Self-Governing Schools etc. (Scotland) Bill

HL Deb 18 October 1989 vol 511 cc914-80

3.1 p.m.

The Minister of State, Scottish Office (Lord Sanderson of Bowden)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee. —(Lord Sanderson of Bowden.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 17 [Ballot expenses]:

Lord Sanderson of Bowden moved Amendment No. 32: Page 11, line 1, leave out ("section 14(2)") and insert ("subsection (2) of section 14").

The noble Lord said: I shall also speak to Amendment No. 33. These amendments ensure that the limit on campaign expenses in respect of a ballot laid down by virtue of Clause 17 will apply as the overall limit on expenditure, including that in respect of any fresh ballot which may be required under Clause 15; that is, a fresh ballot does not open the door to a second round of campaign expenditure. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 33: Page 11, line 5, after ("13") insert ("(or the outcome of any fresh ballot held, in accordance with the said section 14, by virtue of section 15 of this Act)").

On Question, amendment agreed to.

Clause, 17, as amended, agreed to.

Clause 18 [Further provisions as regards proposals under section 16]:

Lord Carmichael of Kelvingrove moved Amendment No. 34: Page 11, line 11, leave out subsections (1) and (2).

The noble Lord said: For the convenience of the Committee I shall also speak to Amendments Nos. 35 and 36. The purpose of this group of amendments is to remove the provision whereby the Secretary of State can prevent a school board from withdrawing its proposals published under Clause 16.

Following the publication of proposals a school board may be aware of the representations being made to the Secretary of State under Clause 18(3) and as a result of those representations may wish to withdraw or amend its proposals. For example, parents who voted for the change of status may find that they cannot support aspects of the published proposals and make representations to the board for the proposals to be amended. The Secretary of State could also modify proposals against the wishes of the school board under Clause 19(1)(b). In such circumstances is it not unreasonable for the Secretary of State to prevent the board from withdrawing its proposals? In any event, how could the Secretary of State force a board to proceed with the acquisition of self-governing status against its wishes? Could not the members of the board merely resign, thus forcing the Secretary of State to reject the proposals?

Under Amendment No. 35 the Secretary of State and the school board should reach agreement on any modification of the proposals. If the Secretary of State wishes changes to be made to the scheme of management before granting self-governing status, such changes must be agreeable to the school board. Again, would it not be unreasonable to expect a board to manage a school under arrangements which it found unacceptable? I think these points are self-evident and I hope that the Minister will give a favourable reply. I beg to move.

Lord Sanderson of Bowden

I am advised that since the school board is under a statutory duty to publish proposals, the Bill itself must include any procedure which would allow subsequent withdrawal or modification of the published proposals. The effect of the two amendments to Clause 18 would therefore be to remove any scope whatever for a board withdrawing proposals for self-governing status. However, I have listened to the noble Lord, Lord Carmichael of Kelvingrove, and will deal with the points of principle raised.

There may be circumstances in which either the school board or the Secretary of State wish to see proposals withdrawn or modified. Published proposals will be subject to public comment and formal representations to the Secretary of State. As a result it could well be felt that changes of some importance should be made before proposals are approved. The proper course might then be for the school board to withdraw and re—publish amended proposals.

Control of these procedures is placed in the hands of the Secretary of State. The proposals originally followed a ballot showing a parental majority for the change of status. That majority wish must be respected. It is not appropriate simply to allow the members of the school board alone to change their mind and perhaps give up the whole idea.

The Secretary of State may in some cases be happy with the general lines of the proposals and be ready to allow the school to become self-governing on that basis. However, Clause 2(4)(b) obliges the Secretary of State to ensure that the first scheme of government for a school accords with the detail of the proposals as accepted. With this in mind there may well be a need for minor modifications to ensure that the final proposals are in a form which the Secretary of State could reasonably incorporate in a scheme of government. School boards will have available guidance on the construction of proposals but they cannot be expected to have the experience and access to legal advice necessary to ensure every detail of their proposals is appropriately expressed. The provisions in Clause 19(1)(b) allow the Secretary of State to deal with these points. With this explanation I would invite the noble Lord to withdraw his amendments.

Lord Carmichael of Kelvingrove

The explanation given by the Minister appears to meet the point. I may be being obtuse here but I believe that the Secretary of State will have the power to allow a school board to withdraw its proposals if the modifications which he has suggested are such that he considers that they change the nature of the original proposals put forward. That is what I understand the Minister said.

If that is the case, I am happy to withdraw the amendment. As the Minister made rather a long reply, perhaps he will allow me to take advice on this matter and perhaps come back at a later stage. However, at present I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

Clause 18 agreed to.

Clause 19 [Rejection or approval of proposals]:

[Amendment No. 36 not moved.]

Lord Sanderson of Bowden moved Amendment No. 37: Page 12, line 6, leave out subsection (6).

The noble Lord said: This is a technical amendment to remove a provision in the Bill which no longer is relevant. The original provisions of the Bill allowed for members of the board to be provisionally appointed before incorporation; but the Bill as amended in the other place now provides that the appointed members shall be appointed by the newly elected board after incorporation. Clause 19(6) as it stands no longer has any meaning in the context of the Bill and should therefore be removed.

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Schedule 4 agreed to.

Clause 20 agreed to.

Schedule 5 agreed to.

Clause 21 agreed to.

Clause 22 [transfer of staff to self-governing schools]:

Lord Carmichael of Kelvingrove moved Amendment No. 38: Page 13, leave out lines 5 to 9.

The noble Lord said: This amendment deals with the provision that the Bill makes for determining what is to happen to staff who are employed in a school for only part of their time. This could almost become a bureaucratic nightmare because, as currently drafted, Clause 22(1)(b) allows the Secretary of State to decide who is to be the employer of any visiting employee, however few the hours that employee might spend in the school.

For example, a peripatetic music teacher might spend one morning in the school out of a whole working week spent in employment at other schools managed by the education authority, or perhaps by other independent schools. While it is recognised that it is important to secure a teacher's continued services to the school, surely it would be wrong to place the teacher under the employment of the board of management rather than the education authority if the latter is taking by far the bulk of the teacher's time for its educational needs. In other words, the clause tackles the issue in what we believe is the wrong way.

It would be far better to provide that the education authority must continue to provide the services of a person who works part—time at the school rather than empower the Secretary of State to compel the transfer of employment on the basis of a few hours' work at the school each week. Again, I feel that this is an improvement to the Bill. I beg to move.

Lord Sanderson of Bowden

It would probably be helpful to the Committee to indicate the circumstances in which we envisage that Clause 22(1)(b) might be used.

Teachers and other members of staff employed to work solely at the school transfer automatically to the employment of the board of management under Clause 22(1)(a). There will often be others who work only part of their week at the school. Peripatetic teachers of art or music who go around a number of primary schools each week offer an obvious example, as the noble Lord said.

Where persons spend only a small part of their time at the school in question the obvious course would be for them to remain in the employment of the education authority. We would not expect Clause 22(1)(b) powers to be used in such cases. The self-governing school may, of course, still wish to buy in from the authority the part-time services of someone and to pay for them. Clause 34 provides for such arrangements.

If, however, someone works for the greatest part of the week at a school which is due to become self-governing and only a small part is spent in other education authority schools, the sensible course may be to have the board of management become the employer. The self-governing school could then, by agreement, sell part of that person's time back to the authority to continue a service to the other schools involved. Clause 22(6) has been included to facilitate such agreements.

Everything will depend on the circumstances in particular cases. It is not possible to make a general rule for those staff with some commitment to other schools. Clause 22(1)(b) allows submission to be made to the Secretary of State where it is felt, by the board, by the authority or by the individual concerned, that transfer would be appropriate. The Bill has been designed to allow continuation of existing practice while retaining a single employer and single contract of employment for the individual member of staff.

With that explanation, I hope the noble Lord will be willing to withdraw his amendment.

3.15 p.m.

Lord Macaulay of Bragar

That is a most unsatisfactory reply to the question posed by this amendment…The relationship between the teacher and the employer goes to the heart of the education system in Scotland. It is essential that there should be consensus on both sides as to what is to happen to a teacher. This clause has the air about it of a unilaterial alteration of the terms of contract of the teacher without the teacher's consent.

Perhaps the Minister can tell the Committee what will happen to a teacher who refuses to go to a school to which he is assigned under Clause 22(4) of the Bill as it stands. Will the teacher be given a choice? For example, if the teacher is against the principle of opted-out schools and has been happy as a peripatetic music teacher with the local authority, why should that teacher be forced to go to a school with whose principles he or she does not agree? It is important to remember that when this Bill is enacted all the teachers in Scotland will have been employed by the local authority on a basis which did not envisage the prospect of teaching in what are called opted-out schools.

The teachers, therefore, will be on the horns of a dilemma. This change may very well leave many unhappy teachers being forced to each, for the purposes of survival, in circumstances which they would not normally find acceptable in an ordinary contract of employment. I may be misreading the Bill, but perhaps the Minister can tell the Committee where there is a choice for the teacher in these provisions about moving from employment of the local authority to employment by the board of management of one self-governing school out of a number? For example, if a teacher is servicing four schools which are to become self-governing will the teacher be allowed to choose which of the four boards of management to be employed by so that he or she can be sold like a chattel to the other schools in the area?

Lord Mackie of Benshie

Surely the obvious answer is for such a teacher to be employed by the local education authority, because the authority has an interest in servicing that school and the other schools. If a self-governing school employs a teacher it has only a financial incentive to go to the other schools, but no duty. It appears to me that the first alternative is the proper one because peripatetic teachers are always employed by the education authority.

Lord Sanderson of Bowden

In answer to the noble Lord, Lord Mackie of Benshie, as I said in my original reply, it very much depends on the circumstances of the case and the amount of time that such a teacher will be employed in any school that is to become self-governing.

The noble Lord, Lord Macaulay, spoke about teachers being transferred against their wishes. Well, the teacher can resign from the employment of the self-governing school and be re—employed by the education authority. If that is done promptly there will be no loss of continuity of employment.

The important point is that the Bill provides for continuity of staffing where a school becomes self-governing. Continuity is important. It is a protection for the teachers if they have to be taken on by a self-governing school. It is difficult to consider hypothetical situations but I repeat that Clause 22(1)(b) allows submission to be made to the Secretary of State where it is felt by the individual concerned—quite apart from the board or the authority—that transfer would be appropriate.

I will, of course, study what the noble Lord, Lord Macaulay, said to see whether there is anything further to add to what I have already said.

Lord Macaulay of Bragar

Is the Minister giving a guarantee on behalf of the Government that, if a teacher decides not to be under the aegis of a self-governing school, he or she will be guaranteed a contract of employment with the local authority, even if there is no vacancy?

Lord Sanderson of Bowden

As this is a very complex matter where the rules regulating teacher employment by education authorities are involved I should like to study the noble Lord's comments without giving a commitment at this stage. However, I do say to the noble Lord that, as I indicated, I see nothing to prevent an individual, if he is dissatisfied, from appealing against a decision if that particular member of staff happens to carry out most of his work at a newly self-governing school.

The Earl of Perth

As the Minister said, this is a very complicated clause. When reading subsection (6)—forgetting paragraphs (a) and (b)—I hope that the Minister will explain what the following words mean. I start with "the term shall" and finish with "been given". I have read the passage many times and I do not understand what it means.

Lord Sanderson of Bowden

I confirm to the noble Lord, Lord Macaulay of Bragar—to answer the point that he specifically asked me about—that the Government cannot offer a guarantee (as I suspected) of employment by the education authority to that particular person for the simple reason that it will be for the education authority itself to decide whether that person could be employed by that particular authority.

In answer to the noble Earl, Lord Perth, I am trying hard to see what he is getting at. The particular subsection states: Without prejudice to subsection (3) above"— that is— The contract of employment between a person to whom this section applies and the education authority by whom he is employed shall have effect from the incorporation date as if originally made between him and the board of management of the school". That gets the date fixed.

We then move to "the term shall" and the subsection continues: in accordance with subsections (3) and (5) above, give the right of assignation to the board, so however that the schools (other than the self-governing school) to which the person may be assigned if the authority agree shall be those to which he might have been assigned had no direction been given". In looking at the terms here I shall have to study subsections (3) and (5) in order to see exactly what is the meaning of that part of the clause. I undertake to write to the noble Earl as soon as possible with a complete and thorough explanation of it.

The Earl of Perth

I am grateful to the Minister for that reply. I hope that he will pass on the information to others who are also concerned.

Baroness Carnegy of Lour

I revert to the point raised by the noble Lord, Lord Macaulay. I hope that he is not suggesting that central government should be telling local authorities which teachers they should employ and which they should not.

Lord Macaulay of Bragar

That was not the suggestion at all. I was raising a point concerning teachers' terms of contract. Teachers have started out as employees of a local authority in which the concept of opting-out schools never existed. As I said at the beginning of my remarks concerning this amendment, there is here an echo of a unilateral change of contract. I know that the Minister has promised to take away this amendment to look at it very carefully, as I am sure he will. He has demonstrated that he always does.

I mention the matter so that it may be considered. There can be no guarantee of employment with one's original employer; namely, the local authority. The contract of employment will be interrupted by the operation of this Act, telling the teacher that he or she is no longer employed by the local authority and that if he or she does not want to be employed under a certain board of management, the teacher can like it or lump it, and he or she will not get another job. That opens the door to cases of judicial review and industrial tribunals which may cause a considerable amount of chaos in the education field.

Lord Carmichael of Kelvingrove

I suggested at the outset that this matter could be the beginning of a bureaucratic nightmare. I believe that we have a little evidence of that already. The Minister gave a very full explanation in his reply and he also said that he would take away the amendment and study it. He added a word that was slightly disturbing to me when he said that the teacher may decide promptly to go one way or the other.

We need to have an idea of what is meant by the word "promptly". Does it refer to when the teacher goes on the books of school A as opposed to that of the education authority and he has so long in which to make up his mind immediately after the school has become independent? On the other hand, does "promptly" mean a much later stage when the school has reached the point of deciding whether to have a particular teacher on its books? An explanation of the word "promptly" is required.

As my noble friend Lord Macaulay of Bragar said, when the Minister states that he will look at a matter again, we have a great deal of faith in him doing so. Therefore we shall not press this amendment. We shall be keen to see that the Minister has taken on board what we believe is a real point made by ourselves and by the noble Earl, Lord Perth. This matter needs filling out and more substance needs to be given to the circumstances in which a teacher may be moved around the system. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22, agreed to.

Clause 23 [Further provision as regards teachers in self-governing schools]:

Lord Macaulay of Bragar moved Amendment No. 39: Page 14, line 17, at end insert— ("(2) Such exceptions made under subsection (1) above shall not provide for permanent contracts being issued to non—registered teachers.").

The noble Lord said: The amendment involves Clause 23(1) and proposes to enter at the end of that part of the clause a new subsection in these terms: Such exceptions made under subsection (1) above shall not provide for permanent contracts being issued to non—registered teachers".

The purpose of this amendment is to ensure that only registered teachers will be employed as teachers in self-governing schools except where in certain circumstances it is necessary to employ non-registered teachers on a temporary basis.

One has to be realistic about life in schools in various parts of the country. In tabling this amendment those of us on this side of the Committee appreciate that, for example, in a rural area with one or two teachers there may be circumstances in which a teacher is away through sickness or maternity leave, whatever the case may be, and it will be necessary to bring in someone with suitable qualifications in order to fill the gap

The amendment is put forward to ensure that the principle of employing registered teachers is not eroded on any permanent basis. There is no reason why the Secretary of State cannot bring in regulations to cope with the situation that I envisage in a rural area and perhaps in terms better than those that appear in the Bill. I appreciate that it may be argued that the words, subject to such exceptions as may from time to time be prescribed perhaps cover the point that we are trying to make through the amendment. To that extent we may be duplicating Clause 23(1). It is the matter of permanent contracts that is important as regards registered teachers.

The fear is that the Secretary of State may in the terms of Clause 23(1) exercise his power to make exceptions by employing what would be the equivalent of licensed teachers in England and Wales. That would involve a very dangerous erosion of the standards of teaching in the schools because the persons who undertake the teaching duties would not be teachers in any sense of the word. It is my understanding that in England and Wales a person who eventually obtains the qualification of a licensed teacher has at least undergone a course of teacher training.

However, in the terms of this Bill licensed teachers would be allowed to teach pupils without having taken such a course. In other words, they will not have been trained how to teach. Parents and pupils at self-governing schools must be assured that the teachers are, as far as possible and subject to the odd exception, qualified teachers and that they will be the only persons holding permanent contracts in the self-governing schools. I beg to move.

Lord Addington

I support the amendment. The principle that a teacher should be trained in how to teach, no matter what volume of knowledge he has, is an important one, although it is accepted that on some occasions people with certain specific technical knowledge but not qualified as a teacher will be required for short periods. However, I certainly support the idea that people employed on a full-time basis in schools within the education system, no matter what kind of school it is, should at least have some experience of being taught how to impart that knowledge.

3.30 p.m.

Lord Sanderson of Bowden

I thank the noble Lord for moving the amendment and the noble Lord, Lord Addington, for speaking to it. The amendment seeks to alter the provisions, which the Bill reproduces in identical form from earlier legislation, governing the employment of teachers in education authority schools. Clause 23(1) mirrors Section 90 of the Education (Scotland) Act 1980 which gives the Secretary of State powers to make certain exceptions under regulations made in terms of other sections of that Act.

