Education (Publication and Consultation etc.) (Scotland) Amendment Regulations 1988

HL Deb 29 March 1988 vol 495 cc742-50

10.42 p.m.

Lord Morton of Shuna rose to ask Her Majesty's Government what is their response to the 16th Report of the Joint Committee on Statutory Instruments on the Education (Publication and Consultation etc.) (Scotland) Amendment Regulations 1988, No. 107 [HL Paper 49].

The noble Lord said: My Lords, in asking the Question standing in my name on the Order Paper, I start by bringing to the notice of the House the fact that the regulations to which the report refers were made on 26th January and came into force and were laid before Parliament on 27th January.

As your Lordships will be aware, there are statutory provisions relating to regulations of this type. They are found in the Statutory Instruments Act 1946. Section 4 says that, any statutory instrument is required to be laid before Parliament after being made"— and before coming into force— Provided that if it is essential that any such instrument should come into operation before copies thereof can be so laid as aforesaid, the instrument may be made so as to come into operation before it has been so laid; and where any statutory instrument comes into operation before it is laid before Parliament, notification shall forthwith be sent to the Lord Chancellor and to the Speaker of the House of Commons drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not so laid before the instrument came into operation".

The unfortunate fact referred to in the report of the joint committee is that that is the situation covered by the proviso. The requirement of the proviso is first of all that the Government should show that it was essential that the provision should come into force before it was laid. That they have made no attempt to do. All they can say is that it was advisable that the regulations should be known by Strathclyde Regional Council before 3rd or 12th February. There was not a word as to why it was essential that they should come into force before being laid before Parliament on 27th January.

Then there is a requirement, which I understand was not met, that a letter or a notification explaining why it was essential that it should come into operation before it was laid before Parliament should be sent to the noble and learned Lord the Lord Chancellor and the Speaker in another place. This was just ignored. My principal provision in asking this question is to draw the attention of noble Lords to the fact that it appears that the Government are quite prepared, if they consider it necessary for political purposes, to ignore the laws as to the bringing in of regulations. Now there have been numerous occasions in various Bills where we have complained in this House—and no doubt in another place they have also complained—that there is excessive use of the power of making regulations.

If one was reasonable, one would have hoped that the Joint Committee on Statutory Instruments would have some effect on the Government in seeing that they kept to the rules. The Joint Committee on Statutory Instruments has an in-built majority in favour of the Government party and always has. It always has as its chairman a Member of the Opposition party. But it always has a government majority.

The joint committee's report is very specific. But the Government just ignore its report and make no answer whatever. It appears to me that this is what the noble and learned Lord, Lord Hailsham of Saint Marylebone, was referring to prior to 1979 as a democratic dictatorship. In other words, if the Government have a majority in the House of Commons it does not matter what the rules are, they will force through whatever they happen to want.

There is no question but that the necessity for these regulations did not exist in any way at all because Strathclyde Regional Council was doing its duty in dealing with the need for schools closures. It was having a long consideration process, and some time in the middle of February it was going to start the statutory consultation process.

But because of some gentleman who has employment in Wapping who happened to have been at Paisley grammar school, and to have some kind of access to somebody in power in the Government, it was considered advisable to bring in regulations to deal with one specific school—Paisley grammar school—and to deal with it in regulations which, as the joint committee suggests, are very difficult to interpret, will encounter litigation on any interpretation of what they mean and were wholly and utterly unnecessary.

It appears to me that these regulations show a total contempt for the legislation that was passed in 1946 and has been obeyed by every Government since then. They show a total misunderstanding of what is meant by the word "essential". I would remind the noble and learned Lord opposite that we have discussed that in relation to the Criminal Justice Bill. If this is the interpretation of "essential", it means something different from what the Oxford English Dictionary suggests that it might mean.

This is a deplorable example of regulations being passed against the whole spirit of what regulations are designed to meet. It is regulations being passed for one specific political purpose about one specific school without making any consideration whatever about what the effects may be on other schools in other areas. It is wholly bad. It is wholly personal. It is wholly inappropriate and I hope the noble and learned Lord when he comes to answer the point will attempt to answer it because in the debate that occurred in another place the Government apparently did not condescend to do so.

Lord Mackie of Benshie

My Lords, I shall not attempt to follow the noble Lord, Lord Morton of Shuna, in his criticism of the Government's actions and the way they have ignored custom and regulation. I think that everything that he has said is true. However, I should like the noble and learned Lord, when he comes to reply, to consider the circumstances of the case, which I think differ from the interpretation of them which has been given by the noble Lord, Lord Morton. We have caucus rule of the Labour Party in Glasgow and on the Clyde generally. Once something is decided inside the caucus, no amount of consultation will reverse the decision. That has been a feature of Labour rule all over Scotland. It is a feature which my party has long criticised.

