HL Deb 23 June 1988 vol 498 cc922-82

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 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—

  1. (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.
  2. (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;
  3. (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;
  4. (d) the obligation to maintain appropriate appeals machinery, and to afford members of staff following discipline or dismissal proper access to it;
  5. (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
  6. (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 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 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 "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 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 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 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 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 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.

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 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 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 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 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 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 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.

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.
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.
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 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 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.

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 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 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 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, 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 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 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—

  1. (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
  2. (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 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 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 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 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 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. 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, 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 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 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 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!

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.

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.
Ailsa, M. Arran, E.
Airey of Abingdon, B. Balfour, E.
Allenby of Megiddo, V. Beaverbrook, L.
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 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 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 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. 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 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 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.

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 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 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 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 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 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 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?

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 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.

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 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 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 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 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. (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 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 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 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 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?

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 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 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 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—

  1. (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;
  2. (b) the proportion of such time which the authority estimates to be devoted to matters arising from local financial management;
  3. (c) the proportion of time which was devoted during working hours; and
  4. (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

  1. (a) the impact of local financial management on the workload of governors; and
  2. (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.

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 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 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.