Regulations made under the 1980 Act powers prescribe that every teacher employed by an education authority must be registered by the General Teaching Council. The exceptional power is used in relation to difficulties encountered by the education authority in recruiting a person holding qualifications appropriate to a specific post that it is seeking to fill. That covers the point of the noble Lord, Lord Addington.

It may be necessary, with the approval of the Secretary of State, to appoint a registered teacher who does not hold the precise qualifications appropriate to the post, or to make a temporary appoinment of such a registered teacher and resume attempts to secure an appropriately qualified person. The main point is that the person appointed must be a registered teacher. Our intention is to make regulations in precisely the same terms for self-governing schools. That is what the noble Lord, Lord Macaulay, was asking for. In short, this question is not about changing educational policy; it is restating it. In the light of that explanation, I hope that the noble Lord will consider withdrawing the amendment.

Lord Macaulay of Bragar

I thank the noble Lord for his answer to the propositions which I put forward in support of the amendment. I am pleased to hear the Government saying in terms that unregistered teachers will not be qualified in self-governing schools. I have no doubt that the Government will ensure that that policy is carried out to the full. In the light of the noble Lord's undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clauses 24 and 25 agreed to.

Schedule 6 [Provisions of Benefits and Services for Pupils at Self-Governing Schools etc.]:

Lord Sanderson of Bowden moved Amendment No. 40: Page 63, line 47, after ("(i)") insert ("his parent").

The noble Lord said: I should like to speak also to Amendments Nos. 41 to 45. These are purely drafting amendments. Their purpose is to refer accurately to the fact that parents of pupils, not pupils, will make placing requests. Only when a pupil passes school leaving age does he assume the right to make a placing request himself. That case is covered by Amendment No. 45 which effectively says that such a pupil is to be treated as if he were his own parent. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendments Nos. 41 to 45: Page 63, line 49, after ("for") insert ("the pupil's"). Page 64, line 1, after ("(ii)") insert ("his parent"). Page 64, line 1, leave out ("him") and insert ("the pupil"). Page 64, line 2, leave out ("he") and insert ("the pupil"). Page 64, line 2, at end insert ("; and paragraph 8 of the said Schedule 2 shall apply in relation to references in this subsection as that paragraph applies to references in paragraphs 2 to 7 of that Schedule.").

On Question, amendments agreed to.

Schedule 6, as amended, agreed to.

Clause 26 [Recurrent grant, capital grants and special purpose grants]:

Baroness Carnegy of Lour moved Amendment No. 46: Page 15, line 35, after ("regulations") insert ("and will be comparable to provision made for equivalent schools still under education authority management.").

The noble Baroness said: For the convenience of the Committee I should like to speak also to Amendment No. 47. We now turn to the question of the level of funding of self-governing schools. In another place the Government expressed the view that the funding of self-governing schools should be at the same level as the funding by the local authority of equivalent schools in the area. This is now endorsed and to an extent clarified in the draft circular sent by the Government to the Convention of Scottish Local Authorities on 9th October. I am grateful to the Minister for sending me a copy too.

My amendment, which is at this stage a probing amendment, suggests that the basic principle of parity of funding should be on the face of the Bill. Earnest though the Government may be in their intentions, it will not be easy to arrive at the correct figure for the funding of self-governing schools. Future governments may be tempted either to favour self-governing schools or—equally likely in another direction—to give them less than they deserve. This last possibility worries the Scottish Parent Teachers Association in particular. Should not the principle be on the face of the Bill? If the Government think not, may I know the reasons?

Amendment No. 47 is also a probing amendment. It seeks to explore whether the Government are satisfied that it will be possible to do the necessary sums in order to fund self-governing schools on exactly the same basis as they could have expected to have been funded under the local authority. Again, the draft circular goes into this in some detail. When the local authorities study the circular I believe that some of the anxieties they have expressed to me will be allayed. I see, for example, that responsibilities which will continue to be the local authority's, whether or not they apply to the self-governing school—the child guidance service, the provision of psychologists, the identifying and recording of children with special needs, the career service and so on—will continue to be funded through the local authority. But what about the funding of other aspects of school life?

We are told that the amounts due to a self-governing school for meeting the needs of children with special educational needs will be a matter for negotiation between school and local authority. Can the Minister give us some idea of how that will work? How will the use a self-governing school makes of a teachers' resource centre be allocated? How will the cost be allocated for that? If an authority has perhaps one maths adviser for the whole authority and the self-governing school uses his or her services, how will the cost be allocated? Likewise, if a self-governing school does not use the adviser, will the local authority simply receive less central government funding while still having to employ the same adviser?

The Scottish Parent Teachers Association is as concerned as the local authorities on these details. I should be grateful if the Minister could give some reassurance that these calculations will be possible so that neither self-governing schools nor local authorities are disadvantaged. I beg to move.

Lord Mackie of Benshie

I want to reinforce the noble Baroness's point about the increased cost of administering the schools remaining under the local authority. When one removes half the schools it is bound to be more expensive to administer the rest. It is an important point.

Lord Macaulay of Bragar

The draft regulations state that the grant will include allowance for expenditure on services provided centrally from the education budget, whereas in the case of the regional psychological service the authority will have a continuing responsibility to provide for pupils at self-governing schools. It is not clear whether the self-governing school requiring the psychological service will be operating in terms of Clause 34, which deals with the provision of services. I wonder whether Amendment No. 47 should read "section 34" instead of "section 24". Perhaps the noble Baroness will confirm that she meant to refer to Clause 34, because Clause 24 does not appear to have much to do with the provisional services. The side note to Clause 24 is: Effect of pending procedure for acquisition of self-governing status on appointment etc. of staff". Are we talking about Clause 34 or Clause 24?

Will the Minister clarify whether psychological services are being picked out as a specialised service, and that such a service will be provided free of charge to the self-governing schools and that their budget will not be diminished by the provision of that specialised service?

Lord Sanderson of Bowden

My noble friend's first amendment to line 38 is a fair expression of our declared policy in respect of financing self-governing schools. She and others may well ask me why we do not write it into the Bill. Before one buys a policy, it is always advisable to ask to see the fine print. Whether or not we write that general principle into the statute, local authorities may legitimately ask what it will mean for them in practice; in other words, they will want to go into a level of detail which we feel is more appropriate for regulations.

We shall of course be producing draft regulations in due course and we shall want to consult local authorities about them and to hear their views. I can give that undertaking here and now. I can also reiterate that it is the Government's intention that the financial arrangements for self-governing schools should as near as possible leave those schools neither better nor worse off than they would have been under local authority management.

The Committee is doubtless aware that the equivalent regulations for grant-maintained schools in England and Wales have already been made. Those regulations likewise contain provision designed to fund grant-maintained schools as nearly as possible at the level at which they would have been if they had remained with their local authorities. Equally, the Act in which they are founded does not, any more than this Bill, attempt to formulate the general principle.

Parliament did not consider it necessary to write the principle for England and Wales into last year's Bill and it is hard to see why in similar circumstances we should take a different view this year. We should not improve matters by drafting extra words into the Bill. If those words are to be effective, and if they are to make workable law, their interpretation needs to be as certain as possible. The more general a statement is, the more room it leaves for interpretation and possibly dispute in its application to a specific case. We should therefore need something precise and specific. Indeed, it would need to contain much of the substance of what will otherwise go into regulations and now exists in regulations in England and Wales. We should then obtain something like certainty but at a price which I believe would be unacceptable.

The virtue of subordinate legislation in a matter of this sort is that it is more readily amended and adapted in the light of experience and changing circumstances. It would also need more opportunity than there is in the timetable for the passage of a Bill for thorough discussion of the detail with the local authorities. I give yet again the assurance that discussions will take place.

Similar considerations apply to my noble friend's second amendment. As the noble Lord, Lord Mackie of Benshie, said, important issues are raised. The argument here is mainly about the provision of services which an education authority would treat as central costs and which cannot be apportioned in detail to individual schools. In a system of delegated financial control, such costs are typically charged out to cost centres as fixed overheads at some notional rate.

We have taken the view that since a self-governing school will need to find for itself something to replace the central administrative and advisory services that it has previously had from the local authority, it ought to be given something in its grant to represent that. Since such costs cannot be apportioned out of direct costs, the only fair way to deal with them is to treat them as overheads. Our intention therefore will be to do as the English regulations do and give the school an amount based on the local authority's general expenditure on those services and proportionate to the number of pupils at the school. Central costs is a matter that exercises our minds. We feel that that is the best way to preceed.

The noble Lord, Lord Macaulay, asked about the psychological service. It will remain a function of the education authority under Section 4 of the 1980 Act where the authority is under a duty to provide for its area a child guidance service. The noble Lord referred to the clauses dealing with provision of services. Clause 25 covers services provided by the education authority to pupils at all schools, but Clause 34 is about services provided by an authority to the board of management of a self-governing school.

The final point that I make to my noble friend Lady Carnegy of Lour is that the costs of special education, which we touched upon the first day in Committee when she was unfortunately ill, is something to which we return under Clause 27 and I suggest that we deal with the matter then.

3.45 p.m.

Baroness Seear

As a mere Englishman I hesitate to raise my voice in this debate. But I wonder whether the Minister has satisfactorily answered the point made by the noble Baroness with regard to avoiding any discrimination as between the two types of schools. The Minister said that the provision was not included in the Bill affecting England and Wales. Perhaps we should have put it in. It is possible that a subsequent Administration, not the present one, might decide that they wanted to favour one type of school rather than another. Many of us feel that that would be extremely undesirable.

While we cannot put the detail onto the face of the Bill, would it not be wise to have embedded in the Bill that there can be no discrimination in the allocation of resources between the two types of schools? Will the Minister think about the matter again? He said that it is much better to do it by regulations because they can be changed so much more easily. That is my objection to doing it by regulations.

Lord Sanderson of Bowden

That point takes us to the usual argument as to whether something should be on the face of the Bill or in regulations. The point came up on other matters during the first day in Committee. It is a complex matter and one which must be addressed as accurately as possible and we feel that it is better dealt with in regulations, where we have the advantage —I agree the point is important —of discussing the regulations with those most directly affected; in other words, the education authorities. I see clearly the point made by the noble Baroness, but I believe that the way in which we intend to approach the matter, which is the same as the way that it was dealt with last year in the English and Welsh legislation, is the best way.

Lord Mackie of Benshie

Will the Minister reassure me on one point? He said that costs for the self-governing school would be apportioned according to overheads. That is satisfactory for the self-governing school. I hope and trust that along with that goes the fact that we cannot take that same amount away from the local authority and expect it to continue the administration.

Lord Sanderson of Bowden

That is a matter which must be addressed in two parts. It must be addressed to the local authority, where the economies of scale may be affected by the changes, and by the self-governing school. I hope that that reassures the noble Lord.

Lord Carmichael of Kelvingrove

The Minister will be aware of the feeling in the Chamber about the amendment. The noble Baroness, Lady Carnegy, will know that my name is attached to the amendment. She will also be aware that we had a certain amount of success last week when dealing with our combined amendments. We are not as successful today. I am most grateful to the noble Baroness, Lady Seear, for her intervention from the English point of view. She plainly said that the provision should perhaps have been contained in the English Bill. We should like it in the Bill because we believe that the Scottish people would like it to be in the Bill.

I find it difficult when the Minister says that he wants certainty. In a situation like this absolute certainty cannot be guaranteed no matter how many regulations one writes. The wording which the noble Baroness, Lady Carnegy, and I have put in the amendment is that the provision will be, comparable to provision made for equivalent schools still under education authority management". Nobody expects it to go down to the last penny or ha'penny. Common sense is necessary. If the matter ever reaches the courts, they are well acquainted with comparability. It would do no harm to have something like this on the face of the Bill; it would be rather reassuring.

Both the noble Baronesses, Lady Carnegy and Lady Seear, suggested that there may not always be reasonable people like the noble Lord, Lord Sanderson, in charge of education in the Scottish Office. If he were, as I have said before, we would let most of these Bills through on the nod. However, circumstances change and in some cases the change could be disastrous.

I hope that it is sufficient to express the feeling. We have had few real disputes on the Bill. We have come to agreement and understanding that the Minister will look at certain matters. This is not a major point in itself but the implications are very important. I hope that the noble Baroness will test the feeling of the Committee on the amendment, bearing in mind the attitude of people towards Scottish education and the disparity, or possible disparity, that could arise between one type of school and another.

The Earl of Perth

Before the noble Baroness decides whether she will test the opinion of the Committee, perhaps the Minister will think once again. I understand that what we are trying to achieve in the amendment is that self-governing schools and local authority schools should be treated in a similar way. A "comparable way" is, I think, the phrase used.

It is all very well saying that that will come out in regulations. As we have heard, Ministers change and governments change. If the matter is left to the responsibility of a future Secretary of State for Scotland, who knows how his prejudices might favour one side or the other. The fact that this is not in the English Bill is no good reason why it should not be in ours. Before the noble Baroness, Lady Carnegy, decides one way or the other, I hope that the Minister will consider whether he can given some comfort to us on the matter.

Lord Sanderson of Bowden

Before my noble friend decides what to do concerning the amendment, I should like to say that I understand what Members of the Committee have said. However, I fear that without the scale of detail in regulations there can be no watertight protection for each type of school. That is why we feel that the correct route is the one that we have adopted. I understand when the noble Earl says that not everything done in English and Welsh legislation need religiously be copied in Scottish regulations or legislation. I well understand that.

However, on this occasion I think that we might be following the right route. I shall of course look carefully at what everyone has said. I may have to examine again what I have said, but I fear that I should be misleading the Committee if I said that I thought that what the amendment proposes is the correct route. It is up to my noble friend to decide whether she agrees that this is the correct route to put on the face of the Bill in this instance.

Baroness Carnegy of Lour

I thank all Members of the Committee who have joined in the interesting discussion, particularly the noble Lord, Lord Carmichael, who has kindly put his name to this amendment as he did to others of mine last week when I could not be present to ensure that various issues were aired.

I have no intention whatever of testing the opinion of the Committee on this amendment. I have discussed it fully with the local authorities. They wished to clarify the issues before deciding how to proceed. The draft circular now published on this subject alters the whole debate so far as I am concerned and, I am sure, so far as they are concerned.

We have had a slightly muddled discussion. There is the general principle. I explained that I had put the amendment down as a probing amendment to see what the Government had to say about the principle. If I were to put an amendment down to be incorporated on the face of the Bill, even an ex-honorary sheriff like myself would want to make sure that the amendment could be tested in the courts. I have absolutely no idea whether this could be tested in the courts and that would be necessary if we were to press it. I believe that it would be very irresponsible to divide the Committee on the amendment at this moment. If any other noble Lord wishes to do so, I should abstain.

As to the second amendment, I think that there was some confusion about different kinds of funding and about what the draft circular says. I have some experience of how education is funded in local authorities. But we are talking about a new animal. I did not fully understand the whole of the draft circular. It seems to me that it is quite clear —I say this to the noble Lord, Lord Macaulay —that a service like the pyschological service, which is a statutory responsibility of the local authority, could be continued in self-governing schools, funded through the local authority. That is one issue.

However, there are other issues where the local authority may or may not decide to buy in its services. I was asking the Minister about that and also about the overheads which he dealt with. Those are more difficult to apportion: he suggests that they should follow the English pattern. I know that the Scottish local authorities are not wholly happy about following the English pattern. They have told me so. When I saw the draft circular, I thought that that had been abandoned. However, from what the Minister said on this aspect, it is still there.

I say to Members of the Committee that it is very important that they should give time to my noble friend to discuss the matter fully with the local authorities and find out what they think, now that they have seen the draft circular. All kinds of things are coming to light which they did not know before and which none of your Lordships knew. It would be a pity to have a vote. It would be misleading to the country to have a vote because I do not think we know what we are voting about. Certainly, on the first amendment, I do not know whether it could be tested in the courts. So, from my point of view, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Clause 26 agreed to.

Clause 27 [Recurrent grant in respect of provision for special educational needs]:

[Amendment No. 48 not moved.]

4 p.m.

The Earl of Strathmore and Kinghorne moved Amendment No. 49: Page 17, line 22, leave out ("in implementation of the authority's duty").

The noble Earl said: I beg to move Amendment No. 49 and speak to Amendments Nos. 50 and 51, together with Amendments Nos. 55 to 58. These are straightforward amendments mainly designed to improve the wording of Clause 27. It may be helpful to the Committee for me to take a few moments to set out the background to Clause 27.

It sets out arrangements for calculating the element of recurrent grant for provision for recorded children at self-governing special schools and mainstream schools. The clause provides for discussion and exchange of information between self-governing schools and the education authority, so that agreement can be reached on the level of provision to be made, and the estimated cost of such provision.

These arrangements will place recorded children at self-governing schools in a very secure position. The necessary provision for their education will have been discussed between the authority and the school governors, with requisite resources clearly identifiable, allocated separately within the recurrent grant made available to the school. For special schools that will ensure that the full range of educational provision can be undertaken for those pupils who do not have records, as well as for those who do. For children integrated in mainstream schools, the full resourcing will be assured as schools will not be able to use elsewhere the money specifically set aside for their education.