It is also true that the words "grammar school" are anathema to the Labour Party in Scotland. One of the better Labour parties destroyed Aberdeen grammar school many years ago; it even changed the name after 500 years. There is also no question that the ethos of a school has a great deal to do with its value to the community. There is no question that local feeling was wholly in favour of the retention of the school which has been mentioned. However, it was unable to find expression in the light of the caucus rule to which I have referred. On that matter, I criticise the Labour Party wholly and completely and admit that an injustice was going to be done.

On the other hand, the Government have taken the wrong road. Surely case after case must tell them that it is the electoral system that is wrong. I am aware that noble Lords may think that they have heard too much about proportional representation. However, case after case shows the necessity for it. For the Government to push through regulations in an irregular manner again shows that if there is proper representation in local government, that sort of thing will not happen. The system gives the Labour Party an overwhelming majority on local councils, and it uses that majority quite brutally for its own purposes. Perhaps the noble and learned Lord will comment on that matter and on the effect of the electoral system on decisions taken.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to my noble friend for having given us the opportunity to discuss the matter. I do not intend to speak for very long; I believe that he covered the main points. I should also like to dissociate myself totally from the statements made by the noble Lord, Lord Mackie of Benshie. I know a great many Labour councillors who are involved in education; and they are people who have been chosen because of their great love for education. They spend a great deal of time and effort in trying to get a good education system.

It is always difficult when, because of the demographic situation, there are difficulties. I am not criticising demographers unduly, but in the past 20-odd years they have got it wrong a lot of times. It is always a difficult matter. I was a local councillor for a short period. I continued in the same area as a Member of Parliament for over 20 years. I received many complaints about school closures. This regulation is plainly about Paisley grammar school; It is not about anything else. It should be emphasised that all the discussion about the Paisley grammar school overlooks, and is being selfish in overlooking, the fact that every school has its ethos, and that, particularly when a school is going to be closed or there will be great alterations, the local people, teachers, parents and pupils are greatly offended. I know of few schools that are easily closed. If I have any criticism of Strathclyde it is that it should have started a little earlier in announcing some of its closures. However, it has great problems in terms of local attitudes to school closures and in balancing the desires of the parents and balancing the types of schools. It has problems in regard to the stock and property of the schools. Whatever assets Paisley grammar school may have, they are certainly not the buildings. The buildings would certainly not in other circumstances meet with the approval of the parents.

Before the Education Act 1981 (on which this order is based) the Secretary of State had the power to intervene in all school closures. He had to give approval. Under previous Secretaries of State—the two I knew best were my noble friend Lord Ross of Marnock and Mr. Bruce Millan—there was intervention only to the extent of asking whether the parents, the pupils and the staff had been thoroughly consulted. They did not feel that they should interfere further.

Nevertheless, under the 1981 Act the Government took this power away from the Secretary of State and gave it only to the local authorities on the basis that the Secretary of State had no right to interfere with a local matter. It was considered to be a local job for the local authority to do. That view was expressed by the Minister at the time, the honourable Member for Eastwood, who is now most vociferous in trying to support the continuation of Paisley grammar school.

When the Bill was going through the House, the Opposition at the time, of which I was a member, said that if the Secretary of State were to yield up his power to the local authorities—a proposal of which we did not disapprove although we thought it unnecessary because of the way previous Secretaries of State had handled the matter—the decision should be across the board. The Government said no, and maintained the right of the Roman Catholic hierarchy alone to interfere when a school was about to be closed. There were many historic reasons for that. I do not blame the hierarchy for its worries about it. However, my point is that in 1981 the Government had the opportunity to continue this system but they specifically said that it was a matter for the local authority except in the case of denominational schools where the hierarchy should have some say.

The Government had plenty of opportunity at that time to intervene but they decided that it was a local matter and continued in that way. Then we come to Paisley grammar school. With totally undue haste and cynicism they introduced this order which was dealt with so well by my noble friend Lord Morton of Shuna. In bringing in the regulations the Scottish Office should have notified Mr. Speaker and the Lord Chancellor of its reasons for doing so. It failed to do that and therefore was in breach of the Statutory Instruments Act 1946.

