the effect on the particular school itself, especially on its resources, if it is required to admit pupils up to its standard number.
Perhaps I may repeat something the Government have already said many times. We do not expect schools to expand to meet demand; nor do we expect them to become overcrowded. We are requiring them simply to admit to the number that they can accommodate if the demand is there. The Bill prescribes a yardstick for judging physical capacity— the standard number—but there is provision for this to be varied if it is no longer deemed to be appropriate.
The department has this week issued for consultation draft guidance to local authorities and others concerned in the implementation of more open enrolment and this includes a suggested formula for measuring the physical capacity of secondary schools. The method, which is already familiar to LEAs since it has been in use with minor amendment for some years, takes account of various accommodation uses and particular accommodation requirements.
The proposers of the amendment have not made clear why they consider that admitting pupils to a higher limit might result in a loss of resources to the school concerned under local financial management. If increased numbers are admitted, the local authority will have to take account of those in allocating resources to the school, and the school's budget will have to be deployed so as best to support the delivery of the curriculum for those numbers.
This amendment also suggests that it is important for a local authority to secure balanced school intakes across its area. The Government believe, however, that the exercise of parental choice is more important than administrative tidiness. The education service exists to serve the needs of children and their parents, not the other way round. We believe that one important result of more open enrolment will be to raise standards. Protecting the intake of a poor school means that there is no incentive for it to improve its performance in order to attract pupils. Our proposals aim to raise standards across the board.
More open enrolment will enable local education authorities to identify where they genuinely have a surplus capacity in their schools and to do something about it. It may be of some comfort to the noble Lord, Lord Morton of Shuna, to hear that the introduction of more open enrolment is in fact planned for September 1990 for the secondary

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schools and by a later date—yet to be determined—for primaries. Therefore, we are phasing in its introduction. There is no question of classes being overcrowded to the point where pupils cannot sit down or get the teacher's attention. In assessing the school's capacity to admit pupils, accepted assumptions will be made about maximunm class size. The draft questionnaire on secondary schools capacity, for example, assumes classes of 20 for some practical subjects and 30 for others.
I hope that I have been able to offer sufficient explanations as to why the Government cannot support the amendment. I beg the House to reject it.
Lord Morton of Shuna: My Lords, the Government, in the usual pleasant tones of the Minister, have been as rigid as they have been throughout the Bill's proceedings. There is a total lack of flexibility and a total lack of considering other people' points of view. It would be different if the Bill had been completely thought out from the beginning. Obviously that is not the case. The Government have brought forward over 200 amendments at this stage, very few of them the result of further consideration of earlier amendments.
However, I do not think that it would be purposeful to proceed to the stage of testing the opinion of the House. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 137 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 138:
Page 16, line 37, at end insert—
("( ) The Secretary of State shall, after consultation with such organisation as appear him to be concerned, make regulations—

(a) to provide for a temporary reduction in any year by an authority in the admissions number of a school, where the admission of a particular pupil with special needs would otherwise be prevented or prejudiced by reason of their requirment for greater space in the school: and

(b) a consistent basis for such reductions in relation to different cases and circumstances of special needs.

(2B) Regulations made under subsection (2A) above shall also make provision as to any adjustment to any Standard Number, on a uniform basis as between different cases and circumstances of special needs, in respect of increased accommodation at a school for pupils with such needs which was not established in 1979.").
The noble Baroness said: My Lords throughout the Bill's proceedings we have talked, especially yesterday, about children with special educational needs. It has been admitted in various speeches that the 1981 Act, based on the Warnock Report on the integration of children with special educational needs into local schools, has not really been carried out, even though it is now 1988.
The purpose of the amendment is to provide flexibility in the maximum number of children a school can admit in order to provide for the greater space requirements of children with special educational needs. Perhaps I may give the House a few examples. Children with special educational needs who are to be integrated into primary and secondary schools will need more space in the classroom and in the school generally compared with children without such needs. The amount of space
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required will vary according to the nature of the special education provision required by each child. For instance, a child in a wheelchair will need more space in the classroom and perhaps even more in a science laboratory where an attendant may be required to give assistance when doing experiments. On the other hand a child who is incontinent, and not in a wheelchair, may not require additional classroom space but will require extra space in the cloakroom and in the changing room. A child who is educationally and behaviourally disturbed may require additional non-teaching help in the classroom; there will need to be a sanctuary where the child can go.
A child with moderate learning difficulties may be given additional support by occasionally having a second teacher in the classroom. Of course this will require more space. A child who has partial hearing may require space for the installation and storage of hearing aids. I could continue. I hope however that I have made the point I wished to make; namely, that children with special educational needs require more space.
Perhaps I may ask my noble friend the Minister various questions. The first concerns the formula. During the Committee stage my noble friend the Minister stated on 10th May at col. 1023 of Hansard that the guidance to be issued by the Department of Education and Science will,
"recommend a formula calculating the physical capacity of secondary schools and make allowance for the space requirements of pupils with special educational needs".
Can the Minister say whether the formula will reflect the intention behind the amendment and take into account,
"the number of registered pupils at a school who have special educational needs and the nature of the special educational provision required to be made for them"
to use the Minister's wording from Amendment No. 173 to Clause 33.
Can the Minister confirm that the formula will take account of the number of children with special needs and therefore reduce the number of children who do not have those particular needs? In this context, can the Minister be pressed to say what the financial arrangements are going to be? Will the schools be given extra money for alterations so that children with special educational needs can be accommodated?
I now turn to the question of choice. My noble friend the Minister has quite rightly talked about parental choice. Many parents with children who have special educational needs wish to care for their children at home, but also wish them to go to school. How will this be worked out, and how will the arrangements be made? Further, will there be flexibility in regard to the number of children who do not have these particular needs? Will it be possible for their numbers to be reduced so as to make accommodation for the special cases?
At the beginning of the Bill's proceedings the noble Lord, Lord Carter, asked that the word "all" should be put into the legislation, so that all children could receive a good education. At the moment I have to say that all children cannot be given this good

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education. I speak especially of children with special educational needs. It is our country's policy that where possible, practical and wise, those children should have the choice of attending a school in their local area. But this is not happening at the moment. If we are to implement the provisions of the 1981 Act, then there must be consideration of how the schools will be re-allocated, how the numbers will be changed and how there is going to be flexibility. The issue poses very real problems. I beg to move.
Lord Ritchie of Dundee: My Lords, I should like briefly to express my support for the amendment. The noble Baroness, Lady Faithfull, used the word "sanctuary" in connection with a child who is emotionally and behaviourally disturbed. This is one example of a child presenting special educational needs who may need extra space. Not long ago I went to a school in east London—this is really in the form of an anecdote—where there was a little boy who had suffered abuse at home because both of his parents had been similarly abused in their turn. The child was a source of considerable disruption in the school. Indeed, the only way that the head teacher could help the situation was by withdrawing the child from classes for one hour during the day. However, the only place where the child could go was the head teacher's study and sitting room. The head teacher had to look after him and remove him from attendance at classes for a certain period each day to enable him to calm down and get through the day. This is the kind of difficulty that schools and head teachers have to face and the sort of thing that we must be aware of. If the child had had somewhere to go other than the head teacher's room, and if a teacher had been available to look after his needs, it would have been much easier and would have allowed the other children in the school to make better progress and have orderly classes. This is just typical of the kind of difficulty that there is, and I think that the amendment would help to resolve this kind of situation.
5 p.m.
Lord Seebohm: My Lords, I should like to support the amendment for two reasons. First, throughout the whole of the Bill I do not believe that enough consideration has been given to people with special needs. Secondly, the previous amendments that we have been talking about and which have been turned down show that there will be very little flexibility, so far as I can make out, in selecting school numbers.
The Minister might perhaps add a little to her response to the last amendment. I think she was talking about a consulting letter on the assessment of school numbers, and so on. Perhaps if that includes special arrangements for this cause it might help us.
Lord Somers: My Lords, I should like strongly to support this amendment for another reason than that given by my noble friend just now, and that is purely on numbers. As every teacher knows, it is practically impossible to teach an oversized class and to get any-knowledge over to them at all. The maximum size of a class should be about 30. I regret to say that in our
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maintained schools today one finds only too often 40 or 45, and it is absolutely unmanageable. Therefore, I urge the Government, if they cannot accept the amendment as it stands, to do something to reduce the gross overcrowding in some of our schools.
Lord Milverton: My Lords, I hope that my noble friend on the Front Bench will be able to accept the amendment. I say that for the reasons that others have given and also because I think that my noble friend Lady Faithfull has a very good basis and very good material from different sources for putting forward the amendment. I hope that my noble friend on the Front Bench will be able to accept the amendment, but if she cannot do so I hope that she will be able to give some hope and encouragement to my noble friend Lady Faithfull that the Government will be able to put forward something better if they think that this amendment is not good enough.
Lord Morton of Shuna: My Lords, I also should like to support this amendment. It is clear from the able speech that the noble Baroness, Lady Faithfull, made that children with special educational needs require different amounts of space depending on their special needs. One result of that might be that a child coming in with special educational needs cancels out two, three or four other, so to speak, non-special needs children.
I should like the Minister to tell us, if she can, what happens then in the financial relationship between the LEA and local financial management. Does the admission of one child with special educational needs mean that the locally financially managed school loses out because it is paid on a per capita basis? If that were the case it would be deplorable because it would go against the whole need to get people with special educational needs into the ordinary school.
Lord Young of Dartington: My Lords, may I join in the chorus of support for the amendment moved by the noble Baroness, Lady Faithfull. I was wholly convinced by what the noble Baroness, Lady Faithfull, said. If the amendment were accepted it would show that the Government were as concerned about children with special needs as they have said on occasion that they are. As I see it, it is a test of sincerity, and I greatly hope, partly in view of the so far universal support that has been given here to the noble Baroness, that the Government will also feel that they can accept the amendment.
Baroness Hooper: My Lords, I also understand the concern to safeguard the position of pupils with special educational needs that has prompted this amendment. The Government share the concern and have consistently made clear that such pupils will not be adversely affected by the new legislation. Decisions about the placement of pupils with special educational needs will continue to be made on the same basis as they are now. Pupils who are the subject of a statement under the Education Act 1981 are covered by the provisions of that Act under which the educational placement considered most suitable for the child is named. For those who are in the course of an assessment under Section 5 of the 1981 Act, the

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choice of school is normally the outcome of the assessment procedure.
Any pupil who is not the subject of a statement under the Education Act 1981 will continue to enjoy the same safeguards under the 1980 Act as other children enjoy in respect of school admissions— that is, their parents may express a preference for any school, which the authority or governors must meet in accordance with their published criteria, unless one of the circumstances prescribed in Section 6(3) of the Act applies, in which case the parent has the right to appeal against the decision to the local independent appeal committee.
Apart from these safeguards, the draft guidance on school admissions to which I previously referred— and I believe that the noble Lord, Lord Seebohm, picked this up— and on which the department is currently consulting the education service, contains a recommended formula for calculating the physical capacity of secondary schools. Under that formula, which is referred to in paragraph 27 of the document, special educational needs pupils will have four times the space entitlement of ordinary children. This makes allowance for the space requirements about which the noble Baroness was concerned.
Other detailed questions are also answered in the draft guidance which was in fact published on 20th June— only at the beginning of this week— and the guidance covers all aspects of school admissions and will, we hope, be helpful to local authorities and governors in preparing for the requirements of the new legislation. Among other things the guidance offers a recommended method of assessing the capacity of secondary schools. The method proposed is know as the "workplace method", and is one which is already familiar to local authorities and takes account of particular curricula and space requirements.
For example, it assumes that statemented pupils with special educational needs may need up to four times as much space as other pupils, as I have already said. The Government hope, therefore, that the fears that have been expressed that more open enrolment might squeeze particular forms of provision out of schools should be allayed by this guidance. The Secretary of State will take account of calculations of physical capacity on this basis in deciding whether to approve proposals to reduce the standard number of a school. Admission authorities will, if they wish, be able to submit additional material in support of their application for such a reduction.
Perhaps I should also add, in response to a question raised by my noble friend, that under financial delegation local education authorities are being encouraged to take account of special educational needs in their formula. This means that the schools with a number of special educational needs pupils would be likely to receive additional resources. I would refer my noble friend to paragraph 54 of the draft guidance on financial delegation. I trust that with these assurances I have been able to convince the House of the Government's concern in their approach to this particular subject. I hope that my noble friend will feel able to withdraw her amendment.
Baroness Faithfull: My Lords, I thank all noble Lords who have spoken in support of the amendment. Children with special education needs would be deeply grateful if they were able to express their gratitude. I am grateful to my noble friend the Minister. I must confess that I had not read the guidance published on 20th June about which she spoke. I am not clear about the financial arrangements. When a child suffering from spina bifida goes to school, a great deal of money will need to be spent on the school to make it possible for the child to attend. Does the guidance lay down that the money will be available to alter a school for such a child?
Baroness Hooper: My Lords, with the leave of the House, yes. Paragraph 54(d)(i) of the financial delegation draft guidance covers that point.
Baroness Faithfull: My Lords, with the leave of the House, perhaps I may congratulate Her Majesty's Government on bringing out the circular and the formula, which we shall read with the greatest interest. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 139:
Page 16, line 37, at end insert—
("(2A) The Secretary of State shall as soon as reasonably practicable issue guidance for the purpose of safeguarding use by community organisations of premises and equipment in schools subject to open enrolment, and governors shall have regard to the contents of any such guidance in determining applications for such use.
(2B) Any guidance issued under subsection (2A) above shall include a statement as to the circumstances in which an application to him to vary a standard number using his powers in section 22(4) to facilitate community use would normally be granted automatically.").
The noble Lord said: My Lords, the amendment is tabled in the names of my noble friend Lord Peston and myself. It comes in a group which includes Amendment No. 172 in the same names; Amendment No. 350 in the names of the noble Lord, Lord Rochester, and myself; and Amendments Nos. 357, 360, 383 and 441. The purpose of the grouping is that all the amendments relate to community use of education establishments.
The point of the amendments is to provide that there should be guidance on the use of schools and other education establishments, which at present goes on by all kinds of community organisations especially youth organisations, and to ensure that such use is continued and is encouraged to continue in the changed situation.
The purpose of Amendment No. 139 is that the Secretary of State should issue guidance for the purposes of safeguarding the use of schools by community organisations, subject to open enrolment, and that the governors should have regard to the content of such guidance.
Amendment No. 172 is along much the same lines. It relates to Clause 33 and schools under delegated financial management. Amendment No. 350 is a new clause relating to youth and community education.

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The following amendments are consequential, except for Amendment No. 383 which provides for community use of higher education establishments.
I shall speak principally to Amendments Nos. 139 and 172 and will strongly support Amendment No. 350. It may be for the convenience of your Lordships if I do not say much about that amendment and leave it to the noble Lord, Lord Rochester, who, I am sure, will be much more persuasive and convincing than I can be.
On the community use of schools, in Committee we had an assurance from the Minister that there would be guidance. Unfortunately, that guidance has not yet surfaced, even in draft form. It is difficult to discuss a topic when we do not know what will be in the guidance. We had that position with the previous amendment. Something is published on 20th June when the Bill has been in Parliament for getting on for a year, and, presumably, had been thought about before. One would have thought that such information could have been made available earlier. We do not know what will be in the guidance. The guidance may have little influence unless governors of education establishments are required to have regard to it. That is the purpose of Amendment No. 139.
Amendment No. 172 is perhaps even more important, because if we have local financial management, a school will obviously be keen to use its funds as far as possible for the benefit of the pupils at the school. There may be some difficulty— as is usually the case— in continuing the use of the school after hours for other organisations unless there is clear guidance on how the finances of that are to work.
I am sure that every Member of the House will be in favour of the continued use of those schools in the way that they are now used by various youth organisations and other bodies, so I do not intend to address your Lordships on their necessity and social value. Therefore, I beg to move
5.15 p.m.
Lord Rochester: My Lords, first, I support what the noble Lord, Lord Morton of Shuna, has said, and in doing so, I shall speak to Amendments Nos. 350, 357, 360 and 441 which stand in my name and are grouped with his amendments.
In Committee, I spoke to an amendment aimed at ensuring the continuation of current arrangements under which youth and community organisations at present may use school premises at no charge or at low preferential rates. In his reply on that occasion, the noble Lord, Lord Trefgarne, said that the Government entirely agreed with the sentiments that lay behind the amendment but that provision for the youth service and community activity did not form part of the school's budget and could not therefore be covered by the scheme of delegation as defined in Chapter III of the Bill.
The noble Lord added that the draft guidance issued by the Secretary of State made it clear that local education authorities would be able to maintain existing community provision in schools. However,
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that circular does not oblige local education authorities to do so. Indeed, community provision is not even included among the matters the Secretary of State expects local education authorities to take into account. The Minister also said that most of the safeguards sought by my earlier amendment were already provided for through existing legislation. In that connection, he referred to Sections 30 and 42 of the 1986 Act and Section 22 of the 1944 Act. Section 42 of the 1986 Act does not however cover grant-maintained schools. It is to remedy that omission that I have tabled Amendment No. 441.
Moreover, none of the sections referred to by the Minister places a duty on the governing body to make school premises available to youth and community organisations on favourable financial terms so that adequate facilities are provided for education, training and organised recreational activities.
It is to achieve that objective that, greatly daring, I now propose that a new clause should be inserted in what I hope will be regarded by the Government and indeed by the House as an appropriate part of the Bill; namely, the chapter at the end of Part I that deals with miscellaneous provisions. The proposed new clause is also intended to give the youth service statutory recognition.
Clause 112(2) deals with the functions of local education authorities with respect to further education. In amending Section 41 of the 1944 Act it refers to organised leisure time occupation for persons of compulsory school leaving age. However, the youth service represents more than organised leisure time occupation, and includes about 6 million people under school-leaving age who are technically excluded from this provision. That is a further reason for seeking to insert the proposed new clause not in the part of the Bill dealing with further education but among the miscellaneous provisions of Part I. It is suggested that it should come immediately before Clause 105.
The Government have said that the effect of current legislation is to enable local education authorities to meet the needs of young people in their areas and to make more appropriate provision for them, taking account of what is being done by the private sector. That may indeed be the effect, but it is certainly not written into existing legislation nor does it appear on the face of the Bill. Clause 112(2) gives only an enabling power to local education authorities to make appropriate provision for leisure time occupation. This means that it is also open to them to make no such provision.
The proposed new clause would remedy this deficiency and give the youth service the statutory backing that it has so long deserved in a way designed to take account of all the points made by the Government in Committee. The references in Clause 112 to organised leisure time occupation would then no longer be needed, and Amendments Nos. 357 and 360 provide for their removal. I commend the amendments to the Government and to the House.
Baroness Young: My Lords, I think that we would all agree with the noble Lord, Lord Morton of Shuna, that it is not necessary to speak about the importance

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of the dual use of school premises. Anybody who has had anything at all to do with education knows how important this is not only to help pupils and young people themselves but to ensure the more efficient use of resources by the use of school premises in the evening. One is fortunate enough on occasion to do so in the holidays also, but that is another matter.
My noble friend the Minister will doubtless say that the guidance is important, and it would be helpful if we can receive it before the conclusion of consideration of the Bill. When schools have achieved the status of much greater financial delegation and powers, will they not want to look themselves at how their premises are used? After all, the objective behind the Bill is to make the education system more customer-orientated so that there will be greater parental choice and more parental involvement with school governors; and the school governors will be drawn from the locality, all of them having an interest as parents, employers or in some other connection in the young people of the area as well as an interest in the best use of the school buildings.
When authorities have to consider what it is that people want, one finds that they produce a service that is customer-orientated, for the use of which people are willing to pay some amount. Because there is greater financial delegation in the schools or greater responsibility in certain ways, that is not necessarily a reason for supposing that we should see the demise of what are obviously good and important services in the community.
It would he helpful if my noble friend the Minister could say whether that is the way the Government are thinking and how they intend that it should work out so that services that are already good can be further improved, and schools can be used in the most sensible way for the benefit not only of the pupils but also of the wider community.
Baroness Fisher of Rednal: My Lords, perhaps I may follow on what the noble Baroness, Lady Young, has said. Many schools, especially the larger ones, offer excellent facilities not only to the pupils but to the neighbouring general community in the use of sports halls, swimming baths, committee rooms, and so on, which thus have a joint use. If a school decided to opt out, would such facilities continue to be used by the general public or would there be a separation? Would there be any loss of availability for general use?
Baroness Hooper: My Lords, the developments in community use of schools are much to be welcomed, and the Government's intentions are to safeguard and, one hopes, enhance this use of schools.
I deal first with Amendment No. 139. The Government recognise that some schools have community provision that serves a valuable educational purpose. We would not wish this to be lost. For this reason the draft guidance, to which reference was made earlier—the relevant guidance document issued earlier this week—will allow for community or other non-school use during the school day to be taken into account when calculating
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the physical capacity of schools. Additional premises may have been provided on the school site expressly for the purposes of community education. In such cases the accommodation would not count for the purposes of calculating the school's standard number since it would not be available for more than incidental use by pupils.
On Amendment No. 172, nothing in schemes of financial delegation should restrict local education authorities' freedom to maintain existing community provision on school premises. Provision for community activity does not form part of the local education authority schools' budget, and will not be subject to delegation under the Bill. The local education authority already has power to issue directions to the governing bodies of county and maintained special schools on the use of school premises outside school hours. That may include directions and guidance to schools on charging and letting policies, in return for which the local education authority will need to compensate a school for any additional costs that it incurs.
The draft guidance on financial delegation published in April—the other document to which reference was made—makes clear that community provision at subsidised rates should continue under the schemes.
The Government do not believe that Amendment No. 350 is necessary. The 1944 Act as amended by Clause 112 of this Bill gives local education authorities all the powers they need to secure the provision of these services. Local authorities should be able to continue to target their youth service provision on the age group they wish. This will normally be young people over 11 years of age and may include some over 20. Therefore it would be wrong to direct resources away from, for example, older young people at risk by obliging authorities to provide resources for new work with the eight to 11 year-olds.
Local authorities should also be able to decide whether or not to make charges to voluntary organisations for the use of school premises. Some at present waive these charges and some do not. It would be wrong to oblige those who do not to increase their expenditure when they may consider that there are more important priorities. The Education Reform Bill does not make any change in local authorities' ability to decide how and at what rates school premises may be used for these purposes. We are encouraging the increased use of school premises out of school hours.
Amendments Nos. 357 and 360 would provide that the definition of "further education" should no longer encompass organised leisure-time occupation, but should be restricted to education and training. We take it that these amendments are designed to be consequential to Amendment No. 350. Otherwise these amendments would leave a very serious gap in the definition of "further education" which has, since 1944, included leisure-time occupation as well as education and training.
I now turn to Amendment No. 383. Higher education corporations are in a different position from maintained schools. They will be free-standing

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corporate bodies and their facilities are likely to be used much more intensively by students and staff with evening and weekend classes. The Government agree that if institutions have facilities that are lying idle and could be used by the local community that should be encouraged. The transfer from local authority control will not stop this from happening. Indeed, once institutions have full control over their facilities, they will have every reason to maximise their use.
However, we do not think that putting a requirement in articles of government is the right approach for the higher education corporations. If we were to include this provision which relates to the policy of admission of the institution, there are other similar matters that would be equally deserving of mention. One could go on. The articles of government are subject to the Secretary of State's approval and possible amendment. Institutions might feel that the Secretary of State had too great a direct control over their policy of admission if matters such as those in the amendment had to be incorporated in articles.
Amendment No. 441 would require the articles of government of a grant-maintained school to place the school premises in the control of the governing body outside normal school hours subject to any direction given to it by the Secretary of State. The Government acknowledge the good intentions behind this amendment but we feel that it is neither appropriate nor necessary. Section 42 of the Education (No. 2) Act 1966 which would extend to grant-maintained schools is intended to operate in a world where local education authorities are the owners of county and voluntary school premises. But the governing body of a grant-maintained school will itself own the school premises— whereas they are not owned by the school's trustees in the case of the aided schools— and will therefore control them both during and outside the school day. I hope that in the light of these various explanations this substantial group of amendments will now be withdrawn. If not, I must urge your Lordships to reject them.
Lord Morton of Shuna: My Lords, yet again we have a situation where amendments proposed from this side of the House are described as well-intentioned. I appreciate that on some occasions they are not described by the Government as well-intentioned. However, they quite often are so described. Then they are dismissed as irrelevant, unnecessary, badly drafted or something else.
The community use of schools as the noble Baroness, Lady Young, said— and as I think all of us would agree— is extremely important. We are transferring a large number of schools from the direct financial control of local education authorities to governors of schools who will have to take the financial decisions. The Minister will be aware that the provision of community use of schools costs a local education authority a lot of money when it is under pressure. This is the first time that I have mentioned Scotland today so perhaps the noble and learned, Lord, Lord Hailsham of Saint Marylebone, will forgive me as he has already mentioned Scotland!
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One of the matters that is considered when the Government press a local authority to reduce its expenditure is whether schools will have to be closed after 4 o'clock because of the cost of providing people to look after them during the evenings and at other times when they are unoccupied. It is far from clear who will pay for looking after them. All we are doing in our amendments is trying to ensure that that provision should continue and that it should be laid down.
It would be very easy for a locally financially managed school to say that it could not afford someone to look after the school after hours and that if the caretaker were needed after 4 o'clock the local education authority would have to pay three times the rate. That would be a very easy way for locally financially managed schools to make some money. All those kinds of difficulties have not been faced up to. I regret to say that I find the Minister's answers totally unconvincing and I shall ask the opinion of the House on this matter.
5.37 p.m.
On Question, Whether the said amendment (No. 139) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 119.

DIVISION NO. 2

CONTENTS

Airedale, L.

Kilbracken, L.

Ardwick, L.

Kirkwood, L.

Aylestone, L.

Listowel, E.

Baldwin of Bewdley, E.

Llewelyn-Davies of Hastoe, B.

Beaumont of Whitley, L.

Longford, E.

Birk, B.

McNair, L.

Bonham-Carter, L.

Mayhew, L.

Boston of Faversham, L.

Milverton, L.

Bottomley, L.

Mishcon, L.

Briginshaw, L.

Morton of Shuna, L.

Campbell of Eskan, L.

Mulley, L.

Carmichael of Kelvingrove, L.

Nicol, B. [Teller.]

Cledwyn of Penrhos, L.

Northfield, L.

Cocks of Hartcliffe, L.

Ogmore, L.

Dean of Beswick, L.

Peston, L.

Dormand of Easington, L.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Ennals, L.

Ewart-Biggs, B.

Ritchie of Dundee, L.

Falkender, B.

Robson of Kiddington, B.

Falkland, V.

Rochester, L.