When, in another place, it was decided to make special schools eligible for self-governing status, it was necessary to consider how education authorities' duty to provide for the special educational needs of recorded children might be fitted into the arrangements for self-governing schools. We came to the conclusion that there should be a separate element of recurrent grant for schools, focusing on the provision made for recorded children. This would apply whether the school was a special school or a mainstream school with recorded pupils. Clause 27 sets out the arrangements under which this is to be achieved. Crucially, there will be a discussion and exchange of information between each self-governing school and the education authority.

The object of this exchange is that each school and authority can agree in advance the provision for recorded children which the school will be asked to make by the authority, Further, based on this agreement, the school and the authority will agree the likely cost so that the Secretary of State may set recurrent grant at that level. The recurrent grant calculated under Clause 27 will, of course, be additional to the grant calculated under Clause 26 for the generality of functions at a mainstream self-governing school.

Parents of recorded children have expressed to us two concerns: first, that on attaining self-governing status schools will try to marginalise special educational needs provision and, secondly, that resources ostensibly allocated to recorded children will in the event be directed to other pupils. Neither of these fears will be realised. The Bill contains a package of measures which will ensure that cannot happen.

During the progress of this Bill both in this Chamber and in another place it has been apparent how acutely aware we all are of the need to see that children with special educational needs are fully catered for in our education system. That concern is reflected in the Bill. Clause 16(4) means that the range of provision for special educational needs is a characteristic of the school and may not be unilaterally reduced. Moreover, Clause 7(6) places a duty on self-governing schools to look to the improvement of this provision. That fully protects the amount and range of provision.

Clause 27 earmarks and guarantees the resources needed to sustain the necessary provision. The government amendments before us remove any possibility of misinterpretation of parts of Clause 27. The amendments to subsection (1) are necessary to ensure that the costs to a mainstream self-governing school of provision for any pupil, whether above or below school age, with a record of needs will count as attributable for the purposes of calculating the amount of recurrent grant payable to the school. The amendments to subsections (6),(7) and (8) make clearer the arrangements for variation of the amount of recurrent grant. I beg to move.

Lord Carmichael of Kelvingrove

I must thank the noble Earl for his introduction of these amendments. I take great pleasure in congratulating him on his maiden speech in this Chamber. He has jumped into a tough Bill. We believe in Scotland that it is an important seminal Bill and we shall look at the necessarily complicated explanations that the noble Earl has given of this large group of amendments. That examination will have two results. It will mean that we shall study the amendments with care, and it will allow the noble Earl to give another explanation when we return to the Bill at a later stage. So he may get two bites at his maiden speech. We look forward to that, and I hope that in the course of our discussions on Scottish affairs we shall hear a great deal more from the noble Earl.

Lord Mackie of Benshie

I, too, wish to congratulate my noble neighbour on his maiden speech, and to say how nice it is to hear the robust tones of Angus supplementing the rather lusher pastures of the Borders. It is a great joy and delight to hear the noble Earl, and I am sure that we shall hear him again on many occasions with the same enjoyment.

Lord Addington

I wish to add my congratulations and I am very glad that such attention is being given to special needs, as that has been an area of concern. I am glad to see that that area is receiving the attention it deserves because anything which could cause as much potential trouble as special needs within a school deserves individual attention.

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne moved Amendment No. 50: Page 17, line 23, leave out ("(b)").

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne moved Amendment No. 51: Page 17, line 24, leave out ("duty to keep").

On Question, amendment agreed to.

[Amendments Nos. 52 to 54 not moved.]

The Earl of Strathmore and Kinghorne moved Amendments Nos. 55 to 58: Page 18, line 24, leave out ("during the course of the financial year"). Page 18, line 26, after ("management") insert ("during the course of the financial year"). Page 18, line 31, leave out subsection (7) and insert — ("(7) The board of management shall intimate to the Secretary of State any variation agreed under subsection (6) above or (in the case of a requirement imposed under paragraph (b) of that subsection) any failure to reach agreement as to such variation. (7A) The Secretary of State shall, where he accepts an agreed variation intimated under subsection (7) above, vary the amount of recurrent grant payable accordingly.") Page 18, line 37, leave out ("intimated under subsection (7) above") and insert ("so intimated").

The noble Earl said: I beg to move Amendments Nos. 55 to 58 en bloc.

On Question, amendments agreed to.

On Question, Whether Clause 27, as amended, shall stand part of the Bill?

Lord Macaulay of Bragar

I beg to move that Clause 27, as amended, do not stand part of the Bill. However, I, too, wish to add my own congratulations to the noble Earl, Lord Strathmore and Kinghorne, on his first appearance on the Government Front Bench. I wish to echo the sentiments that have been expressed by the noble Lord, Lord Carmichael, on behalf of those of us on this side of the Chamber.

Those of us on this side of the Chamber have not challenged to any great extent the Government amendments which have been moved, nor did we move our own amendment specifically related to special schools for one reason and one reason only, which was that we wished to see this clause taken out of the Bill altogether.

It is clear from our debates on the first day of this Committee stage that the concept of special schools and the various problems and complexities that that embraces constitutes a very special area of education with what one might call a changing financial sea; sometimes the tide comes up and over the wall, but at other times it might be well out, and what is required for the education of the children involved is well covered by the financial arrangements. However, it is important to remember, as I am sure everyone does, that dealing with children in need of special education is not an accountancy exercise and never can be. I think that that is the dangerous trap that the Government may be falling into in assuming that everything in relation to any part of education can be dealt with as an accountancy exercise. The danger that is seen by many people involved in this area of education is that in anticipating the needs of special schools, the Government may be performing an almost impossible exercise.

Various questions are asked, such as what happens if the Secretary of State in his negotiations has got it wrong? The school may very well have the matter wrong, as new pupils enter a school during the school term and the new needs arising as a result need to be funded. What happens when a special school runs out of funds? It is not clear how that will be dealt with in terms of Clause 27. The Government themselves recognised the problem, through the Scottish Education Department, in a letter to the Convention of Scottish Local Authorities of 2nd June 1989. The department stated in the letter that: calculation of the amount of recurrent costs to be attributed to provision for recorded children presents unique problems. Because of the diversity of the different types of provision for special educational needs it will seldom be possible to do this by comparison with costs in other schools and another way, more related to likely actual expenditure at each school providing for recorded children, must be found". The letter further stated that legislation should provide for: a dialogue between education authorities and each self-governing school". However, at the end of the day, the Secretary of State will have the final say, but it is the people in the school who have to deal with the recurrent problems recognised by the Scottish Education Department.

A number of areas of concern have been identified by Scottish local authorities. I shall give some examples. First, there is the point which I have just touched upon, namely, the unpredictability of funding needs. The arrangements appear to envisage that the level of provision required in an individual school and the funding for it can be agreed a year in advance. Educationally and practically that is an impossible exercise. Needs occur on a varying basis, sometimes at very short notice, throughout the year and throughout an individual child's period in school. While it is possible to take account of that in estimating costs on an overall regional basis it is very difficult to do so in relation to a single establishment, and in relation to the children in the school at the time when the costing is done, and the change in the school roll over the following year.

Secondly, there has been a move recently, which is being encouraged, that as far as possible recorded children should be integrated into the community. That process is aided by the redeployment of funds previously allocated to special schools as the number of pupils using them declines. The uncertainty created by the Self-Governing Schools etc. (Scotland) Bill will make it difficult for any authority to provide special education on the basis of a planned system and to allocate funding where it is required. I remind the Committee that in this area we are dealing with about 2 per cent. of the school population. There is a concerted effort by all the service; to give those children the best that we can —those of us who are lucky enough not to face the difficulties which they suffer —through an integrated system. In addition to the integrated system there is now flexibility between special schools and ordinary schools.

Thirdly, according to the information that I have, there are likely to be more requests from schools and parents for children to be recorded. There may be consequent staffing implications which must be acknowledged. It is implied in the Bill that all children with social, emotional and behavioural difficulties will be recorded, and many children with specific learning difficulties may also be candidates for recording under the system. That increasing demand is already recognised, but if it continues to grow an evaluation exercise will be required on the resource implications for local authorities. The possible increase in the number of recorded children and movement between the schools are additional factors on which educated guesswork will be required, to determine whether the money given to the school is sufficient.

Fourthly, it is recognised that there will be disagreement on occasion regarding the cost and funding of support for recorded children. Clarification is required from the Government as to which authority is to meet any shortfall. Is it to be the school, central government or the local authority? Shall we see special schools having to hold sales of work to provide essential materials for children within that area of education? Clarification is also required as to whether there will be a mechanism for adjusting a grant made to self-governing schools if the estimated level of provision proves to be inaccurate. That reverts to the point that I made earlier. What happens if the Secretary of State gets it wrong? Even worse, what happens if the Secretary of State and the school get it wrong?

I oppose the Motion that the clause should stand part of the Bill. The Government should have another look at it and take into account all the representations which they have no doubt received from various parties concerned with this very special area of need.

4.15 p.m.

Lord Sanderson of Bowden

We have touched on the workings of the clause several times in our debate, particularly in relation to the principles laid down in parts of Clause 13. It is a necessary adjunct to allowing parents at special schools the choice of self-governing status.

I am very glad to have heard my noble friend Lord Strathmore and Kinghorne make his maiden speech. I wish him all the best for the future and look forward to his help, particularly with difficult Bills. I shall be very grateful for that help and look forward to many useful years of co-operation.

My noble friend explained the workings of the clause. It is important that the safeguard for the rights of handicapped children is included. I dealt with some of the points raised by the noble Lord, Lord Macaulay. I support Clause 27 standing part of the Bill.

Removal of specific references to special clauses in Clause 27 would still leave provision for the majority of pupils at a self-governing special school subject to its terms. That is because by definition the majority of pupils at such schools have records of need. The noble Lord's proposal would mean that a small minority of pupils, who, though not recorded, can best obtain their education in the carefully controlled environment of a special school, would no longer figure specifically in the discussions provided for between the authority and the governors of the school. A safeguard would be removed for those children, many of whom may need to attend a special school for only a term or so. Many may have been placed there for social rather than educational reasons. There would also be taken away from the school the certainty of adequate funding since there could be no guarantee that general regulations made under Clause 26 would adequately cover their cost.

The noble Lord, Lord Macaulay, said that the Secretary of State might get it wrong in that area. Clause 27 involves the education authority in the discussion of the provision for individual pupils. We recognise the need for a safeguard and have included it in the clause. The noble Lord also asked about representations. As I said on the previous day of Committee, we have evidence that the Scottish Parent Teachers Association wishes to be able to opt for self-governing status. That position was also supported by SENSE in Scotland.

The noble Lord said that there is a need for variation in relation to special educational needs and asked who pays for the shortfall. The amendments we have just discussed will allow the authority and the school to vary their agreement in response to any unforeseen expenditure on recorded children. The very point about the needs varying within the year is covered within subsections (6), (7) and (8) of Clause 27, which include provisions to deal with that situation by an in-year adjustment.

The noble Lord, Lord Macaulay, would prefer the clause to be extracted from the Bill. I hope that with that explanation of what such extraction would do he might reconsider his decision.

Lord Macaulay of Bragar

I am grateful to the noble Lord for his explanation of the Government's position. On this side of the Chamber we ask that the Government take this particular clause away and rewrite it. We do not wish it to be excised. We accept that not every clause will be perfect. That has been demonstrated in Bills throughout the ages which have had to be tested in the courts. However, those of us on this side of the Chamber feel that this is such a vital area of the Bill that we wish to take the opinion of the Committee.

4.19 p.m.

On Question, Whether Clause 27, as amended, shall stand part of the Bill?

Their Lordships divided: Contents,114; Not—Contents,81.

DIVISION NO. 1
CONTENTS
Airey of Abingdon, B.	Elles, B.
Alexander of Tunis, E.	Elliot of Harwood, B.
Ampthill, L.	Elliott of Morpeth, L.
Annaly, L.	Erroll of Hale, L.
Arran, E.	Fanshawe of Richmond, L.
Auckland, L.	Fraser of Kilmorack, L.
Balfour, E.	Gainford, L.
Beloff, L.	Gibson-Watt, L.
Belstead, L.	Gray of Contin, L.
Bessborough, E.	Hailsham of Saint Marylebone, L
Birdwood, L.
Blanch, L.	Halsbury, E.
Blatch, B.	Hardinge of Penshurst, L.
Blyth, L.	Harmar-Nicholls, L.
Borthwick, L.	Harvington, L.
Brougham and Vaux, L.	Havers, L.
Bruce-Gardyne, L.	Henley, L.
Buckmaster, V.	Hesketh, L.
Butterfield, L.	Hives, L.
Butterworth, L.	Hood, V.
Caithness, E.	Hooper, B.
Campbell of Alloway, L.	Hunter of Newington, L.
Campbell of Croy, L.	Hylton-Foster, B.
Carnarvon, E.	Johnston of Rockport, L.
Carnegy of Lour, B.	Kinloss, Ly.
Carnock, L.	Kinnaird, L.
Chelmer, L.	Knollys, V.
Cork and Orrery, E.	Lauderdale, E.
Cowley, E.	Long, V.
Cox, B.	Lyell, L.
Cullen of Ashbourne, L.	Mackay of Clashfern, L.
Davidson, V. [Teller.]	Macleod of Borve, B.
De Freyne, L.	Manton, L.
Denham, L. [Teller.]	Margadale, L.
Dilhorne, V.	Marley, L.
Elibank, L.	Merrivale, L.
Ellenborough, L.	Milverton, L.

Monson, L.	Salisbury, M.
Morris, L.	Sanderson of Bowden, L.
Mottistone, L.	Sharples, B.
Mowbray and Stourton, L.	Skelmersdale, L.
Moyne, L.	Somers, L.
Munster, E.	Strange, B.
Nelson, E.	Strathmore and Kinghorne, L.
Nelson of Stafford, L.
Norfolk, D.	Sudeley, L.
Norrie, L.	Swansea, L.
Orkney, E.	Swinfen, L.
Oxfuird, V.	Teviot, L.
Pender, L.	Thomas of Gwydir, L.
Perth, E.	Trumpington, B.
Rankeillour, L.	Ullswater, V.
Reay, L.	Vaux of Harrowden, L.
Renton, L.	Weir, V.
Rochdale, V.	Westbury, L.
Romney, E.	Whitelaw, V.
St. Davids, V.	Wynford, L.
Saint Oswald, L.	Young, B.

NOT-CONTENTS
Addington, L.	McCarthy, L.
Airedale, L.	McGregor of Durris, L.
Amherst, E.	McIntosh of Haringey, L.
Ardwick, L.	Mackie of Benshie, L.
Attlee, E.	Mason of Barnsley, L.
Banks, L.	Mellish, L.
Birk, B.	Molloy, L.
Blease, L.	Nicol, B.
Bonham-Carter, L.	Northfield, L.
Boston of Faversham, L.	Oram, L.
Bottomley, L.	Perry of Walton, L.
Bruce of Donington, L.	Phillips, B.
Carmichael of Kelvingrove, L.	Ponsonby of Shulbrede, L. [Teller.]
Carter, L.	Rathcreedan, L.
Cledwyn of Penrhos, L.	Rea, L.
Cocks of Hartcliffe, L.	Ritchie of Dundee, L.
David, B.	Robson of Kiddington, B.
Dean of Beswick, L.	Rochester, L.
Donaldson of Kingsbridge, L.	Sainsbury, L.
Dormand of Easington, L.	Seear, B.
Ewart-Biggs, B.	Sefton of Garston, L.
Falkland, V.	Serota, B.
Fisher of Rednal, B.	Shackleton, L.
Fitt, L.	Shepherd, L.
Gallacher, L. [Teller.]	Stallard, L.
Galpern, L.	Stedman, B.
Gladwyn, L.	Stoddart of Swindon, L.
Glenamara, L.	Strabolgi, L.
Grey, E.	Taylor of Blackburn, L.
Hatch of Lusby, L.	Taylor of Mansfield, L.
Hirshfield, L.	Tordoff, L.
Houghton of Sowerby, L.	Turner of Camden, B.
Hughes, L.	Underhill, L.
Irving of Dartford, L.	Wallace of Coslany, L.
John-Mackie, L.	Wedderburn of Charlton, L.
Kilbracken, L.	Whaddon, L.
Listowel, E.	White, B.
Llewelyn-Davies of Hastoe, B.	Wigoder, L.
	Williams of Elvel, L.
Lloyd of Kilgerran, L.	Winchilsea and Nottingham, E.
Longford, E.
Macaulay of Bragar, L.

Resolved in the affirmative, and Clause 27, as amended, agreed to accordingly.

4.26 p.m.

Clauses 28 and 29 agreed to.

Clause 30 [Change in characteristics self-governing school]:

Lord Carmichael of Kelvingrove moved Amendment No. 59: Page 20, line 23, at end insert— ("but no such ballot shall be held within a period of five years beginning with the incorporation date as determined under section 19(2) of this Act unless the Secretary of State gives consent in writing").