I hope that the noble and learned Lord the Lord Advocate will be able to deal with that point. It was not dealt with adequately by the Minister, who is the guru behind this measure. I refer to the honourable Member for Stirling, who seems to have taken on the mantle of Adam Smith. From my small understanding of Adam Smith, the honourable Member has been selective about the matter. The explanation given by the Minister in another place was very inadequate.

I should like to finish by referring again to the quite unprecedented action of the Prime Minister in putting pen to paper and writing personally to the headmaster of a single school—one school out of thousands in Scotland. There are also the very important questions with which my noble friend dealt concerning the 80 per cent. capacity or use of the school, who decides the matter and how it is worked out. Will there be litigation and if so, will there possibly be litigation in other cases—because there were one or two that were on the borderline? The definition of what is 80 per cent. capacity or use of the school is something that is left very vague.

My noble friend spoke about the man from Wapping and he was referring to the editor of the Sunday Times, who is an old boy of Paisley grammar school. He has made clear that he had an influence on the Prime Minister which directly or indirectly resulted in her letter to the headmaster. As I say, that is an unprecedented act by a Prime Minister. Whether he would still claim that the influence was direct or indirect, I do not know. He may not know now and he may have had second thoughts about it, but some day memoirs will be written and the background to this squalid little story will be told in full.

I do not think it will do any good at all for politics, for either House of Parliament or for the institution of democracy. I believe that it will provide ammunition for those who in the future will use such stories to denigrate the whole structure of politics in this country. The only way in which such a thing can be described, and I am sure that in the future it will be so described, is as a totally squalid little act by a government which is trying to preserve something—falsely I believe—in Paisley.

The Lord Advocate (Lord Cameron of Lochbroom)

My Lords, the noble Lord opposite introduced this Question with a series of remarks which I am bound to say would have been met in any court of law by a plea to relevancy, because except in one point his remarks bore not at all upon the Question that he put down.

There has been a great deal said tonight about the circumstances in which the regulations came to be made. These have been a matter of debate both in this House and in another place. Certainly it does not and did not fall within the 16th report of the joint committee. I think it is only right for me to say that I do not propose to deal further with these matters. They have nothing to do with the Question which was put down to be answered tonight.

However, I shall make quite clear that, contrary to the point made by the noble Lord, Lord Morton of Shuna, the statute gives power to my right honourable friend the Secretary of State to make these regulations. Having taken his decision to make the regulations as he was empowered to do, my right honourable friend judged that it would be essential in everybody's interests that they should come into force immediately. As the noble Lord, Lord Morton of Shuna, said, the regulations were made on 26th January. Meetings of the Strathclyde Education Committee were scheduled for the 3rd and 12th February, and the latter meeting was a special meeting at which the review group's proposals were to be considered.

If the Secretary of State had laid the regulations when he did and provided that they should come into force 21 days later, the education committee would have held its meetings knowing that these regulations had been made but had not yet come into force. However, so that there should be no question whatever of retrospective use of powers, and so that the regional council should not be in any doubt at all that the regulations would bear upon any decisions taken at such meetings, it was provided that the regulations exceptionally should come into force at the very earliest possible date.

The noble Lord has not referred to the 1981 Act, but particular regard was had to the provisions of Section 22A of that Act, which deals with the case when an education authority makes a proposal, and provides for publication and consultation. It was clearly proper that those making representations, as well as the authority itself, should be in no doubt that certain proposals, if made, were the subject of reference to the Secretary of State upon criteria that were set out in the regulations. There could thus be no grounds for suggesting that the Government had changed the rules in the middle of statutory consultation.

The Government thought that they had made it plain to the joint committee in the department's second memorandum to the committee, in which it was stated: It was also considered desirable that the instrument should come into force before the Council so decided, so as to avoid any suggestion that, by applying to proposals already made, the instrument had retrospective effect". The joint committee has apparently not complained of the decision to set aside the 21-day convention but has concentrated on a more limited criticism; namely, that the regulations came into operation before they were laid before Parliament. I suppose that is technically true. The regulations were laid before Parliament and came into operation on the same day. What the joint committee has complained of is that whereas the regulations therefore came into operation at midnight they were not laid until 4 p.m., some 16 hours later.

The report acknowledges tacitly that the procedure required for this circumstance in Section 4 of the Statutory Instruments Act 1946 was followed, in that the Speaker and the Lord Chancellor were notified by letter that the regulations had come into operation ahead of being laid. Therefore the noble Lord, Lord Morton of Shuna, is incorrect in saying that this was ignored. Accordingly, the Government do not accept that there has been a failure to comply with the 1946 Act.