Fisher of Rednal, B.

Russell, E.

Gallacher, L.

Seear, B.

Galpern, L.

Sefton of Garston, L.

Graham of Edmonton, L.

Serota, B.

Grey, E.

Stallard, L.

Grimond, L.

Stedman, B.

Hampton, L.

Stewart of Fulham, L.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hooson, L.

Strabolgi, L.

Hunt, L.

Tordoff, L.

Hylton, L.

Turner of Camden, B.

Irving of Dartford, L.

Underhill, L.

Jacques, L.

Wallace of Coslany, L.

Jay, L.

Wells-Pestell, L.

Jeger, B.

Williams of Elvel, L.

John-Mackie, L.

Young of Dartington, L.

NOT-CONTENTS

Ailsa, M.

Arran, E.

Airey of Abingdon, B.

Balfour, E.

Allenby of Megiddo, V.

Beaverbrook, L.

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Belhaven and Stenton, L.

Long, V.

Beloff, L.

Lothian, M.

Belstead, L.

Lucas of Chilworth, L.

Blake, L.

Macleod of Borve, B.

Blatch, B.

Malmesbury, E.

Blyth, L.

Marley, L.

Borthwick, L.

Marshall of Leeds, L.

Boyd-Carpenter, L.

Merrivale, L.

Brookeborough, V.

Mersey, V.

Brougham and Vaux, L.

Monckton of Brenchley, V.

Broxbourne, L.

Monk Bretton, L.

Butterworth, L.

Mottistone, L.

Cameron of Lochbroom, L.

Munster, E.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carnock, L.

Nelson, L.

Colwyn, L.

Norfolk, D.

Cork and Orrery, E.

Onslow, E.

Cox, B.

Orkney, E.

Craigavon, V.

Oxfuird, V.

Crickhowell, L.

Pender, L.

Cullen of Ashbourne, L.

Porritt, L.

Davidson, V. [Teller.]

Rankeillour, L.

De Freyne, L.

Reay, L.

Denham, L. [Teller.]

Reigate, L.

Denman, L.

Renton, L.

Dilhorne, V.

Renwick, L.

Donegall, M.

Rodney, L.

Dundee, E.

Rugby, L.

Eccles, V.

Russell of Liverpool, L.

Eden of Winton, L.

St. Aldwyn, E.

Elliot of Harwood, B.

St. Davids, V.

Elliott of Morpeth, L.

St. John of Fawsiey, L.

Elton, L.

Salisbury, M.

Ferrers, E.

Saltoun of Abernethy, Ly.

Ferrier, L.

Sanderson of Bowden, L.

Foley, L.

Sandford, L.

Fortescue, E.

Selborne, E.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gardner of Parkes, B.

Somers, L.

Gisborough, L.

Strathcona and Mount Royal, L.

Gormanston, V.

Gridley, L.

Strathspey, L.

Hailsham of Saint Marylebone, L.

Swansea, L.

Swinton, E.

Harvington, L.

Teviot, L.

Henley, L.

Thorneycroft, L.

Hesketh, L.

Trafford, L.

Hives, L.

Truro, Bp.

Hooper, B.

Ullswater, V.

Hylton-Foster, B.

Vaux of Harrowden, L.

Johnston of Rockport, L.

Vinson, L.

Joseph, L.

Westbury, L.

Killearn, L.

Wigram, L.

Kinnoull, E.

Wise, L.

Lauderdale, E.

Wyatt of Weeford, L.

Layton, L.

Wynford, L.

Lindsey and Abingdin, E.

Young, B.

Lloyd of Hampstead, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.45 p.m.
Lord Peston Lord Peston moved Amendment No. 140:
Page 16, line 37, at end insert—
("(2A) The Secretary of State shall as soon as reasonably practicable issue guidance for the purpose of safeguarding and promoting nursery provision at any primary school to which this chapter applies, and the authority and (in a voluntary-aided school) the governing body shall have regard to the contents of any such guidance in carrying out their responsibilities in respect of open enrolment.
(2B) Any guidance issued under subsection (2A) above shall include a statement as to the circumstances in which an application to the Secretary of State to vary a standard number using his powers under section 22(4) to safeguard and promote nursery provision would normally be granted automatically.").
The noble Lord said: My Lords, perhaps I may apologise on rejoining the House after several hours' absence. I had a previous engagement, which noble Lords will be glad to know was of an educational nature.
In moving Amendment No. 140 perhaps I may speak also to Amendment No. 252. Both of those amendments deal with nursery schools. They are both concerned with taking the opportunity in this major Bill to reinforce what I trust is a joint view that we have too little nursery education in this country. It would be preferable for us to set off anew to encourage nursery education. However, at the very least we must see that the changes which are made as a result of the Bill do not act in the opposite way. We have safeguards in mind in proposing the two amendments. One amendment refers to maintained schools as such; the other is consequential because of the coming into existence of the grant-maintained system.
The Minister spoke about nursery schools during the Committee Stage of the Bill. It worried us that her remarks were somewhat negative. She said that there is nothing on the face of the Bill to push out nursery classes and that it is not the intention to push out existing nursery provision. We entirely accept that that is not the Government's intention. However, the negative nature of her statement worried us.
With this probing amendment we are seeking a more positive statement by the Government to reinforce the commitment which we all have to nursery education. That commitment was strongly stated by the Prime Minister when she occupied the senior position in the Department of Education and Science.
There is also another matter of a slightly technical nature. As we understand it, if a primary class in a school becomes empty it will be possible for it to become a nursery class. What concerns us is that such a class should be protected if the primary children return. We should not wish to see the nursery children pushed out. We are looking for some reassurance and for a statement that the Government positively believe in the value of nursery education and are determined not only to safeguard it but also to encourage it as much as possible. I beg to move.
Baroness Young: My Lords, I am sure that when my noble friend responds she will give an assurance that the Government strongly support nursery education. I regard nursery education as a very important part of any child's education. I am pleased to say that it has increased under this Government.
I wish to make a point which is similar to that which I made in our discussions on the last amendment. I see no reason to suppose that once schools have greater financial delegation or become grant maintained the nursery provisions will decline; quite the contrary. If I were making a prediction— always an extremely dangerous thing to do in politics— I should say that nursery education will probably increase because it is something that parents want. As schools become more customer-orientated and look to see what parents want, they are more likely to provide nursery classes than to lose

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them. It would be my guess—one cannot be sure—that grant-maintained schools might well increase the size of their nursery classes because that is what parents will want and they will go to the school because that type of education is provided. One matter will feed on the other. I see no reason to suppose that because there is greater financial delegation or a school becomes grant maintained, nursery education will diminish. That would not be the reason. There could be other reasons. I hope sincerely that it will not happen. I have no reason for worrying about that in relation to the Bill.
Lord Dormand of Easington: My Lords, I should like briefly to support my noble friend on the Front Bench. I hope that we shall have a very much stronger statement from the Minister today about the value of nursery education than has been made by this Government since 1979. Their record on nursery education is very bad indeed. To my mind it shows that the Government do not have any determined interest in the provision of nursery education. This country compares very badly with the rest of the European Community in this area. I should have thought that that in itself might be some spur to the Government to try to raise standards.
At least two research studies have been carried out in recent years into the effect of nursery education on— if I may use the term— working class children from families who have not had the normal opportunities. The effect of providing nursery education for that type of child is most valuable. I hope that the Minister appreciates that fact. I am sure that she is aware of the work that has been done in this area. I hope, therefore, she will give sympathetic consideration to the amendments which to my mind are some of the most valuable before us.
Baroness Faithfull: My Lords, perhaps I may say very briefly that both the Department of Education and Science and the Department of Health and Social Security have given money to finance a research unit at the National Children's Bureau that is studying the needs of children under five. I believe that the intention of Her Majesty's Government in giving that money is to assess what kind of nursery training and facilities are needed. That is being looked into, and research is being carried out.
Baroness Fisher of Rednal: My Lords, I wish to support the amendment and also the remarks of my noble friend Lord Dormand. It is not only parents of children in grant-maintained schools who desire nursery education for their children. More nursery provision is necessary in many parts of the inner cities.
As my noble friend said, the Bill provides an opportunity for the Government to raise standards and provide for those children who do not have the benefit of books at home or facilities for proper play. It gives the children the opportunity of an earlier start so that when they enter primary school and are assessed at seven years of age they can achieve a better assessment because they have had the benefit
960
of a nursery education. I think therefore that the two things clearly go together.
I should like to support my noble friend on the Front Bench in his request for a more positive approach. It is quite obvious that the Government are concerned. At the other end of the building, in the other place, I understand that a Select Committee is considering what is designated the education of the under-fives to make sure that it is being given adequate attention. If the noble Baroness could elucidate the reasons for that and indicate that we may see a strengthening of this reform Bill in the future I would welcome that.
Baroness Hooper: My Lords, I appreciate the concern about nursery provision. I hope that what I am about to say will appear more reassuring than what I said on the last occasion. I can certainly confirm that the Government recognise the value of nursery education. We recognise it in a variety of ways, one of which was referred to by my noble friend Lady Faithfull.
I must make clear that more open enrolment will not affect nursery provision. Nursery pupils do not count in the determination of standard numbers at present and the Bill does not propose that they should do so in future. A school which has a nursery class or unit on the premises makes appropriate accommodation available in accordance with the different space standards for such pupils, and the existence of that provision will be taken into account in determining the capacity of the school to accommodate other pupils.
If an admissions authority considers that a primary school is unable to admit pupils up to its standard number, because some accommodation has been earmarked for nursery provision since the standard number was fixed, it should have a good case for seeking a reduction in the standard number on the grounds that there has been a change in the use of accommodation at the school. There can however be no question of automatic approval of such applications. Each will and should be considered on its merits.
If there is still concern that the more open enrolment requirements might squeeze nursery provision out of primary schools because an admissions authority might wish to increase the accommodation availabe for enrolments, I can assure noble Lords that the nursery provision is safeguarded by the Education Act 1980. If a local education authority or governors wish to discontinue or add a nursery class they must publish proposals under Sections 12 or 13 of that Act to which parents and others concerned may object. In the event of objections the matter would be referred to the Secretary of State who would of course take all relevant factors into consideration before coming to a decision.
Turning to the effect of our proposals for grant-maintained schools, I see no reason to suppose that schools which at present provide successfully and effectively for nursery age children should no longer wish to do so if they acquire grant-maintained status. Indeed, I am inclined to agree with my noble friend Lady Young that they might increase such provision.

961
They will rightly continue to regard it as a valuable element in the life of' their school.
Such schools will in any case be no more able to terminate or reduce such provision at will than are schools maintained by local education authorities. I have explained that where a school admits children below the statutory school age it cannot reduce or discontinue its nursery provision without securing the Secretary of State's approval of statutory proposals for a change of character. The Bill provides for that requirement to apply equally to grant-maintained schools. Nursery education is therefore already safeguarded.
If the Secretary of State believes that there is a need for him to issue guidance to schools on nursery education, he will do so. That guidance will apply equally to all maintained schools, whether grant-maintained or under local education authority control. We believe, therefore, that there is no need for the specific safeguard which this amendment proposes, and which I understand the noble Lord to have said was in any event in the nature of a probing amendment.
Lord Dormand of Easington: My Lords, before the Minister sits down I wonder if I may ask her what plans the Government have for new buildings for nursery education. Both Labour and Tory governments have tended to take a fairly negative view, making provision for nursery education in small schools or where extra classrooms have become available due to falling rolls and so on. Surely that is a fairly negative point of view. We ought to be thinking in terms of purpose-built new buildings, either as separate buildings or perhaps in present circumstances adding new wings, new classrooms or new facilities to existing schools. I was rather disappointed that the Minister did not make any reference to that in the debate. Would she care to comment?
Baroness Hooper: My Lords, with the leave of the House, not really. I hope that I may write to the noble Lord on that particular issue.
Lord Peston: My Lords, I should like to thank noble Lords for joining me in the discussion and also the noble Baroness for her reply. I found her response rather more reassuring than last time. As with so many aspects of the Bill, I agree that it is a matter of waiting to see whether the developments to which the noble Baroness, Lady Young, referred take place. No one need be in any doubt about our scrutinising this to see how the situation develops. It is to be hoped that we can be optimistic about the development of nursery education. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Clause 22 [Standard numbers for admission]:
Lord Peston Lord Peston moved Amendment No. 141:
Page 18, line 5, after ("shall") insert ("subject to subsection (1A) below").
The noble Lord said: My Lords, in moving Amendment No. 141 I shall speak also to
962
Amendment No. 142. These are technical amendments. I am bound to say that I have a slight difficulty with the concept of standard accommodation. It is an idea that seemed to emerge after I had been involved with these matters for a while. Every so often I seem to grasp the idea and then, a little later, understanding of it seems to leave me.
One aspect of what is defined as the standard number of a school concerns the distinction made between permanent accommodation and temporary accommodation. It would seem to me that one would want to define the standard number in relation to the permanent accommodation of the school. That would logically be the case, I think. However, that is not to say that there should not be any temporary accommodation, because clearly there should he. We all believe that schools should possess a modicum of flexibility to deal with possible entrants. One would want that to be the case even without all the open enrolment provisions of the school.
Two things puzzle me. One is a matter of fact, which is true not only of education but, I think, of life in general; namely, the tendency for the temporary to become permanent. I can remember as a boy immediately after the war the prefabs which were built as temporary accommodation. Certainly one can still see those prefabs in various parts of London. They have survived well beyond the term that anyone could conceivably have thought that they would survive. We know that in some schools local authorities have put up temporary accommodation and de facto as time has gone by somehow it has become permanent simply by the fact of its being there.
Secondly, in so far as the concept of the standard number is important, and within the context of this Bill and the Government's view of what ought to happen it certainly is important, it seems to me that it is vital to distinguish temporary accommodation from permanent accommodation. Therefore in a sense the amendment seems to me to follow logically from what the Government are saying: that the temporary accommodation essentially ought to be set on one side and the standard number determined every year by what is truly the permanent accommodation of the school.
I have argued in that rather elliptic way partly because, as can be demonstrated, I do not feel fully confident anyway that I understand the concepts. I can assure the Minister that my request is genuine and that this amendment is a genuine probing amendment and a genuine desire for elucidation. I beg to move.
Baroness Hooper: My Lords, where temporary accommodation forms parts of the existing physical capacity of a school, it seems to us to be only right that it should be taken into account. Parents will presumably be aware of the type of accommodation available at the schools and no doubt it will be one of the considerations that they will take into account in deciding for themselves whether they want their child to go to that school.

963
If an authority or governors consider that temporary—or indeed permanent—accommodation is unsatisfactory and should be removed, they will he free to do this under the new arrangements provided that the school can still admit at least up to its standard number. Once the standard number has been determined in accordance with the new provisions, if admission authorities subsequently choose to remove accommodation at that school so that they cannot admit pupils up to the standard number, they must be prepared to replace that accommodation if there is parental demand for places up to the standard number.
If there appears to be no demand requiring the use of such accommodation, it is for the local education authority or governors in the case of voluntary aided schools to decide to remove it, but it must be on the understanding that if demand revives they would ensure that adequate accommodation is available.
I am aware that many schools have taken the opportunity provided by falling pupil numbers in recent years to remove temporary accommodation and therefore may no longer be physically able to accommodate the number of pupils that they could take in 1979–80, which is the base line for the standard number. That would be one set of circumstances on which the Secretary of State would consider an application by the local education authority or governors for the standard number to be reduced in accordance with the procedures that we have previously discussed. Therefore I trust that the noble Lord will feel able to withdraw this amendment.
Lord Peston: My Lords, if there were to be a diagnostic test of whether or not I understood that answer, I think I would fail it. I have to assure the Minister— and I am sure that it is my fault rather than hers— that I do not understand now any more than I did. Perhaps she can find time to write to me and explain further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 142 not moved.]
Clause 23 [Procedure for reduction of standard number]:
Baroness Hooper Baroness Hooper moved Amendment No. 143:
Page 19, line 41, leave out ("first").
The noble Baroness said. My Lords in moving this amendment I refer also to Amendments Nos. 144, 145, 256, 257, 258, 259, 354, 437, 447 and 448. Although the first amendment in this group refers to the Government's proposals for more open enrolment, the majority are primarily to clarify what happens when a school which is the subject of proposals for closure or reorganisation under Sections 12 or 13 of the 1980 Act then decides to make an application for grant-maintained status.
It may be helpful to the House if I outline generally how the Government intend to deal with this situation. In normal circumstances, any application
964
for grant-maintained status published before Section 12 or 13 proposals in respect of the same school have been decided will be considered alongside those proposals and determined first. That is clear and straightforward.
The position where Section 12 or 13 proposals have already been published but have not yet been determined when the Education Reform Bill receives Royal Assent is a little more complex. Our intention is to inform the governing bodies of schools that are in this position that they have the opportunity to consider making an application for grant-maintained status. If they choose to pursue such an application, they will have to hold their first meeting on the subject by a date to be specified and then inform my right honourable friend the Secretary of State of the outcome.
When he receives notification that a school has resolved to embark on the procedures involved in applying for grant-maintained status, my right honourable friend will announce his decision, under Clause 66(5), to suspend consideration of the Section 12 or 13 proposals for a further specified period in order to allow the governors time to hold a ballot of parents and publish a formal application. If a formal application comes forward, my right honourable friend will consider it alongside the outstanding Section 12 or 13 proposal, deciding the application for grant-maintained status first. My right honourable friend's power to determine a period of suspension will no longer apply once he decides to bring an end to these transitional arrangements under what is currently Clause 66(10).
Amendments in this group also define the date of publication in respect both of proposals for grant-maintained status and of other statutory proposals elsewhere in the Bill and in the 1980 Education Act. Where a number of actions must be taken in order to publish a proposal—for example, an insertion in a newspaper, posting a notice near the school, and so on—the date of publication is the date on which the last of those required actions is taken. This definition has long been provided in guidance. It will now have statutory force.
These amendments clarify a complex but important area, and I commend them to the House. I beg to move.
Lord Peston: My Lords, these amendments demonstrate very clearly where I and my noble friends are in some disagreement with the Government and with the whole nature of this Bill. In particular, I should like to speak to Amendment No. 258 in this group because I think it is the most important of the amendments in this list. It relates to the whole question of the consequences of allowing grant-maintained status and its relationship to the ability— or what we believe will become the inability— of local education authorities to act as local education authorities.
I should like to put to the noble Baroness that in the real world what is likely to happen when the local authority is dealing with difficult problems of planning and reorganisation is that it will be precisely then, as I understand it, that some group of parents

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or governors will decide that that is the time, as it were, to try to obtain grant-maintained status. This will be their fight back against the local authority's desire to reorganise and to plan education rationally. Our great fear all along has been that grant-maintained status will be used to sabotage what will undoubtedly be the desire of the local authority to act sensibly on education.
As I read it, the Secretary of State ultimately seems to have almost unlimited powers to respond to the pressures for grant-maintained status and to delay the reorganisation proposals. I regard that as an extremely unattractive state of affairs. I agree that the amendment as I understand it merely allows the Secretary of State to do these things: it does not say that he will do them. Nonetheless the danger is there. We shall have a paradox. It is not untypical of the paradox of the whole Bill. On the one hand, I believe that the Secretary of State is committed to an efficient education system; on the other hand, he is undoubtedly committed on some grounds—although we believe it is a spurious choice—to the grant maintained concept.
This amendment is as clearcut an example as I have seen of the two forces that we have in mind—the desire for effciency and effectiveness on the one hand, and the desire for grant-maintained status on the other—in conflict. Our concern about the amendment is precisely that conflict. I speak on the amendment to make it apparent to noble Lords that grant-maintained status has serious consequences. It has particularly serious consequences if Amendment No. 258 is accepted. We do not like this amendment, or, speaking broadly, this class of amendment. However, I felt it right to place on record our view of the matter.
Baroness Hooper: My Lords, in response to the noble Lord, Lord Peston, nothing in this clause detracts from the Government's continuing determination to ensure that public resources are used efficiently and effectively. The reasons and the need for rationalisation at local level are not diminished. Local education authorities retain their duty to provide a sensible pattern of primary and secondary schools in their area. I expect them to continue to submit to the Secretary of State their proposals for securing this. Grant-maintained status will not be an easy or automatic escape route for a school in difficulties.
Where the Secretary of State has already approved a Section 12 or 13 proposal that a school should be closed, it will not be possible for that school subsequently to make an application for grant-maintained status. In all other cases the Secretary of State will judge each application for grant-maintained status on its merits taking all relevant factors into account. One of those factors will certainly be the prospects for future viability of the school.
I trust that this helps to reassure the noble Lord. I beg to move.
On Question, amendment agreed to.
[Amendment No. 143A not moved]
6.15 p.m.
Clause 26 [Consequential provisions]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 144 and 145:
Page 22, line 20, leave out("and").
Page 22, line 22, at end insert ("and
(c) in subsection (3A) (inserted in that section by paragraph 74A of Schedule 10 to this Act), for "13 or 15" there shall be substituted "or 13".").
On Question, amendments agreed to.
Lord Stewart of Fulham Lord Stewart of Fulham moved Amendment No. 146:
Page 22, line 22, at end insert—
("(1A) In section 6(3) of that Act there shall be added—
"(d) if the local education authority has reasonable grounds to believe that the preference is wholly or mainly on racial grounds and "racial grounds" shall have the meaning given to it in section 3 of the Race Relations Act 1976." ").
The noble Lord said: My Lords, the effect of this amendment would be to alter Section 6(3) of the Education Act 1980. The general effect of that subsection is to require a local authority, where possible, subject to certain exemptions, to comply with the wishes of the parents when deciding to what school a child should go. Necessarily certain exceptions are made to that general principle. For example, if the school is an aided or special school, it would not be reasonable to comply with the parents' request.
This amendment would add a further derogation from the general principle. A local authority would not be required to comply with the parents' wishes if it had good reason to believe that the preference expressed by the parents for a particular school was a preference on racial grounds. The phrase "racial grounds" is used as defined in the 1976 Race Relations Act.
The Race Relations Act is, among other things, concerned with the prevention of racial discrimination and segregation of people from their fellow citizens on grounds of race. Thus, if this amendment were passed, no objection could be raised to a parent who said, "I should like my child to go to a school where there are children of several races because I think that would be a broadening experience." It would not be requiring the child to be segregated. However, if the parent were to say, "I wish my child to go to a school where all the children are of the same colour as my husband and myself and the child's brothers and sisters", that would be a request in effect to segregate the child. The effect of this amendment would be that the local authority would be under no obligation to comply with it.
I do not think that I need argue the general case for a proposition of that kind. We do not want the habit to grow up with parents or children of judging schools by whether they possess a greater or smaller proportion of white, black or brown children. However, I can see that the Minister, out of her store of reasons for refusing amendments, will not find it difficult to find one for refusing this. For one thing, it refers to two other Acts of Parliament, and that always opens a number of traps. It is not too difficult