The noble Lord said: The object of t he amendment is to prevent a self-governing school initiating a change in its essential characteristics within the first five years unless the Secretary of State gives consent. The idea behind the amendment follows on from what the Secretary of State said during the Second Reading debate in the other place. He is on record as saying that he did not envisage it being appropriate for a self-governing school to change its character in any major, fundamental sense in the first few years of its self-government. Most people will agree that that is an eminently sensible precaution.

It is important that that statement of intent is included in the Bill. I am aware that the Opposition usually like everything to be included in the Bill and that it becomes a little irritating for Ministers, so we must try to be selective. This is one point that is sufficiently important—indeed, it is absolutely fundamental—to be included in the Bill. A self-governing school should gain experience and enjoy a period of stability before considering any basic changes in the characteristics which could reduce the choices available to some parents and obviously to pupils.

If the amendment were accepted, the Secretary of State would still be able to permit a ballot during the first five years if the proposed change was not of major significance or would provide greater choice for all parents. We have tried to build a certain flexibility into the amendment while still trying to give some sort of safeguard —an important safeguard—to the adjoining schools and to the parents whose children are already at the school. I hope that the Minister realises the sincere and helpful way in which we are seeking to put forward this amendment. I beg to move.

Lord Addington

I should like to add support from these Benches for the proposal. If the parents of a school make a decision that they would like that school to become self-governing, they effectively have made that choice on the grounds of the school as it stands. Once the school is in being, surely it should have time to settle down to allow its functioning to settle and then, if changes are needed after that time and if they are of an important nature, they should be made after due consideration.

This is surely a sensible proposal to put in. It will give this chance to see whether there are problems that require major and fundamental change. I would suggest that the degree of flexibility is appropriate, and on those grounds I should like to support the amendment.

Baroness Phillips

I should like to support what has been said. I feel disturbed about the small attendance in the Chamber for changes in the law for Scotland. As I have said before, if I were a Scot I should vote for self-government tomorrow. Here we see Westminister deciding important laws which are going to affect them all and there is a total disinterest—including the animated conversation going on behind me, which obviously has nothing to do with the Bill.

I think I am right in saying that this clause is different from the Bills that have been presented in relation to England and Wales. One asks why. The system of education is different, but not that different. Why do we have to have something different in Scotland when the children in the schools will need exactly the same kind of education as the children anywhere else? If I am wrong, I apologise. But I feel that the Minister must explain this, otherwise this amendment is something that we shall have to put to the Committee.

Lord Sanderson of Bowden

First, may I say to the noble Baroness that, whereas the Chamber may be quite empty, the quality of those who are left in it leaves nothing to be desired. I have a degree of sympathy with the aims of this amendment. Opting for self-governing status should not be seen as a route to changing the essential nature of the school. The machinery in the Bill quite deliberately prevents any change whatsoever in the characteristics during the process of a school becoming self-governing. The Secretary of State sees five years as a sensible minimum period during which the characteristics of the school should be expected to remain fixed. This point is made at paragraph 45 of the draft circular on the legislation issued for consultation on 9th October.

I fully expect that most self-governing schools will have no wish to alter their basic characteristics. Parents will look for a greater say in the running of the school essentially in its present form, and they will have no interest in making it a school serving a markedly different group of pupils. After something like five years some schools may find that there is a need to alter their characteristics in order to respond to changes in the wider educational world. Educational priorities and fashions change, and education authorities have the machinery available for altering what are in effect the characteristics of their schools, and we believe that self-governing schools must in justice be given a similar opportunity.

As the noble Lord has said, the amendment accepts that the Secretary of State must have power to override the normal time limit where a school faces exceptional circumstances. Since it contains that proviso, I can see little need to include an amendment on the face of the Bill. However, here we are again on the question of what should appear on the face of the Bill and what should not appear on the face of of the Bill. Frankly I do not think there is much in it either way, but the amendment of course reflects our own stated policy as set out in our draft circular. For that reason I should be prepared to come forward with an amendment to that effect at a later stage of the Bill. I hope that the spirit with which I consent to do that will satisfy both noble Lords who have spoken to this amendment.

Lord Carmichael of Kelvingrove

We must be grateful to the noble Lord for his acceptance of the spirit of the amendment. I must thank the noble Lord, Lord Addington, and my noble friend Lady Phillips for weighing in and supporting this amendment. Perhaps it was ultimately the voice from the South that convinced the Minister that it was something that should be accepted. I am grateful for the speech of the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Carnegy of Lour moved Amendment No. 60: Page 20, line 25, leave out ("and").

The noble Baroness said: In moving Amendment No. 60 I speak also to Amendment No. 61 standing in my name and that of the noble Lord, Lord Carmichael. At an earlier part of the Committee stage an amendment relating to consultation before the ballot on becoming self-governing was considered. This amendment is about who should be consulted by a self-governing school before confirming a decision to seek a change in the essential characteristics.

Clause 30(2) requires that the local authority should be consulted, which of course is absolutely right, and also that if it is a denominational school the denominational body should be consulted before the board of management decides to hold a ballot. But of course, depending on the nature of the changes proposed, other schools in the local area may be greatly affected by this decision, and there are those in Scotland—among them the parent/teachers' association and the Scottish Consumer Council—who feel that the choice of people in the local area may be increased by the changes in the self-governing school. On the other hand it may also be limited. I shall in fact enlarge on this subject in a later amendment.

If the choice is limited, the self-governing school should certainly be aware of that local view before going to the ballot. Therefore I would ask my noble friend this. Should there not in fact be some sort of wider consultation required by statute than simply the consultation with the local authority and the denominational body if such a body is affected by the issue? Does the Bill in fact ensure that such consultation happens? If it does not, should it not be added in this clause that a prescribed body should be consulted? I shall listen with interest to what he has to say about this. I beg to move.

Lord Macaulay of Bragar

I should like to say a word or two in support of this amendment. Consultation should be of the essence in the operation of this Act, and what the noble Baroness has said has gone to the root of the question. The two amendments go to that matter.

Perhaps I may mention that in Clause 30(2) it is interesting to see: For the purposes of subsection (1)"— that is consultation— appropriate consultation is consultation with the education authority and, where the school is, on the change sought would result in its becoming, a denominational school, with the church or denominational body in whose interest the school is, or as the case may be would be, managed". What is being sought here is to broaden the area of scope not of the people who have an interest in the schoolߞI think one of the objections at an earlier stage of the Committee was that it would be difficult to define who would have an interest—but to extend the process of consultation in the hope that, whatever happens to the school, people will, having been consulted, be reasonably happy.

Lord Sanderson of Bowden

These two amendments raise again an issue covered in part by an earlier amendment on Clause 13. My noble friend would I hope be pleased with the answer that I was able to give to the noble Lord, Lord Carmichael, who moved that amendment on her behalf last week. They deal with the aspects of the earlier amendment which I was unable to accept, and my response here must be similar.

Where a school is contemplating a move to self-government under Clause 13, the education authority, as manager of the school, has an indisputable interest. Similarly the authority will have a clear interest in any change of characteristics at a self-governing school. There may well be implications for the authority's own provision of schooling in the area.

Again there may be a range of wider interests. But this is recognised and covered in the later stages of the procedures under Clause 30. The board of management of a self-governing school will be required to publish its proposals and any person may make representations on them to my right honourable friend the Secretary of State. We feel that that is the appropriate mechanism rather than any attempt to define those with an interest.

As my noble friend will recall, we are writing into the Bill the time gap that must elapse following consultation. My noble friend prompted the idea. There is a time for people to pause and reflect before taking action which they might later regret.

Baroness Carnegy of Lour

I thank my noble friend for what he has said, and the noble Lord, Lord Macaulay, for supporting me on this amendment. I was indeed pleased with the response of the Minister to the amendment standing in my name on Clause 13. That was very helpful. He has stated that the wider consultation is better undertaken direct with the Secretary of State rather than with the school in the local area. I perceive that that is a less divisive way of doing it. I understand that time for reflection is allowed for by this method. I should like to read very carefully what the Minister has said. I may wish to come back on this issue. In the meantime, I beg leave to withdraw the amendment.

Baroness Phillips

Before the noble Baroness withdraws the amendment, perhaps I may have a reply to my original question. How similar to the legislation enacted for England and Wales is the Scottish legislation? The answer cannot be difficult. We have three experts in the box. May I have an answer to that question?

Lord Sanderson of Bowden

In relation to the previous amendment, I can answer the noble Baroness on that point. At each clause that comes forward, I shall have to indicate whether or not it is similar to the enactment for England.

There are some changes. For instance, Clause 30 is indeed different from the arrangements for a change of character in England. That is the point that the noble Baroness made. We have added the provision for a ballot of parents. No change is possible without their consent. That does not happen under the English and Welsh legislation.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

4.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 62: Page 20, line 32, after ("State") insert ("and the education authority").

The noble Lord said: Perhaps to the relief of the Committee, this is a short amendment. It extends the range of persons to whom the result of the ballot should be intimated. The clause currently provides that: The result of the ballot shall forthwith be intimated to the Secretary of State by the board of management".

The amendment is designed to include the education authority as persons to whom the board of management should intimate the result of the ballot. It may be argued that it would be a pretty strange education authority that did not know what was going on in its own immediate area. But there is always the chance that it is not fully informed of what is going on in particular schools. No doubt it would find out in due course but we believe that there is no harm in making the provision mandatory within the Bill. Apart from anything else, it would enable the authority to take account of any changes resulting from the operation of this clause in assessing its own future requirements within its locality. I beg to move.

Lord Sanderson of Bowden

If it is the intention of the noble Lord, Lord Macaulay, to speak also to Amendments Nos. 65 and 75, it might be convenient if he were to speak to them now.

Lord Macaulay of Bragar

Those are consequential amendments. I do not think I need say anything about them.

Lord Sanderson of Bowden

I thank the noble Lord. The first amendment to subsection (4) of Clause 30 is, I suggest, unnecessary. The education authority must be consulted by the board before a ballot is called. The authority will know when a ballot has taken place and since it has a local presence it will know the result. The ballot result can hardly be a secret. My right honourable friend may not know when a ballot has been held, and Clause 30(4) provides the first formal intimation to him.

The second amendment to subsection (6)(b) is appropriate. The education authority may have a real and immediate interest in proposals for a change in characteristics. Even although published proposals will be freely available locally, that interest should be recognised by requiring the board to send them to the authority. The Secretary of State will certainly look for comment from the authority on any implications for other schools before reaching his decision on the proposals. Subsection (6)(c) already covers any denominational interest.

I am happy to accept the principle of amendment to Clause 31. The education authority has an obvious interest in any discontinuance of a self-governing school. We should, however, also cover any denominational body connected with the school, as has been the practice in earlier clauses. If this amendment is withdrawn by the noble Lord, Lord Macaulay, I undertake to bring forward at Report changes requiring published proposals to be sent to the education authority and any denominational interest.

Consequently I invite the noble Lord to withdraw the first amendment to line 32 as unnecessary and not to move the Clause 31 amendment on the basis of the assurance I have offered.

I am happy to accept the second amendment (Amendment No. 65) in principle. I am advised that, if the noble Lord and the Committee are content that the line 43 amendment be altered to read, and to the education authority", it would be appropriate for me to accept it here and now.

Lord Macaulay of Bragar

I am obliged to the Minister for his very full answer. In the light of the various undertakings that he has given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 to 65 not moved.]

Baroness Carnegy of Lour moved Amendment No. 66: Page 21, line 12, at end insert— ("(9) When making a decision as regards any proposals under this section, the Secretary of State will have regard to the interests of all children in the local area and the duty placed on the education authority under section 1 of the 1980 Act to secure that there is made for their area adequate and efficient provision of school education and further education.").

The noble Baroness said: The purpose of this amendment is to ensure that, when the Secretary of State receives proposals for change in the essential characteristics of a self-governing school, he not only considers the effect on pupils at that self-governing school but also on other schools in the area and on the ability of the local authority to continue to carry out its statutory duty for all the children in the area. A comprehensive school, or a community school in Scotland, might wish, for example, to bias its entry in order to become a magnet school for science and technology, or for the arts, drama or music. It might wish to set a basic academic standard. It might wish to alter the age range catered for. A secondary school might add a primary department. A mixed school might want to become a single sex school. A denominational school might want to become a non-denominational school, or vice versa.

It seems extremely important that the Secretary of State should be obliged to take into account all the schools in the area because the effect, if some of these changes happened in a self-governing school, might be an imbalance among the sexes in the remaining schools. There might be further to travel for, let us say, Roman Catholic pupils to the nearest Roman Catholic school, or other primary schools in the area might become short of numbers. Schools might be short of more gifted children in certain directions because of the magnet nature of these new schools.

It seems essential for the Secretary of State to take all these matters into account in coming to a decision as to whether he agrees to a change in the essential characteristics. I have no doubt that any good Secretary of State would take these matters into account and it therefore seems to me that there is no reason whatever why an amendment such as this should not be on the face of the Bill. I beg to move.

Lord Carmichael of Kelvingrove

I was only too pleased to add my name to the amendment moved by the noble Baroness, Lady Carnegy of Lour. I should have moved it on her behalf when she was unwell last week, if we had reached it. Many reasons have been given by her. It seems self-evident that if a school decides to opt out there could be great repercussions for certain other schools in the area. The noble Baroness pointed out that a mixed school becoming a single sex school could seriously affect the composition of other schools. A denominational school could either become non-denominational or could become specifically denominational and that could cause great difficulties.

The selectivity brought to the choice of the subjects taught in schools was discussed in the Commons and the Minister piloting the Bill in another place said at Committee stage on 16th March that a self-governing school might wish to specialise in dance, music or the arts. Several education authorities already offer such specialism. If, however, a self-governing school introduces general academic selection as a result of which pupils are admitted to the school only if they reach a certain level of general academic ability, those pupils who do not achieve the necessary standard will face rejection. The introduction of choice for some parents may bring a denial of choice for other parents. I tried to emphasise strongly on Second Reading the fact that I am not sure whether it is possible at an early age to make an academic selection that really means a great deal. There are the obvious children. A school psychiatrist has told me that, with certain children, he realises a few minutes after they enter the room that he is in the presence of a better mind than his own. But, leaving aside these levels, there is a whole range of pupils whose ultimate ability, development and expansion cannot be predicted at an early age.

The noble Baroness, Lady Carnegy, has gone into this fairly thoroughly. A point that I do not think she made was the question of the age range of pupils who may be catered for. A school may legitimately wish to expand provision for pupils in a nursery class, to add a senior V or VI form to a four-year secondary school or even to drop SV and SVI from a six-year old school due to changing circumstances. When the Minister was speaking about this in another place he accepted that such changes may both enhance and restrict the choice available to parents. He gave the example of a self-governing secondary school which has spare capacity and decides to establish a primary department. That will obviously have severe consequences for existing primary schools in the area, even if the new primary department attracts only a small percentage of local children. It could make another primary school, to which parents had perhaps anticipated their children would go, unviable.

I hope that the Minister will give serious consideration to the amendment. I am sure he will. We have given enough examples to show that it is a difficult problem unless there is a great deal of understanding and unless the Secretary of State has certain powers to make sure that the balance is always maintained in an area.

Lord Addington

The amendment points out one of the gravest potential dangers of having opting-out schools: the fact that schools were originally conceived to act in relation to a whole area. If a school were to change itself in some way that could ultimately change the nature of the education system provided throughout the area, since it might no longer be acting in concert with other schools. There have been numerous examples of what could go wrong following various types of change. We must remember that education works at a community level and schools must act in concert within that community. On these grounds it is important that we give this amendment, if not our wholehearted support, at least very grave consideration.

Lord Sanderson of Bowden

I thank my noble friend for bringing forward this amendment, which is largely acceptable to the Government. I shall go on to explain why. Any major change in the characteristics of a self-governing school clearly has implications for public provision in the area generally. The noble Lord, Lord Mackie of Benshie, earlier pointed this out. My right honourable friend the Secretary of State could not reasonably disregard the implications for the education authority's own provision. He would have to concern himself in any case with the public expenditure implications of either accepting or rejecting the school's proposals. If, for example, the result was likely to be that another school had to be provided, or a school extended, as a result of the change at the self-governing school, that factor would inevitably have to weigh with my right honourable friend. Any comments by the education authority on proposals from a self-governing school about such wider implications will be of concern to my right honourable friend.

The reference on the amendment to, the interests of all children in the local area perhaps suggests something different from the duty on an education authority. However, I am content with the principle of the amendment and, if my noble friend would care to withdraw it, I should be very glad to bring forward an amendment at a later stage requiring the Secretary of State, when considering proposals under Clause 30, to take account of the general duty placed on the education authority under Section 1 of the 1980 Act to secure provision of adequate and efficient school education for its area. I hope that, with that assurance, my noble friend will consider withdrawing her amendment.

Baroness Carnegy of Lour

I should like to thank noble Lords who have supported me and particularly my noble friend for what to me has been an extremely pleasant surprise. It will be a pleasant surprise not only to me but to the many people who have advised me on this matter. I take the point that the word "children" is proably not the right one to describe the overall educational responsibility of the Secretary of State. That probably does need altering.

I was delighted to hear the Minister say that he accepts the principle. If a provision along the lines he indicated can be written into the Bill, it will reassure a number of people. I thank him, and on those grounds I gladly withdraw the amendment.

Amendment, by leave, withdrawn.

5 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 67: Page 21, line 23, leave out ("In subsection (1) above") and insert ("Subject to subsection (13) below.").