The joint committee has noted in its opinion that the reasons contained in the notification were not adequate and did not show why it was essential to bring the regulations into operation so quickly. As I have already explained, my right honourable friend considered it essential that the regulations be brought into force as soon as possible after they were made in order that the legal ground on which the education committee might be taking its decisions should be immediately established.

Another point was raised by the noble Lord, Lord Carmichael of Kelvingrove, in relation to the meaning of one part of the regulations. Again, I accept that is a criticism that is made by the joint committee in that the regulations, as it says, do not make it clear who or what authority is to be responsible for decision on the capacity of a school and for ensuring that the criteria mentioned are taken into account for the purpose of deciding when a closure decision must be referred to the Secretary of State.

The terms of Section 22B of the Education (Scotland) Act 1980 and the context of Schedule 2 to the principal regulations make it perfectly clear that the duty rests with the education authorities to decide which proposals to put before the Secretary of State for his consent. Section 22B requires an education authority to submit for consent any of its proposals of a kind prescribed for the purpose by the Secretary of State.

For instance, the existing regulations prescribing proposals which require the consent of the Secretary of State do not deem it necessary to state who is to decide whether or not a school is five or ten miles distant. It may appear on the face of it to be an objective measure not open to dispute, but as a matter of fact and practical experience in measuring distances between school an education authority has to make a judgment as to what is a reasonable route in all the circumstances. In the same way, and in the same context, in relation to a pupil travelling a distance of five or ten miles or more measured by the nearest available route, it is again a subjective measure.

It has been suggested that the criteria in the regulations to determine the capacity of a school are not clear. We believe that the criteria are quite clear enough to enable an education authority to make a reasonable judgment. Obviously, absolute and objective precision in measuring a school's capacity is impossible. The actual capacity of a school will depend on such matters as the structure of the curriculum, the teaching methods employed, and any upper limits in the class sizes which were agreed in the teachers' condition of service. The fact that there is no unchanging, objective yardstick for measuring capacity does not mean that no measurement can be made. That would be absurd. Education authorities can and do make reasonable judgments of school capacity. It is on these reasonable judgments that the operation of these regulations depends.

Take the first criterion. That means that the education authority must make reasonable assessment of capacity.

A reasonable education authority will call for a report from its professional advisers, the director of education and his staff, on a matter of this kind. Any director of education can give an assessment of the working capacity of a given school. He will take into account the extent and condition of the buildings, the range of subjects offered in the curriculum, the maximum sizes of classes and so forth and on that basis he can advise the education committee on how many pupils the school can take. Indeed I am advised that the Strathclyde region had published figures for all schools before these regulations were laid showing that in at least on case one school was more than 100 per cent. full, so the calculation can be made. I am advised in passing that the school was Paisley grammar school.

In these regulations my right honourable friend the Secretary of State quite clearly made known his view that education authorities should simply not have the last word over the future of a school which is able to operate at or near full capacity. He has done so by bringing these regulations into effect in time so that the Strathclyde Education Committee could take and were bound to take any decision in the fullest knowledge of them. That is proper notice properly given. It was essential that it be so.

I therefore make clear that in this case the circumstances to which the joint committee has drawn attention are not, in the Government's view, well founded. In the Government's view the requirements of Section 4 of the 1946 Act were fully met and in particular the proviso was met.

Lord Morton of Shuna

My Lords, before the noble and learned Lord sits down, perhaps he could answer this question which he does not appear to have answered at all. Why was it essential in the terms of Section 4 of the 1946 Act that this order came into force on 27th January and not on 2nd February? That is one question which has not been answered. There has been a misconception about the 21-day rule, but the basic issue, according to Section 4 of the Act, is that the order comes into force before it is laid before Parliament. Secondly, why were the noble and learned Lord the Lord Chancellor and the Speaker of the House not informed of the reasons why it was thought to be essential? Those are the points that I have tried to raise and those are the points that the noble and learned Lord has not, I regret, answered.

Lord Cameron of Lochbroom

My Lords, I take it that I had not sat down. I have made the matter perfectly plain and I can go no further than that.

Lord Mackie of Benshie

My Lords, before the noble and learned Lord sits down again, I wonder whether he will tell me in plain language whether the decision, the real reason for laying the regulations, was simply that his right honourable friend the Secretary of State disagreed with the decision he thought the authority was going to take? In other words, he simply did not trust the local authority?

Lord Cameron of Lochbroom

My Lords, in effect, with leave of the House, I wish to make it clear that I am answering the Question as put down this evening. I have made quite clear that these were matters debated on an earlier occasion.

House adjourned at a quarter past eleven o'clock.