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to prove that the amendment will not have the legal effect that the mover intended it to have.
However, whatever the noble Baroness says about accepting this amendment or not, I hope that she will be able to make this point clear. I wish to put it in as simple and plain words as possible. A parent may say to the representative of the local authority, "We are a white family. We do not want our child to go to a school where there are any black children, or, if that is impossible, we want him to go to a school where there are as few black children as possible". I want it to be clear that if that request is made to the local authority it is under no legal obligation to try to comply with it. Indeed, I think it possible under the Race Relations Act that the local authority would be committing an offence if it tried to comply with the request. I am not sure about that. I hope that the Minister will be able to clarify that it will never be a duty of local authorities, whatever parental wishes might be expressed, to combine with the parents in carrying out a policy of racial segregation between schools.
That is my real purpose in moving this amendment. I hope that the Minister will be able, one way or another, to accept it.
Baroness Hooper: My Lords, the Government are as much opposed to racial discrimination as anyone else, but this amendment does not, we believe, offer a helpful or indeed a practical way of tackling such discrimination. Perhaps I could try to explain how admission procedures operate. Parents may express a preference for any school that they would like their child to attend and give reasons for this preference. I do not believe that the reason outlined by the noble Lord, Lord Stewart, would carry any weight. The local education authority or governors must then admit the child unless the school is considered to be full, or unless the child is not eligible for admission to that particular school on grounds of age, sex, academic ability or religious affiliation.
If there are more eligible applicants than there are places available, the local education authority or governors must admit pupils up to the admissions limit according to criteria which they have specified in advance in published information supplied to parents. They may set any reasonable criteria they wish, but such criteria must be lawful, so any that infringed the provisions of, say, the Race Relations Act 1976 are not permissible. I am sure that the noble Lord, Lord Stewart, is familiar with that system.
There is therefore already a legal safeguard to prevent schools from choosing pupils on racial grounds. The noble Lord is, however, concerned that parents may express their preferences wholly or mainly on racial grounds. Most of us would deplore that, and therein lies the problem. It seems highly unlikely that any parent would openly give a reason which was essentially racist for choosing a particular school. So how would the authority decide whether the real reason behind the parent's preference was one based on race? And how would they invoke the relief proposed by the noble Lord without leaving themselves open to charges of libel?
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As the noble Lord himself suggested at Committee stage, there is no way, in legislative terms, of preventing people from making choices for what might be regarded as unworthy reasons—reasons which they themselves would not publicly espouse. But that situation would not be rectified by giving local education authorities what would amount to a right to impute unworthy motives to parents and in effect to punish them and their children for views which they anyway denied.
The admission arrangements under the 1980 Act and this Bill are designed to ensure that, so far as is possible, all parents of whatever ethnic origin get a place at the school that they want for their child, subject only to physical constraints and the need for aided and selective schools to retain their particular character. If a school is oversubscribed, it is important that places are allocated and are seen to be allocated in a fair and impartial manner. What the noble Lord proposes is therefore not only impracticable but would also remove the present impartiality from admission arrangements.
I hope therefore that, in the light of these comments, the noble Lord, will feel able to withdraw his amendment.
Lord Stewart of Fulham: My Lords, I am not very happy with what the noble Baroness has said, but I doubt whether I shall get anything better by pressing the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Schemes for financing county and voluntary schools]:
Lord Peston Lord Peston moved Amendment No. 147:
Page 24, line 43, at end insert ("and any scheme drawn up under this Chapter may provide for delegation of the management of part only of the overall budget of the school at the request of the governing body.").
The noble Lord said: My Lords, Amendment No. 147 is akin to Amendment No. 162, with which it is not grouped; but to save time I shall nonetheless use the one argument once and for all. This concerns the problems that the governing body will have with local financial management. It is not an attack on local financial management, which I favour, and it is not an attack on governing bodies or on their having a reasonable degree of independence, which we also favour. In a sense it is to dispute somewhat the Government's views as expressed by the noble Lord, Lord Trefgarne. His own view was that the governors would not be overwhelmed with extra work. He added the phrase "particularly as they became accustomed to their new responsibilities".
My experience as a governor was that when there was not a lot to do in this context it was not that easy even within our limited role. I believe that, given local financial management, further difficulties will arise for governors in the transition phase, and therefore it would be not at all unreasonable to allow for the posssibility, if requested, of a playing-in period, a period of partial local financial management. Broadly that is what Amendment No. 147 provides.
Our concern is about a governing body which has full local financial management and clearly is not coping. The Bill as it is written means that that role could be taken away from the governors in its entirety, but what it does not seem to have is the possibility of removing it partially so that they could learn.
This is an amendment that the Government should take seriously, and they ought to try to find a way of responding to it. It is the kind of amendment that is needed. I do not think it would undermine total financial management in most cases, but it would allow the kind of flexibility that would avoid disaster. I hope that the noble Baroness will be able to say that it is a good point and that she will consider it. I beg to move.
The Earl of Arran: My Lords, the Government take all amendments very seriously and consider them in considerable depth. Sometimes they accept them and sometimes they reject them.
Lord Morton of Shuna: My Lords, which amendments were accepted?
The Earl of Arran: My Lords, I am not sure whether that is correct concerning this amendment.
The amendment would allow the LEA to provide in its scheme for the delegation of only part of the school's budget share, following a request by the governing body. Delegation can only be genuinely effective if the large bulk of the school's expenditure is managed by the governors. Otherwise their power to shift resources between different budgets and towards the particular educational needs and priorities of the school will be seriously impaired. Without the freedom to plan their spending across the whole range of resources of the school, delegation to governors will not provide the flexibility which is vital for its success.
The Government fully accept that it is essential for governors to be consulted about the extent of delegation and that they should be directly involved in the preparation of the LEA's scheme. That is why we have included Clause 29(4) in the Bill, and have also tabled an amendment to ensure that head teachers too must be consulted.
There is a risk that a governing body which has no previous experience of delegation may be initially apprehensive at the prospect of their new responsibilities. This amendment could encourage such a governing body to let slip the opportunity of discovering for themselves the freedom which full delegation will bring to target resources on their school's real needs. Even more important, it would risk depriving the school's clients—the pupils and parents—of the real and extensive educational benefits it offers.
Under the amendment, schools with delegated budgets would still receive delegated powers over staffing, which accounts for around 80 per cent. of schools' expenditure. It would make no sense to delegate the responsibility for staffing decisions but not its costs.
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The amendment risks frustrating the real benefits of delegation in return for no actual benefit. I hope that the noble Lord will feel able to withdraw it. If not, I hope that noble Lords will reject it.
Lord Peston: My Lords, the amendment was meant to be helpful. Those who know anything about educational psychology are aware that if one constantly tries to be helpful and those efforts are rebuffed, one ceases trying to be helpful. I believe that the noble Earl has not answered the case. He said that the Government are determined on an all or nothing course and are simply unable to open their mind to the possibility that within that some modification may be necessary.
I believe that in most cases we want to see the governors engaged in financial management. There is no difference between us on that. The amendment is not put forward to sabotage the system but to deal with certain cases at the margin. If the Government will not be helped, I must say that I sometimes feel I have better things to do with my time. However, with respect, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 148:
Page 24, line 43, at end insert—
("(2A) The scheme shall contain arrangements to secure the efficient use of teaching staff in the area of the local education authority (including, in particular, arrangements to secure the efficient recruitment and transfer of qualified teachers employed to teach in maintained schools in that area).").
The noble Lord said: My Lords, Amendment No. 148 is tabled in my name and in the name of the noble Baroness, Lady Seear. It may be appropriate to speak also to Amendment No. 174 because they are grouped together.
In speaking to the previous amendment the noble Earl, Lord Arran, said that the Government were looking forward to governing bodies discovering for themselves the full freedom of managing their own budgets. My noble friend Lord Peston has spoken warmly about the opportunities which will be provided for local governing bodies to do just that. This and the previous amendment ask the Government that, on the margin and within that philosophy, a governing body is not only legally entitled but is provided with the opportunity to recognise that there can be certain problems.
The purpose of this amendment is to establish the importance of the efficient use of teaching staff and to preserve sufficient funds as an exception from delegation for the LEA to implement arrangements for that purpose. There will be a brand new situation and the Minister is entitled to believe that it will be an exciting time for the governing bodies which, as he says, will have the full freedom to manage their own budgets.
We are also in a situation where we are likely to see the roll of a school going up or down. One is likely to see schools which are popular in the concept of the local community become fully subscribed, if not over subscribed. There will be a situation in which pupil

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rolls in different schools in the same community will be subject to fluctuation. There will be a need for the number of teachers to go up or down.
Given that full freedom to manage their own budgets, there will be governing bodies which will say that although they have X number of teachers they could still provide an efficient teaching force with fewer. One alternative would be to dismiss the teachers or to make them redundant. The teachers' unions—in this case the Assistant Masters and Mistresses Association—are, as they are entitled, concerned about the situation. They are saying to me and others that if under the old arrangement it was found that there were staff surplus to the requirements of a school, the transfer of teachers from one school to another is a perfectly proper arrangement which happens all the time. The totality of the teaching staff is managed by the education committee.
If each separate governing body is to be responsible for managing its resources—and we are not arguing the principle of that in these amendments—we are concerned about the impact of unplanned changes on the size of the schools. We believe that there should be a little flexibility. Within Amendment No. 213, relating to Clause 42, we believe that there should be the opportunity of exceptions and exceptional payments and provisions allowed to take account of dismissal, redundancy or premature retirement. They should not be funded within the 10 per cent. limit which the Government are imposing.
The Government have issued guidelines. Under Clause 29(2) the guidelines which were issued would impose strict and tight percentage limits on any discretionary expenditure by the LEA. I hope that the Minister will recognise that there are those outside the House—and I say with great respect even outside the Ministry—who can see things in a slightly different light. They are concerned with the maintenance of employment for their members. Also they argue, as do I, that it could be more expensive to the LEA to have the kind of situation that the Government envisage.
If the solution for one governing body is to make redundant those teachers who are surplus to the requirements of a school, that could be far more costly than an arrangement which would allow the redeployment of teachers from a school which has surplus teachers to one which can use them. It is in that sense that the amendments are moved. I hope that the Minister will say something helpful to myself and to the noble Baroness, Lady Seear, and not least to those people outside this House. I beg to move.
Baroness Hooper: My Lords, we have already touched on matters of redeployment and I shall endeavour not to cover previous ground. Schemes of financial delegation may provide for the safeguarded incentive allowances of redeployed teachers to be met outside a school's delegated budget. We made that matter clear in the draft circular on financial delegation to which the noble Lord referred. That allows schemes to remove a potential disincentive for a governing body to take on a redeployed teacher
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and it is in response to concerns expressed in another place.
Nevertheless, doubts have been expressed as to whether authorities will be able to make room within their schemes for the continued payment of safeguarded incentive allowances where teachers move between schools within the same authority in accordance with initiatives by that authority. The teachers' pay and conditions document clearly envisages that allowances should normally be safeguarded in these cases. Paragraph 46 of the draft circular makes clear the fact that the extra cost of the allowance that is above the normal salary for the post can be paid outside the delegated budget. If an authority has a particularly large incidence of safeguarding, it will be able to draw that to the attention of the Secretary of State in submitting its scheme. In that situation it may have to hold back more of its total budget than the Secretary of State would normally expect. Such a situation seems likely to be very rare. The total of safeguarded allowances would only exceed, say, 1 per cent. of the teachers' pay bill in the most extreme circumstances. I hope that that will reassure noble Lords.
As regards recruitment, it is to be expected that financial delegation will bring much wider advertising of jobs and that many appointments will be made as a result of responses to advertisements. It will also be possible for the local education authority to act as a recruiting agency for teachers if that is what governors want.
We believe that the essential principle is that governing bodies must be responsible for selection and must not be compelled to accept teachers whom they do not want. There will be plenty of opportunity for redeployment by agreement and for the local education authority to take part in recruitment arrangements. The best local education authority practice now is to proceed by agreement rather than by foisting particular teachers upon schools. I trust that the noble Lord will feel able to withdraw his amendment.
Lord Graham of Edmonton: My Lords, the Minister sounds very reasonable and I say that genuinely. From my limited knowledge of the topic it appears that there are opportunities for authorities which are faced with the kind of problems that I have outlined to raise them in what the Minister says may be rare circumstances—that is, where the existing arrangements detailed in the consultative document are inadequate to cover the situation.
I have listened carefully to what the Minister has said and those outside the House will read that carefully. It may well be that I shall need to return to the topic at a later stage. I see the Minister mouth the words "I hope not", and I also hope not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 149:
Page 25, line 5, at end insert ("and;
(c) it is not a small school within the terms of regulations issued by the Secretary of State under subsection (3A) below.

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(3A) The Secretary of State may issue regulations, after consultation with the local authority associations and any other bodies or persons who appear to him to be concerned, to provide for the exemption from the scope of any scheme drawn up under subsection (1) above, of small schools, and the regulations shall make provision for the period of any exemption, and the age and class of school to which it relates.
(3B) No regulations shall be made under subsection (3A) above unless the Secretary of State is satisfied that the application of financial management to such a size of school would be uneconomic, or would affect adversely the overall quality of education.").
The noble Lord said: My Lords, this amendment is to add the small schools to the list of exclusions as defined. The amendment puts the case for exceptions which in practice would probably only be temporary to allow small schools to be excluded from the operation of local financial management. We are principally concerned with rural schools here.
The Bill makes provision for the exception of primary schools below 200 pupils; that is in Clause 34(3)(a). This amendment concerns a school, whether a primary or secondary school, which is smaller than the average size of school of that category. The essential point is that the revenue costs of such schools, that is in terms of equipment purchased, revenue account, transport costs, heating and running costs, may be higher than the average if they are in an isolated position or a scattered area.
In passing, I remind the Government that there are areas in England and Wales which are rural and which have a scattered population. The South East of England is not the only area which is to be considered.
It is not suggested that local financial management is necessarily inappropriate for such schools in the medium to long term. The amendment seeks reassurances about possible budgeting pressures on such schools. Will there be pressure from the Secretary of State to reduce budgets in schools which seem to have higher costs? The need to provide equipment for a chemistry lab, sports equipment or workshop facilities is almost as much for a school of 600 pupils as one with 1,000 pupils or even in a secondary school with 200 or 300 pupils which may be the state we have reached in certain areas. Will rural authorities with many such schools be penalised because the unit cost per pupil is higher than that which is appropriate in a school in Surrey or any other area with high population?
The issue has caused serious concern to representatives of rural authorities. The amendment does not set out to prescribe a set solution. It permits the Secretary of State—there is no requirement about this amendment—to consult and make regulations about this category of school which is relatively small so that the schools could be accepted for a period to allow local financial management to be introduced gradually in accordance with their needs.
If the Government recognise that there is a possible problem, that would perhaps be unique in this Bill but would be very welcome. If they would accept the amendment that would certainly be unique and even more welcome. I beg to move.
Baroness Blatch: My Lords, I hope the Government will not be persuaded to accept this
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amendment. Any scheme devised by a local authority would inevitably have to take into account the differences between one school and another: whether it is a small school; whether the actual costs of running a school are different from another school. All that should be taken into account in determining the allocation for schools. Given that the schemes have to be submitted to the department, it will be for the Department of Education to make judgments about whether the scheme is sound enough for each school to operate efficiently under the scheme.
I speak as a representative of a rural area. We have schools of fewer than 200 pupils in the scheme of local financial management which are making a marvellous job of it. They are appealing to us that when the new scheme is in operation, their schools will not be precluded from continuing with it, in an experimental way to begin with.
The degree to which we devolve financial management in those very small schools should be consistent with the efficient use of resources. Therefore, I believe it would be quite wrong to preclude schools from this scheme of financial management. In my view it is absolutely essential that all schools should be required to make efficient use of resources and we should require them to do so under this scheme. At the moment the cut off point is about right and I hope that when it is in operation schools even smaller than those prescribed in the Bill will be allowed to continue with the experiment.
The Earl of Arran: My Lords, perhaps it would be appropriate for me to make quite clear that regarding accepting or rejecting amendments I can say categorically that in relation to financial delegation there are three concessions which were made in Committee which have resulted in amendments.
As regards this amendment, the Government recognise that small schools have particular needs and circumstances different from those of larger schools. They also recognise that, because of those special circumstances, the immediate delegation of budgets to small primary schools may not be appropriate. Accordingly, the Bill provides that delegation should not be required for primary schools with fewer than 200 pupils. LEAs will have the power to extend delegation voluntarily to small schools, subject to the approval of the Secretary of State to the provisions of the LEA's scheme for ensuring effective management of such schools.
So the safeguard sought by the amendment is already provided for in the existing provisions of the Bill. Nonetheless, I must say to the noble Lord that my right honourable friend is highly unlikely to seek to use this existing power in the way he intends. Experience in pilot schemes has shown that all schools, including the smallest primaries, can benefit from the freedom to target resources on their own educational needs and priorities. The question is not whether all schools can benefit from delegation, but when. The Government believe that this is a judgment which the LEA is best placed to make. It will be for the LEA to provide support and advice to schools as part of its scheme, and it is right that it should be for the LEA to make the initial decision

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about whether or not a primary school should receive delegation. If the LEA believes that a school is ready for delegation, it would not be the intention of my right honourable friend to try to second-guess it. As paragraph 54 of the draft guidance makes clear, LEAs will be expected to take account of the additional costs of teaching and learning in small schools in their resource allocation formula, so that the needs of these schools will be fully safeguarded.
The amendment would also have the consequence of not only excluding small schools from delegation if the regulations were made, but of excluding them from the funding mechanism of the scheme. That would lead to the LEA having to operate two separate budgeting systems, which would be unduly complex, and is unnecessary. In the light of the assurances I have given, I hope the noble Lord will not press the amendment.
Baroness Carnegy of Lour: My Lords, before my noble friend sits down—and with the leave of the House—perhaps I may ask him whether what he has said means that local authorities will take into account the higher unit costs of smaller schools when they are fixing the formula by which the budget is settled? Will they also take into account the extra costs of certain laboratories which are provided and the higher costs of schools in certain parts? Will all that be taken into account under the scheme and therefore the schools which are fearful that the financial delegation will militate against them have nothing to fear? Is that what he is saying?
The Earl of Arran: My Lords, I thank my noble friend for making those points. I can confirm that she is quite right in what she says.
Lord Morton of Shuna: My Lords, I am very grateful to the noble Earl, and I am particularly grateful to the noble Baroness, Lady Carnegy, because she did me the courtesy of listening to what I was saying which was a great help.
It was perfectly clear when the noble Earl read his brief that he had not listened to what I was saying; that he had not paid the slightest attention to it; and he was reading his brief, which had probably been prepared several days before, and that was that. That is the attitude with which this Bill is being treated by the Government and I wonder why we, on this side of the House, are here at all! In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran The Earl of Arran moved Amendment No. 150:
Page 25, line 43, leave out ("and").
The noble Earl said: My Lords, in moving Amendment No. 150 I shall speak also to Amendments Nos. 151, 184 to 186, 188, 216 to 220, 222, 223, 269 and 451 en bloc.
This group of amendments is designed to secure two straightforward ends. First, it aims to ensure that appropriate financial information is made available by the LEA to schools and to the community about the working of their schemes. Secondly, it secures
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that financial information is available for schools before the introduction of schemes. These objectives were first set out in Section 29 of the 1986 Act, and with the coming of financial delegation it is essential that they should be maintained and expanded to reflect the new distribution of responsibilities. If there are any noble Lords who wish me to go into further detail, I will, but in the meantime I beg to move.
Lord Morton of Shuna: My Lords, I am not concerned with the first amendment, but I should speak to the group. This group of amendments brings the number of government amendments to this chapter which this House has considered—and it is only to this chapter in this House and not the other place—to over 200. This shows how much careful preparation went into the drafting of the Bill. If some of the amendments had been in response to some of the arguments that were put forward by Members of this House or Members of another place, we might have had more respect for the Government. However, I will do my best to deal with this group.
Amendment No. 151 relates to excluded expenditure. The draft guidance on local financial management, paragraphs 37 to 47, suggests that the Secretary of State will approve several heads of expenditure as going out of LFM. They include school catering, child guidance, educational welfare, statemented pupils, peripatetic and advisory teachers, structural repairs, initiatives, LEA initiatives, pupil support and special staff provision.
Paragraph 52 requires that of the total amount of money spent on schools at least 90 per cent. must be delegated. How is the 10 per cent. going to cover all that? That could be difficult to achieve. I am not certain whether the effect of Amendment No. 151 is to except these items of expenditure from the general schools' budget and thus allow local education authorities to achieve the 90 per cent. target by taking one group of expenditure out of the schools' budget altogether. Is that the intention or do they intend to increase the 90 per cent. figure that has been issued in draft guidance? The Government must make their position more clear on this.
Amendment No. 184 requires financial information to be published on the level of excepted expenditure which local education authorities will not be able to delegate—capital expenditure, transport, advisory services, and so on. Can the Government confirm the difference between excepted expenditure and excluded expenditure? I am sorry to sound legalistic and pedantic, but, if there is a difference, what is it? If there is no difference, why not use the same word?
Amendment No. 185 requires the publication of per capita expenditure on an excluded expenditure per school. Is this necessary? What sort of nightmare are we building up here? Is this going to enable prospective parents to draw up a league table of the amounts that are spent in each school on educational psychology? If so, what is the point of it.
The noble Earl will be pleased to know I have no particular comments to make in respect of Amendment No. 186, except to ask: is this merely a drafting amendment? If so, why is the drafting change necessary?

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Is Amendment No. 218 a transitional provision or is it going to be there for all time? This new clause requires local education authorities to provide detailed financial information prior to the introduction of local financial management. Is this necessary? Why can we not use the provisions of Section 29 of the Education (No. 2) Act, which Amendment No. 223 takes out?
I wonder whether I have the attention of the noble Earl. I assure him that when he reads out his brief I try to pay attention.
It would help if we had some clue that the Government regard this House as being of some importance and not merely a rubber stamp. If they tell us we are merely a rubber stamp, we will all go away. We will not put down amendments and they can put through anything they like; but how they will get their own 200 amendments through I do not know.
The Earl of Arran: My Lords, let me see if I can assist the noble Lord by summarising the main changes made by the amendments. I hope that the points he made on some of these amendments are incorporated in the summary.
First, the existing Clause 37, on financial statements during schemes, will be expanded to make clear that the LEA should publish prescribed details of any amounts which are not delegated to schools—the total amount planned for discretionary as well as mandatory exceptions on a per capita basis for each school and the amount of capital spending planned for each school. None of these provisions represents an extension of the information intended to be required under Clause 37(4), but the amendments make these requirements clear on the face of the Bill rather than relying on a regulation-making power. The amendments will ensure that schools will have information on both their budget share and the amounts which the LEA does not delegate to them. In addition, out-turn information will be provided both for the LEA as a whole and by school, enabling schools to compare their initial budget to actual expenditure.
Secondly, the amendments move the existing Clause 73 on financial statements prior to schemes of delegation into Part I, Chapter III of the Bill. This clause takes forward the existing requirements. of Section 29 of the 1986 Act and will be needed even after the introduction of schemes to provide for financial information on special schools. Chapter III is the appropriate location for this. In order to make sure that there is consistency with the information that will be required under schemes, the amendments expand the existing Clause 73 so that it broadly parallels Clause 37.
Thirdly, the amendments extend the financial information required to be included in governors' reports to cover statements under Clause 37 and the new clause on financial information rather than relating to the more limited information previously required to be included under the 1986 Act. The governors will also have to include a statement describing the use they have made of their delegated budget. This will be essential to ensure the
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accountability of governors to parents and the local community.
If I have not covered specific points raised by the noble Lord in this framework, I will write to him.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 151:
Page 25, line 49, at end insert ("; and
(c) references in relation to any scheme under this section, to excluded expenditure under the scheme are references to the aggregate of any amounts which fall in the case of that scheme to be deducted by virtue of subsection (4)(b)(ii) above in determining the aggregated budget of the authority concerned for any financial year.").
On Question, amendment agreed to.
The Earl of Kinnoull The Earl of Kinnoull moved Amendment No. 152:
After Clause 28, insert the following new clause:
("Paid time-off for Governors.
.—(1) The Secretary of State shall, before the implementation of any scheme drawn up under section 28 above, designate one or more local education authorities for the purpose of conducting a pilot study under this section.
(2) A pilot study under subsection (1) above shall set out—

(a) the average amount of time devoted to their duties during the period of the report by governors in any school designated by the authority, and which is (in the opinion of the authority) typical of its type;

(b) the proportion of such time which the authority estimates to be devoted to matters arising from local financial management;

(c) the proportion of time which was devoted during working hours; and

(d) any matters, in addition to those covered in (c) above, which would (in the opinion of the governing body or the local education authority) more effectively have been undertaken during working hours.

(3) The results of the pilot study shall be accompanied by a statement from the local education authority, and any other providing body which wishes to make one, as to

(a) the impact of local financial management on the workload of governors; and

(b) the possible effect of the introduction of paid time-off for governors at a future date.

(4) A pilot study under this section shall be conducted over the first two years of any scheme under section 28, or such longer period as the Secretary of State may specify.
(5) The Secretary of State shall consider the results of any study under this section, together with any statement under subsection (2), and lay before Parliament a report setting out his response.
(6) 'The Secretary of State may, by regulations issued under this section after the laying of a Report under subsection (4) above, provide for any governor of a school to which financial delegation applies under Section 28 to have the right to receive special leave with pay for up to such number of days in any academic year as the Secretary of State shall determine in the light of the study for the purpose of carrying out duties at the school (or in relation thereto) during the period of the school day or for attending any training course.").
The noble Earl said: My Lords, perhaps I may comment on what the noble Lord, Lord Morton of Shuna, said in his strictures on my noble friend, because his argument reminded me of an exhausted headmaster at the end of an academic year, in a hot summer, who had gone without his dinner. I should like to defend my noble friends who have done a remarkable job. The very fact that they have introduced 200 amendments shows that this House matters and shows the Government's concern to get the Bill right. The Opposition should not be disheartened because I believe that they are doing a very good job. I hope that they will keep their standards high.
7 p.m.
Baroness Seear: My Lords, we do not require to be patronised by the noble Earl.
The Earl of Kinnoull: My Lords, I am afraid that I did not hear the remark made by the noble Baroness.
Baroness Seear: My Lords, we do not require to be patronised by the noble Earl.
The Earl of Kinnoull: My Lords, I was not being patronising. In defending the Government I was trying to reply to what I believed was not a particularly attractive attack. During the Committee stage the issue was raised as to whether the school governors, with the considerably increased duties placed upon them under this Bill, should not only be entitled to special leave from their employment—as they are already under the Employment Protection Act—but should also not be penalised for loss of salary in doing so. At that time it was a probing amendment and there was support from all sides of the Committee for the principle. The fear was expressed that potentially good governors could be lost or denied to the education system because they could not afford to lose their pay.
It was pointed out then that some companies already recognised that employees serving as school governors should not have their pay docked if the meetings were during the daytime. I believe the CBI encourages this practice among its members. However, there are many employers who do not take this sensible attitude including, surprisingly, British Telecom and the Post Office. In Committee the amendment sought to allow up to six days a year to be granted as special leave with pay. My noble friend Lord Trefgarne said on that occasion that in his view the local education authorities' experience was that the job of school governors was not excessively demanding and that they would not be overwhelmed in the future.
My noble friend added that he recalled that the Territorial Army had also raised a similar question. At that time it was concluded that it was not in the interests of the personnel to pursue it. On reflection, I believe that this example has no real parallel, particularly as the Territorial Army requires three weeks a year and not just three periods of six days.
Amendment No. 152 stands in the names of the noble Lords, Lord Henderson of Brompton, Lord Taylor of Blackburn, and myself. Its purpose is to allow the Secretary of State to commission a pilot study into the time required by school governors to devote to their many new duties as laid down in this Bill. It is suggested in the amendment that this study could take two years or more. It would not be rushed, but it would be comprehensive. The report would be published with the conclusions and recommendations of the Secretary of State. The Secretary of State would have the power to introduce by regulation the right of school governors not to lose their salaries, but he can limit this to certain categories of schools as he sees fit. This is an important point because he could limit it to the larger schools.
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This amendment is a serious attempt to meet the worry as regards the future supply of school governors. At present no one really knows how much extra time school governors will need. However, we know that they will have considerably increased responsibilities. One thing is certain; namely, that we cannot afford to prevent potentially good governors coming forward to serve because of the potential blight of loss of earnings. We shall do a great disservice to the education system if we did so. We know that they will be required to carry out these considerable extra duties.
I spoke to a number of experienced people in education prior to the tabling of this amendment, all of whom support the principle of it. In the opinion of the National Association of Governors and Managers, the work of school governors has roughly doubled since 1984 both under the 1986 Act and now under the 1988 Bill. Their duties will now include not only the very important time necessary for the special training that they require, but also responsibility for setting the policy for the curriculum, selecting staff, tackling discipline and staff grievance procedures, the admission and the exclusion of panels of pupils, as well as general management and responsibilities besides the normal support for visits to the schools.
My noble friend will recognise that the amendment does not seek immediately to change the law. It gives the Secretary of State power to set up a comprehensive study with the actual experience of the working of the Bill to see if governors should receive this right. If the study proves that voluntary support should become compulsory for employers, I believe it would be a small price to pay if it removes a barrier to serving for some very able and potential governors. I beg to move.
Lord Morton of Shuna: My Lords, in general we support the idea behind the amendment. I am not entirely clear whether the noble Earl meant that the employer was to pay for the time off or that the education authority was to pay for it. If the education authority is to pay, the natural question is: where is the money coming from? Is it coming from central government or the poll tax payer? If the money is coming from the employer, speaking as one myself, what happens about the self-employed? If the employer has to pay people for time off, what happens to the self-employed person? Does he pay himself to be a governor? It seems a slightly unfair situation. No doubt this is a general matter and a pilot study would be generally useful.
Lord Swinfen: My Lords, I wonder if there is to be a maximum number of days during the year which will be paid for as I believe to be the case with magistrates?
Baroness Hooper: My Lords, before turning to the specific proposal made in the amendment moved by my noble friend that the Secretary of State should commission a pilot study on the impact of delegation on governors' time, it may be helpful if I set out the current position on these matters.
The Government fully recognise that appropriate support arrangements for governors will be central to

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the success of delegation. My right honourable friend has proposed to make available substantial sums in order to ensure that schools are adequately supported in this key area. This support will include training for governors, head teachers and school administrative staff to ensure that their time is used effectively. It will also include support for special local education authority advisory teams to assist schools, and for the installation of computer-based information systems to make sure that both governors and heads have ready access to information. With your Lordships' permission, I will return to these matters further when we come to Amendment No. 159, which refers to them directly.
Given this support, we do not believe that governors will have an excessive amount of extra work as a result of financial delegation. Their role will be supervisory rather than concerned with day-to-day administration. They will not be expected to keep the books, or get involved in the detailed running of the school. They will take the key management decisions and set the priorities of the school. The experience of local education authorities with pilot schemes has been that the periodic meetings of the full governing body (around twice a term) are sufficient for this. In order to enable more detailed management decisions to be taken by groups other than the full governing body, we have provided in Clause 109 for delegation to committees of the full governing body. These may include non-governors, allowing school staff and members of the community with special expertise to become involved in the process of running the school. Again, the experience of pilot local education authorities has been that such committees play a significant part in reducing the workload of the governors.
The amendment itself seeks to quantify precisely the impact of financial delegation on governors' time. The Government fully share the aim of evaluating both the effects of financial delegation on schools and the support made available for governors. Two-year pilot projects in 10 local education authorities on the appropriate forms of governor training have aleady been supported through specific grant. In addition, my right honourable friend has made it clear in his draft guidance that the Government will wish to assess and evaluate the national effects of delegation and that they will consider funding a national evaluation project based on a representative sample of local education authorities and schools. The extent to which governors are effective in exercising their new responsibilities will be an important but not the sole element of this. The effects of delegation will range more widely than the single issue with which my noble friend is concerned and will relate to its effectiveness in producing better education. Nor is it likely that the exact quantification sought by the amendment could be achieved through any pilot study, given the very great variety among LEAs, schools and governors themselves.
In any event, I have to say to my noble friend that the Government do not consider that requiring paid leave for governors is an appropriate way forward. Section 29 of the Employment Protection (Consolidation) Act 1978 provides for governors to be entitled to time off in order to perform their duties
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effectively. We fully support this and, indeed, the Bill extends this provision to the governors of grant-maintained schools.
The amendment envisages, however, that regulations might go further by giving extra privileges to governors of schools covered by schemes of financial delegation. These would entitle governors to time off without regard to the impact on their employer's business. Furthermore, it would entitle them to paid leave whereas the 1978 Act left that to the discretion of the employer. As I believe was accepted by the Committee, this is a matter better left to the individual judgment of each employer. Many employers acknowledge the value of fostering links with local schools by arranging paid leave for governors.
Indeed, some provide other incentives as well. The Government very much welcome this and are working to increase it, but it would not be appropriate to impose this as a general requirement on all employers. I hope that in the light of these points, my noble friend will not press the amendment.
The Earl of Kinnoull: My Lords, I am grateful to those noble Lords who have taken part in the debate. In reply to the noble Lord, Lord Morton of Shuna, I would say that the intention of the amendment is that the employer pays. Indeed, under contracts of employment both in the trade unions and the Civil Service, this is already obligatory. I am grateful to my noble friend for a helpful and sympathetic reply. I was interested to hear that the Government are considering funding a study, which I think will be helpful. It is a delicate issue. I do not wish to press the amendment but I am glad that I raised the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran: My Lords, this may be an appropriate moment at which to break for dinner. I beg to move that further consideration on Report be now adjourned until 8.10 p.m.
Moved accordingly and, on Question, Motion agreed to.