The noble Lord said: I wondered whether the Minister could not have grouped these amendments with the previous one. I see the Minister raising his hands in horror at the idea; but I thought that we had dealt with the matter in the previous amendment. I had thought that the subject of general academic selection would have encompassed the subject of the comprehensive system. I believe that it offers equality of opportunity for all. It is free of charge, and by virtue of its historic development it operates in a consistent and cohesive manner, as independent research has shown. That is particularly true in areas which have never known anything but comprehensive schools; for example, in the new towns which have never had schools with a good history extending 30, 40 or 50 years. I should be surprised if any of the new towns had any idea of changing to academic selectivity.

When speaking to the previous amendments, I dealt with most of the points raised by those in this group. The Minister will be aware of the purpose of our amendments. I do not wish to delay the Committee, and I beg to move.

Lord Mackie of Benshie

I wish to speak to Amendment No. 69. The Minister's reply to the noble Baroness, Lady Carnegy, appeared to encompass Amendment No. 69. A vital and essential part of Scottish education is that there is no academic selection in an area of a local authority school. There are specialist schools in the area, but to have a self-governing school introducing academic selection would cut across everything that has been said in the discussion. The Minister must be able to agree with the purpose of the amendment, so enabling us to withdraw it.

Lord Sanderson of Bowden

Under Clause 30 any proposed change must have the support of parents in a ballot. Why should existing parents vote to deny entry in future to a similar mix of children? That would be bound to mean the school refusing many of the children of their neighbours and friends and many of the younger brothers and sisters of those already at the school. No, that simply will not happen. The Bill gives parents a veto on any such change that is sufficient protection against the return to the old days of senior secondary schools, so feared by the noble Lord, Lord Carmichael, and many people.

These amendments take us considerably further. I shall try to explain the point particularly to the noble Lord, Lord Mackie of Benshie, who spoke eloquently in favour of one of these amendments. A school would be prevented from ever having the admission of any pupil depend on the level of general academic ability. At present education authorities operate specialist units at certain of their schools. These units draw pupils from a wide area. Naturally, such units must select the pupils most likely to benefit. Self-governing schools should enjoy the same opportunities to develop specialisms whether in music, in dance or in other areas of the curriculum. If a school wishes to create a unit for pupils gifted in classics, or in foreign languages, or in the case of the noble Lord, Lord Macaulay, and his native Lewis, for native Gaelic speakers, it should be free to do so. While selection for a specialist dance unit may be made without looking at general academic ability, would that be quite so obviously true of a specialist classics or mathematics unit?

Self-governing schools are not going to bring about a return to selective secondary education. My right honourable friend the Secretary of State has made clear his view. On 6th March in another place he said: I have no intention of endorsing a proposal that would so change the character of a state school as to return it to the selective system that existed some years ago. That is not the purpose of these proposals". [Official Report, Commons; 6/3/89; col. 643] I have indicated that the right of veto has been given to the parents and that the amendments could be used to cast doubt on schools operating specialist units which enhance the diversity of provision and extend parental choice.

I hope that the noble Lord who proposed the amendments will consider my remarks carefully because their result may not be what he had intended.

Lord Carmichael of Kelvingrove

I understand that there are problems in the wording of such amendments; but there are also problems in the wording of the Minister's reply. I am always in a difficulty when people talk of gifted children. In doing so we are talking of special children who in any event would probably find it difficult to be in an average school. I know of a school in Glasgow towards which there has been a drift because of its high musical content. Other schools may have a particularly good department in a specific subject, and there would be a drift towards that. That is different from the school setting down its limits and stating, "You are not coming in here unless you have a certain standard".

The Minister's remarks and those made by his right honourable friend in another place appear to suggest that that will not happen. The Minister has made clear the Government's intentions. I am sorry that they will not go further and put them into words. We have had enough discussion on the words in the Bill. We will look at the matter again on Report, but at this stage I must accept the words of the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 68 and 69 not moved.]

Clause 30 agreed to.

Schedule 7 [Arrangements in Respect of Ballot of Parents Regarding Change in Characteristics of Self-Governing School]:

Lord Sanderson of Bowden moved Amendment No. 70: Page 65, line 22, after ("arrangements") insert (", and the exercise by the board of management of any functions in relation to the ballot,").

The noble Lord said: I spoke to the amendment when considering Amendment No. 20. I beg to move.

Lord Macaulay of Bragar moved Amendment No. 71: Page 65, line 24, leave out ("and only or).

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 72 because they must be read together. The purpose of the amendment is to ensure that, within two years of having to decide which secondary school their child will attend, the parents of primary schoolchildren will have a chance of taking part in the ballot.

Under the Education Publication and Consultation etc. (Scotland) Regulations 1981 the position appears to be that, where an education authority proposes to close a school, the parents to be consulted must include: the parent of every child being a child of whose existence the authority are aware who would be expected to be in attendance at the school … to be discontinued within two years of the date of the proposal". Surely it reasonably follows that where the parents of those children have to be consulted when a school is to be closed because of the effect it may have on the education of the children, it is equally important, where there is to be a ballot on the change of characteristics of the school to which the children would normally be going, that the parents of those prospective pupils should be brought into discussions as a matter of vital importance.

Primary pupils are the life blood of the secondary schools. The parents of those children are the source of members of boards of management. It is very important that those parents should not be put off the school because of a lack of consultation or knowledge regarding the proposal to change the characteristics.

I make no apology for returning to the theme of the consultation and information process. During a debate in the other place the Minister in charge said that: where there are established close links between schools, those promoting proposals would probably be well advised to seek views from other schools at an early stage". He went on to say that: involving people in a consultation process is quite different from including people in a ballot process where it is clearly important to be able to determine precisely who has a right to vote and who has not". Later in the debate the Minister said: If Opposition Members want a ballot, there is nothing to stop the school board in a feeder primary school running its own plebiscite to get a view before it made representations to the Secretary of State".—[Official Report, Commons, 13/4/89; col. 6491 I do not quite follow the logic of that approach by the Government. They seem to be accepting the principle of a consultation process for the younger children about to enter into the school but are not prepared to go the whole way and say, "All right, you are an essential part of the education process. Your children are going to form the school and their parents are going to run the school. Come in and take part in the discussion on the future of this school which will affect your children's educational existence for several years". In particular, it is even more important if the time between ballots is extended because the children entering the school will be under the regime, if one can call it that, of the new characteristics approved by the Secretary of State.

Therefore, this amendment is brought in to ensure that there is a full consultation process, something which would attract parents to take an interest in the secondary school or schools in their area and to have a say in the education of their children to which they have a statutory right. That is something which the Government say they go out of their way to encourage. I beg to move.

Lord Mackie of Benshie

I would like to stress the importance of taking into account, particularly in rural areas, the views of the primary schools grouped round the secondary or comprehensive schools in the main towns. Obviously it is of great importance to the parents of children in primary schools what will happen to the school where their children will go for their further education. I await with interest the Minister's reply.

Baroness Carnegy of Lour

Of course I agree with the noble Lord, Lord Mackie, that in rural areas this is very important. However, I must say to him and the noble Lord, Lord Macaulay, that this is based on somewhat out-of-date thinking. Since choice by parents has played a much larger role in the decision as to which secondary school a child will go to, it is very difficult to say, in a given secondary school from which primary school children will come. Of course that applies more in the city where no secondary school could say which primary schools would be the origin of their pupils in the year after next or, indeed, next year.

It does not even apply entirely in rural areas. In the village of Friockheim in Angus to my certain knowledge the pupils from that primary school divide by choice and go to three different secondary schools so that it would be quite impossible to operate this. I think any arrangement would have to be informal and could not be on the statute.

Lord Mackie of Benshie

Perhaps I may contradict the noble Baroness slightly. It is all very well for the pupils in Friockheim who have a geographical choice which is much wider than the pupils in Cortachy. If the nature of Webster's seminary in Kirriemuir changes, then their choice is not limited but constrained by the geography and they would have a long way to travel in order to attend the school of their choice.

Baroness Carnegy of Lour

The noble Lord makes an absolutely valid point. I only say to him that the statute would also have to cover Friockheim.

5.15 p.m.

Lord Sanderson of Bowden

I do not wish to become involved in that argument but perhaps I could try to address what is germane to this amendment. It tries to identify a set of parents beyond the particular self-governing school concerned with a future interest where the school is proposing to change its characteristics. It would then extend to those individuals a say in the ballot. The amendment depends on a very rigid view of which pupils will opt to attend which school.

I have some very interesting figures which the noble Lord, Lord Mackie of Benshie, might like to hear but I shall leave that until we are outside the Chamber because it will take me quite a long time. However, those figures indicate that in places like the Highland Regional Council area there are some interesting variations in where parents actually send their children to secondary schools.

In fact it is not at all certain that all parents of children in associated primary schools will wish to send their children to the self-governing school concerned. Under the parents' charter they have a choice and certainly in many urban areas quite a wide choice. This is a choice which parents exercise within the local authority sector at present. It is therefore not realistic to believe that one can define precisely those with a future interest in a particular self-governing school. That is one of the difficulties.

That is one reason why the ballot, whether it seeks self-governing status or subsequently a change of characteristics, is confined to the well-defined group of those parents who have children actually in attendance at the school. They have the closest interest in the school. I accept that a wider range of people will have an interest in whether a self-governing school changes its characteristics, and provision in Clause 30(7) is made for any individual or organisation to make representations on the proposals to the Secretary of State.

A successful ballot does not determine the outcome. It is merely a pre-condition of the school submitting its proposals to the Secretary of State. It is for the Secretary of State to decide in light of all the circumstances. Representations received on the proposals must be considered and the opinions of prospective parents would obviously be relevant to the likely long-term viability of the school. Indeed the board of management themselves are bound to pay close attention to the views of parents of potential future pupils simply to assure the future of the school. The ballot itself should however be confined to the well-defined constituency of parents with pupils currently at the school.

The noble Lord, Lord Macaulay, asked about consultation regulations. There is an important difference as regards consulting widely on the implications of change in management by the education authority, to which he referred. That can be done on the basis of a general definition of related schools.

It is a different matter entirely to include individuals in the statutory ballot with equal weight to those parents with children at the school. There is no clear demarcation line at the level of individual parents with future interests and those without. Clause 30 provides for anyone to make representations, as I have already said. With that explanation, I hope the noble Lord will consider withdrawing the amendment.

Lord Macaulay of Brager

I am grateful to the Minister for his exposition of the Government's view on this matter and also to the noble Lord, Lord Mackie of Benshie, for his support. It would not be staring reality in the face if I did not accept that there was considerable force in what was said by the noble Baroness, Lady Carnegy of Lour. I appreciate the difficulty in defining the area, which might cause more problems than it solves.

The phrase "associated primary schools" was chosen deliberately. In moving this amendment we received some encouragement from the words of the Minister in another place when he himself spoke of a feeder primary school. That gave us a titbit to bite on, if I may put it that way. However, having heard the Minister's explanation I accept that both he and the noble Baroness have a point which we shall have to look at again. Accordingly, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Baroness Carnegy of Lour moved Amendment No. 73: Page 65, line 30, after ("(a)") insert ("without predjudice to sub-paragraph (b) below given such information about the consequences for the school as may reasonably be expected to enable him to form a proper judgement as to whether such a change should be sought for the school, including the results of the consultation undertaken under section 30(2) of this Act").

The noble Baroness said: It is clearly important that before the parents of a self-governing school vote on whether or not they are to seek a change in the school's central characteristics they should have before them adequate information about the consequences for the school of that change. This is a matter of particular concern to the Scottish Parent Teacher Association and to the Scottish Consumer Council.

It seems to me that during the Committee stage in the other place the then Minister for Education, Mr. Michael Forsyth, accepted this view. In response to an amendment on the matter he said: The Committee will recall that when we debated Schedule 3, I accepted an amendment that provided that the information going to each voter with the ballot paper should include information 'about the consequences for the school of acquisition of self-governing status as may reasonably be expected to enable him to form a proper judgment'. It is reasonable and logical to have a similar provision in Schedule 7. If the honourable gentleman cares to withdraw the amendment, I shall undertake to bring forward an equivalent amendment to that already made in Schedule 3".—[0fficial Report, Commons, First Scottish Standing Committee, 25/4/89; Col. 986.] I should like the Minister to tell the Committee why that has not been done. It should have been done as it was foreseen in that way so long ago. In view of the fact that it has not been done perhaps he will accept this amendment. I beg to move.

Lord Sanderson of Bowden

Most of the amendment simply carries across words already present in Schedule 3 of the Bill dealing with ballots on the change to self-governing status. The context here is somewhat different. In most cases the consequences for the self-governing schools of a suggested change in characteristics will be very clear to parents. They will hardly need an explanation of a question such as "Do you want the school to open a primary department?" By contrast, in a ballot on opting for self-government many parents will need something in neutral language explaining what, in general, self-governing status means for a school.

Nevertheless, I agree it would be sensible to adopt the Schedule 3 wording here. The final reference to circulation of the results of consultation by the board of management under Clause 30(2) is a new addition. I do not believe this would be appropriate. The views of the education authority on any change in characteristics will be important but their response to the board of management may have to be very detailed and hardly suitable for circulation to all parents. In any case the Board will have taken into account the authority's views and may well have modified their ballot question as a result.

Perhaps I should say a few words about what happened in another place on this amendment. The Convention of Scottish Local Authorities, in supporting this amendment, circulated a quotation from my honourable friend's remarks during the Committee stage in another place. This is, if I may suggest the term, a somewhat selective quotation. My honourable friend did indeed offer to bring forward an amendment in similar terms to what is now in Schedule 3 to the Bill. His next words were: I am sure the Committee will accept my undertaking and I hope we can proceed to further consideration of the Bill. The next opposition speaker then said he was unconvinced by the Minister's assurances and debate continued over a further hour or so. I believe that particular stage of the Bill took a further 20 hours to complete.

Perhaps I may say, in a slightly shorter time and in somewhat slang parlance that it would appear to me that "all bets were off". However, I can assure the Committee that my honourable friend's assurance will be reflected in the deliberations in this Chamber and if my noble friend will agree to withdraw her amendment I shall bring forward a revised version to import the wording used in paragraph 4(a) of Schedule 3. We will deal with Schedule 7 in a similar fashion.

Lord Howie of Troon

That would appear to be a satisfactory way of resolving the problem but can the Minister tell the Committee why this proposed amendment for the next stage of the Bill was not brought forward at this stage?

Lord Sanderson of Bowden

If one studies closely, as I have done, what was said in another place on this matter it is apparent that there are two sides to the argument which took place on that occasion. I am saying that this Chamber has the opportunity now to fulfil what I believe to be a sensible amendment to the Bill.

Lord Carmichael of Kelvingrove

We are grateful to the Minister for correcting what was obviously an oversight, at the very least, in the other place. My noble friend Lord Howie of Troon has a point. Many of us have been at both ends of a confrontation in another place. We have listened to long speeches and possibly occasionally made long speeches—usually there is another purpose behind them.

The situation may not be good for Parliament in general because although there may be incredible irritation or "fed-upness", if the amendment is worthwhile it is wrong to suggest that all bets are off. It is either a good amendment or a bad amendment. Therefore, I am glad that the Minister in this House, at any rate, on being spurred by his noble friend, has decided that a similarly worded amendment to that proposed in the other place should be made to the Bill. It will improve the Bill and I am grateful to the Minister.

Baroness Carnegy of Lour

I thank noble Lords who have supported me. I also thank my noble friend. I am sorry if the quotation I gave was out of context and misled anyone, but it appears to me that the Minister in another place gave an undertaking and that it is time that undertaking was fulfilled. The Minister has indicated that that is now to happen. Therefore, I am content, as will many other people be content. In thanking the Minister I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Carnegy of Lour moved Amendment No. 74: Page 65, line 42, after ("question") insert ("which has been approved by the prescribed body,").

The noble Baroness said: The purpose of this amendment is to require that the prescribed body which is conducting the ballot approves the wording of the question as to whether the proposed change in essential characteristics should be sought. This matter is of particular concern to a number of people who are trying to look ahead and see how such a ballot will operate on the ground. I discussed it in particular with the Scottish Parent Teacher Association.

Paragraph 4(c) of Schedule 7 states that the ballot paper will set out the question as to whether the change in characteristics sought should be made and invites the parents to vote yes or no to that question. Obviously, the wording of the question will vary depending on the exact nature of the change in the characteristics. It is essential that the wording of the question should be clear and unloaded and that in the way that it is worded it does not influence the parent in deciding whether to vote yes or no.

The wording of such a question has to be very carefully constructed. In any case, it seems wise that it should be independently vetted. This amendment provides for that. I beg to move.

5.30 p.m.

Lord Sanderson of Bowden

It is certainly important that the question posed to parents on the ballot paper makes quite clear precisely the change in characteristics envisaged by the board of management. The question should be in suitably neutral terms. The prescribed body responsible for the actual conduct of the ballot, which is the Electoral Reform Society, will issue the voting papers to parents. I imagine they will have their own views and would certainly object to anything in the nature of a leading question. In these ballots, as in ballots on self-governing status, the prescribed body will have to observe such guidance as my right honourable friend the Secretary of State may publish. I shall happily undertake that we will discuss with the Electoral Reform Society how the point of my noble friend's amendment could best be dealt with in that guidance. With that undertaking I hope my noble friend might consider withdrawing her amendment.