Access to Medical Reports Bill
7.13 p.m.
Read a third time.
Clause 2 [Interpretation]:
Lord Tordoff Lord Tordoff moved Amendment No. 1:
Page 1, line 11, leave out ("and") and insert ("or").
The noble Lord said: My Lords, if it is for the convenience of the House it is my intention in moving Amendment No. 1 to speak briefly on all the remaining amendments and then move them en bloc. The amendments are designed to clarify various points in the Bill, especially those which arose in Committee. All come from the draftsman who drafted the amendments in Committee. They arise from points made by the noble Lords, Lord Prys-Davies and Lord Brain. I am grateful to them for thus

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improving the Bill. I have today received a letter from the noble Lord, Lord Brain, regretting that he cannot be with your Lordships tonight but indicating that he is quite happy that the amendments before the House deal with the points that he made.
If noble Lords wish to raise any matters on the amendments, I shall be happy to deal with them. They are all technical or clarifying amendments and therefore, at this stage, I do not propose to go into any further detail. I beg to move.
The Earl of Arran: My Lords, in Committee one or two points were made which suggested that the Bill as drafted could be further improved. I am most grateful to the noble Lord, Lord Tordoff, for his willingness yet again to consider these points. As a result, the amendments which have been put down for Third Reading meet with the Government's approval.
Your Lordships will recall the point made by the noble Lord, Lord Prys-Davies, that the Bill as drafted could make life difficult for a general practitioner who needed information from another doctor. Some ambiguity was felt to exist to the extent that a strict interpretation of the Bill as drafted could mean that communications between doctors were caught within the provisions of the Bill. Therefore, the amendments to Clause 2 make clear that it is only the report prepared by the medical practitioner for the employer or insurer which is covered by the Bill.
Concern was also expressed about the practical arrangements by which an individual should apply for access to a report prepared by a medical practitioner. The amendments to Clause 4 improve the drafting of the Bill so as to make it clear that an individual wishing access to a medical report should ensure that the practitioner receives notice of that intention within 21 days. This is an improvement to the earlier proposition that it would be sufficient simply for the individual to have taken steps to make such arrangements within 21 days. I feel that the redrafting of the clause is much clearer and commend it to your Lordships.
The other minor amendments are of a technical nature. I wish to pay tribute to the noble Lord, Lord Tordoff, for his skill in steering the Bill through your Lordships' House. He and his advisers have at times been more than patient in having to consider some complex drafting improvements. The result is that the Bill is now considered satisfactory to reach the statute book, and we do not seek to oppose it. I commend the amendments to the House.
On Question, amendment agreed to.
Lord Tordoff Lord Tordoff moved Amendment No. 2:
Page 2, line 4, at end insert—
("( ) Any reference in this Act to the supply of a medical report for employment or insurance purposes shall be construed—

(a) as a reference to the supply of such a report for employment or insurance purposes which are purposes of the person who is seeking to be supplied with it; or

(b) (in the case of a report that has already been supplied) as a reference to the supply of such a report for employment or insurance purposes which, at the time of its being supplied, were purposes of the person to whom it was supplied.").

On Question, amendment agreed to.
[Clause 4 [Access to reports before they are supplied]:
Lord Tordoff Lord Tordoff moved Amendments Nos. 3 to 7:
Page 2, line 37, after ("it") insert ("and any requirements of section 5 below have been complied with").
Page 2, line 39, leave out ("the individual having taken steps to arrange") and insert ("his having received any communication from the individual concerning arrangements for the individual").
Page 2, line 44, leave out ("(2)") and insert ("(1)").
Page 3, line 2, after ("it") insert ("and any requirements of section 5 below have been complied with").
Page 3, line 4, leave out from ("without") to second ("to") in line 5 and insert ("his having received (either with that notification or otherwise) any communication from the individual concerning arrangements for the individual").
On Question, amendments agreed to.
Lord Tordoff: My Lords, I beg to move that the Bill do now pass. In doing so perhaps I may thank the noble Earl, Lord Arran, for his kind words. I thank those who have contributed to the short debates on the Bill. I am particularly grateful for the fact that although the Government have maintained their neutrality on the Bill throughout they have been most helpful in giving advice to my advisers. I am extremely grateful to Mr. Maurice Frankel, of the Campaign for Freedom of Information, who has spent a good deal of time working on the Bill.
The Bill originally started in another place with my honourable friend Mr. Archy Kirkwood who was fortunate enough to win a place in the ballot for a second year running. I hope that his luck continues and that we can come back next year with even more Bills dealing with freedom of information. One would have liked an access to medical records Bill. We may get to that one of these days; meanwhile discussions are taking place with the medical profession and with others. I commend this modest measure to the House.
Moved, That the Bill now pass.—(Lord Tordoff.)
Lord Ponsonby of Shulbrede: My Lords, we on these Benches also wish to congratulate the noble Lord, Lord Tordoff, on so skilfully piloting this Bill through the House. Indeed, we are very pleased to see the noble Lord here today.
On Question, Bill passed, and returned to the Commons with amendments.

Community Health Councils (Access to Information) Bill
7.20 p.m.
Lord Stallard: 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.—(Lord Stallard.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD STRABOLGI in the Chair.]
Clauses agreed to.
House resumed: Bill reported without amendment; Report received.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.21 to 8.10 p.m.]

Education Reform Bill
Consideration of amendments on Report resumed.
Clause 29 [Preparation and imposition of schemes]:
Lord Morton of Shuna moved Amendment No. 153:
Page 26, line 11, at end insert—
("(2A) Where a local education authority determines that cases or circumstances make it inadvisable to conform to any guidance given by the Secretary of State in accordance with subsection (2) above (including, in particular, guidance regarding specified proportions or percentages of the general schools budget or any part of that budget), the authority may submit a reasoned statement of their determination which the Secretary of State shall take into account in considering approval of the scheme.").
The noble Lord said: My Lords, this amendment in the name of my noble friend Lord Peston provides for a situation where a local education authority decides that in the circumstances that exist it is not possible, or it is inadvisable, to conform to guidance given by the Secretary of State including guidance regarding specified proportions or percentages of budgets and submits a statement that the Secretary of State has to take into account. It is a fairly straightforward, short, easily-understood amendment. I beg to move.
The Earl of Arran: My Lords, the noble Lord has expressed concern that the framework set out in the draft guidance issued in April may be too demanding for some LEAs. In particular the amendment is directed at two key elements of that framework. Paragraph 52 of the guidance provides that discretionary exceptions other than school meals should account for no more than 10 per cent. of the LEA's general schools budget initially, and no more than 7 per cent. after three years. Paragraph 56 provides that the total amount of resources allocated on the basis of the number of pupils, weighted by age and subject, should account for at least 80 per cent. of the aggregated schools budget.
It is precisely because the Government wish to establish the views of LEAs on these matters that this guidance has been issued for consultation. That consultation is still in progress and my right honourable friend will take careful account of the responses from LEAs and other bodies. It would not be appropriate to seek to pre-empt the outcome of that consultation. But whatever the outcome some framework of guidance will be needed to ensure that there is reasonable consistency across the country. The LEAs are aware of the criteria on which the Secretary of State will base decisions on the approval of schemes. Some guidance is essential on the fundamental issue of the extent of delegation, and the provisions of the Bill and the draft guidance give LEAs extensive discretion as to the items which they consider should be retained centrally.
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Similarly, schools must fully realise that in future their funding will depend primarily on their success in attracting parents and pupils to the school. The resource allocation formula under a scheme must be clear so that school, parents, and the community can understand it. That is the aim, which I hope the noble Lord shares, of the draft guidance.
The noble Lord wishes to provide what amounts to a formal channel for objections to the framework set out in the guidance. The Secretary of State will of course take account of representations from LEAs on any aspect of the draft guidance or of their schemes. Indeed, it would be unreasonable for him not to do so. I trust that the noble Lord does not doubt my right honourable friend's intention in this respect.
The amendment does not add any substance to that position but it may well encourage some LEAs, who may be reluctant to delegate responsibility to their schools, to use the noble Lord's procedure to cause delays, and direct their attention to challenging the basic principle of delegation instead of preparing effective schemes. That would run contrary to the interests of both schools and pupils. In those circumstances, perhaps I can prevail upon the noble Lord to withdraw the amendment.
8.15 p.m.
Lord Morton of Shuna: My Lords, if I understood correctly what the noble Lord read out, he was saying that there is a draft document for obtaining the views of local education authorities. So be it. I hope that the Secretary of State—I am sure he will—pays attention to the general views and that he will come to a general view of the average position across the country of the various local education authorities.
That, with all respect, has nothing whatever to do with the amendment. The amendment proposes that if a local education authority says that in a particular case, or cases, there are reasons why it wants to avoid the provisions of what will by then be, not draft guidance but substantive guidance, or the authorised version, it shall be able to state why, in this particular school, or this particular situation, the guidance is inappropriate.
It is inevitable that in a country of—what is it?—50 million, there will be cases that are out of the average. In that situation we are asking simply that the Secretary of State should be able to be told that this school in mid-Wales, or wherever it is, has a particular situation or difficulty which means that it does not feel that the guidance is appropriate to the school whereas it might be fine for Camden. That is what we are aiming at. However, in view of the attitude taken in general in the past, and in view of the need to get on, I do not intend to test the opinion of the House. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hooper Baroness Hooper moved Amendment No. 154:
Page 26, line 15, after ("body") insert ("and the head teacher").
The noble Baroness said: My Lords, in speaking to this amendment, I trust that it will be in order if I speak to Amendments Nos. 155, 161, 163 to 171, and 187. During the discussion in Committee on my

987
noble friend's earlier amendments on this matter, I undertook to look again at the position of head teachers under schemes of financial delegation. As I made clear in Committee, the Government fully recognise the vital role of head teachers in ensuring the success of schemes. Together with the governing body, they will have responsibility for developing a management plan for the school and securing its implementation with the collective support of the staff.
We also accept the point made in the debate that, although the majority of head teachers are likely to be governors, the head has a distinct role in his own right. In recognition of that, I hope that noble Lords will accept the amendments which we have now brought forward and acknowledge at the same time that we do make concessions, listen, and bring forward amendments,
These amendments provide for the head teacher as well as the governing body to be consulted by the LEA in preparing schemes of delegation and for the head as well as the governing body to be involved in the procedure for withdrawal of delegation. These are two vital aspects of a scheme, and we believe that it is right that the head teacher should be directly and explicitly involved. I beg to move.
Baroness Carnegy of Lour: My Lords, the government amendments to which my noble friend has just spoken are indeed good news. When at Committee stage my noble friend Lady Young and I tabled a group of amendments, all concerned with the position of the head teacher of a school operating a delegated budget, we felt that the amendments raised important issues. We were, I am bound to say, a touch disappointed at what seemed to us at the time a somewhat non-committal answer from the Government.
Although my noble friend on the Front Bench said then that she would have another look at the issues, my noble friend Lady Young and I were not satisfied. In consequence we retabled some of our previous amendments, and they appear now as Amendments Nos. 163, 165, 166, 169 and 170. Since tabling those amendments I have received a detailed and extremely helpful letter from my noble friend the Minister. In that letter she gave me the assurance that the Government fully accept, as she has just said, that under the delegated budgets head teachers will have a distinct role in their own right, whether or not they choose to be governors, and that it is right to recognise that in this part of the Bill.
The Minister also satisfied me in that letter on two points which were raised in the previous amendments—first, the fact that the head teacher is protected against personal liability when acting in good faith within the school; and secondly, the head teacher's access to financial information. Those assurances have enabled me to withdraw two of the amendments that I had tabled.
In response to the remaining amendments in the group, my noble friend has, as she has explained, tabled her own amendments to which she has just spoken. I am extremely pleased and grateful, and so
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is my noble friend Lady Young, to see that these meet most of the points of concern which remained.
Only one issue remains unresolved; that is, the proposal we make in Amendment No. 165 that when in an emergency a local authority decides to suspend the delegation of the school's budget, before the expiry of any period of notice that has been given, the local authority should not only be required to notify the Secretary of State of that suspension but should formally notify the head teacher. I think that I am right when I say that that point is not incorporated in my noble friend's amendment. I wonder whether she has any reason for that or, if not, would reconsider that point to see whether it requires to be met.
That having been said, I should not like to appear in any way ungrateful. Head teachers and teaching staff all over the country, as they embark upon the challenge of financial delegation, will, I am sure, be extremely grateful for those changes which ensure that during various crucial procedures the head teacher will also be kept in the picture.
Lord Morton of Shuna: My Lords, I should like to congratulate the noble Baroness, Lady Carnegy, and her noble friend Lady Young. They are in the unique position of having their amendments accepted by the Government. It may have something to do with where they sit when they are in the House. We have no objection to the amendments.
Baroness Hooper: My Lords, happily my noble friend is not in a unique position. The Government have made concessions on a number of occasions, and have introduced amendments as a consequence.
The point which my noble friend raises about notification to the head teacher on emergency suspension is covered by the draft guidance on financial delegation. However, I undertake to clarify that point to her in precise terms.
On Question, amendment agreed to.
Baroness Hooper moved Amendment No. 155:
Page 26, line 16, leave out from ("authority") to end of line 19.
On Question, amendment agreed to.
The Earl of Kinnoull The Earl of Kinnoull moved Amendment No. 156:
Page 26, line 27, at end insert—
("(5A) In making any determination under subsection (5) above, the Secretary of State shall satisfy himself that adequate and comparable provision is made in the scheme in respect of the clerking of the county and voluntary-aided schools to which it applies, such that reasonable remuneration will be made in relation to each voluntary-aided school for the costs of clerking and other administrative costs, and these costs shall be treated as a maintenance item for the purposes of section 15 of the Education Act 1944.").
The noble Earl said: My Lords, I beg to move the amendment standing in my name and the names of the noble Lords, Lord Henderson of Brompton and Lord Taylor of Blackburn. The question of the remuneration of school clerks was raised in Committee. I raised it again because I think that I put the case badly. Those seeking an assurance were not happy with the reply. School clerks, as I am sure the House and my noble friend will agree, are the essential core of school management. They play a

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vital part when recording minutes, advising governors of their statutory and other obligations and providing papers on time. Like so many sides of British life they receive little encouragement or financial support. Their duties and the amount of work required vary between small schools and large schools.
The purpose of the amendment is to ensure that clerks of voluntary-aided schools will receive proper remuneration for their services. At present there is a gap, because many of the voluntary-aided school clerks serve without remuneration. They are difficult to replace. The gap arises because local education authorities supply clerks to county schools as a statutory duty. They can supply clerks or offer payments to voluntary-aided schools in their discretion. Worry as to whether local education authorities will continue in that role has caused the amendment to be tabled.
At present some clerks of voluntary-aided schools receive a payment of £35 a meeting, which is awarded by the local education authority, whereas in a nearby school the clerk receives nothing. Against that background, and because at least 5 per cent. of voluntary-aided schools currently have no clerk, there is an understandable fear that despite the draft guidance clerks of voluntary-aided schools will in future not receive treatment equal to that received by those of county schools, as they clearly should.
The amendment seeks to give statutory backing to that provision. If that is not acceptable to my noble friend, a clear assurance that costs equal to those of county schools will be fairly met as a maintenance item under Section 15 of the 1944 Act would suffice. It is of course understood that those costs would be included in the school budget, but it is vital that the proper financial allowance is given to such costs so that the clerks' duties can be properly fulfilled. I beg to move.
Lord Morton of Shuna: My Lords, one of the results of giving each school its own governing body is that one increases the cost of looking after them and the need for clerking. It is obviously necessary that that clerking should be done properly. It is ludicrous to suggest that the clerk will perform his function for nothing or will do it efficiently for nothing. It is therefore appropriate that clerks should receive some payment. It is also appropriate that the additional cost should not necessarily fall on the education authority as the local taxpayer but should be a matter to be compensated under the grant arrangements from central government. When answering, I hope that the Government will take that point on board.
Baroness Seear: My Lords, I support the amendment.
Baroness Hooper: My Lords, as my noble friend Lord Trefgarne made clear in Committee, the Government fully share my noble friend Lord Kinnoull's view of the increasingly important role that clerks will have to play in the future. As governors take on more responsibilities, they will place a premium on good advice about their statutory
990
and other responsibilities and on the efficient organisation of their business.
I should point out, however, that the services of the clerk will be only one of the resources at the governors' disposal. As I have already described, my right honourable friend is proposing to make available substantial sums to assist LEAs and schools to implement their schemes of financial delegation. In particular, school governors will have access to advice from the LEA's own advisory unit; to in-school computer-based information; and to the services of school support staff. Most important of all, they will have access to the advice and experience of the head teacher. That will ensure a range of support for governors in the exercise of their new responsibilities.
The specific concern elaborated by my noble friend that county and voluntary schools should be treated equally is met in the guidance on financial delegation. This makes it clear that all maintained schools should be funded on the same basis. A school's allocation will depend mainly on the numbers of its pupils and their ages, so that schools with a similar composition should receive similar budgets. There will be no discrimination between county and voluntary schools. With your Lordships' permission, I will briefly read the relevant section of the guidance. Paragraph 55 states:
"The formula should allocate resources to all schools covered by the scheme on the same basis, including any delegated provision for administration and school support".
Administrative costs delegated by the LEA as the amount of central decision-taking falls will be passed on to voluntary as well as to county schools. Once such provision is delegated it will be up to schools themselves to decide how to spend it.
The administrative costs of all schools fall to be met by the local education authority. Therefore we believe that no amendment to the 1944 Act is needed to ensure that they can be covered by a scheme. Nevertheless the Government will consider carefully the cost of clerking when considering the form of the final draft of the circular, which is at this moment out for consultation. Bearing in mind these assurances, I hope that my noble friend will not press the amendment.
The Earl of Kinnoull: My Lords, I am grateful to those who have supported the amendment and to my noble friend for her assurance, which I am happy to accept. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Clause 30 [Replacement and variation of schemes]:
The Earl of Arran The Earl of Arran moved Amendment No. 157:
Page 27, line 14, leave out ("Subsection") and insert ("Subsections (4) and").
The noble Earl said: My Lords, these two minor amendments are designed to help local authorities introduce their schemes more simply and effectively. Clause 30, introduced at Commons Report stage, allows LEAs to make minor variations to their schemes without needing formal approval by the

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Secretary of State. This will assist in the development and further refinement of schemes which are likely to take place as authorities and schools gain more experience of delegation. These two further amendments are needed to ensure the effective functioning of this provision. I beg to move.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 158:
Page 27, line 25, after ("State") insert ("before the end of the period of two months beginning with the date on which he receives notification under subsection (7) above of the authority's proposal,").
On Question, amendment agreed to.
Lord Peston Lord Peston moved Amendment No. 159:
After Clause 30, insert the following new clause.
("Training for Governors, Heads and Deputies.
—(1) The Secretary of State shall as soon as practicable issue guidance, to which a local education authority shall have regard, for the purpose of securing that every governor of a school which is subject to a scheme of financial delegation, and every head and deputy head of such a school shall receive a course of training free of charge which will in the view of the authority enable them effectively to fulfil their responsibilities as a governor.
(2) The Secretary of State shall ensure that adequate resources are made available to an authority to cover the cost of the provision of the training referred to in subsection (1) above".).
The noble Lord said: My Lords, the Government have made clear—the noble Lord, Lord Trefgarne, spoke on the subject in Committee—that they are fully committed to the importance of training governors and providing some resources to do that. The noble Lord outlines various initiatives that the Government have carried out since the 1986 Act, so there is not a great deal between us on the substance.
Our view is that it seems odd for the Government to stop at that point and not write what they clearly agree with and think is of importance on to the face of the Bill. In bringing forward the amendment, we are in effect doing the Government's job for them. Since we last spoke on the matter it is possible that the Government have further consulted, or are planning to consult, local authorities. The Minister may therefore want to tell us about plan initiatives. We look forward to hearing that. I beg to move.
Baroness Carnegy of Lour: My Lords, my noble friend Lady Young, who intimated that she would not be present, thought that the amendment would probably fall. I am very glad that it has not done so, as the noble Lord, Lord Peston, has picked it up.
The training of governors is something that governors themselves will want very much in view of financial delegation, as will head teachers and assistant heads. There is no question of that. I know that the noble Baroness, Lady Young, is very keen on this. From her experience she is of the view that if this amendment or a similar amendment could be accepted it would be helpful to all concerned. I support the amendment.
Lord Dormand of Easington: My Lords, can the Minister indicate what form the training would take? I think all noble Lords are agreed that training is not only important but also essential. It occurs to me—I have clerked hundreds of governors' meetings from
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time to time—that the quality of training is fundamental.
At one level it could be done part time and at the other level a national institution—a college of some kind—could be set up specifically for the purpose. Given the turnover of governors, it may be worth considering the idea at some time. I hope that the Minister will be able to give us some idea of what the Government have in mind.
Baroness Hooper: My Lords, we went over this ground in Committee to some extent. However, I take the opportunity to reiterate that the Government see the training of governors as a vital part of delegation.
Section 57 of the 1986 Act requires LEAs to make available to governors, free of charge, such training as they consider necessary for the effective discharge of their functions. The information currently available indicates that most LEAs are already providing training for governors. We are doing some research into this. To take this forward, since 1986 a two-year specific grant has been funding pilot projects in 10 LEAs on the development of training strategies and material. In the light of the pilot projects, the Government have taken a number of further steps to secure the development of a coherent and effective training strategy for governors. I hope that this goes some way to answer the noble Lord, Lord Dormand.
First, they are grant-aiding the National Association of Governors and Managers to assist it in its national co-ordinating role. Secondly, they are proposing to support expenditure of almost £5 million in 1989–90 on the training of governors, aimed at ensuring that the governors of all maintained schools are offered appropriate training within a national framework. The level of support envisaged would allow each LEA, for instance, to employ a full-time adviser for the training of governors, as well as providing some ancillary support and materials.
Thirdly—and in some ways most importantly—the Government are actively publicising the role and function of governors in order to attract parents and other members of the community to take up the new opportunities and responsibilities opened up by the Bill. A great deal of interest is being expressed.
The training of governors for their responsibilities under schemes of delegation will be a key part of these initiatives. Paragraphs 69 and 70 of the draft guidance on financial delegation make clear that LEAs will be expected to set out the nature and extent of their training proposals in schemes as submitted to my right honourable friend for approval.
This will be a national requirement applicable to all LEAs; and it is my right honourable friend's intention to ensure that within a flexible timescale all LEAs adopt a consistent approach to providing all school governors with appropriate training in relation to financial delegation. LEAs will need to redirect their existing training programmes to take account of these needs, and the bulk of the specific grant for the training of governors is likely to need to be directed towards supporting them.

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Training will need also to cover other groups that will be responsible for making delegation work, including LEA officers and school administrative staff as well as governors and heads. Although as administrators these groups may require less extensive training than may some governors, it is nonetheless essential that they are properly prepared for their role. The funding that my right honourable friend proposes to make available has accordingly taken this into account. I trust that the noble Lord and my noble friend are reassured by what I have said as regards the Government putting into operation a clear and coherent training strategy. Therefore I hope that they will feel able to withdraw this amendment.
Lord Peston: My Lords, I am most reassured by the statement of the noble Baroness. However, I am a trifle puzzled by her logic because I think that she made the case for this amendment infinitely better than I did. It follows therefore that she should have accepted it. But I shall not press that point. I am reassured and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Delegation to governing body management of school's budget share]:
Baroness Seear Baroness Seear moved Amendment No. 160:
Page 27, line 37, at end insert—
("( ) Any governing body to which this section applies shall carry out its functions under the scheme in accordance with existing statutory duties in relation to race and sex discrimination, and any further policies in relation to equal opportunities published by the local education authority.").
The noble Baroness said: My Lords, I am sure we shall be told that this amendment is, to use the favoured word, otiose, in that it seems somewhat ridiculous to suggest an amendment which requires people to keep what is already the law of the land. There would be some substance in that argument.
However, I think it is worth while making some special reference to responsibilities in relation to race and sex discrimination in view of the excessively publicised and excessively unfortunate instances that have occurred in recent months in relation to race issues in schools, and also because of the fact that although many efforts have been made in schools to get rid of sex discrimination in the education system we know that it still remains. That is not by any means always the case or perhaps normally the case because of the attitude of the schools, but because of built-in cultural prejudices which are very difficult for the schools to eradicate.
The amendment would be otiose but for one argument. I remind your Lordships that local authorities have a responsibility, unlike other employers, specifically to promote good race relations. That requires them not to take reverse discrimination in any sense but positive action to promote good race relations. They should not, as we know from debates recently in your Lordships' House, take such action to promote sex equality but they should take action to remove racial discrimination.
As the schools in many cases are taking over employment responsibilities from local authorities, it is surely appropriate to argue that a similar responsibility should be placed on schools to promote good race relations, as has been the responsibility of local authorities under the Race Relations Act 1976. That is the justification for this amendment. I beg to move.
Lord Morton of Shuna: My Lords, I think we know that, under Clause 119, even if so minded the Secretary of State could not abolish the sex discrimination legislation because of Article 119 of the Treaty of Rome and because of Directive 75/117—I quote that from memory. But I am not
certain whether the Treaty of Rome covers racial discrimination. If it does not, the Secretary of State, under the terms of Clause 119, can modify any enactment and therefore can just abolish race legislation as regards certain types of schools. It would be quite inappropriate that he should be able to do so.
Lord Beloff: My Lords, I find the motives of the movers of this amendment understandable, but I find the amendment itself very peculiar in the light of what two of the movers have said. They talk about race discrimination, which is covered under existing legislation, and they then state in the amendment:
"any further policies in relation to equal opportunities published by the local education authority".
Equal opportunities in normal discourse now means equal opportunities for both sexes. It does not normally apply to race relations. I wonder whether the movers intended to include the directives of local authorities in respect of race relations. That would be a rather serious step to take, I should have thought, until we have the publication of the Burnage School Report. Some of the comments that have been made on the published parts—or leakages, if noble Lords prefer—suggest that it was the local authorities and not the statutory requirements which may have led that school into an erroneous course of action with the tragic consequences that we know of. It is perhaps a pity that the Secretary of State has not made up his mind to publish the report, but in the absence of that I do not think this amendment should be pressed.
8.45 p.m.
Baroness Hooper: My Lords, we touched on this theme in our earlier discussion. As I made clear then, and in Committee, the Government fully support the aim of ensuring equal opportunities in schools, both in relation to educational facilities and in relation to equality of employment opportunities. These are two separate issues which, with your Lordships' permission, I will deal with in turn.
The amendment seeks to ensure that desirable policies on equal access in the curriculum are safeguarded under financial delegation. The example might be given, for instance, of the need to encourage girls as well as boys to undertake applied subjects outside the scope of the national curriculum.
The Government are as clearly and firmly committed to desirable aims such as this as is anyone. For that reason, it will be open to LEAs to include

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guidelines on such matters as part of their schemes. Indeed, the draft guidance on financial delegation makes clear that LEAs will continue to have overall responsibility for setting the tone of education in their areas through their articulation of policies for the service, including curriculum policy, and through their role in co-ordinating national and local specific grant initiatives in particular areas.
But these guidelines will only apply to schools to the extent that they are part of a scheme as approved by my right honourable friend. For the LEA to be able to impose policies directly on schools as the amendment provides, without the need for approval, would leave it open to LEAs hostile to delegation to fetter schools' discretion with policies that neither the Government nor, I suggest, the proposers of this amendment would consider acceptable.
Moreover, the amendment carries the danger that LEAs will seek to use schemes as a vehicle for restricting the ability of the governing body under the 1986 Act to modify the LEA's curricular policy. The LEA might say that equal opportunities had to be presented through, for instance, a programme of anti-racist education with which the governing body disagreed. The 1986 Act would allow the governors to modify that policy, but with the application of this amendment that would not be possible. That is a step backwards from parental choice and the autonomy of schools.
Turning to staffing matters, governing bodies will of course be bound by the existing law on sex discrimination and race discrimination in selecting a candidate for employment or deciding on a dismissal, as we discussed earlier. So they will not be able to discriminate on grounds of sex or race. But they will not be bound by any extrastatutory policy on sex or race. That would be incompatible with the governors' responsibilities for staffing matters. The existing legislation will ensure that there is no discrimination by governors. It is essential to the aims and to the success of delegation that any decisions beyond that should fall to the governors themselves.
I realise that the noble Lord, Lord Morton of Shuna, wishes to draw me further on Clause 199, but we shall be coming to that in due course. As I promised earlier, there is a government amendment in relation to that clause. With that, I trust that the noble Baroness will feel able to withdraw her amendment.
Baroness Seear: My Lords, I thank the Minister for that reply. She knows very well that, despite the position of the law, nothing very effective is being done in a great many areas. The Minister did not comment on my point about the special responsibility of local authorities in relation to the promotion of good race relations. I entirely share the feelings of the noble Lord, Lord Beloff, about the Burnage Report. I too wish that it could be published as soon as possible. However, I do not think that that should enter too much into the decisions about this amendment.
We should decide whether governing bodies will have the same responsibility that is imposed on local
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authorities positively to promote good race relations. That is where local authorities differ from other employers as regards the 1976 Act. Will that responsibility be carried over to the governing bodies when they are responsible for the running of schools? It would be that which would justify this or a similar amendment. I see the point which the noble Lord, Lord Beloff, made about the last part of the amendment concerning the ability positively to promote.
The Minister and the Government accuse us of being extremely suspicious of the motives of the Government. However, the Minister and the Government Benches are remarkably suspicious of local government motives. Whenever we suggest that local authorities should do anything, we are served up the examples of extremely dotty local authorities which have behaved very badly. However, a great many local authorities do not behave in that way.
The point about which I am concerned is that of the special responsibilities of local authorities that are being transferred to governing bodies. If the Minister can reply to that point, I shall withdraw the amendment. I should like the matter to be on the record.
Baroness Hooper: My Lords, with the leave of the House, as I understand it that particular responsibility will not be transferred to governors. It remains with local authorities.
Baroness Seear: My Lords, that is regrettable. Local authorities have a special responsibility in the matter and the effectiveness of the race relations policy will be diluted by the transfer of the responsibilities of the local authorities to governing bodies. However, I have made my point and it is on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 161 had been withdrawn from the Marshalled List.]
Clause 32 [Withdrawal of delegation]:
[Amendments Nos. 162 and 163 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 164:
Page 28, line 32, at end insert (";and a copy of the notice shall be given to the head teacher of the school at the same time as the notice is given to the governing body.").
On Question, amendment agreed to.
[Amendments Nos. 165 and 166 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 167:
Page 29, line 2, after ("concerned") insert ("and the head teacher of the school").
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 168:
Page 29, line 4, after ("body") insert ("or the head teacher").
On Question, amendment agreed to.
[Amendments Nos. 169 and 170 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 171:
Page 29, line 7, after ("concerned") insert ("and the head teacher").
On Question, amendment agreed to.
Clause 33 [Schemes: determination of budget shares]:
[Amendment No. 172 not moved.]
Lord Peston Lord Peston moved Amendment No. 172A:
Page 29, line 39, leave out ("may") and insert ("shall").
The noble Lord said: My Lords, Amendment No. 172A is grouped with Amendment No. 173. With the leave of the House, I shall speak to both amendments. The meaning of the amendments is obvious. To take over the remarks of noble Lords on the opposite side of the House yesterday, Amendment No. 173 contains words which I believe are implicit in subsection (3)(b). Unlike noble Lords opposite, I have no objection to making the meaning explicit, if only for the sake of emphasis.
Much more fundamental is Amendment No. 172A, which would replace the word "may" with the word "shall". It is of the essence that in setting up these schemes provision must be made for taking into account such factors, and most notably the one which the Minister has mentioned. I regard the matter as being extremely serious. This is precisely the area where it should be obligatory to take such factors into account. The choice of the word "shall" is the essence of the amendment. That does not dilute my enthusiasm for the explicit statement made by the Minister. I hope that that will enable her to accept my amendment, which achieves the end which we must all have in mind. I beg to move.
The Earl of Arran: My Lords, concern has rightly been expressed that facilities for pupils with special educational needs should be safeguarded under schemes of financial delegation. As my noble friend made clear in Committee, the Government fully share that aim. The draft guidance issued by my right honourable friend makes it clear that LEAs will be expected to take account of special needs in their formula for allocating resources between schools.
Nonetheless, the Government recognise the force of the arguments put in Committee that there should be an explicit recognition of the position of special needs on the face of the Bill. This amendment provides this, by specifying special needs as a factor which may be taken into account in the resource allocation formula. Together with the clear requirement set out in the draft guidance, this amendment will ensure that LEAs must provide through their formula for variations in the numbers and provision required for pupils with special needs. I very much hope that the House will welcome that as a further and explicit statement of the Government's aims in this area.
Turning to Amendment No. 172A, as I have already indicated, the requirement set out in the draft guidance will make it a condition for approval of schemes that variations in special needs between schools should be taken into account in the LEA's formula. But it would not be appropriate to translate the provisions of the guidance directly into legislation. The term "special needs" falls to be read with the definition in the Education Act 1981. Although Section 1 of that Act contains a clear definition of a pupil with special educational needs, that definition would not help those locally who
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would have to decide what particular weightings should be taken into account in respect of individual children with special needs. That will depend on a range of locally-defined indicators. To include a mandatory requirement for these needs to be taken into account in the formula might leave LEAs open to constant challenges that they had not taken special needs into account in a particular case. I do not believe that is in the interests either of schools or of the pupils themselves.
These points apply even more to the mandatory inclusion in the formula of any unspecified "relevant" factor, as is implied by the amendment. Such a provision would lead to pressure on the LEA to take account of each and every minor variation between schools, regardless of its significance. That could lead to elaborate and over-complex formulae, without necessarily adding to the fairness of the scheme.
I hope that the noble Lord will therefore accept that, in this difficult area, the amendment which the Government have put forward is the best way of ensuring that pupils' needs are provided for explicitly and effectively.
Lord Peston: My Lords, for the second time during the course of the Report stage of this Bill the noble Earl has gone over my head. I do not follow him. He used the expressions "will be expected", "will ensure" and "should be". So far as I am concerned, all of those words are as good as "shall". I therefore cannot see where the words occur. If they do not occur in the Bill, how do we know that such matters will be ensured, how do we know that they should be and how do we know that they are expected?
I very much want to accept what the noble Earl has said. Perhaps he is in a position to add something. I do not think that I am being totally obtuse at this hour of the night. However, I feel from some of the things that he has said that there is nothing between us. Perhaps the noble Earl can add to his remarks.
The Earl of Arran: My Lords, I do not think that the noble Lord, Lord Peston, is being obtuse about the matter. However, I hoped that I had made it quite clear that we do not think that the amendment is necessary and that what he is after is already covered.
Lord Peston: My Lords, in that case I am fully prepared to take the noble Earl's view on this matter since he has placed it on record. It is with pleasure that I do not press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hooper Baroness Hooper moved Amendment No. 173:
Page 29, line 41, at end insert ("(including, in particular, the number of registered pupils at a school who have special educational needs and the nature of the special educational provision required to be made for them).").
On Question, amendment agreed to.
[Amendment No. 174 not moved.]
9 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 174A:
Page 30, line 6, after ("description") insert—
("( ) expenditure on local education authority support services for special educational needs including a schools psychological service, child guidance services, education welfare service, and peripatetic teaching and advisory services;").
The noble Baroness said: My Lords, I do not know whether at Report stage one can table a probing amendment, but I believe there is a great deal of confusion over the position with regard to support services for schools which have opted out.
I should like to deal first with the support services provided by education welfare officers. As I understand it, education welfare officers—and I have worked very closely with them—have three roles. First, it is the role of the education welfare officer to see that children attend school. It is their business to enforce the 1944 Act and ensure that every child of school age has the education appropriate to his age, aptitude and special education needs.
Secondly, it is the role of the education welfare officer to monitor the employment of children. If a child wants to do a paper round or to work in the mornings or evenings he has to be registered by the education welfare officer to carry out that work. If he does more work or longer hours than specified it is illegal and it is for the education welfare officer to look into the matter.
Thirdly, he has the role of co-ordinating the work of the education psychologist and the child guidance clinic. He also is responsible for putting together papers in order to make recommendations, for example, for a special school or a residential school and for finding the right school for individual children.
I am not sure how that will be managed under the Bill. I am very grateful to my noble friend the Minister who wrote to me on 9th June concerning support services and the question of money. She said in her letter:
"The precise level of resources allocated to these services from an authority's education budget will, as now, be a matter for the authority itself to decide".
What is the role of the education welfare officer in an opted-out school? Can he go into the school? Does the school have to buy the services of the education welfare officer? If a child is not attending school and the school does nothing about it, whose business is it to take the case to court? Under Circular 2/86 issued on 10th February 1986 the first paragraph states that it is the responsibility of local education officers to provide support services for those children not attending school and where necessary to take court action.
Therefore the position is rather confusing at the moment. What is the position of the opted-out schools where children are contravening the law relating to non-school attendance? Who deals with it?
I should say that I have worked very closely with education welfare officers. They have been my colleagues. They are very concerned, first, as to their own position in the education service and, secondly, about the position concerning children in schools which have opted out.
I should also like to raise the question of the child guidance service. I have been fortunate enough to work in three child guidance clinics of some note. A child guidance clinic has a team of three people—a psychiatrist, a psychologist and a psychiatric social worker. It is an expensive service but it does a great deal of very good work. It is through the child guidance clinic that children are very often recommended for treatment or for schools for maladjusted children, and an enormous number of children who have been abused are referred to child guidance clinics.
The children who are referred to child guidance clinics are very complicated cases. Those cases require very well-trained people and they require the full team. The psychologist and the psychiatrist need the help of the psychiatric social worker just as much as the psychiatric social worker needs the psychiatrist and the psychologist.
When a child who has been abused attends a grant-maintained school which has opted out, what happens in respect of the child guidance service? What is the position with respect to the social workers? At the moment there is confusion in the country about the position of the social workers. I understand that in London the psychiatric social workers are employed by ILEA. Therefore they will in future be employed by the local authorities. Two problems arise from that. First, do opted-out schools have to pay for the child guidance service if they require that service? Secondly, a number of local authority social services departments are very short of social workers. Already local authorities' social services departments are saying that when ILEA goes they will be able to transfer the psychiatric social workers to work in the offices of the social services department, thus depriving the child guidance clinics of their psychiatric social workers. That is a very serious situation.
So I am worried on two counts: how do schools which have opted out obtain the services of a psychiatric social service, and what happens to the psychiatric social workers in the local authorities? I shall now talk only about London. There are complications and difficulties in the rest of the country but we are dealing at the moment only with London.
As regards the support services, there seems to be confusion as to how they are to be funded and how the co-opted schools are to use them, if at all. I have to underline, as I did earlier, that there are legal obligations. There is a legal obligation for children to attend school, and it is the legal duty of the education welfare officer to deal with the matter. I still do not see how this situation will work out.
Obviously I do not intend to put this matter to a vote, because I do not fully understand the situation. For the sake of both the child guidance clinic service in this country and the education welfare officers I wanted to have this issue aired on the Floor of the House so that they would understand their position.
There is also the school psychological service, the peripatetic teaching and the youth service. I am not in a position to speak about the psychological service

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or the peripatetic teaching, but my noble friend Lord Ritchie of Dundee will speak on those aspects. I beg to move.
Lord Ritchie of Dundee: My Lords, I should like to speak briefly about the psychological service and the peripatetic teaching. At the outset I think I should clear up a slight confusion that has arisen. I believe that we are talking about schools under local financial management and not opted-out schools—or are we not? I am not quite sure whether the situation with the opted-out schools and grant-maintained schools is the same. I think it is not. Anyhow, at the moment we are talking about schools under local financial management.
The psychological service is a very important one in schools. Should a child be in difficulty, he or she can be sent to the service which is offered by trained educational psychologists who will assess the child and discover the area of difficulty. That is what one might call a modern scientific approach. Nowadays we do not wallop children if they do not get on well or send them outside to the playground until the lesson is over. We attempt to find out what is wrong and recommend the right, helpful approach and the appropriate remedial treatment. That is the job of the psychological service. We diagnose first and then prescribe.
In the case of a child who is having difficulty, it is very likely that he or she needs some special help. That help is provided by the peripatetic teaching service—teachers who are specially trained in remedial work who go round schools and offer their help to these children. Nowadays the help that they give to the children is usually in class. They will sit side by side with the child and help with the classwork. They also perform the very important service of advising teachers. When they have an idea of a particular child's problems they will explain those problems to the ordinary teacher of that child and suggest approaches that the classroom teacher can make. Those services are essential.
Another point that I have tried to make many times is that if we want to raise our educational standards we must give our attention to the children who are falling behind. It is a vital part of the problem. If something like 20 per cent. of the country's children are on the way to school failure, they must be helped and they are helped in this way.
We are concerned about schools which have responsibility for their own budgets. We feel that these services should continue to be available and that the expense of them should not form part of the school budget. Otherwise there is a danger that the services will be skipped and the school will say, "We have to make both ends meet. We cannot afford to keep sending children to psychologists or continually bring in specially qualified teachers for them".
The problem is that children who have special educational difficulties are not cost-effective. Schools which all the time are thinking about making both ends meet may feel that they have an unmarketable product. They are labour intensive. I feel that it is very important that the funds which are necessary to provide this service should remain centrally so that
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schools which are managing their own budgets have that service without having to pay for it. I support the amendment.
Baroness Hooper: My Lords, I recognise my noble friend's knowledge and experience in this area, as I do that of the noble Lord, Lord Ritchie of Dundee. But I had hoped that my noble friend Lord Trefgarne had made it sufficiently clear in Committee that the Government are fully committed to securing that the support services necessary for the effective delivery of education to pupils with special needs should be preserved under schemes of delegation.
The draft guidance issued makes it clear that schemes will need to make suitable provision for pupils with special needs. Paragraphs 38 to 41 of that guidance provide for local education authorities to have discretion to exclude the costs of specialist support services from delegation where they consider that that will lead to more effective targeting of the needs of individual pupils. That would include the school's psychological service, the peripatetic teachers, and indeed the other services mentioned in the amendment. The local education authority has responsibility to satisfy itself about a pupil's school attendance in its area and that applies irrespective of the type of school which the pupil is attending, whether it be county, voluntary-aided or, in the future, possibly grant-maintained. But of course we return to this aspect when we deal with grant-maintained schools.
The current responsibilities of the Inner London Education Authority, to which my noble friend referred, for providing such support services will be transferred to the individual inner London boroughs following abolition. The draft guidance we have issued on the organisation of education in inner London makes it clear that boroughs should include the organisation of support services in their development plans; and provision for those services will be included in their budgets together with that for other education services.
I hope that with those assurances my noble friend and the noble Lord, Lord Ritchie, will be able to withdraw their amendment.
Baroness Faithfull: My Lords, I thank the noble Lord, Lord Ritchie, for having supported the amendment. I thank the Minister for her explanation. The cause of worry is that in the letter which she so kindly wrote to me, she said:
"The precise level of resources allocated to these services from an authority's education budget will…be a matter for the authority itself to decide".
One cannot therefore say absolutely categorically that these services will continue to give the service that is required of them. That is the point that has worried us.
However, we have aired the situation and I am sure that the Minister will take note of what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Clause 34 [Schemes: provision for financial delegation]:
The Earl of Arran The Earl of Arran moved Amendment No. 175:
Page 30, line 16, after ("year") insert ("which falls before the beginning of that year; or
(b) falls in accordance with the scheme to be regarded as qualifying for delegation in respect of that year on the assumption that, if a forecast made in accordance with the scheme of the number of registered pupils it will have on a qualifying date in relation to that year which falls within that year proves to be correct, it will satisfy the qualifying condition on that date;").
The noble Earl said: My Lords, in moving Amendment No. 175, I should also like to speak to Amendments Nos. 177 and 178.
This is a technical amendment. It makes it clear that LEAs will be able to use either latest actual numbers or forecast pupil numbers in determining whether a primary school qualifies for delegation under the scheme. As currently drafted, Clause 34 allows only actual pupil numbers to be used. However, some LEAs may wish to use forecast pupil numbers as a better indicator of the position of the school over the following year, and the amendments provide that flexibility.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 176:
Page 30, line 35, leave out from ("school") to end of line 37 and insert ("is subject to section 35 of this Act in the case of any school to which that section applies")
The noble Earl said: My Lords, in moving Amendment No. 176, I should like to speak to Amendments Nos. 179 to 183 inclusive.
These are technical amendments. As currently drafted, Clause 35 of the Bill allows delegation to be phased in over a three-year period for schools covered by a scheme in its first year. It does not, however, allow delegation to be phased in for a qualifying school which comes into the scheme in its second or third year of operation. This could lead to a school covered by the scheme in 1990–91 receiving a delegated budget from April 1993, while a school coming into the scheme in 1991–92 would have to receive its delegated budget immediately.
The amendments correct that by allowing phasing for any school coming into the scheme within an initial period of three years. All qualifying schools will then be required to receive delegated budgets from April 1993 at the latest. The amendments will provide greater flexibility for LEAs and schools in the key initial period of schemes. I beg to move.
Earl Russell: My Lords, one point arises here which I hope is worth a minute of your Lordships' time. I am referring to the provision of a budget for a financial year. That is not a year under which a school operates. This is a difficulty which is familiar in some parts of the academic world. It is likely to become more serious when the size of a school's enrolment is likely to vary considerably from one part of the financial year to another. This is a possible cause of budgetary instability, anxiety and confusion. I should welcome some assurance that the point has come to the Government's attention.
The Earl of Arran: Yes, my Lords. The noble Earl, Lord Russell, is quite right. Indeed, that fact has come to the Government's attention.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendments Nos. 177 and 178:
Page 30, line 48, after ("condition") insert ("or, in the case of a school to which that requirement applies by virtue of any povision made under subsection (2)(b) above, either fails to reach or falls below that number").
Page 31, line 11, leave out ("if it satisfies the qualifying condition on a qualifying date in relation to") and insert ("in respect or).
On Question, amendments agreed to.
Clause 35 [Initial implementation of delegation requirements under schemes]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 179 to 183:
Page 31, line 39, leave out subsection (1) and insert—
("(1) The delegation requirement under a scheme shall not apply in relation to any school which comes within the scheme in any financial year falling within the scheme's initial period until a date specified in the scheme.
(1A) For the purpose of this section, a scheme's initial period (subject to any order made under subsection (3) below) is the period of three years beginning with the date on which the scheme comes into force.").
Page 31, line 46, after ("school") insert ("and in relation to schools coming within the scheme in different financial years or at different times within the same financial year,").
Page 32, line I, leave out from first ("the") to end of line 3 and insert ("beginning of the financial year next following the end of the scheme's initial period").
Page 32, line 8, leave out from ("extend") to ("until") in line 9 and insert ("any scheme's initial period").
Page 32, line 10, at end insert—
("(3A) For the purposes of this section, a school—

(a) comes within a scheme in any financial year if that financial year is the first financial year in which the school is required to be covered by the scheme; and

(b) comes within the scheme at the beginning of that year if it is then a school required to be so covered and otherwise at the time within that year when it first becomes such a school.").

On Question, amendments agreed to.
Clause 37 [Publication of schemes and financial statements, etc.]:
Baroness Hooper Baroness Hooper moved Amendment No. 184:
Page 32, line 42, at end insert—
("(bb) such particulars as may be prescribed of amounts deducted in respect of—

(i) excepted heads or items of expenditure; or

(ii) excluded expenditure under the scheme; in arriving at the amount specified in the statement by virtue of paragraph (b) above;").

On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendments Nos. 185 and 186:
Page 33, line 4, after ("number") insert—
("(ee) in the case of each such school, the planned expenditure per pupil arising from the division by the initial pupil number of so much of the authority's excluded expenditure under the scheme (as so determined) as is appropriated by the authority for meeting expenditure for the purposes of the school;
(ef) in the case of each such school, the amount of any expenditure of a capital nature planned for the purposes of the school;").
Page 33, line 19, leave out ("each school required to be covered by the scheme") and insert ("all schools required to be covered by the scheme; and,
(b) expenditure so incurred which was incurred, or is treated by the authority as having been incurred, for the purposes of each such school;").
On Question, amendments agreed to.
[Amendment No. 187 had been withdrawn from the Marshalled List.]
Baroness Hooper Baroness Hooper moved Amendment No. 188:
Page 33, line 31, leave out from ("school") to end of line 33.
On Question, amendment agreed to.
Clause 38 [Financial delegation to governing bodies of special schools]:
The Earl of Arran The Earl of Arran moved Amendment No. 189:
Leave out Clause 38 and insert the following new clause:
("Application of schemes to special schools.
—(1) The Secretary of State may by regulations provide for requiring or authorising schemes—

(a) to cover special schools maintained by local education authorities; and

(b) to include provision. in the case of any such school which by virtue of any regulations made under paragraph (a) above is required or authorised to be covered by a scheme, for the delegation by the authority concerned of the management of the school's budget share for any financial year to the governing body of the school.

(2) Regulations under this section—

(a) may make in any provision of this Chapter such amendments as appear to the Secretary of State to be required in consequence of any provision made in those regulations by virtue of subsection (1) above; and

1006

(b) may provide that any scheme shall have effect with such modifications as appear to the Secretary of State to be appropriate in consequence of any provision so made.").