Lord Macaulay of Bragar

The amendment proposed draws attention to a very important part of the schedule. The fact that parents will have to answer yes or no to whatever the question may be makes the consultation and the information process even more important for the proper operation of the Bill once it becomes an Act.

Baroness Carnegy of Lour

I thank the noble Lord, Lord Macaulay, for what he has said. I believe it to be very helpful. I also thank the Minister for his acceptance of the fact that this is a matter that should be discussed with the Electoral Reform Society. That meets the point very well. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7, as amended, agreed to.

Clause 31 [Discontinuance by board of management]:

[Amendment No. 75 not moved.]

Clause 31 agreed to.

Clauses 32 and 33 agreed to.

Clause 34 [Administrative, professional, technical or other services]:

Lord Macaulay of Bragar moved Amendment No. 76: Page 24, line 30, leave out ("require") and insert ("request").

The noble Lord said: In moving this amendment, it may be convenient for the Committee to consider at the same time Amendment No. 77 because, like so many of these amendments, they have to be read together, otherwise they do not make a great deal of sense.

Amendment No. 76 deals with one of the most important clauses in the Bill which has been referred to from time to time during the course of the debates. It concerns the board of management of a self-governing school being provided with certain services from the local authority. At the moment the board of management of a self-governing school may require the education authority to provide it with any administrative, professional, technical or other services in respect of schools under the authority's management.

The purpose of these two amendments is to ensure that the balance of these services is properly maintained between the education authority schools (not self-governing) and the self-governing schools. As I believe we have already established, a local authority is statutorily required to continue to provide, for example, child guidance services. There is also a very wide range of services envisaged here. Almost everything that a local authority does can be demanded by the self-governing school, irrespective of the consequences for the local authority's own schools.

The only consolation that the education authority has is contained in Clause 34(2), which states that: An education authority may make such charge as is reasonable for any services which they are required under subsection (1) above to provide; and they shall in determining what charge to make have regard both to the cost of providing the services and to any guidance issued by the Secretary of State in respect of any such charge". Subsection (3) of that clause gives the Secretary of State the final decision on the reasonableness of the charge. That creates a situation where the local authority, whether it likes it nor not, must provide a service of administrative, professional, technical or any other nature falling within that ambit to the self-governing school. At the end of the day the local authority may be losing out both financially and in the services available to its own schools.

In a situation where a school becomes self-governing and does not initially wish to make use of the education authority's services—there may be several schools within the same authority, for example, in Strathclyde, Lothian or the larger regions—the demand may have diminished for the professional, technical or other services within the area. Staff may have disappeared because they were not being used by the self-governing schools.

Amendment No. 76 dilutes the demand, if I may put it that way. At line 30, instead of making it a requirement, it should be a request. That part of the subsection will then read, a self-governing school may request the education authority to provide them with any administrative, professional, technical or other services which the authority provide to or in respect of schools under the authority's management".

Amendment No. 77 adds to that a qualification in these terms: providing such a request is reasonable, and can be met without detriment to the quality of services provided to schools under its management the education authority shall be required to make such services as are requested, available to a self-governing school". That rather tilts the balance the other way from a requirement to a request. If this amendment is accepted by the Government the authority will have to show that the request is unreasonable. Therefore we shall go through a process of a request becoming a requirement with the intermediate test of reasonableness. I suggest that this is an amendment that should commend itself to the Committee. I beg to move.

Lord Sanderson of Bowden

We believe that these amendments could significantly undermine the intended workings of Clause 34. The clause ensures that a self-governing school can choose to make continuing use of local authority support services where the board wish to do so and are ready to pay a reasonable charge out of the recurrent grant available to them. I would certainly argue that where the authority is to receive a fair price for its services there is no detriment to the authority's own schools. In some cases that fair price may be very high indeed; for example, if the scale of the request from the self-governing school would genuinely require the authority to take on an additional member of staff. In these circumstances this would not be likely to prove a sensible arrangement for the school. The fair price would simply be too much.

However I can see it would be possible to argue that almost any request for services to be provided to a self-governing school would to some extent take away specialist resources for the remaining schools in the area. After all, the amendment says nothing about the scale of detriment and some might see it operating to prevent any request succeeding.

Clause 34 already includes the safeguard for an authority of a fair price paid by the self-governing school. Further amendment on the lines suggested would threaten the principle of the self-governing school having a right to get certain services at a fair price.

The noble Lord said that costs may be high for the authority. While Clause 34 binds local authorities to provide services on request, the school must be prepared to pay a reasonable charge. If it finds the service too expensive, and if the charge proposed reflects the due cost of providing the service, it will just have to accept that it must look elsewhere or else make do without it. We do not want authorities to be subjected to unreasonable demands in this matter. As the noble Lord said, it is a question of balance. I hope that the safeguards we have written into the clause will be sufficient to deal with the matter.

Lord Macaulay of Bragar

I thank the Minister for that reply. What is fair and what is reasonable depends on the eye and the mind of the beholder and the person considering it. This underlines one of the difficulties in the operation of the Bill. The Minister referred to a fair price for the services and to additional staff being taken on. We were looking at the other side of the coin. Where this Bill is operated by a number of schools within a local authority, the services may not be there or may be limited. The fact that the services are limited may make the price high.

If I heard the Minister correctly, he was saying to the self-governing school that if the price is high, it is the price the Secretary of State thinks is reasonable and that the school will have to take it or leave it. What will happen to the poor child waiting for the services to arrive? Will he be subjected to a continual process of discussion between the parties, a process which will eventually include the Secretary of State? Clause 34(3) does not say that the test of reasonableness will be decided by the Secretary of State when both parties cannot agree. It says that either party can take it to the Secretary of State. It is not a joint venture.

Lord Sanderson of Bowden

We shall be offering to issue guidance which will help both sides in any negotiations. Long before the poor child is waiting to know whether he will face a problem I hope that the matter will have been decided.

Lord Macaulay of Bragar

Life is full of hope and expectation. One hopes that that will be the end result. I am obliged to the noble Lord for that explanation. I shall take the matter away and have another look at it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 77 not moved.]

Clause 34 agreed to.

Clause 35 [Functions of school board: application of certain provisions of 1988 Act]:

Lord Sanderson of Bowden moved Amendment No. 78: Page 24, line 48, at end insert— ("(bb) section 12(2)(a) (reports to parents) of that Act activities of the board; (bc) section 12(2)(b) (ascertaining views of parents) of that Act matters which are the responsiblity of the board;").

The noble Lord said: I should like to speak also to Amendment No. 79. The general import of Clause 35 is that powers and functions which a school board has under the School Boards (Scotland) Act 1988 may also be exercised by a board in carrying out any of its functions in taking a school towards self-governing status under the Bill. Clause 35 does this by specifying the relevant sections of the 1988 Act which are to be extended in this way. These amendments ensure that school boards are to communicate with parents and ascertain their views on the question of acquiring self-governing status just as on any of their other activities as school boards. I laid some stress in replying to earlier amendments on the desirability of a board taking parents into its confidence as soon as it begins to contemplate self-governing status. I should expect that a board would generally do so in any case; but these amendments would put their duty beyond doubt. I beg to move.

5.45 p.m.

Lord Sanderson of Bowden moved Amendment No. 79: Page 25, line 2, leave out ("(b)").

Clause 35, as amended, agreed to.

Clause 36 [Transfer of land, moveable property and obligations to board of management]:

Lord Sanderson of Bowden moved Amendment No. 80: Page 25, line 21, leave out from ("school") to end of line 22.

The noble Lord said: This is a technical amendment to widen the provisions of Clause 36(1)(c). As presently drafted, this has the effect of transferring to a board of management only the moveable property, liabilities and obligations acquired by a school board under Section 18 of the School Boards (Scotland) Act 1988. It is also possible, however, for a school board to have acquired moveable property and to have incurred obligations under Section 17 of the 1980 Act or Schedule 5 to the Bill. Those rights and obligations of the school board should also transfer to the board of management on incorporation. The amendment will ensure that that would happen. I beg to move.

Clause 36, as amended, agreed to.

Schedule 8 [Transfer and Apportionment of Assets]:

Lord Sanderson of Bowden moved Amendment No. 81: Page 67, line 26, leave out ("direction") and insert ("determination").

The noble Lord said: This is a drafting amendment simply to maintain the consistency of the wording of the Bill. I beg to move.

Schedule 8, as amended, agreed to.

Clause 37 [Disposal of land by board of management]:

On Question, Whether Clause 37 shall stand part of the Bill?

Lord Macaulay of Bragar

I should like some guidance from the Government as to the consequences of Clause 37 in relation to the disposal of land by the board of management. As the clause stands, an education authority might have to buy back its own land. Subsection (2) says: Where the consent of the Secretary of State is sought as mentioned in subection (1) above, he may — (a) require the board of management to transfer the land, or any part of it, to the education authority upon payment by the authority to the board of such consideration, if any, as he considers appropriate". There follows an exception. If I read the Bill correctly, when a self-governing school becomes established, the assets in the hands of the local authority, including land, will be automatically transferred to the new board of management without any financial consideration. It is a matter of some concern that, if the school fails or is discontinued for one reason or another, what originally belonged to the local authority and to the people of the area will have to be bought back by the local authority.

The regulations state that if property originally transferred from the education authority had in the meantime been improved by the board of management—for example, if new buildings had been erected upon it—the Secretary of State could alternatively direct that the whole property be handed over to the education authority but that the authority should compensate the board for the value added to it. That would seem to suggest that it would be for improvements only that the authority would have to pay anything to the board of management. If the Minister has the information and considers the question to be relevant we should be grateful if he would enlighten us as to the meaning of Clause 37.

Lord Sanderson of Bowden

Clause 37 empowers the Secretary of State, where his consent is sought by a board of management for the disposal of land, and that land was originally owned by the education authority, or was purchased from the proceeds of the disposal of any such land, to require that the land, or the proceeds of the sale of the land, be transferred in whole or in part to the education authority. Thus by means of Clause 37, the interest of an education authority in public assets with which it has in the past been connected, can be maintained.

In terms of Clause 37(3) the Secretary of State may also direct a board of management to pay to an education authority the whole or any part of such compensation as the board may receive in the event of land being compulsorily acquired from it, where that land was previously owned by the education authority or was purchased from proceeds of the sale of such land.

Clause 37 offers important protection for the interests of the education authority and should therefore stand part of the Bill.

The noble Lord asked about improvements. Some consideration due to improvements carried out to the premises by the board of management may be appropriate. I hope that that brief explanation answers the noble Lord's questions. I look forward to reading closely what he said. If there is anything further about the disposal of land which I need to address, I shall of course be in touch with him.

Lord Mackie of Benshie

Will the Minister give examples of when he may allow a school board to retain part of the money? Is he talking about improvements to the school or a new department? What sort of case would it have to make to retain part of the money from the sale of land?

Lord Sanderson of Bowden

The noble Lord as usual is asking me to answer a hypothetical question. I should like to look at various examples of where it may be possible for the board of management to have a right of retention. I should like to seek advice on that point and write to the noble Lord.

Lord Macaulay of Bragar

I am obliged to the Minister for his explanation of the Government's position, and for the fact that he said he will have another look at the provisions of Clause 37 to see whether there are any unforeseen snags in the disposal of property covered by Clause 37.

Clause 37 agreed to.

Clause 38 agreed to.

Schedule 9 agreed to.

Clauses 39 and 40 agreed to.

Clause 41 [Disposal of land or moveable property by education authority prior to incorporation date]:

Lord Carmichael of Kelvingrove moved Amendment No. 82: Page 28, line 19, after ("shall") insert ("subject to subsection (1A) below").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 83.

The purpose of Amendment No. 82 is to place a limit on the dates of transactions involving the disposal of land or moveable property which are required to be referred to the Secretary of State. In Clauses 41 and 42 wide powers are given for the review and possible reduction of transactions involving the disposal of land or moveable property which were effected by the education authority before the initiation of procedures to seek self-governing status for schools.

Clause 41 appears to require the Commissioner for School Assets to report to the Secretary of State any occasion at any time in the past when the education authority has removed or withdrawn any moveable property from the school, or has transferred or entered into a transaction involving any land or moveable property, which would otherwise have transferred to the board of a self-governing school.

The effect of the amendment is to place a limit on the date of transactions which are required to be referred to the Secretary of State. There are a number of reasons for such a limit. First, it would appear to be totally impractical to require the Commissioner for School Assets to identify all instances of previous actions by the education authority at any time, particularly with regard to moveable property. Secondly, the effect of Clause 42(2)(b) is that no action may be taken in respect of any transfer or transaction effected before 22nd November 1988, or more than five years before the Commissioner for School Assets is in a position to apply to the court for an order setting aside the transaction.

In view of that provision, there seems to be no justification for framing Clause 41 in such broad terms. It would appear to be sufficient for the purpose of the remedies provided to require the commissioner to identify only any transactions effected since November 1988 or, if later, a date five years before the Secretary of State's approval of the proposals for self-governing status.

The amendments provide for such limits to be applied. I realise that this is an important technical subject which could have important repercussions on the development of a school and which may be to the detriment of other schools which could be left without the facilities which at one time had been laid aside for them.

The purport of the amendment is clear, although I may have taken longer than I intended to try to explain it. I hope that the Minister will grasp the intention and give us an opportunity to thank him for looking at the amendment and for bringing forward his own words at a later date. I beg to move.

Lord Sanderson of Bowden

I thank the noble Lord for bringing forward the amendment which I agree is important. I am sorry if I take a little longer to answer than I might otherwise do. I consider that this is an important issue and we need to have the background as well as to deal with the amendments.

It may help first to look back to Clause 36. That clause provides that land or moveable property which is owned by the education authority and used or held by the authority for the purposes of a school immediately before it becomes self-governing should transfer to the board of management of the school. Clause 36(7) provides that, prior to the initiation of the opting-out process, the education authority may not dispose of any land or moveable property with the object of preventing its transfer to the board of management of a self-governing school. In addition, Clauses 43 and 47 provide that after the opting-out process has been initiated the education authority is not to remove any land from the use of the school or otherwise dispose of it without the consent of the school board.

If we look then at Clause 41, we see that it provides that where the Commissioner for School Assets considers that the education authority has removed, withdrawn or disposed of land or property which should have transferred to the board of management under Clause 36, he is to refer the matter to the Secretary of State. If the Secretary of State so determines, the commissioner may then take such action as appears to him to be appropriate to seek a remedy. The Bill then offers him a kind of menu of remedies, under Clauses 42, 44, 45, 46 and 47.

Now we come to the amendment. It appears to be an attempt to prevent the commissioner from seeking any remedy in respect of any action taken prior to 22nd November 1988, or more than five years before the school becomes self-governing.

That is unnecessary. The remedies offered under four of the five clauses mentioned; namely, Clauses 44, 45, 46 and 47 all deal with the case where the education authority has removed or disposed of property after the opting-out process has been initiated by the serving of a notice on the education authority. In these cases there would be no question of dealing with any withdrawal or other disposal of property taken before 22nd November 1988 or more than five years beforehand. We would be dealing here with a period of weeks or months after the procedure for the acquisition of self-governing status had commenced.

The only remedy offered by the Bill which deals with anything done by an education authority before a school has initiated the opting-out process is that offered by Clause 42 under which the commissioner may apply to the Court of Session for an order setting aside or varying a transaction. That remedy is already subject to the limit on retrospection which is referred to in the amendment. Indeed it is obvious that it is from Clause 42 that the terms of the amendment have come. But since the Clause 42 remedy is subject to that limit, and none of the other remedies arising out of Clause 41 applies to any action taken before a school has actually initiated the opting-out process, I believe that this amendment is simply unnecessary.

I hope that with that full explanation of a genuine point which the noble Lord has made he will consider withdrawing his amendment.

6 p.m.

Lord Carmichael of Kelvingrove

I think that the Minister has clarified the matters which caused the concern which triggered off the amendments. I spoke rather longer than I intended and I am glad that I was vindicated since the Minister realised the importance of the amendment and spoke in explanation for just as long.

I am moved to accept his explanation in full, with the proviso that because it was so technical and exact it will need examination and perhaps consultation. I feel that the Minister has given every satisfaction possible and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 83 not moved.]

Clause 41 agreed to.

Clause 42 agreed to.

Clause 43 [Prevention of disposals of property by education authority]:

Lord Sanderson of Bowden moved Amendment No. 84: Page 29, line 44, after ("15") insert ("(1)").

The noble Lord said: This amendment was taken with Amendment No. 17. I beg to move.

Clause 43, as amended, agreed to.

Clauses 44 to 47 agreed to.

Clause 48 [Duty of education authority to provide information]:

Lord Macaulay of Bragar moved Amendment No. 85: Page 32, line 11, after ("Act") insert ("providing the transfer of any confidential information has been done with the written consent of the individual concerned.").

The noble Lord said: Clause 48 is very important in relation to the transfer of schools into the new self-governing area. The heading of the clause is, "Provision of information". The side note reads: Duty of education authority to provide information". The clause reads: The education authority shall, on the incorporation date or as soon as practicable thereafter, provide the board of management of a self-governing school with all the information held by that authority in respect of that school including, without prejudice to the generality of the foregoing, information in respect of—

1. (a) the administration of the school;
2. (b) the fabric of the school;
3. (c) staff transferred from the employment of the authority to the employment of the board of management by virtue of section 22 of this Act; and
4. (d) the pupils in attendance at the school".

The amendment has been brought before the Committee because it is not clear from the terminology of Clause 48(c) just what information "all … information in respect of" a member of staff means. Reading the Bill fairly, it suggests that it only covers perhaps the name of the teacher, the teacher's age, qualifications, teaching experience, when he or she came to the school and so on. As the wording stands, it leaves it open for all sorts of information to be paseed on to another authority to which the teacher perhaps may be involuntarily transferred—the word the Act uses is "assigned"—by the education authority.

Therefore we suggest that as a protection against tittle-tattle and other matters going from one school to another and from the education authority to the new school there should be a built-in proviso that the transfer of any confidential information has been carried out with the written consent of the individual concerned.

There seems to be no limit on the information. As the clause stands, it could carry with it, for example, reports from headmasters to the education authority about the character, behaviour, sexual proclivities, ability and various other characteristics of the teacher. These would go willy-nilly to the new school to be read by the board of management. That board will not contain entirely education officers or people fully trained in management. It will contain a large element of laymen to whom the attitude of confidentiality is not always one to be adopted. Schools, like many other institutions, are hotbeds of gossip. One would not want gossip to be translated into fact. It is often said that if a piece of gossip is repeated three times, it becomes a fact and finds its way into confidential documents relating to a teacher.

The purpose of the amendment, putting it shortly, is that any teacher who has been transferred to a school should have the opportunity to examine the material which has been sent and which relates to him or her so that he or she can ask for the information to be revised in fairness to the individual concerned.

If the Minister is able to give a guarantee that guidelines will also be sent out in relation to what Clause 48(c) actually means, that would be very helpful. It would be particularly useful for teachers assigned to a new job contrary to their previous contract of employment. It will be of interest to them to know just what information will be passed by the authority to their new employers in terms of Clause 48. I beg to move.

Lord Addington

I wish to support the amendment. An element of individual liberty is involved here as well as confidentiality. If people transfer to new employers who operate under different circumstances, they have certain rights which should be safeguarded. I suggest that this should be looked into very closely.

Lord Sanderson of Bowden

Clause 48 provides that an education authority should supply the board of management of a self-governing school with all the information which the authority holds as managers of the school. This amendment would have the effect of allowing employees to decide whether their staff records are to be transferred to their new employers.

The situation of staff transferring to a self-governing school is unlike that of an employee who leaves and takes up a new contract with another employer. When staff transfer to a self-governing school their whole contract of employment transfers with them as if the contract had originally been made between the employee and the board of management. The board of management will be taking the school over as a going concern and employees' service will be continuous. It is therefore only right that the board of management inherits all the records it will need to manage the school.

I see what the noble Lord, Lord Macaulay, is driving at, but I think it is very important that those who seek to run a school under self-governing status should be provided with the information. For instance, it could be that those who have responsibility for running the school are unaware that a member of staff has a serious health problem. They may be unaware, as the noble Lord said, that formal written warnings have been issued to this person by the education authority. The board of management of a self-governing school will be the employers of the teachers and other staff, and that will involve them in using confidential information. The board must respect that, as any employer must respect that.

My next remark may help to satisfy the noble. Lord, Lord Macaulay. There will be guidance on the need for such confidentiality in the workings of the board. In my view that will be extremely important, but to say that we should go as far as the noble Lord suggests in this amendment would be detrimental as the good points as well as the bad will go with the records of any member of staff to the board of management.

Baroness Carnegy of Lour

Before the noble Lord decides what to do with his amendment, I should like to ask him whether his briefing gives him any reason to think that there are things known about a teacher on the staff of a school which is within a local authority and which then becomes self-governing which are not known to the head teacher. My experience is that when a local authority has confidential information about teachers it passes that on to a head teacher who would have all the records. A local authority would never not tell the head teacher. It seems to me that the important point is that the confidentiality with which the head teacher treats that information should continue in the new situation. However, I believe this is a tricky matter and the Minister should look very carefully at the points that the noble Lord has made. I agree that this amendment is probably not the answer to the problem because of the effect it could have within a school. Nevertheless, the noble Lord raises an important point, although I cannot think of an example of information which a head teacher would not already have.

Lord Macaulay of Bragar

I thank the noble Baroness for that contribution. I am not complaining about a teacher's performance record or contract of employment being transferred, but I am worried about what I called tittle-tattle being transferred—for example, matters concerning a teacher's personal life. The noble Lord, Lord Addington, very clearly focused on this matter as involving civil rights. The Minister made the point that when a person moves from one employer to another, the new employer makes up his mind about the man or woman as he sees him.

Lord Sanderson of Bowden

That is not right!

Lord Macaulay of Bragar

I heard the Minister say that was not correct. However, when a person changes from employer A to employer B, employer A does not necessarily send a dossier on the employee to employer B. Employer B must make up his mind and form his own view as regards whether a job candidate is acceptable to his firm. However, the teaching situation is a special one involving an education authority, teachers, pupils, parents and now a board of management. The amendment is put forward to help rather than to hinder and to focus attention on the fact that there could be real difficulties if a piece of information, which is entirely unfounded in fact, reaches a board of management. That information may surface when a teacher has transferred to a new school. The information, which is perhaps detrimental to the teacher's character in a personal sense rather than a working sense, could lead to court actions and serious repercussions on a local authority. I ask the Minister to follow the line suggested by the noble Baroness, Lady Carnegy, and have another look at the principle behind the amendment, although I acknowledge that the amendment could be tighter.

6.15 p.m.

Lord Sanderson of Bowden

I do not think there is much between us on this. I am fascinated by the term "tittle-tattle". It is an interesting thought that the records of a local authority contain details of tittle-tattle. What will be transferred are an authority's records on an employee. I do not believe an authority collects tittle-tattle or gossip—however, other Members of the Committee may be more knowledgeable on this matter than I—at any rate in the formal records of members of staff. However, the serious point is that I feel we must look very carefully at this matter. I intend to do that, but I am not moved by the representations made. I think we have probably got this matter right, but I shall have another look at it.

Lord Macaulay of Bragar

I am grateful to the Minister for that assurance. However, I must point out that we are not necessarily talking about formal records, and that is one of the difficulties. Clause 48(c) will have to be very tightly framed. The clause refers to all information and not just to written information. It concerns any information. A director of education could phone up a head master, for example, and suggest things about a transferred employee. However, the Minister has assured us that he will have another look at this matter. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 48 to 50 agreed to.

Clause 51 [Disposal of property on winding up]:

Lord Sanderson of Bowden moved Amendment No. 86: Page 33, line 43, after ("by") insert ("the board of management").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 87, 88, 89, 90 and 91. These six amendments clarify the requirements of the Secretary of State in making a winding-up order. At present the Bill could allow the Secretary of State to transfer property to the education authority which is held in trust for the school, whether the board of management were the trustees or not. This could mean that, for example, at a denominational school where the buildings may be held in trust by a religious order and only on lease to the education authority, if that school became self-governing and later wound-up, the buildings could be transferred, without compensation from the order to the education authority. That may answer the point made by the noble Lord, Lord Mackie of Benshie, earlier on. This power should relate only to the property owned by the board of management or owned by the board as trustees for the purpose of the school, and that is the purpose of these amendments. I beg to move.

Lord Sanderson of Bowden moved Amendments Nos. 87 to 90: Page 33, line 44, leave out ("the board of management") and insert ("absolutely"). Page 34, line 1, after ("(b)") insert ("as"). Page 34, line 8, after ("by") insert ("the board of management as"). Page 34, line 45, leave out ("(4)") and insert ("(5)").

Clause 51, as amended, agreed to.

Clause 52 [Transfer of school for establishment of new school]:

Lord Sanderson of Bowden moved Amendment No. 91: Page 35, line 23, leave out ("(4)") and insert ("(5)").

Clause 52, as amended, agreed to.

Clause 53 agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 92: After Clause 53, insert the following new Clause—

("Return to education authority management.

.—(1) A ballot of parents on the question of whether a self-governing school should return to education authority management shall be held if the board of management:—

1. (a) decide by a resolution passed at a meeting of the board; or
2. (b) receive a written request which meets the requirements of section 13(4) of this Act;

to hold such a ballot.

(2) On a resolution, such as described in subsection (1)(a) above being passed, or on a request such as described in subsection (1)(b) above being received by the board of management, they shall forthwith, by written notice, inform the Secretary of State and the education authority accordingly; and any such notice shall specify the date of the resolution, or as the case may be, the date of receipt of the request and whether the case is one such as decribed in section 50 of this Act.

(3) Where the school in respect of which notice is given under subsection (2) above is a denominational school, the notice shall also be given to the church or other denominational body in whose interest the school is managed.

(4) The ballot provided for under subsection (1) above shall be held in accordance with the provisions of sections 14 and 15 of this Act. Where a ballot for acquisition of self-governing status has been held within a period of seven years or if a ballot for returning to education authority management has been held within a period of four years immediately preceding the resolution or request under subsection (1) above, no ballot shall be held unless the Secretary of State gives consent in writing.

(5) A majority of parents, the same as that required under Section 16 of this Act for seeking self-governing status, in favour of returning to education authority management shall be required before the board can proceed with proposals to return management of the school to the education authority in whose area the school is situated.

(6) If the result of the ballot is in favour of returning to education authority management, the board of management shall consult with the education authority who, if willing to accept the school, shall prepare and publish proposals for the transfer of the school to education authority management.

(7) Before the end of the period of two months beginning with the date of publication of the proposals, any person may submit representations to the education authority in respect of the proposed transfer.

(8) The education authority may, after considering any representation submitted under subsection (7) above, and giving reasons for their decision, reject any proposals under this section, approve them without modification or after consultation with the board of management, approve them with modifications, which, without prejudice to the generality of this subsection, may include the substitution of a different date for the date of transfer proposed.

(9) If the education authority approves proposals under this Section with respect to a school:—

1. (a) the board of management shall cease to manage the school;
2. (b) the duty of the Secretary of State to maintain the school shall cease;

and (c) the education authority shall resume the duty to maintain and manage the school and to provide school education in the school and to keep it efficient; on the date agreed under subsection (8) above.

(10) Any monies recovered by the Secretary of State from the education authority in respect of the school under sections 28 and 29 of this Act but not paid to the school in grants shall be returned to the education authority.

(11) All movable property, buildings, land, rights and liabiilties which were transferred to the board of management upon acquisition of self-governing status and/or procured by or gifted to the board of management shall be transferred to the education authority.").

The noble Lord said: As the Minister will be aware, the new Clause seeks to make provision for the return to education authority management of a school which has previously opted out. The Minister will, I believe, agree that if it is right that a school is able to opt out, it should be able to opt in. This is a fairly long amendment. I shall not read it out in full, but it seeks to provide a mechanism whereby the parents may decide to have a school returned to education authority management.

I am sure the Minister will also agree that one generation of parents should not be bound by the decisions of a previous generation of parents. If the principle of parental group choice is valid, it must in fairness operate in both directions. The Scottish parent teacher council's member associations are almost unanimously against self-governing status being permanent. Many have expressed a wish to see a clear method by which schools could be returned to education authority management, if parents so wish.

The procedure provided for under the existing Clause 31 is that the board may decide to seek to return to education authority management. Clauses 50 and 51 give that power to the Secretary of State. Nowhere is it provided for the parents of pupils at the school to make the decision as to whether a school should be discontinued and reopened as an education authority managed school or discontinued and reopened as an independent school. From the way in which the Bill is worded at present, once a decision has been made that is it. There is no flexibility.

The new clause would require that a period of seven years should elapse between a school becoming self-governing and being allowed to consider returning to education authority management. That would prevent the whole process being trivialised by the holding of a series of elections. It would also avoid disruption which would do the school no good, whatever decision was ultimately reached. Seven years seems a more than generous provision for that purpose. It would allow for a complete change in the pupil population of the school. It would also minimise the disruption that a proposed change of management could bring about.

There are not many private schools in Scotland, but there are a few. I recently had a meal with former pupils of St. Joseph's Academy, Dumfries, who were delighted that their school, which they were very proud of, had decided to opt into the education system and had become co-educational. That is a very old school. I am sure that there are other schools which are similarly placed. If the new clause is accepted other schools may wish to do that.

The new clause would provide flexibility and remove the rigidity and stagnation which could result from a single vote to opt out by one group of parents at a particular time. It seems to me to be common sense. I hope that the Minister will accept it as that. It is a very long amendment and I do not expect the wording to be perfect, but I hope that the Minister will look at the spirit of the amendment and give it careful consideration. I beg to move.

Lord Mackie of Benshie

My name is also linked to the amendment. It is entirely logical, if the wishes of the parents are to be the motivating factor in the setting up of a self-governing school, that the wishes of the parents should also be the motivating factor in the return to local authority control. We have all seen instances of a good idea being spoilt by extremely bad management to the extent that the process has gone so far that it can hardly be put right.

I know that the Secretary of State has powers but, as has been said often during our discussions, there could be an unreasonable Secretary of State motivated by a doctrinaire desire never to allow any school to return to local authority control. In this case I believe that there should be provision for the parents to exercise their right to opt out as well as to opt in. It is a logical clause, and I await the Minister's reply.

Lord Sanderson of Bowden

There is machinery within the Bill as presently drafted which could be used by a board to achieve that result. It may be helpful to the Committee if I take time to explain in some detail how that would work.

The formal procedures are based on Clause 31. It is written in terms of the discontinuance of the self-governing school. Discontinuance, in this context, means that the school ceases to be a separate legal entity. The term is equally apt whether the school is simply going out of existence or where the intention is that it should pass to the education authority as a going concern.

In practical terms a board of management contemplating return to education authority control would obviously have to open discussions with the education authority very early to ascertain its view. That is no more than common sense. It is also implicit in Clause 31, since any proposal published by a board of management has to indicate whether the education authority proposes to establish a new school on the same premises. That new school could, of course, be simply the existing school taken under the education authority's management.

If the board of management and the education authority have agreed that the school should transfer back then the matter is opened to the widest possible public debate. The board has to publish its proposals under Clause 31; and at the same time the education authority, acting under existing regulations, has to consult widely on its own proposal to establish a new school on the premises. The board's proposals go to the Secretary of State, and while they lie with him it is open to any person, be it a parent, a member of the public or the education authority, to make representations.

If the transfer is agreed it then falls to the Secretary of State to take the school through the winding-up procedure of Clauses 50 and 51. Those allow for the Secretary of State agreeing that the property of the self-governing school reverts in its entirety to the education authority. Where the authority is agreeable to the transfer it could arrange to take over the staff of the school with continuity of employment.

The agreement of the education authority is central to all this. It will have a free hand in deciding whether to take back a school. The new clause also depends on such an agreement but is less clear as to what would happen if the parents vote to opt back and the authority then refuses.

It is true that those arrangements include no explicit requirement for a parental ballot at any stage. But remember the context of all this. We have a self-governing school with a board of management on which a majority of places are held by elected parents. Elections are held every two years. Moreover, the board will be under a statutory duty to ascertain the views of parents. That is one of the provisions of the School Boards (Scotland) Act which this Bill would carry forward to a board of management. Similarly there is provision for groups of parents to call a general meeting with the board of management. All this means, and has been designed to mean, that the board of management will be responsive to parental wishes. Indeed there is nothing to prevent the parents or the board organising an informal ballot as a test of opinion. Even without that there is already ample provision in the Bill to allow parental views to be expressed. In practice, on a matter as central as winding-up the school and transferring back to local authority control, such a board is unlikely to act without the closest consultation of all parents.

Should parental opinion in a self-governing school ever wish to return it to authority control, parents can make their views known to the board and in time secure a majority for their view on the board. Clause 31 and related provisions then provide a procedure to effect that transfer with the agreement of the authority and the Secretary of Stale.

I hope that, having heard that explanation, the noble Lord will realise that there is a mechanism in the Bill as it presently stands to deal with the situation.

The Earl of Perth

Before the debate continues perhaps I may ask the Minister whether there is any provision in the Bill as drafted that the change should not take place within a given number of years. If there is not such a provision it appears that the proposed new clause has a value. I do not say that the period should be seven years, five years or any particular period, but it is important that the school and children should not be subject to constant change like a yo-yo, one year in and one year out. There may be some provision to prevent that but if there is not I hope that the Minister will give the matter some thought.

Lord Sanderson of Bowden

My reading of the Bill as it stands is that there is no provision for a timescale for discontinuance of a board of management. There could be circumstances in which something happened rather dramatically which would need to be addressed and which might mean the discontinuance of the school within a shorter period. Therefore, it is my understanding that no timescale has been provided for that particular issue.

Lord Mackie of Benshie

The Minister has given a very full reply which we shall need to consider. I am surprised that he did not again produce his argument about the majority of parents on the board, but I am grateful to him for not doing so.

The Earl of Perth

Perhaps I may take up the Minister's reply. I understand that a situation might arise which demands prompt action. At the same time, could there not be a provision under which there would ordinarily be a period of x years before a change would be allowed? Something like that would be helpful.