The noble Earl said: My Lords, this amendment is designed to ensure that LEAs have the flexibility, where they wish, to include special schools as part of their schemes. The existing Clause 38 provides for the Secretary of State to require delegation to special schools by regulations. But as my right honourable friend has made clear in his draft guidance, he does not intend to make such regulations until there is more experience of voluntary delegation by LEAs. It is therefore desirable that LEAs should have the freedom, where they consider it appropriate, to extend delegation voluntarily to special schools.
The provisions will allow individual special schools to be treated differently, in recognition of their widely different needs and characteristics. It would be open to LEAs under the regulations to decide which individual special schools, if any, should be included in the scheme. The regulations would also serve to disapply requirements of this chapter which would not be appropriate for special schools. In particular, my right honourable friend envisages that the application of the resource allocation formula will need to be different for special schools, to take account of the specific nature of their needs.
These provisions are permissive. Regulations made under them will only be made after more experience of delegation and extensive consultation. I hope the House will support the aim of providing more flexibility, and accept the amendment. I beg to move.
On Question, amendment agreed to.
9.30 p.m.
Clause 39 [Staff employed by the local education authority]:
[Amendment No. 190 not moved.]
Lord Peston Lord Peston moved Amendment No. 191:
Page 34, line 11, at end insert ("except in relation to the appointment or dismissal of a head teacher under subsection (2A) below").
The noble Lord said: My Lords, I am speaking also to Amendments Nos. 192, 196, 197 and 204. The amendment is predicated on the importance of the head teacher, which I believe we all agree on. If we did not, the noble Baroness, Lady Carnegy, would certainly remind us—as she has already—about that. There is no argument about the role of the head teacher.
What divides us—it relates to something that the noble Earl, Lord Arran, raised earlier—is our attitude to local financial management and whether it ought to take place, as he has argued (I take it that this is the Government's view) á outrance, so to speak, that it is recognised as a risky strategy. In a sense, the Government are saying that they are willing to take the risks. What I argued earlier apropos another type of amendment was that I believed that in one or two cases the Government should exercise caution. This approaches the same notion of caution from another direction.
I should like to repeat a point that I made earlier. It is that we favour local financial management. We believe that it has a democratic role and that it has a constructive role within education. That is not the issue between us. The point is whether the á outrance principle ought to apply. I am bound to say that I am less than convinced.
The decision on the head teacher is crucial. Moreover, it is not a short-period decision. The head teacher one has is the head teacher one will have for a long period of time, despite all that has been said about other procedures one may deal with. Anyone with any experience of education knows that the person one appoints will be there for a long time; at least at their option and not necessarily yours. It is a vital and long-run decision in every way.
The question which arises is this. Is it obvious that the governors of the local financially-managed school, many of whom are inexperienced (and we recognise that because we have discussed the training aspects) should take that decision on their own? My view is twofold. First, it is not obvious that they should. Secondly, I am convinced that it is risky. I am aware that the noble Earl has already said that is a risk he is willing to take; but I utter a word of caution.
We have tabled the amendment in this form—namely, that the way to reduce the risk would be to see local authority involvement—because it appears to be obvious. I have thought over the subject to see whether there is any other way in which advice or help can be given to the governors which would minimise the risk I have in mind. Almost everything else I can think of appears to be even more bureaucratic and I cannot find another way. Therefore I commend the amendments to your Lordships.
I may be accused of slight cowardice in not adopting the Government's position on this matter, but I do not believe that I am mistaken in wanting to hesitate. I believe that these are important amendments and I look forward to hearing a reasoned response. I have already had the response that the Government like total local financial management, full stop. I am not looking forward to hearing that response but to hearing more about the matter. I am interested to hear what noble Lords think of the amendment.
Earl Baldwin of Bewdley: My Lords, the noble Lord, Lord Peston, has admirably covered the main point in arguing for continued LEA involvement in appointing heads. I can only confirm from my own experience the wisdom of what he said. Interviewing is a skilled and difficult business. It is also one of the most important ingredients in the life of a school because the wellbeing of generations of children can depend upon it; make no mistake about that.
In recent years it has come very much under the spotlight in education. There have been research projects reviewing existing practice and looking for better ways of selecting senior staff. LEAs have been building up expertise in the field for some time; governing bodies have not. How could they when the appointment of a head teacher comes perhaps once in the lifetime of the average governor? The chief education officer can play his part at the interview but it needs much more than that. The proposal is not to outnumber the governors but to complement what they have to offer. They will still retain the last word.
Experienced outsiders can sometimes see better than insiders what a school needs at a particular moment. They will have seen other schools at work. Governors will not so easily appreciate how things could or should be different. There is often a temptation to take a local view and go along with internal pressures when something a little less comfortable is needed for the long-term good of the school. County councillors will probably have encountered candidates at other interviews and will already have the measure of some of them; governors will not.
Speaking for myself, there are few activities that I have found so stimulating and rewarding as taking part in interviews for heads of schools. There are few activities where I have been more conscious of the need for experience and practice. Let us not throw away the fund of expertise in this crucial area. Much professionalism is being thrown out of the window or, at best, marginalised by this Bill for the so-called raising of standards. Let that not happen here of all places. I join with the noble Lord, Lord Peston, in asking your Lordships to support the amendment.
Baroness Hooper: My Lords, we fully accept that the selection of the head teacher of a school is a very important matter. Nothing is mote important to a school than the quality of the head. The relationship between the head teacher and the governing body is crucial to the success of the school, and will be even

1009
more so under financial delegation with the increased independence which that brings. A high level of respect and trust will be needed if the governors and the head are to be able to fulfil their important responsibilities. We therefore believe that it is appropriate that for schools with financial delegation the governors, as a body, should select the head. The amendments will mean continuing the type of arrangements required under the 1986 Act, and that I recognise. We feel that these arrangements are unsuitable for schools after the arrival of financial delegation.
Interviewing is a skilled and difficult business and in that I agree fully with the noble Earl, Lord Baldwin. In making their selection, governors will have the benefit of professional advice. They will have the advice of the CEO or his representative available at all stages in the process. Indeed the CEO will have a statutory duty to provide advice, with the governors being under a statutory duty to consider that advice. The CEO or his representative will have a right to be present throughout the proceedings. In addition the LEA nominees who are represented on the governing body as a result of the 1986 Act will have an opportunity to express their views.
The governing bodies of aided schools have always selected their own head teachers. We believe that the governing bodies of county, controlled and special agreement schools with financial delegation should also be able to select the head. I hope that the noble Lord, Lord Peston, will feel able to withdraw these amendments.
Lord Peston: My Lords, with regret I am not convinced. We disagree fundamentally on this. I feel that we could do with a walk through the Division Lobbies. Therefore, I wish to press my amendment.
9.33 p.m.
On Question, Whether the said amendment (No. 191) shall be agreed to?
Their Lordships divided: Contents, 22; Not-Contents, 57.

DIVISION NO. 3

CONTENTS

Airedale, L.

Morton of Shuna, L.

Baldwin of Bewdley, E.

Nicol, B. [Teller.]

Blackstone, B.

Peston, L.

Cobbold, L.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Dormand of Easington, L.

Ritchie of Dundee, L.

Elwyn-Jones, L.

Russell, E.

Fitt, L.

Seear, B.

Goodman, L.

Serota, B.

Houghton of Sowerby, L.

Tordoff, L.

Longford, E.

Underhill, L.

McNair, L.

NOT-CONTENTS

Ampthill, L.

Borthwick, L.

Arran, E.

Broadbridge, L.

Auckland, L.

Brookeborough, V.

Balfour, E.

Brougham and Vaux, L.

Beaverbrook, L.

Caithness, E.

Beloff, L.

Cameron of Lochbroom, L.

Belstead, L.

Carlisle of Bucklow, L.

Blatch, B.

Carnegy of Lour, B.

1010

Carnock, L.

Mersey, V.

Carrick, E.

Monckton of Brenchley, V.

Cork and Orrery, E.

Mountgarret, V.

Cox, B.

Rankeillour, L.

Davidson, V. [Teller.]

Reay, L.

Donegall, M.

Redesdale, L.

Donoughmore, E.

Renton, L.

Dundee, E.

Rootes, L.

Eden of Winton, L.

Saltoun of Abernethy, Ly.

Faithfull, B.

Sanderson of Bowden, L.

Ferrers, E.

Skelmersdale, L.

Harvington, L.

Strange, B.

Henley, L.

Sudeley, L.

Hives, L.

Swinfen, L.

Home of the Hirsel, L.

Swinton, E.

Hooper, B.

Teviot, L.

Johnston of Rockport, L.

Trafford, L.

Joseph, L.

Trefgarne, L.

Long, V. [Teller.]

Tryon, L.

Lothian, M.

Vaux of Harrowden, L.

Lucas of Chilworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.40 p.m.
[Amendment No. 192 not moved.]
The Earl of Arran The Earl of Arran moved Amendment No. 193:
Page 34, line 14, at end insert ("and").
The noble Earl said: My Lords, in moving Amendment No. 193, I wish to speak also to Amendments Nos. 194, 208, 215, 119, 180 and 27. This group of amendments may appear to be complicated. The aim, however, is simple and straightforward. It is to ensure that the governors of newly-established schools have the same freedom as those of established schools to determine the education needs and priorities of their schools. Indeed, this may be even more important for new schools, since decisions taken at this early stage will determine the school's character for the foreseeable future. This will be particularly vital for decisions about the school's most vital resources; namely its head teacher and staff.
It is important that where a school is not yet open to pupils but has premises and is incurring expenditure the temporary governing body should have access to a delegated budget to meet that expenditure. The amendments will allow LEAs to phase in delegation to new schools in recognition of the fact that temporary governing bodies are unlikely to incur expenditure from the date of the LEA's reorganisation proposal.
For staffing, however, different considerations apply. The process of appointing staff, particularly the head teacher, may begin as soon as a proposal is approved. It is important that the temporary governing body should have delegated powers over staffing from that date. The new schedule therefore provides that any school which is to receive a delegated budget under the scheme should receive delegated powers over staffing as soon as a temporary governing body is constituted for it.
I hope that your Lordships will accept the intention behind these amendments of extending delegation as early as possible to new schools. I commend them to the House. I beg to move.
Lord Morton of Shuna: My Lords, I am slightly puzzled by the numbers in the group of amendments that were read out. I thought that this group included Amendments Nos. 193, 194, 208 and 215. The noble Earl read out Amendments Nos. 119, 180 and 27. I know that the Government do not believe that we are going fast enough, but I did not realise that we were going backwards. Can I take it that we are discussing only the four amendments and not the others?
The Earl of Arran: My Lords, yes, we can.
Lord Morton of Shuna: My Lords, it seems slightly strange that the Government have only woken up at Report stage in the second House to which this Bill has gone to the fact that occasionally a new school is opened. So be it. I find it interesting that the appointment of staff by the new temporary governors is to take immediate effect. That is within the logic of the proposals of the Government. However, it is very strange that the temporary governors are not to be allowed responsibility for buying the books and pencils because that may be too much for them (and not because they are not allowed to manage the budget) but they are to choose the staff, including the head teacher. That is an odd way of doing it. I do not wish to delay the House. In principle we have no objection to these proposals but it seems that logic has flown slightly out of the window.
9.45 p.m.
Earl Russell: My Lords, before the House is asked to say "Content" to these amendments, may we be told why they were not in the Bill when it was first published?
The Earl of Arran: My Lords, they are purely tidying-up amendments to make quite sure that the Bill is as comprehensive as possible.
Earl Russell: My Lords, I accept that they are tidying-up amendments. May we know why the Bill was not tidy?
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 194:
Page 34, line 17, leave out from ("(5)") to end of line 24.
On Question, amendment agreed to.
[Amendments Nos. 195 to 198 not moved.]
The Deputy Speaker (Lord Renton): My Lords, before I call Amendment No. 199 I must point out that if it is agreed to, I cannot call Amendment No. 200.
Baroness Hooper Baroness Hooper moved Amendment No. 199:
Page 34, line 35, leave out subsection (4).
The noble Baroness said: My Lords, in moving Amendment No. 199 I should like to speak also to Amendments Nos. 209 and 213. These again are technical tidying-up amendments. The first two delete two subsections which are superseded by the provisions proposed in the third amendment.
1012
Together their effect is to make clear our intentions on the question of the payment of compensation to staff who leave a school either through early retirement, because they are dismissed, or because they agree to resign. The amendments make that clear on the face of the Bill. I beg to move.
Lord Morton of Shuna: My Lords, in this group of amendments there is Amendment No. 200, which will disappear if Amendment No. 199 is agreed to. This debate reflects a discussion we had in Committee when it was argued that the word "costs" did not include the question of part of the costs. I think it was the noble Lord, Lord Trefgarne, who agreed to take it away and look at it. I may be wrong as to who agreed to take it away, but somebody on the Government Front Bench did so. I am pleased, ever. though it was unacknowledged, that my amendment has in fact appeared in Amendment No. 213, because it refers to "part of those costs". I am grateful that on one occasion the Government have taken some account of what I have said. It is a pity that they did not notice that they were doing so.
Baroness Hooper: My Lords, we did indeed, and I am only too happy to notice that the noble Lord is sufficiently alert to realise that we had responded to the concern expressed both by the noble Lord, Lord Irvine of Lairg, and the noble Lord at a previous stage.
On Question, amendment agreed to.
[Amendment No. 200 not moved.]
Baroness Seear Baroness Seear moved Amendment No. 201:
Page 34, line 42, at end insert—
("(4A) Costs incurred by the local education authority concerned which arise from a determination or judgment under provisions of the Equal Pay Act 1970 or the Sex Discrimination Act 1975 concerning any member of staff of any such school shall not be met from the school's budget share for any financial year unless the authority have good reason for deducting those costs, or any part of those costs, from that share.").
The noble Baroness said: My Lords, this amendment arises from a long discussion we had earlier. Whether or not it was fully taken on board by the Government I do not know. The amendment seeks to ensure that where an offence under the Equal Pay Act leads to a cost, that cost should be borne by the local authority and should not be taken out of the money of the school. As we have said repeatedly, the local authority is the legal employer, and therefore it would be quite unfair that any fine or damages arising under the Act should be charged against the money of the school and not against the local authority which is the employer. I beg to move.
Baroness Hooper: My Lords, I trust that the House will accept that the reasons I gave while discussing Amendment No. 214 earlier this evening are the same in respect of this amendment and therefore the explanation applies equally here.
Baroness Seear: My Lords, I thank the noble Baroness for what she has said. However, I am not sure whether she has accepted the amendment.
Baroness Hooper: My Lords, no; I have not.
Baroness Seear: My Lords, very well. In those circumstances I shall not take the matter to a vote. But I must say that I am not in the least surprised as this is standard form, is it not? Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran The Earl of Arran moved Amendment No. 202:
Page 35, line 5, leave out subsection (6).
The noble Earl said: My Lords, in moving Amendment No. 202 I should like to speak also to Amendments Nos. 211 and 221. These amendments are largely technical. They are designed to make it clear that in cases where the articles of government of a school conflict with the requirements of a scheme, the scheme takes precedence. Since the articles are the main working documents used by governors, the amendments require a statement specifying the nature and extent of any inconsistency to be included within them. Similar provisions are already made by Clause 39(6) and Clause 40(12) in relation to staffing, and these amendments complement them. I beg to move.
On Question, amendment agreed to.
[Amendment No. 203 not moved.]
Schedule 2 [Appointment and dismissal of school staff, etc.,]:
[Amendments 204 to 207 not moved.]
The Earl of Arran The Earl of Arran moved Amendment No. 208:
After Schedule 2 insert the following new schedule:
("SCHEDULE 2A
NEW SCHOOLS
New county and voluntary schools: general
1.—(1) This paragraph applies to any new school other than one which will be a special school.
(2) For the purposes of the application (in accordance with the following provisions of this Schedule) of any provisions of Chapter III of Part I of this Act and Schedule 2 to this Act in relation to such schools—

(a) references to a school conducted by a governing body shall be read as including references to a new school which has a temporary governing body (and other references to the governing body of a school shall be read as including references to the temporary governing body of a new school);

(b) references to a county or voluntary school maintained by a local education authority (or to county or voluntary schools) shall be read as including references to a new school which on implementation of the relevant proposal will be a county or voluntary school so maintained; and

(c) references to a voluntary school of any particular category shall be read as including references to a new school which on implementation of the relevant proposal will be a voluntary school of that category.

Application of schemes in relation to new schools
2.—(1) For the purposes of that Chapter, a new school to which paragraph I above applies is required to be covered in any financial year by a scheme made under section 28 of this Act by a local education authority if it has a temporary governing body during the whole or any part of that year; but the provisions of that Chapter apply in the case of such school subject to the modifications provided for below in this paragraph.
(2) Where a school required to be covered by a scheme in any financial year is a new school during the whole or any part of that
1014
year, the provision required by section 33(3)(a) of this Act shall not apply in relation to the determination of the school's budget share for that year so far as that share falls in accordance with the scheme to be treated as referable to planned expenditure by the authority concerned for the purposes of the school in respect of any period falling before the implementation of the relevant proposal.
(3) Accordingly, in the case of any school to which subparagraph (2) above applies—

(a) paragraph (d) of subsection (4) of section 37 of this Act shall apply as if it referred to such part (if any) of the school's budget share for the year in question as falls to be determined in accordance with the provision required by section 33(3)(a);

(b) paragraph (e) of that subsection shall apply as if it referred to the expenditure (if any) on excepted services planned by the authority concerned for the purposes of the school in respect of any period falling within the financial year in question and after the implementation of the relevant proposal; and

(c) paragraph (ee) of that subsection shall apply as if it referred to so much (if any) of the authority's excluded expenditure under the scheme as is appropriated by the authority for meeting expenditure for the purposes of the school in respect of any such period.

(4) Sub-paragraph (2) above shall not be taken as prejudicing the inclusion in the allocation formula under a scheme by virtue of section 33(3)(6) of this Act of provision taking into account in relation to a new school any forecast made in accordance with the scheme of the number of registered pupils it will have on implementation of the relevant proposal.
(5) The delegation requirement under a scheme shall not apply in relation to a new school which is a secondary school, other than a school to which section 35 of this Act applies, until such date as may be determined by or under the scheme.
(6) In the case of a new school which is a primary school, section 34(2)(b) of this Act shall apply as if for references to a qualifying date in relation to the financial year in question which falls within that year there were substituted references to the date of implementation of the relevant proposal.
(7) Section 35 of this Act shall have effect, in relation to any new school to which it applies, with the omission of paragraph (a) of subsection (2).
(8) Section 37(9) of this Act shall not apply in relation to the temporary governing body of a new school.
(9) Paragraph 18 of Schedule 2 to the 1986 Act (which requires the local education authority to consult the temporary governing body of a new school and the head teacher about their proposed expenditure on books, equipment and stationery) shall not apply where the new school has a delegated budget.
New special schools
3.—(1) In sections (Application of schemes to special schools) and (Financial statements in respect of schools not covered by statements under section 37) of this Act—
(a) any reference—

(i) to special schools maintained by local education authorities;

(ii) to a special school maintained by such an authority; and

(iii) to special schools;

shall be read as including a reference to any new school proposed to be established by a local education authority which will be a special school and which has a temporary governing body; and
(b) any reference to the governing body of a special school shall be read as including a reference to the temporary governing body of such a new school.
(2) References in section (Financial statements in respect of schools not covered by statements under section 37) of this Act to a local education authority who maintains one or more special schools shall be read as including references to a local education authority who by virtue of paragraph 28 of Schedule 2 to the 1986 Act are under a duty to defray the expenses there mentioned in relation to the temporary governing body of one or more new schools such as are mentioned in sub-paragraph (1)(a) above.
Staff
4.—(1) Subject to the following provisions of this paragraph, section 39 or (as the case may be) section 40 of this Act shall apply

1015
to a new school which on implementation of the relevant proposal will be a school of a category to which that section applies not only at any time when (by virtue of the preceding provisions of this Schedule) it has a delegated budget but also at any time when it has a temporary governing body and either—

(a) the delegation requirement under the scheme will apply to the school on or before the implementation of the relevant proposal; or

(b) the authority propose to exercise any power under the scheme to delegate the management of the school's budget share for any financial year by making such a delegation—

(i) to the temporary governing body of the school on implementation of that proposal; or

(ii) to the governing body of the school on implementation of that proposal.

(2) The provisions of sections 39 and 40 and Schedule 2 to this Act shall apply, in the case of a new school, for the purposes only of—

(a) the appointment of staff at the school; and

(b) the taking of such steps with respect to any other matters referred to in those provisions as may be appropriate in preparation for the conduct of the school following implementation of the relevant proposal.

(3) In the case of a new school which is a proposed county, controlled or aided school, no appointments of staff for the school shall be made by the local education authority before the constitution of a temporary governing body for the school.
(4) None of the provisions of paragraphs 21 to 25, 26(1) and (2) and 30(2) of Schedule 2 to the 1986 Act (provisions as to appointment of staff at new schools and related information to be given to temporary governing bodies) shall have effect in relation to a new school to which section 39 of this Act for the time being applies.
(5) Paragraphs 20 and 30(3) of that Schedule shall not have effect in relation to a new school to which section 40 of this Act for the time being applies.
(6) Neither section 39(5) nor section 40(12) of this Act shall apply in the case of a new school; but it shall be the duty of the local education authority concerned to incorporate—

(a) the statement mentioned in section 39(5) in the articles of government for a new school to which section 39 applies which will be a county or controlled school; and

(b) the statement mentioned in section 40(12) in the articles of government for a new school to which section 40 applies which will be an aided school.

Financial delegation and statements apart from schemes
5. Section 43 of this Act shall not apply in relation to a new school.
6. Section (Financial statements in respect of schools not covered by statements under section 37) (9) of this Act shall not apply in relation to a new school.
Supplementary
7.—(1) Section 44(2B) of this Act shall not apply in the case of a new school.
(2) If the articles of government of a new county or voluntary school contain any provision to which section 44(2A) of this Act would apply during any period when the school had a delegated budget, they shall also include in relation to any such provision the statement required by section 44(2C) of this Act.").
On Question, amendment agreed to.
Clause 40 [Staff at aided schools]:
Baroness Hooper Baroness Hooper moved Amendment No. 209:
Page 36, line 17, leave out subsection (11).
Earl Russell: My Lords, before we are asked to say "Content", may we be told why the amendment is necessary?
Baroness Hooper: My Lords, we have discussed the matter during a debate on a previous amendment.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, the next amendment (No. 210) is in the name of the noble Baroness, Lady Seear.
Following is the amendment:
("(11A) Costs incurred by the local education authority concerned which arise from a determination or judgement under provisions of the Equal Pay Act 1970 or the Sex Discrimination Act 1975 concerning any member of staff of any such school shall not be met from the school's budget share for any financial year unless the authority have good reason for deducting those costs, or any part of those costs, from that share.").
Baroness Seear: My Lords, I do not know who it is who puts these things together, but this is exactly the same amendment as Amendment 201 which I moved earlier in the proceedings and which the noble Baroness rejected. Therefore I cannot imagine why it appears again as Amendment No. 210 on page 18 of the Marshalled List. I cannot withdraw the amendment, because I am unable to move it.
Noble Lords: Not moved!
Baroness Seear: My Lords, that may be so. However, may I ask how it can happen that I have the same amendment tabled in my name put down under Nos. 201 and 210?
Baroness Hooper: My Lords, I can assure the noble Baroness that we shall draw her concern to the attention of those who are responsible for preparing the Marshalled List; more than that we cannot do.
The Deputy Speaker: My Lords, may I take it therefore that Amendment No. 210 is not moved?
Baroness Seear: My Lords, no; it is not.
[Amendment No. 210 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 211:
Page 36, line 33, leave out subsection (13).
On Question, amendment agreed to.
Baroness Seear Baroness Seear moved Amendment No. 212:
After Clause 41, insert the following new clause:
(" Appointments normally restricted to qualified teachers.
(1) Subject to the following provisions of this section, no person shall be appointed to fill a vacancy in any teaching post at a school to which section 39 of this Act for the time being applies unless he is a qualified teacher.
(2) The governing body of a school to which section 39 of this Act for the time being applies may, in accordance with paragraph 1 or 2 of Schedule 2 of this Act, recommend a person who is not a qualified teacher for appointment to fill a vacancy in any teaching post only if the local education authority have given written consent as regards that vacancy that such a recommendation may be made.
(3) Where no suitable qualified teacher is available for appointment, an unqualified person with special qualifications or experience may be appointed to fill a vacancy in a teaching post otherwise subject to Schedule 2 of this Act where—

(i) consent has been given in accordance with subsection (2) above;

(ii) the governing body recommends that person for appointment:

(iii) the local education authority are satisfied as to his special qualifications or, as the case may be, experience; and

(iv) the local education authority are satisfied with the proposed arrangements for his further training and supervision.

(4) For the purposes of this section, "qualified teacher" means a person who has been notified in writing, by or on behalf of the Secretary of State, that he is a qualified teacher.
(5) Transitional provisions in force at the time of the passing of this Act regarding cases and circumstances in which unqualified teachers may be employed in schools shall not be affected by the provisions of this section.")
The noble Baroness said: My Lords, this amendment reflects our deep concern about the quality of the new schools which depends, in our view, to a large extent on the quality of the teachers. We are all aware that the programme laid down by the Government calls for a level and range of teachers who simply do not exist at present. We are therefore deeply concerned that, in the pressure to get the scheme under way, teachers with inadequate qualifications are going to be introduced into the schools and that this will mean that the scheme gets off to a bad start.
We argued on a previous amendment that the schools should not be required to introduce programmes until sufficient qualified teachers are available. We would much rather that there was delay in the implementation of the scheme than that unsuitable people should be appointed. Once they are appointed it is difficult to get rid of them, and the quality of the new aids at schools will be seriously affected if inadequately qualified people are appointed. I beg to move.
Earl Russell: My Lords, this is a matter of quite widespread concern in the teaching profession and in educational circles generally. I beg the government Front Bench to pay attention to the amendment and to think about it. There is a potential conflict between free market theory and the existence of an organised profession. There is a tendency in some, but not all, government circles to view professions as no more than restrictive practices. When it gets to that point, then the philosophy becomes anti-academic.
This area of anti-professionalism is one where we have received some sympathy and some understanding from the government Front Bench in the course of these debates. I hope that this may prove another such occasion.
Baroness Hooper: My Lords, there is common ground between the Government and the noble Baroness on this amendment that there will need to be close co-operation between local education authorities and governors of schools with financial delegation in operating the proposed arrangements for licensing. After all, if the local education authority is to make a persuasive recommendation to the Secretary of State it will need to agree with the school governors on both the qualities of the teacher who is being recommended for a licence—or, in some cases, for immediate qualified teachers status—and the training he may require.
However, the wording of subsection (2) of Amendment No. 212 implies that the LEA should have to decide in advance whether a vacancy cannot be filled by a teacher who does not possess qualified teacher status. The Government believe this would import an unnecessary and undesirable inflexibility.
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For this reason, although, as I said, we understand the reason behind the amendment, we are not able to accept it.
Baroness Seear: My Lords, before the noble Baroness sits down, in view of her partial and unusual agreement to some of the amendment may I ask whether before Third Reading she will look at its purpose and see whether the Government can produce something to give some encouragement to, and relieve the anxiety of, those who are deeply worried that unsuitably qualified people are going to be used? It is widely known, and there is common agreement between us, that we have not got the teachers to do the jobs that are asked to be done under this Bill.
It would be helpful if the noble Baroness could for once say that she accepts the substance of the amendment—there are elements of it that she does not like, which I can fully understand—and that the Government will look at it before Third Reading and try to get something in the Bill. It would be a great reassurance to many people if this could be done.
Baroness Hooper: My Lords, with the leave of the House may I say that I shall certainly look at this without commitment before the next stage of the Bill. This is a situation where the proposals of the Government are set out in a consultation document and are subject to that process. I think there is little likelihood that we shall be able to introduce anything on the face of the Bill.
10 p.m.
Baroness Seear: My Lords, am I permitted to make any further comment, this being a Report stage? If not, I shall simply say that I wish to withdraw the amendment. Whether or not I am permitted to speak, I have wanted to say many times during the debate that circulars and advices are not the same as having a provision on the face of the Bill. They do not give anything like the same satisfaction or reassurance to the profession. I beg the noble Baroness to think about what she said once again. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Staffing: supplementary]:
Baroness Hooper Baroness Hooper moved Amendment No. 213:
Page 37, line 10, at end insert—
("(2) Subject to subsection (3) below, it shall be for the governing body of any such school to determine—

(a) whether any payment should be made by the local education authority concerned in respect of the dismissal, or for the purpose of securing the resignation, of any member of the staff of the school; and

(b) the amount of any such payment.

(3) Subsection (2) above does not apply in relation to any payment which the authority are required to make—]

(a) by virtue of any contract other than one made in contemplation of the impending dismissal or resignation of the member of staff concerned; or

(b) under any statutory provision.

(4) The local education authority concerned—

(a) shall take such steps as may be required for giving effect to any determination of the governing body of any such school under subsection (2) above; and

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(b) shall not make, or agree to make, any payment to which that subsection applies in respect of the dismissal, or for the purpose of securing the resignation, of any member of the staff of any such school otherwise than in accordance with any such determination.

(5) Costs incurred by the local education authority concerned in respect of the dismissal or premature retirement, or for the purpose of securing the resignation, of any member of the staff of any such school shall not be met from the school's budget share for any financial year except in so far as the authority have good reason for deducting those costs, or any part of those costs, from that share.
(6) The fact that the authority have a policy precluding dismissal of their employees by reason of redundancy is not be regarded as a good reason for the purposes of subsection (5) above.").
The noble Baroness said: I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, amendment proposed:
Page 37, line 10, at end insert words as printed on the Marshalled List.
Lord Morton of Shuna: My Lords, there are two amendments to Amendment No. 213 to be called. We should not approve Amendment No. 213 before we have discussed the amendments.
The Deputy Speaker: My Lords, the noble Lord is absolutely accurate in as much as I was anticipating that the noble Baroness would wish to speak to her amendment. I call Amendment No. 213A, as an amendment to Amendment No. 213, in the name of the noble Baroness, Lady Seear.
Baroness Seear: My Lords, the same applies. It is an amendment to Amendment No. 213. I do not intend to move Amendment No. 213A.
Lord Morton of Shuna: My Lords, if the noble Baroness is not going to move the amendment I should like to move it and speak to it.
Lord Morton of Shuna Lord Morton of Shuna moved, as an amendment to Amendment No. 213, Amendment No. 213A:
In subsection (2), line 1, leave out ("subsection") and insert ("subsections (2A) and").
The noble Lord said: My Lords, the point of the amendment is to add to the factors contained in Amendment No. 213 which must be taken into account before the governing body can determine redundancy. Amendment No. 213B is the substantive amendment. It requires the governing body to consider advice from the chief education officer as to the procedure that should be adopted and any guidelines that may be recommended. They are entirely essential, because if one looks at subsection (2) of Amendment No. 213 which has been moved by the Minister, one has the ridiculous situation that the local education authority has to make a payment for redundancy on the decision of the governing body without having any say in whether the teacher is redundant.
One could have the position that in school A the teacher is redundant but there is a vacancy in school B. The governing body of school A may decide to take the local education authority's money and make a vast redundancy payment when there is a suitable vacancy for that teacher at school B in the same education authority's area. That may cause
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difficulties in the ratepayers' or poll taxpayers' minds for the education authority. This is a matter that might be considered further. There is a good deal of merit in the amendment tabled by the noble Baroness. I hope that she may agree that it was worth wasting your Lordships' time for a few minutes to raise the difficulty and take account of it. I beg to move.
The Deputy Speaker: My Lords, I can only assume that the noble Lord has been moving Amendment No. 213A which is on the Marshalled List in the name of the noble Baroness, Lady Seear. The amendment reads:
"In subsection (2), line 1, leave out ("subsection") and insert ("subsections (2A) and")".
The Question is that this amendment, as an amendment to Amendment No. 213, be agreed to.
Lord Morton of Shuna: My Lords, I should have thought that it is the custom of the House that if someone speaks to an amendment the Government have some chance to answer, which they have not yet had. I had intended to say that I was speaking to Amendments Nos. 213A and 213B together.
Baroness Hooper: My Lords, if it would clarify the slight confusion that appears to have arisen, government Amendment No. 213 which I have moved provides for the governors to decide upon the level of compensation paid to a member of staff in return for his agreement to resign. Amendment No. 213B, together with the paving Amendment No. 213A, would require governors, before deciding how much compensation to offer, to seek and consider the advice of the chief education officer on two points. I imagine that in most cases the member of staff would consult his union representative before agreeing to any compensation that was offered. I emphasise, however, that there is no need to require a particular procedure for this consultation because we are dealing here with someone who is leaving school voluntarily. When a governing body is contemplating a voluntary severance, we would expect it to seek the advice of the chief education officer.
The Bill specifies that the local authority may deduct part of, or all, the costs of compensation from the school budget if it has good reason. Governors will be conscious of this provision. It will be very much in their interest to establish the LEA's views on particular compensation proposals. No doubt LEAs will want to give general advice on such issues to governing bodies anyway in advance of any specific cases arising.
We therefore believe that in this case it is unnecessary to build in a statutory requirement for governors to seek advice from the chief education officer. I hope that this view will be shared by the House.
Lord Dean of Beswick: My Lords, before the Minister sits down, as I understood it the Minister said clearly that the Government would seek the advice of the local education officer on the question of redundancy. I notice that the noble Lord, Lord Trefgarne, who, I think, has not been present during

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consideration of the Bill before tonight, appears to be trying to direct it from a sedentary position.
Lord Trefgarne: My Lords, the noble Lord is speaking out of order, if he does not mind my saying so. The Procedure Committee has made it clear that after the Minister has replied another speech is generally not considered appropriate.
Lord Dean of Beswick: My Lords, I am sorry. I am putting a question to the Minister, and I disregard what the noble Lord, Lord Trefgarne, has said. I think that I am making a very fundamental and important point before the Minister sits down.
The Minister in her discourse said that the board of governors would seek the advice of the local education officer regarding the question of terms of redundancy. In a Bill as wide ranging as this—affecting all facets of education—I should have thought that there must be some regard to national agreements concerning the conditions of employment of teachers. Is the Minister saying literally that we are completely tearing that up? If so, there will be different redundancy payments all over the country. Do I take it that the Minister is not answering? If not, why? Is it that the noble Baroness cannot, or that she refuses to?
Lord Morton of Shuna: My Lords, the point of the amendment is not so much the question of redundancy payments and whether the recipient thinks them enough, but whether too much may be going out from the local authority and the need for the local education authority to be consulted. I find it difficult therefore to see why the Minister tells me that the redundant teacher, if I may describe him or her, would have union advice. I have no doubt that that is so. I was making the point that the amendment provides that the LEA, which may well have to pick up the can, should have an input and be able to make sure that not too much is paid out.
Having heard what the Minister said, I am far from satisfied. If this was a different Bill, perhaps we would get more response. Unfortunately, we are not getting it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dean of Beswick: My Lords, I have now had a chance to look at Standing Orders. I was totally right in what I said.
Noble Lords: Order!
[Amendments Nos. 213B and 214 not moved.]
On Question, Amendment No. 213 agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 215:
After Clause 42, insert the following new clause:
(" New Schools.
.—(1) Schedule (New schools) to this Act has effect for the purpose of applying the provisions of this Chapter and Schedule 2 to this Act in relation to new schools which have temporary governing bodies.
(2) In this section and in Schedule (New schools) to this Act—
"new school" and "relevant proposal" have the same meanings respectively as in Schedule 2 to the 1986 Act (where "new school" covers both a school proposed to be established which will on implementation of the relevant proposal be maintained by a local education authority and a school which will be so maintained on the implementation in relation to an existing school of the relevant proposal); and
"temporary governing body" means a temporary governing body constituted for a new school under an arrangement made under section 12 of that Act (excluding such a governing body who fall by virtue of paragraph 3(5) of that Schedule to be treated as if they were the governing body constituted under the provisions of that Act that apply following the implementation of the relevant proposal).").
The noble Earl said: My Lords, we have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 43 [Financial statements and required financial delegation apart from schemes]:
The Earl of Arran The Earl of Arran moved Amendment No. 216:
Page 37, line 42, leave out from beginning to end of line 29.
On Question, amendment agreed to.
The Earl of Arran The Earl of Arran moved Amendment No. 217:
Page 37, line 42, leave out from beginning to end of line 12 on page 38 and insert—
("(4A) Before making any regulations for the purposes of subsection (3) above, the Secretary of State shall consult such associations of local authorities as appear to him to be concerned and any local authority with whom consultation appears to him to be desirable.").
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 218:
After Clause 43, insert the following new clause:
("Financial statements in respect of schools not covered by statements under section 37.
.—(1) Every local education authority shall prepare a statement under subsection (5) below in respect of any financial year before the first financial year in respect of which the authority are required to prepare a statement under section 37 of this Act (including the financial year current at the time when this section comes into force).
(2) Subject to subsection (3) below, every local education authority who maintain one or more special schools during the whole or any part of any financial year after the last financial year to which subsection (1) above applies shall prepare a statement under subsection (5) below in respect of that financial year.
(3) Subsection (2) above shall not apply in relation to such an authority in respect of any financial year in respect of which the authority are required to prepare a statement under section 37 of this Act which, by virtue of any provision made by regulations under section (Application of schemes to special schools) of this Act, is required to include information with respect to the special school or schools concerned.
(4) The schools required to be covered by a statement prepared by a local education authority under subsection (5) below in respect of any financial year are—

(a) in the case of a statement required by subsection (1) above, any county, voluntary or special school maintained by the authority during the whole or any part of that year; and

(b) in the case of a statement required by subsection (2) above, any special school so maintained.

(5) The statement shall give the following particulars with respect to the financial provision initially planned by the authority

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in respect of the financial year to which the statement relates for the schools required to be covered by the statement—

(a) the initial amount appropriated for meeting expenditure in that year in respect of all such schools;

(b) the amount remaining (referred to below in this section as the general expenditure amount) after deducting from the amount specified in the statement by virtue of paragraph (a) above the aggregate amount of the initial amounts so appropriated in respect of—

(i) expenditure of a capital nature;

(ii) expenditure in respect of capital loan charges; and

(iii) expenditure of such other descriptions as may be prescribed;

(c) such particulars as may be prescribed of amounts so deducted;

(d) in the case of each such school, the share of—

(i) the general expenditure amount; and

(ii) such of the amounts so deducted by virtue of paragraph (b)(iii) above as may be prescribed;

which is appropriated by the authority for meeting expenditure for the purposes of the school;

(e) in the case of each such school, the amount of any expenditure of a capital nature initially planned for the purposes of the school;

(f) such particulars of the basis on which the authority determine the share of each such school for the purposes of the information required to be included in the statement under paragraph (d) above as may be prescribed; and

(g) such further information with respect to the financial provision initially planned by the authority for the schools required to be covered by the statement as may be prescribed.

(6) After the end of each financial year in respect of which a local education authority are required to prepare a statement under subsection (5) above the authority shall prepare a statement containing such information with respect to—

(a) expenditure actually incurred in that year for the purposes of all schools required to be covered by the statement under subsection (5); and

(b) expenditure so incurred which was incurred, or is treated by the authority as having been incurred, for the purposes of each such school;

as may he prescribed.
(7) Each statement prepared under this section in respect of any financial year shall be prepared in such form, and published in such manner and at such times, as may be prescribed.
(8) The authority shall furnish the governing body of any school required to be covered by a statement prepared under subsection (5) above in respect of any financial year with a copy of each statement prepared by the authority under this section relating to that year.
(9) A governing body to whom a copy of any such statement is furnished under subsection (8) above shall secure that a copy of the statement is available for inspection (at all reasonable times and free of charge) at the school.
(10) Where only one school is required to be covered by a statement prepared under subsection (5) above—

(a) references in this section to all schools required to be so covered shall be read as references to the school in question;

(b) that subsection shall apply with the omission of paragraphs (d) to (f); and

(c) subsection (6) above shall apply with the omission of paragraph (b).").

On Question, amendment agreed to.
Clause 44 [Interpretation of Chapter III and supplementary provisions]:
Baroness Hooper Baroness Hooper moved Amendments Nos. 219 to 223:
Page 38, line 13, after ("Chapter") insert ("—
"expenditure of a capital nature" means, in relation to a local education authority, expenditure treated by that authority as expenditure of a capital nature; and").
Page 38, line 41, after ("38(2)") insert—
("(gg) references, in relation to a scheme, to excluded expenditure under the scheme shall be read in accordance with subsection (6)(c) or that section;").
Page 38, line 43, at end insert—
("(2A) During any period when a school has a delegated budget under any scheme any provisions of the articles of government of the school which are inconsistent with the operation during that period of any provisions of this Chapter or of the scheme shall be of no effect to the extent of that inconsistency.
This subsection does not apply to any provision of the articles of government such as is referred to in section 39(2)(b) or 40(2)(b) of this Act (in relation to which provision corresponding to that made by subsection (2B) and (2C) below is made by sections 39(5) and 40(12) respectively).
(2B) Within the period of five years beginning with the date on which the financial year begins in which any school first has a delegated budget under a scheme, it shall be the duty of the local education authority concerned, if the articles of government of the school contain any provision to which subsection (2A) above applies, to amend the articles so as to include in relation to that provision or (as the case may be) in relation to each such provision contained in the articles the statement required by subsection (2C) below.
(2C) The statement shall specify—

(a) the provision or provisions of the articles in question;

(b) the provision of this Chapter or of the scheme (the "overriding provision") with the operation of which any provision of the articles specified under paragraph (a) above is inconsistent; and

(c) the extent of the inconsistency;

and shall indicate that, during any period when the school has a delegated budget, any provision of the articles so specified is superseded by the overriding provision to the extent that it is inconsistent with it.
(2D) Any amendment of the articles of government of a school required by section 39(5) or 40(12) of this Act or by subsection (2B) above shall be made by order under section 1 of the 1986 Act; but section 2 of that Act shall not apply in relation to any order made under section I by virtue of this subsection.").
Page 38, line 44, leave out subsection (3).
Page 39, line 4, at end insert—
("(4A) section 29 of the 1986 Act (which requires provisions to be contained in articles of government of schools with respect to financial statements and financial delegation and is superseded by the provisions of this Chapter), and any provision included in the articles of government of any school by virtue of that section, shall cease to have effect.
(4B) In section 30(2)(h) of that Act (financial statement to be included in governors' annual report to parents), for subparagraphs (i) and (ii) there shall be substituted the following sub-paragraphs—

("(i) reproducing or summarising any financial statement of which a copy has been furnished to the governing body by the authority under section 37 or (Financial statements in respect of schools not covered by statements under section 37) of the Education Reform Act 1988 since the last governors' report was prepared;

(ii) indicating, in general terms, how any sum made available to the governing body by the authority in respect of the school's budget share within the meaning of Chapter III of Part I of that Act or under section 43 of that Act in the period covered by the report was used;").

On Question, amendments agreed to.
Clause 45 [Duty of Secretary of State to maintain certain schools]:
Lord Renton Lord Renton moved Amendment No. 224:
Page 39, line 31, after ("voluntary") insert ("or maintained special").
The noble Lord said: My Lords, I beg to move Amendment No. 224. Amendments Nos. 225 to 227 go with it. Their purpose is to enable special schools

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to opt out if they have 100 or more pupils. Under subsection (7) of Clause 45, as we propose to amend it, the Secretary of State would have power to reduce below 100 the number of pupils to make opting out possible, or to provide for all special schools to be eligible for opting out just as he has power already in that clause to enable all primary schools to opt out.
If in principle opting out is sensible, as the Government believe and as we believe, it is hard to understand why parents of children at special schools should be deprived of the opportunity to vote for it. I know of one such school where the governors and head teacher would like the parents to be given that opportunity.
In Committee my noble friend Lady Hooper gave five reasons against special schools opting out when my noble friend Lady Cox moved another amendment (in somewhat different terms to those I am using) enabling them to do so. We have carefully studied the reasons given by my noble friend Lady Hooper, but we are not persuaded by them. The first reason that she gave was that there were not enough special schools in any area to make greater parental choice the outcome of opting out. But that is not so. In London, for example, there are many special schools; and it is accepted that when ILEA is abolished the boroughs will continue to have admissions to those special schools from other boroughs.
But even if parental choice were not always increased by opting out, surely it might be necessary to avoid a special school from withering away or closing down? I have been told of one special school which, three years ago, had 120 pupils. Next year it will have only 50. That may be the case because the parents have not been told about the school as they should have been, or because the local authority has not exercised its responsibilities properly under the 1981 Act in making its statements of special needs. At any rate, that is a situation which opting out might cure.
Secondly, my noble friend said that grant maintained status would not be compatible with the local education authority's responsibility for making statements of special needs under the 1981 Act. If I may say so, she is wrongly advised. Under the 1981 Act, a local education authority, which must specify the school in its statement, has power to specify an independent school, and frequently does so. It may even, under Section 4 of that Act, decide not to specify any school at all when making the statement of needs. Therefore, a fortiori, it would be in order for it to specify a grant maintained school—a school that had opted out.
Thirdly, my noble friend said that most special schools are small. She is right. However, when she says, as she did at col. 1251 of the Official Report of 12th May, that:
"It would not make sense for a tiny special school to be eligible while…a rather larger primary school next door was not",
we beg to disagree with her. She is not comparing like with like. Even if she were, I trust that she would not wish to ignore the wishes of the parents and governors of smaller schools. The important point is
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that in our amendments we are saying that only those special schools with 100 or more pupils will be eligible unless the Secretary of State makes an order reducing that number. Therefore, we have met her objection.
Fourthly, my noble friend said, with some justification, that special schools and their unit costs vary widely. She said that budgeting would be difficult but it would not be impossible, surely. Primary school budgets also vary widely. However, the Government are ready for that. Why make heavy weather for special schools? In any case, the information required as a basis for budgeting is already available because under the 1986 Act governors have to obtain and publish the overall cost of running the school. I should have thought that that disposes of any difficulty about budgeting.
Fifthly, my noble friend's final point was valid on 12th May. We have now covered that by limiting our amendments to maintained special schools. Therefore, of the five points she has made, two have been covered by our amendments and the rest have been answered—I trust satisfactorily and suitably. It would be a grave mistake to deprive the parents of children in special schools of the opportunity of opting out.
Baroness Cox: My Lords, in supporting the amendment let me say that I hope that my noble friend the Minister will give a sympathetic reply this time. The answers given at Committee stage, as my noble friend Lord Renton has explained so lucidly, were not really good reasons why special schools should be denied that freedom which is available to other schools to choose to opt out if they so wish.
In Committee my noble friend the Minister argued that the provision for special schools to opt out would not lead to greater choice. My noble friend has dealt with that point but I should like to emphasise one very important aspect; namely, that the opportunity for special schools to opt out could be absolutely vital for them as a lifeline in some cases where they could be under threat of closure for policy reasons. Indeed these amendments have been welcomed by the Campaign for Choice in Special Education, the aims of which are supported by some 12,000 parents and teachers who work with children with special needs in the London area, and which launched a very successful campaign against the adoption of the Fish Report which proposed closing nearly all special schools.
Moving from the specific to the general, I should like to highlight a very important general principle concerning the philosophy of integration compared with the philosophy of specialist provision. While for many children with special needs the policy of integration with mainstream schooling may be highly desirable and also very successful, there may be other children with special needs who would benefit from the more protected environment with specialist staff and the facilities at a special school. There is a real danger that in the future some authorities may go for a virtually total integrationist policy. Indeed Leeds is committed to the eventual closure of all special schools.
Perhaps I may just emphasise that the provision to opt out could be a lifeline in future for schools,

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parents and pupils with special needs. It seems a most strange and unacceptable anomaly to exclude them from that provision.
One other argument put by my noble friend the Minister in Committee was that there could be problems for special schools taking on the responsibility associated with grant-maintained status. That is not a convincing argument. It might indeed be a challenge but it is not insuperable. If they were to feel that those problems were insuperable there would be no need for them to apply to opt out.
I shall conclude by pointing out one other very serious consideration. The Bill as it now stands does not even allow for the eventual provision for opting out at some time in the future. There is an asymmetry between the provision in the Bill for other schools, such as primary schools and small schools which are not being given the opportunity to opt out now but could be given that opportunity at some time in the future. For some reason the Bill as it now stands seems to be denying special schools that freedom for ever. There is no provision for special schools to be able to consider having that freedom at any time in the future.
It seems an unjustifiable and undesirable discrimination against those schools which provide such an invaluable service. I hope that the Minister will take the amendments seriously.
Lord Trefgarne: My Lords, in Committee my noble friend Lady Cox, as she has said, moved a similar amendment to the ones before us which proposed making all special schools eligible for grant-maintained status. We put forward clear reasons at the time why we found that proposal unacceptable. I am afraid that we find no more compelling the present suggestion that a maintained special school of over 100 pupils should have the right to seek grant-maintained status.
First, the aim of our proposals for grant-maintained schools is to give parents and the community more of a say in the way their school is run. Most schools serve a relatively compact area, and the increased links which grant-maintained status will foster should be of considerable benefit to the school and to the community. We also intend that our proposals should increase the choice of types of school available to parents within the maintained sector.
Special schools are in these respects in a different position from ordinary schools. They often serve a much wider area, so that there is no discernible community with which they could establish close links. That is not to say, of course, that they do not encourage close parental involvement: many do, to mutual benefit. But they could not look to their locality for the sort of support that grant-maintained schools will need. And as far as parental choice is concerned, it is inevitable, because special schools by definition cater for special needs, that the scope for offering choice is going to be limited. Very often there is only one school of the appropriate type and in the right place for a pupil with special needs. Whether that school is grant-maintained, LEA-maintained or non-maintained will not be relevant. To admit special
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schools to grant-maintained status would not, therefore, increase choice in any way.
Special schools rely to a large extent on specialist services which the local education authority provides. Under the 1981 Act LEAs, for their part, are charged with the responsibilities for making statements of special educational needs and for determining the school which a statemented child should attend. It would not be compatible with those responsibilities if the special school for the area in which the child lived was not under the control of the local education authority. In such circumstances the local education authority might even have difficulty placing the child in a suitable school.
It has been suggested that special schools should be able to seek grant-maintained status when threatened with closure. I feel I must make two points clear on that issue. First, in general, it is not intended that grant-maintained status should be a means of reprieve for a school which is proposed for closure as part of a properly considered and formulated set of rationalisation proposals put forward by a local authority. Local authorities will still need to deal with the problem of falling rolls, and my right honourable friend will continue to approve such proposals where they make sense educationally and in terms of the prudent use of resources.
Secondly, in relation to special schools, my right honourable friend approves proposals for closure only when he is satisfied that there is no longer a need for the school and that appropriate alternative provision is available for the children remaining in the school. Special schools are not immune to the problems created by falling rolls.
In conclusion, may I reassure my noble friends that we have considered the case of maintained special schools with great care; but we do not believe that making such schools eligible for grant-maintained status would be in the best interests of those whom they serve. Nor do we think it would be practicable. I hope that my noble friends will be reassured by what I have said.
Lord Renton: My Lords, in the presence of my noble friend the Chief Whip perhaps I may say that I hope he is impressed by the fact that this very important principle has been discussed in only 15 minutes so far. I shall take merely a moment or two longer. I am very disappointed by the reply of my noble friend although I thank him for the trouble he has taken. I find that he has dressed up the same arguments or most of the arguments put forward by my noble friend Lady Hooper at Committee stage but he has done so in more subfusc clothing. I am very disappointed indeed that he does not even suggest—as I hinted he might—that there should be power taken in the Bill to exempt special schools from the prohibition of opting out.
I should like to thank my noble friend Lady Cox who, in a most powerful plea, said that this move should be a lifeline for those special schools which were not being run properly. I should like to emphasise that if it is not done in this Bill it may not be done for many years to come. By not doing it, we are missing a vital opportunity.

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We shall come back to this matter again at Third Reading. Meanwhile I hope that my noble friend will take note of what my noble friend Lady Cox and I have said in this debate. On that understanding I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 225 to 227 not moved.]
Clause 50 [Powers of the governing body]:
[Amendment No. 228 not moved.]
10.30 p.m.
Clause 51 [Articles of government]:
Baroness Serota Baroness Serota moved Amendment No. 229:
Page 45, line 34, after ("arrangements") insert ("to be subject to the jurisdiction of the Commissioner for Local Administration").
The noble Baroness said: My Lords, I beg to move Amendment No. 229 and will speak at the same time to Amendment No. 230. The purpose of both these amendments is to ensure that parents and pupils do not lose important rights that Parliament gave them in the Education Act 1980 if their schools decide to opt out of local authority control.
At present under that Act parents can make a complaint to a local ombudsman of maladministration causing injustice if they are dissatisfied with the way in which the local education authority has administered its admissions or exclusions procedures. The local ombudsmen receive a number of such complaints each year. There were some 67 in England last year. In one case, for example, the local authority found that parents had not been informed of their right of appeal. In another case, an appeal committee had taken a decision without sufficient evidence or guidance.
Just as importantly, many local education authorities have improved their complaints procedures following an ombudsman investigation into an individual complaint, thus preventing injustice occurring from future such cases.
However, when a school becomes grant maintained, under this Bill it will become responsible for its own admissions and exclusions procedures including appeals, and parents will lose this important safeguard of being able to make a complaint to an independent ombudsman if the matter cannot be settled satisfactorily at the local level.
I hope that in the Minister's reply to this amendment he will not argue that since the schools will no longer be part of local government, it would not be appropriate to make them subject to the jurisdiction of the local ombudsman as they are now. Apart from what 1 regard as the very important principle of not removing an existing right established by Parliament as recently as 1980, there are, to my certain knowledge, at least two important statutory precedents for retaining the jurisdiction of the local ombudsman when the authorities concerned are no longer part of local government as a result of legislative changes.
In the first case, I well recall (and certain other noble Lords present tonight may also do so) the very gracious way in which the noble Lord, Lord Bellwin, then the Minister for Local Government, conceded this principle in the light of the consensus expressed on all sides of the Chamber during the Committee stage of the Water Bill in February 1983. I shall not detain the House at this late hour by quoting from Hansard. The Committee stage took place on 24th February and the noble Lord can check columns 899 and 900 if he so wishes.
The noble Lord, Lord Bellwin, on that occasion readily agreed that the new water authorities, although removed from local government by the Bill, would remain within the jurisdiction of the local ombudsman, thus enabling citizens to retain their right to an independent investigation of any complaint that could not be settled satisfactorily locally.
Then, as recently as the 15th of this month, the Government have tabled an amendment to the Housing Bill in another place which will, as I understand it, bring the new housing action trusts within the jurisdiction of the local commissioners. Therefore, all tenants within a housing action area will be able to ask the local ombudsman to investigate a complaint about, for example, a housing or environmental health matter even though these services will no longer be the responsibility of the local authorities in those areas. I hope therefore that the Minister will follow both these precedents established in legislation by his own Government and accept Amendments Nos. 229 and 230. A very important principle is at stake; namely, that we should not deprive parents of their existing rights if their schools decide to opt out under this Bill.
Lord Peston: My Lords, in supporting my noble friend Lady Serota on this amendment, I do not have to remind your Lordships of her great knowledge and wide experience of the subject. It seems to me that your Lordships would be wise to heed her advice and accept the first two amendments.
I shall add a word or two on the third grouped amendment. It is reminiscent of the one I moved yesterday concerning the range to which the complaints procedures, whatever they may be, might apply. The House will recall that I welcomed, not entirely grudgingly, the concessions that the Government made yesterday. But I inquired why they were restricted to the narrower range of the curriculum. Without detaining the House, I remind your Lordships that the same point applies today. If we take parental and pupil rights seriously then we should take them seriously across the whole range of activities in a school and the complaints procedures would pertain to that whole range.
I was tired last night, so I did not pursue it. I am tired tonight, so I shall not pursue it endlessly, but it seems to follow logically that the Government ought to adopt the wider view, but, more particularly, they ought to adopt the view taken by my noble friend Lady Scrota.
Earl Russell: My Lords, it is a point of some importance that rights should not be taken away by

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inadvertence. I hope that when the Minister answers he will either accept the amendment or else explain that it was the Government's intention to take rights away and tell us why he thinks that is a good thing.
Lord Trefgarne: My Lords, I start by saying that the Government, every noble Lord who has spoken and the noble Baroness are at one in wishing that grant-maintained schools be duly accountable to parents, to the wider community and to my right honourable friend the Secretary of State. Indeed, such accountability is essential if grant-maintained schools are to carry out responsibly and well, the purposes for which they will have been established. But I do not accept that these amendments are necessary in order to achieve our purpose.
In Committee the noble Lord, Lord Tordoff, proposed an amendment which, he said, was intended:
"to ensure that the parents of children at grant-maintained schools retain the right to complain to ombudsmen about admissions and exclusion procedures".
On that occasion the amendment sought to provide for the Parliamentary Commissioner for Administration to have jurisdiction in such matters.
The present amendments are put forward with the same purpose but refer to the Commissioner for Local Administration, or the local ombudsman as he or she is sometimes called. With all respect, however, and I know that the noble Baroness has infinitely greater experience on these matters than I do, I suggest that these amendments have the same flaw as the earlier ones: that is, they seek to put the ombudsman figure where he cannot and should not properly be.
The noble Lord, Lord Tordoff, in fact put his finger on the weakness in the argument when in Committee he said:
"Parents who wish to complain about a decision of a local education authority or voluntary school governing body about the admission of a pupil to, or the exclusion of a pupil from a school have a right to complain to the local government ombudsman".
That is not quite the whole truth. The point here is that the right to complain to the ombudsman relates only to alleged cases of maladministration in the way a case has been handled by a local authority appeals committee or in the way the case was presented by LEA officers or members. The local ombudsman does not have jurisdiction over admissions to. voluntary aided schools or over appeals committees set up by the governors of such schools, because in these cases the arrangements are made by the school governors themselves under their articles of government, and are not part of local government administration.
It is clear, I think, that in grant-maintained schools appeals arrangements will be made by the governors, and that such schools therefore fall into the second of the two categories I have referred to. Indeed, since the very purpose of grant-maintained schools is that they should function outside the local education authority's control, it is surely obvious that the Commissioner for Local Administration's writ should not run here.
It will be for the Secretary of State to monitor the adherence of grant-maintained school governing
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bodies to their articles of government. He will be assisted in doing so by the right the Government have extended to parents of prospective and existing grant-maintained school pupils to complain or appeal to him under Sections 68 or 99 of the 1944 Act. But I must emphasise that none of this means that the ombudsman has no place at all in these matters, as has been suggested. As with voluntary-aided and special agreement schools, the Government fully intend that the Parliamentary Commissioner for Administration should be free to play his part at the right time and in the right way.
If aggrieved parties believe that there has been maladministration on the Secretary of State's part in dealing with appeals or complaints, they will be able to write to their M. P. seeking the intervention of the ombudsman. He will investigate alleged maladministration on the Government's part, just as the Commissioner for Local Administration does in respect of local government. Surely that is the right way to proceed. I hope that the House will agree with me.
I should now like to turn to Amendment No. 231. If the noble Baroness agrees, I shall not deploy all the arguments which we deployed in Committee on the same point. I simply say that there are a variety of other ways in which dissatisfaction can be expressed and perhaps redress obtained. We do not think it right to increase the arrangements in the way that the amendment proposes. I hope that the noble Baroness will not press that amendment.
Baroness Serota: My Lords, the House will not be surprised to hear that I am extremely disappointed with the Minister's reply. That is because he failed completely to answer the points that I made in relation to the way in which the Government have dealt with other services which have been removed from local authority control, just as this Bill removes schools which decide to opt out of local government control. As regards his phrase: "the writ should not run here", I should like to know whose dictum that is. Is it to be Parliament's dictum in the light of the precedents that I have already quoted?
With regard to the procedures as at present envisaged, I should like to say that I am fully conversant with the Section 68 procedure whereby parents can appeal to the Department of Education and Science. I am equally aware that that procedure is quite different from that of the individual investigation of complaint by one of the local commissioners. As I understand it, those appeals are based simply on written representations. The local commissioner sees the individual complainant, officers of the local authority and any other people who may wish to come forward.
The crucial distinction between an ombudsman service and any other investigative service is that, above all, Parliament gives it access to the source material. It can look at the records and at the way in which the appeals procedure has been operated. I agree with the noble Lord that it is concerned with injustice causing maladministration. I intend my amendment to go no further than that. However, I also gave two examples resulting from ombudsman

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investigations where the procedures followed by the local authority were faulty. That is what we are talking about.
With regard to the role of the Parliamentary Commission in the systems envisaged, again I am fully aware that the Parliamentary Commissioner has a duty placed on him by legislation to investigate any complaint about the Department of Education and Science and the way in which it has dealt with appeals procedures. This is no substitute for the individual parent being able to go to a more accessible—if one likes, a more user-friendly—service in his locality with all the facilities that the local ombudsman service has developed since 1974. 1 hope that between now and the next stage of the Bill the Government will take note of what I have said, will check the examples I have cited and which they produced in legislation and come back with a more acceptable suggestion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 230 and 231 not moved.]
10.45 p.m.
The Earl of Arran The Earl of Arran moved Amendment No. 232:
Page 46, line 11, leave out ("or complaints").
The noble Earl said: My Lords, in moving Amendment No. 232, I should also like to speak to Amendments Nos. 241, 255, 322, 323, 326 to 328 inclusive, 330 to 332 inclusive, 435 and 436. These amendments are purely technical. I beg to move.
Lord Morton of Shuna: My Lords, these may be technical amendments but perhaps we might have an explanation of some of them. Amendment No. 232 removes the requirement, in the articles of government of a grant maintained school, which requires the governing body to publish annually details of the procedure relating to complaints by parents. In view of the fact that this afternoon we have passed a government amendment extending the range of complaints procedure in other schools, why is it necessary that the complaints procedure is being diminished in grant maintained schools? There seems to be an entirely different approach being adopted for different types of school. No doubt the Minister will be able to explain why that is so.
Amendment No. 241 removes the provision whereby a request submitted by 20 per cent. of the parents is treated as having been sent to a chairman if it has been sent by post. What is the significance of the removal of that? Does it mean that one may not send such a request by post? What does it mean? Is there a deep significance attached to this? Do the 20 per cent. of parents have to deliver the requests by hand? What is going on?
Amendment No. 323 alters the provisions regarding claiming back by the Secretary of State capital sums on grant maintained schools which have gone into liquidation. What is the purpose of that and what does it involve? I believe that the House is entitled to an explanation on the record of why these very important changes are being made.
Amendments Nos. 327 and 328, dealing with the power to alter a trustee, seem to me to limit—and it
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is very unusual for the Secretary of State to do so—the Secretary of State's power to alter a trustee. The purpose of this seems to me (although I may be wrong) to give the Secretary of State no power to alter a trustee in order to remove grant maintained status from a school but only to give that status. Is that right? What happens when the school wants to close? Is it impossible to close? Perhaps the noble Earl will give us an explanation.
The Earl of Arran: My Lords, in the interests of time and clarification, perhaps I may write to the noble Lord.
Earl Russell: My Lords, this is a matter of some concern to the House in general as well as to the noble Lord, Lord Morton of Shuna. We have here a considerable addition to the Bill at a very late stage. I believe that we are entitled to ask for an explanation.
Lord Trefgarne: My Lords, I assure the House that there is no dark or sinister motive behind these amendments. My noble friend has undertaken to write to the noble Lord, Lord Morton, and I shall ensure that a copy also goes to the noble Earl.
Lord Morton of Shuna: My Lords, with the leave of the House, if the Government are to adopt that attitude, would it not be better that they ceased to require any Members of your Lordships' House to be present and just passed it all through by correspondence, if necessary?
On Question, amendment agreed to.
[Amendments Nos. 233 and 234 not moved.]
Lord Hylton Lord Hylton moved Amendment No. 235:
Clause 53 [Initiation of procedure for acquisition of grant-maintained status]:
Page 47, line 28, after ("passed") insert ("and if the school is a voluntary school the trustees do not give notice within twenty-eight days of the second resolution that they object to a ballot").
The noble Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 236, 238, 239 and 242. These are important amendments requiring the consent and not just consultation with trustees of voluntary schools. They go to the root of the existing dual system of county schools and voluntary aided schools. As it stands, the Bill treats the two types of school as if they were equal; whereas they are different and they have diverse origins and separate, although complementary, objectives.
The situation is made rather more serious because the Government have refused my invitation to publish the criteria which the Secretary of State might use in deciding whether or not to accept an application by a voluntary school for grant-aided status. I have also asked whether the consent of the Charity Commissioners would be required before the Secretary of State can modify the trust deed of a voluntary school without the prior agreement of the trustee. But, unfortunately, there again the answer was no.
Your Lordships will therefore see that considerations of law and the administration of trusts are involved as well as purely educational issues. It is as if the beneficiaries of a charity were to be given the right to decide how they should be administered regardless of the views of the trustees.
I suggest that this part of the Bill goes against the spirit of the 1944 Butler Act. That Act ensured that trustees of voluntary schools would be treated as free and equal partners with the local education authorities. This Bill fails to make sufficient distinction and if unamended will leave the trustees with responsibility but with inadequate power. The trustees may have to negotiate with separate sources of finance and administration in respect of a secondary school and its contributory primaries.
Another weakness of the Bill is that it fails to distinguish beween the minority of cases where a religious order is the trustee and the majority of cases where the Roman Catholic bishop or his diocesan trustees hold that position. The difference is important because the bishop has a jurisdiction and theological position which is quite different from that of a religious order. Nevertheless, in both cases the schools in question are Catholic by virtue of recognition as such by the bishop. Such schools are part of the life of the whole local church within the diocese where the bishop is the focus of unity and authority. He has oversight, and the school community of parents, children and teachers are in communion with him. The Bill puts this important relationship at risk. The amendments in this group provide for the trustee to be informed of governors' resolutions and parents' requests. They allow ballots to proceed provided that the trustee does not object.
Finally, Amendment No. 242 requires the trustee to state his objections in writing. As I understand it, this makes it necessary for objections to be reasonable if they are to be sustained. The noble Baroness, if she is replying, may be able to confirm that such objections in writing would be subject to judicial review. This would be an important safeguard obliging the trustee to act responsibly.
We are talking about significant numbers since Catholic schools probably represent over half of the voluntary schools eligible for grant-maintained status. Some voices have maintained that there is nothing here to worry about. Her Majesty's Government, however, recognised that there was a problem by moving in Committee an amendment providing that the trustees should be consulted instead of merely being informed. This was an improvement, but I am advised that it failed to cover a ballot on the initiative of the requisite number of parents.
The government amendment does not go quite far enough: consultation and the right to object to the Secretary of State are by themselves not sufficient. We have to remember that the parents of pupils in voluntary schools have already opted out of the county system. They have chosen to take part in an alternative system. This system has a particular ethos. It operates as a system supplying support services to individual schools. Furthermore, it co-ordinates the work of its schools and reconciles
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conflicting interests between schools. Even though a Catholic grant-maintained school may retain its religious ethos, there is reasonable anxiety that its overall character may be changed. Open admission may compound these risks. There would be a real loss, I suggest, if effective schools which are now socially comprehensive should cease to be so. The trustees should be free to take account of social justice and the equality of all in the eyes of God before giving consent to new proposals. It would be a thousand pities if, because of the drafting of this Bill, schools that should have closed were kept open and others that should have continued were obliged to cease.
In conclusion, it is gravely over-simplifying matters to suggest that the bishops are trying to hang on to power for unworthy reasons. Neither is it a matter of conflict between the heirarchy and the free judgment of an educated and responsible laity. What these amendments seek to promote is the working together in the Catholic sector of the whole people of God gathered around their bishops as was seen to good advantage at the time of the National Pastoral Congress of 1980. Equally strongly, we desire the continued co-operation of the two parts of the dual system in which the trustees can play a real part.
Therefore, it is on legal, constitutional, theological and practical grounds that I commend these amendments to your Lordships. I beg to move.
Lord Harvington: My Lords, I support the points made by the noble Lord, Lord Hylton, in moving these amendments. They are necessary in order to do justice to the position of the trustees of voluntary schools to whom the schools belong. The Bill provides no more than this. First, that trustees may object to a proposal to change the status of their school—a right which is also given to members of the public. Secondly, the trustees should be consulted by governors where the initiative for change comes from the governors rather than from the parents.
My noble friend the Minister wrote a very full and interesting letter to us saying that she felt that what the Government were doing was of no detriment at all to the position of the Catholic schools. However, I noticed in the second paragraph on the second page, that she states that the Government have amended the Bill to ensure that the trustees of a Catholic school have a central role in the procedures that grant-maintained status can be achieved. "Central" is hardly the word.
It is much truer to say that it has a peripheral role. The trustees are kept out of the final decisions that the Secretary of State has to make. This is quite insufficient and the trustees should be able to decide whether the application for grant-maintained status should go ahead. The amendments provide this but also require trustees, where they exercise this power, to give a statement in writing of their reasons. The amendment is particularly important for the Catholic Church, since usually the diocese is the trustee. This means that the trustee of a school is at the same time responsible for a number of schools and for their co-ordination in that particular diocese.
It was said at Committee stage that if a voluntary school becomes grant-maintained, the only change it

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undergoes is in the source of its funding, since not only education but religious character will continue. I find it difficult to believe that there will not be other changes over a period of time, because, as the noble Lord, Lord Hylton mentioned, parental expectations will take shape. This makes it all the more important that the trustee should be able to decide whether a school should seek to embark on this new status.
Perhaps I may say what the position of the trustee of a Catholic voluntary school usually is. Normally, he is the bishop of the diocese which includes the school or it may be a religious order. These are a minority. Catholics in general have a particular faith and trust in their bishop who is acknowledged as the teaching head of the diocese in which they and their families live. In the majority of cases of "opting out" there will be general agreement among parents, governors and the trustee. But there is a real possibility—do I observe the Government Chief Whip to be taking exception to what I am saying?
11 p.m.
Lord Denham: My Lords, we are getting rather late in the day. I am looking at the clock; that is all.
Lord Harvington: My Lords, I too am looking at the clock. I suppose it might be two years since I last had the privilege to address the House. Perhaps I may be left in peace for three minutes.
A minority of governors can bring very hard pressure on the rest of the body when it comes to opting out. The same can apply to parents. It is the bishops who can discern the right way forward in these cases. Then there is also the fact that we may not always have as benign a Secretary of State to deal with as we have now. I can think of many people in another place under whom I would not like to operate voluntary schools.
Perhaps I may give your Lordships an actual example of what could happen and did happen in the case of the Cardinal Vaughan School. The foundation governors were not in agreement with the trustee who had appointed them over the establishment of a new sixth form college. That college was necessary for the adequate provision of Catholic education in central London and was supported by many parents of the other schools involved. A long time was taken to bring matters to a head.
In the end the trustee decided to press ahead with his proposals and therefore dismissed the opposing foundation governors, whereupon the foundation governors took the trustee to court, hoping to set aside the trustee's decision, and lost their case. That is what the amendments seek to deal with so that the trustee, wherever in England or Wales his diocese is, can join the foundation governors and the rest to settle the opting out question without using the drastic method that I have described. That should be possible and that is what we seek.
I know that the point has been made on behalf of the Bill's present provisions that parents and governors in voluntary schools should have the same rights as those in county schools. I think that this
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argument illustrates what the noble Lord, Lord Hylton, has called the root of the trouble; namely, the failure to distinguish properly between the positions of county and voluntary schools. Parents who send their children to Roman Catholic schools have already exercised a major choice. Neither the status of the school nor the position of the parents is the same. By seeking to treat them in the same way, the Bill does less than justice to trustees. I support the noble Lord.
The Earl of Longford: My Lords, I speak under the shadow of the Chief Whip's watchfulness, but I have not previously spoken during this Report stage. I propose to speak for only one minute now and so I hope I shall not be ruled out of order. This matter is of great importance to the 10 million or so Catholics in this country. If the Chief Whip says that we should be coming to an end now, it is quite impossible to discuss the matter properly.
Lord Denham: My Lords, I have not suggested for one moment that the noble Earl should not be heard. I hope that he will make his speech, and we are looking forward to hearing it.
The Earl of Longford: My Lords, the noble Lord will not have to wait very long for the termination.
I venture to suggest to the noble Lord, Lord Hylton, that this matter cannot be discussed under these conditions of tension and therefore we must return to it at the Third Reading. I sit down, having expressed the hope that the noble Lord will undertake to raise the matter by suitable amendments at Third Reading.
Baroness Darcy (de Knayth): My Lords, I support the amendments, whether now or at Third Reading.
The Duke of Norfolk: My Lords, I know that the amendment has already been spoken to for a little too long, but I am always brief, and give myself five minutes at the very most.
This matter has been blown up out of all proportion to its importance. We well know that the Catholic laity play a great part in the life of the Catholic Church in this country. Perhaps I may just mention that the Catholic laity obtained Catholic emancipation in 1829 and that in 1860 the universities of Oxford and Cambridge allowed Catholics to go there. However, it was not until 1890 that the Catholic hierarchy allowed us to go. So much for the help of the Catholic hierarchy in the education of Catholics in this country! It is a small point but a most important one. I speak for the Catholic laity with great feeling.
We know that this is all muddled up with the Cardinal Vaughan School, and so on. However, I should like to ask the noble Lords, Lord Hylton and Lord Harvington and also the noble Earl, Lord Longford—who have prepared speeches, with long briefings, of which I have seen details—whether they are really sure that they are right in supporting the hierarchy in this non-religious subject against the laity?
The Earl of Longford: My Lords, I do not know how on earth the noble Duke has persuaded himself that he speaks for the laity. When I asked him who elected him as leader of the Catholics the other day, he said, "I did". Well, that is a good joke. However, the truth is that he does not represent the laity in the official sense any more than I do. Indeed, it is a title of honour. He has no right to speak for the millions of Catholics most of whom, in any case, happen to vote Labour.
The Duke of Norfolk: My Lords, I agree with the noble Earl. In no way am I the leader of the Catholic laity. I happen to be the senior Catholic from the point of view of this kind of organisation in this country; but in no way do I speak for the Catholic laity. I speak as a Catholic layman. That is all—no more, no less. I speak as someone who was educated by the Catholics at Ampleforth, Oxford, and so on. I do not speak for the Catholic laity, any more than other noble Lords, presumably, are speaking for the Catholic hierarchy.
Indeed, I object over and over again to the sadness I feel that Cardinal Hume is not here; he will not come here. It is a great pity that he does not. Therefore some of we Catholics must fill the gap. I say again, in no way am I speaking as leader of the Catholic laity. I never have been; and I never will be.
The issue is perfectly simple. I have about two more minutes to go. The dual system so successfully established by the 1944 Butler Act is not revoked or injured if there is a decision to return to the grant-maintained status of funding by the DES. That is what we are talking about. For many schools such funding was the system up until 1977 when Shirley Williams took the Catholic voluntary schools out of the voluntary system of the DES and put them into the LEAs. The question is whether they should go back to opting-out by resolutions of the laity to a system of direct-grant by the DES. If any Catholic school wants to come back to the funding of the DES, by vote of a majority of the laity, I do not think that any harm will be done.
Further, I understand that the Catholic bishops have agreed that they will not be opposed to such a grant-maintained system. That was the system before and they would not mind it happening again. The whole matter has been clouded and mudded by the issue concerning the Cardinal Vaughan School. It was said by the noble Baroness, Lady Hooper, (the speaker for the Government in this connection) that if a problem arose where the Cardinal Vaughan School was interfering with a sixth-form college, then Mr. Baker would veto the thing quietly in his own way so as not to harm anyone. The suggestion that we must vote for this amendment is disgraceful. I speak as a Catholic layman, one of 5 million Catholics; not the 10 million as suggested by the noble Earl, Lord Longford. I think he exaggerated somewhat. I have had many people writing to me to support the independence of the laity from the hierarchy who are by no means always right.
Baroness Hooper: My Lords, I agree about the importance to our education system of voluntary schools in general, especially Church schools.
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However, despite what has been previously said, clearly some of your Lordships remain concerned about what grant-maintained status would mean for a Church school. The Government have listened to those concerns, and I believe that they have taken all reasonable steps to meet them. I see no reason why all those connected with the life and work of Church schools should not have the same opportunity, if they wish, to enjoy the benefits of grant-maintained status as do those of any other maintained school. The right approach is not, surely, to deny governors and parents that opportunity but to ensure that those who choose to take it up do not, in the process, risk losing any of the benefits of being a Church school, and that is what the Government have done.
We have introduced amendments, and I believe that we now have it about right and that the interests of the Church are fully safeguarded under our proposals. I hope that on reflection the movers of these amendments may agree with me. For clarification I shall explain the situation in terms of Catholic schools, but everything I say of course applies mutatis mutandis to other denominational schools.
The Government have now secured beyond doubt that a Catholic Church school which becomes grant-maintained will remain a Catholic school. It will continue to provide religious education in accordance with the Catholic faith and, if the governors so desire, it will be allowed to give preference in its admissions policy to children from Catholic backgrounds. In every case, the trustees of the school—the bishop, or representatives of the hierarchy, or members of religious orders—will appoint the foundation governors of the school who will form the majority on the governing body.
There is no question, therefore, that the school could be lost to Catholic educational provision in the area; it will continue to serve much the same community as before, and rightly so. And, of course, there will be absolutely nothing to prevent the diocese from proposing to the governors of Catholic grant-maintained schools and of Catholic aided schools that they should work together on particular issues or particular occasions for the benefit of the Catholic community in the area as a whole.
Nor is the ownership of the school property at risk if a Church school becomes grant-maintained. Assets will change hands only where ownership previously rested with the local authority. Property belonging to the trustees will remain in their ownership and under their control. In this way investment by the Catholic community in the education of its children will be duly protected.
My noble friend Lord Harvington questioned my assertion that the trustees of a voluntary school will have a central role in the procedures by which grant-maintained status may be achieved, but they do. If the governors of such a school pass a resolution to ballot the parents on an application for grant-maintained status, they must consult the trustees and meet again to consider their views before that resolution can be confirmed.
Where a petition from parents initiates the ballot, the governors are obliged not to hold it until the

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trustees have had time to make known their views to the voters. And in those cases, which I would expect to be unusual, where parents and governors press on with an application against the stated wishes of the trustees, amendments have been introduced and the Bill now provides for the latter to have a statutory right to object to the proposal. The Secretary of State will give such an objection full weight when he is considering the proposal. He would be at risk of challenge in the courts should he fail to do so.
The noble Lord, Lord Hylton, raised a particular point on the question of judicial review. I should say that I acknowledge the emphasis which he has placed on requiring the trustees to give reasons if they seek to prevent a ballot taking place, and I confirm that if this were a requirement it is probable that such reasons would be open to challenge by way of judicial review. But I do not see that it helps the parents much to know that they could always try to persuade a court that the trustees had given reasons which no reasonable person could have advanced, or that they had in some way acted improperly. Our view is that the parents should not in any case be prevented from voting to apply for grant-maintained status since the trustees' interests are so well protected. If the trustees have really good reasons for opposing an application these will weigh with the Secretary of State when he considers that application. His decisions are open to challenge in the courts.
I strongly believe that the safeguards that I have outlined make it clear that any voluntary school contemplating an application for grant-maintained status is at no risk whatever of losing its denominational character, property and assets. The functions of the trustees in relation to the trust property will be in no way affected. I hope that in the light of what I have said the noble Lord, Lord Hylton, and his co-sponsors will feel able to withdraw the amendment.
Lord Hylton: My Lords, I am grateful to all noble Lords who have taken part in this short debate. I am also grateful to the Minister for her reply and for sending me an advance copy of a letter she was circulating to your Lordships. I am a little disappointed that she was unable to go a little further than what was contained in the letter. However, it is late and I do not propose to delay your Lordships or divided your Lordships' House. I reserve the right to come back to this matter on Third Reading, but I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Southern Water Authority Bill
Brought from the Commons, read a first time, and referred to the Examiners.
House adjourned at sixteen minutes past eleven o'clock.