6.30 p.m.

Lord Sanderson of Bowden

We have dealt with change of circumstance in Clause 30. As I understand it, that is an entirely different proposition from the proposal here which deals with a period of years before a ballot is held. I believe that the period suggested is seven years. As regards the changes in Clause 30, a five-year period is involved. There is no stated period for a change back. We do not expect schools to wish to go back. That is the very reason why the Secretary of State must take all the circumstances into consideration when deciding in the first place whether to allow a school to become self-governing.

The noble Lord, Lord Mackie of Benshie, made the point about a Secretary of State who for doctrinaire reasons may refuse to allow the winding-up of a school in difficulties. The Secretary of State will fund all self-governing schools. He pays over the recurrent grant and must therefore be concerned with the viability of that school. I do not think that one could expect him to stand by and not take any action where a self-governing school is obviously failing.

Baroness Carnegy of Lour

In response to the comments made by the noble Earl, Lord Perth, I should point out that flexibility in this matter is terribly important. It is quite impossible to see what might be the reason for a school wanting to come to an end and reincarnate itself quite quickly within the local authority. It would be a mistake to have any length of time written into the Bill for the other quite different reason which has been made plain by noble Lords on the Benches opposite.

Lord Macaulay of Bragar

To take up the observation made by the noble Baroness, Lady Carnegy of Lour, a situation may arise where the majority of parents are completely out of kilter with the board of management which is carrying on with what it wants to do against the perceived wishes of the parents in the best interests of the children. I have always understood that the Bill was the epitome of democracy, as the Government see it, and that it brought democracy into the process. Parents were becoming a vital part of the educational process which had so far been denied to them because of the activities of local authorities.

Local authorities are perhaps regarded by some people as being impersonal and inefficient bodies which do not get on with the job and do not reflect parents' wishes. If their wishes are reflected at the beginning of the story, why cannot they be reflected at the end of the story? The Minister said that the Government do not expect many people to want to opt back in, but the amendment is merely catering for something that might happen and would give parents the choice at the end of the process that they had at the beginning of the process. The initiation process should be reflected in the conclusion process.

As the Bill stands, the only person who can be responsible for winding up appears to be the Secretary of State. Clauses 50 and 51 of the Bill deal with winding up. Clause 50 states: Where the Secretary of State has—

1. (a) approved proposals made under section 31 of this Act for the discontinuance of a school; or
2. (b) given notice under section 33 of this Act that he intends to cease to maintain a school with effect from a particular date,

he may, after consultation with the education authority and subject to subsection (2) below, by order under this section make provision for the winding up of the school". That does not appear to reflect a situation where the parents themselves have managed to get through to the Secretary of State that they no longer wish the school to remain in its present form. I ask again: why cannot democracy prevail at the end as it is said to prevail at the beginning?

Lord Sanderson of Bowden

We could have long arguments about the working of democracy. It is my understanding that the noble Lord opposite and his party believe in devolution. I should have thought that there was no better example of devolution for parents than that contained in the Bill and in the school boards Act. I am sorry to repeat the fact—this is where the noble Lord, Lord Mackie of Benshie, and I disagree—that we firmly believe that there should be a majority of parents on school boards. That point goes to the very root of the issue.

The noble Lord, Lord Macaulay of Bragar, may say, "A school board can go ahead and carry through its various tasks without considering the parents". We have been through that when we debated the school boards Bill in this Chamber. I believe that there was a consensus at the end of the day that democracy would prevail and safeguards were written in for parents to express their views. The whole point about the Secretary of State being involved is that he can take into account the views of minorities who may turn out to be the majority.

The Secretary of State makes the winding-up arrangements. They are complex, but he must look at the viability of the school. He cannot ignore the wishes of the parents and of their elected board of management. If a substantial body of opinion within that school happens to take a different view for the future from that of the board of management, that will also be apparent to the Secretary of State in the normal way.

Lord Carmichael of Kelvingrove

In what has been a pleasant day—if such days can be pleasant—I do not think that there is any doubt that that is about the poorest reply that we have so far had from the Minister. He said something that rather disturbed me. He said that one does not expect schools to go back. That may be fine, but he almost suggested—I shall look at his words with great care—that at the end of the day the Secretary of State would fund a school so that it would not go back. He would not allow a school to go under. I believe that those were his words—I shall look at what he said with great care—which seemed to me to pre-empt the matter.

As the Minister must be well aware, there is a practical aspect to the question of democracy. All of us who have been involved in politics—whether in the local bowling or football club or in Parliament—know that there is a great deal of difference between having a ballot and a long drawn out process which may take place only once every two years. We must remember that, if the parents formed the majority, they would need to get every seat on the board if the other members of the board were determined that the school should not go back to the local authority. As I read the earlier Bill, parents would need to get every other seat on the board in order to overcome the problem. They must therefore achieve both those things.

I agree that certain precautions should be taken before vital changes are made. Our precaution was the seven-year period. That was one precaution that we put down categorically, but the Minister is suggesting that it seems logical and highly democratic that parents will be able to replace the entire parental section of the board before they can obtain permission or set the machinery in motion to have the school changed. If they fail to win one seat—perhaps because one person is particularly popular or someone reneges once he becomes a member of the board—they will have lost the chance for another two years. That does not seem to me to be a democratic way of going about things. It might be a great deal easier to get people to vote—they may feel very strongly about voting—but to become governors or board members or to vote for board members may be a little more complicated for them to comprehend. I am not denigrating people. They usually need something to encourage them to take action of that kind. If it looks as though the steps are too arduous or too doubtful—because they need to get the entire parental membership—it will perhaps lessen their enthusiasm.

I shall look carefully at the Minister's case, as I am sure other noble Lords will do. On what seemed to me to be an obvious condition of the Bill, the Minister has given what I am sad to say is the least helpful reply in what has otherwise been a good day of agreement between us. I am not happy, but I beg leave to withdraw the amendment. I shall look at it carefully and perhaps bring it back on Report.

Amendment, by leave, withdrawn.

Clause 54 [Establishment of college councils]:

Lord Sanderson of Bowden moved Amendment No. 93: Page 37, line 9, after ("below") insert ("and, in relation to casual vacancies, section 55(2)(b) of this Act").

The noble Lord said: I beg to move Amendment No. 93. At present, the Bill requires an education authority to consult the whole range of organisations represented on the college council even when filling a single casual vacancy. In practice the vacancy may be of interest to only a single group, for example the college staff or a particular employers' organisation. This amendment would give the Secretary of State power to make regulations allowing the education authority to limit consultation to the body which nominated the original appointee if it wished. I beg to move.

6.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 94: Page 37, line 20, leave out ("half") and insert ("one third of").

The noble Lord said: It might be convenient to deal with Amendment No. 95 when dealing with this amendment, because the end result of the passing of the two amendments would be a change in the balance of the college councils. It is probably important that the Committee should look at the present situation. The Committee will find it in Clause 54(5) at page 37 of the Bill. The clause reads: (5) The principal of a college of further education shall be a member of the college council ex officio and, in appointing the remaining members of a college council the education authority shall—

1. (a) secure that—
   1. (i) the total number of members does not exceed 20;
   2. (ii) no less han half the members are selected from persons nominated by employers, or by employer organisations consulted by the authority under subsection (4) above; and
   3. (iii) not more than one fifth of the members appointed by the authority are members or employees (other than persons employed at any educational establishment) of either that authority or of any other local authority;
   and
2. (b) comply with such further conditions as to the composition of the council as may be prescribed.".

The result of Amendment No. 94 would be that in subsection (5)(a)(ii) the employer representation would be reduced from one-half to one-third of the 20 members of the school college council, and the number of people from local authorities that would be permissible would be one-quarter instead of one-fifth. What is being done is to reduce the employer representation and increase the local authority representation.

The provisions by which at least half of a college council consists of employer nominees and not more than one-fifth of a college council may consist of members or officers of the education authority will affect the fundamental ethos of further education colleges. Moreover, it will weaken the control of the education authority to the point where it may become impossible for the local authority to make coherent provisions for further education throughout the area.

It is important to bear in mind that further education colleges are not factories for solely producing people for industry, although that is an important aspect of further education. However, they range across a wide spectrum of the educational process offering, for example, adult students a second chance to get general education qualifications. That type of activity is not obviously designed to suit the local employers.

The position suggested by the amendments is that while the local employers are obviously important—they have been described as important consumers of vocational education and training—they should not have the largest say in the college council. For example, the interests of students would not be met solely by enabling colleges or councils, in the words of Michael Forsyth in another place, to fine tune the vocational courses to the local labour market needs.

It would be foolish to ignore the fact that if an industry comes to the fore in a local area, then it is right and proper that the further education college should do its best to assist the promotion of that industry in the interest of the development of the community and in giving people jobs. The conceived problem is that with no fewer than half of the members of the college council representing local employers, the broader aspects of the college may not be properly attended to by the employer members.

It has been suggested that in any event employer members are not the best people at attending meetings; but be that as it may, there is little evidence that there is a substantial pool of sufficient numbers of local employers with the necessary expertise, experience and commitment to the community, as opposed to their firms, willing to take on the major responsibility of running colleges of further education. It has been estimated that at least 500 local employers would be required to become members of college councils in Scotland under the present rules. The difficulty would be particularly to the fore in the more rural areas of Scotland. It would perhaps be naive to assume that the private sector in particular could be persuaded to take on this responsiblity very efficiently. That being so, the number in the college is in excess of what is required to represent the employers' interests.

It should also be remembered that these councils will come into being at the same time as the private sector led local enterprise companies are being established under the Scottish Highlands and Islands enterprise proposals. There is bound to be competition between them and the college councils; and employer members may be torn between the two groups. I am not for one moment saying that there are employers or employers' representatives who would not have the good of the community at heart; but it is dangerous to give them such a large grouping within the councils.

In contrast to the position of the employers, the local authority representation on the college council is far too limiting on the presence and influence of the local authority. There is no dispute that college councils should be established and might prove to be quite a good thing; but the provision made by the colleges should be within the education authorities' strategic policies for further education, and the revenue expenditure determined by that authority. Given the importance of these matters and the interests of the community as a whole, it is essential that the local authority representation should be increased to a maximum of one-quarter, so that one comes slightly down and one goes slightly up.

The Scottish Further and Higher Education Association have expressed considerable anxiety. They say that they are deeply concerned about the implications of this particular part of the Bill for the colleges. One of their main concerns is this provision, which contains proposals for a substantial revision of the composition of the governing councils of further education colleges. They give the example that a typical, medium-sized city college would have a council of 22, with four local authority councillors, three representatives of employers' organisations, three representatives of trade unions, three representatives of the teaching staff of the college, two representatives of the other staff of the college, two representatives of the students, one head teacher from a local school and the principal.

If that is a typical, medium-sized city college, then it is light years away from the proposals in Clause 54, which would give the council a limited representation and would cut out a lot of the representation that was included elsewhere. No amendment has been put down to represent what the Scottish Further and Higher Education Association sees as a typical medium-sized college. However I have taken up the Committee's time by giving that example on its behalf. There is room to consider the balance of the college council in terms of Clause 54.

In the typical medium-sized city college there are three co-opted members. I forgot to mention them. They are all local businessmen. It is essential that the composition of the college council should recognise that the college does not exist purely to turn out workmen for employers who may be represented. It has a broad concept of secondary education; of providing opportunities to people who perhaps may not have had a chance in the first place or if they did they did not take it. They can come back to the education scene in a more comfortable way.

The colleges encourage people to come in from outside. They have outreach policies. They go into the community to tell people what is available for them in the college. They encourage people to take up places in the college, achieve qualifications and improve their educational status in life.

I do not propose to take up the Committee's time any further at this stage. As with so many issues in education, it is a matter of balance. On this matter the balance is going the wrong way in favour of employers' representatives. I beg to move.

Baroness Carnegy of Lour

I do not know how many further education colleges across Scotland the noble Lord has visited. However, he said that the example that he gave from the Scottish Further and Higher Education Association was typical. It is presumably typical of Glasgow, from where the letter was written, and possibly of Lothian.

In Tayside the model used for the college councils in 1975 was very close to the one proposed by the Government now. Tayside did not want very political councils. It wished to involve employers to the absolute maximum. It wanted a pragmatic body which would run a college in the best interests of the students and would not spend a lot of time on local politics in the name of college business. This model has worked extraordinarily well. If the noble Lord visits Tayside and talks to people at colleges, he will find that, where the employers' role in the college is large, their commitment is very much greater than in those colleges in which they play a small role.

I believe that the Government are on the right lines. A college is not a factory. Running a college is a very delicate matter. It is an educational institution. It provides many kinds of education including vocational training. That is best achieved when people are committed to the students and are not thinking of other matters. The Bill gives employers more responsibility than they have ever had before. I believe that they will be strongly attracted by this. I hope that the Government will not be persuaded to alter the composition of these colleges. My experience is that it is about right.

Lord Addington

On the composition of these proposed boards, although employers have an interest in the colleges they are not the ultimate people concerned. It is the students—those who go through the education process. Many will undoubtedly be going into local employment. Many more may be regarding the courses that they are undertaking at college as a step to employment and further education in other parts of the country. I suggest that to have too many local employers on these boards may make them too insular, looking only to their own doorsteps. If the students are to have their interests represented in the best possible sphere we must have people who are to a great extent removed from the immediate concerns of the employers, although taking some account of them, as is done when considering the question of college organisation.

I suggest that an organisation such as a local authority may be slightly better placed. I agree that there is a need for local employers to be active in this area, but I suggest that they should not be completely dominant.

Lord Sanderson of Bowden

I do not disagree with the noble Lord that it is an important area in which we shall be addressing the subject of training and retraining, with no doubt reference to the Highlands and Islands enterprise proposals. We believe that employers should have the largest say on the new college councils since they are the ultimate consumers of vocational education and training. They will be able to provide the expertise and knowledge that colleges need to fine tune their vocational courses to meet local labour market needs. The figures in Scotland suggest that by 1994 we shall have a drop of approximately 33 per cent. in the number of 17 year-olds coming on to the market. Training will be very important, as will retraining. However, we expect the word "employer" to be interpreted widely to include the public section such as health boards as well as private sector employers. There is no intention that employers' representatives should be drawn from a narrow clique. Indeed the education authority is obliged by the Bill to cover the full range of employer interests relevant to the college's work

Furthermore, as noble Lords have no doubt noticed, the Bill provides for college councils to undertake commercial activities and to set up companies to run them. This is a new initiative and councils will benefit by having direct access to practical commerical advice.

The second amendment would increase the local authorities' share of the college council to one quarter, which is above the proportion for the majority of existing councils. This would seem paradoxical, where one of the main aims of the Bill is to give college councils more freedom to manage their colleges independently of their parent authorities.

Our other objective is to free authorities of involvement in the day-to-day running of the college and detailed college administration, which again is inconsistent with increasing the local authorities' share of the college council places. Instead education authorities will be able to concentrate on their strategic role, including drawing up further education strategies and approving the college development plans which college councils will be required to prepare each year. Authorities will be able to use these development plans to ensure colleges' activities are consistent with the education authorities' policies, without a large local authority representation on college councils.

As for representatives of interests other than employers or local authorities, there should be sufficient space on the college council to cover a range of interests, including, for instance, college staff and students, trade unionists and representatives of schools or higher education institutions. Perhaps I may make the observation that if an education authority thinks five or so places insufficient for these other interests, it can always increase them by not taking up its full quota. This emphasises the flexibility that the Bill gives to education authorities to decide who exactly should be represented on an individual college council in the light of local circumstances.

Mention was made that there are not sufficient employers' representatives to take up these places. These college councils will have greatly increased powers to determine the content and direction of college provision; hence the training and other services offered to local employers. The importance of these services to employers will also increase.

In our consideration of what measures to adopt on training delivery in Scotland and the proposals brought forward by my right honourable friend to address this point the matter of college councils is very relevant. We believe, like my noble friend Lady Carnegy, that the balance which we seek to achieve in these college council representations will be helpful for the future of those councils up and down Scotland.

7 p.m.

Lord Mackie of Benshie

I have listened to the noble Lord's argument and to the noble Baroness's exposition of what happens in Tayside, but the weakness of the case for having half the governors from some employers' organisation is that it appears to brand the further education college as a place which is purely for professional and trade training and has no wider aspect than training people for life. That should not be so. If the Minister accepted the figures of a third and a quarter—I have been trying to work out what is left and it appears to leave only five-twelfths of 20 places for a wider variety of governor from various places such as trade unions—all sorts of useful people could be co-opted and put on the board. Obviously one would still have the largest number of employers. I feel that one-third and one-quarter are not bad figures. I believe that half gives the appearance of weighting the whole thing in favour of trade and professional training only.

Lord Sanderson of Bowden

I must answer that question. I tried to make clear that our definition of "employer" is widely drawn. I have never thought of the health service and all its works as necessarily being motivated by other than dealing with the problems related to health in a particular area, as indeed anyone who is involved in local business has his interest in the business which he runs. I rest my case on what my moble friend Lady Carnegy of Lour said. She has first-hand knowledge of the situation. For my part, having been on a similar council as an industrial representative—where, incidentally, there was a majority of those involved in the industry of the area—I can see nothing wrong with the balance that the Government are proposing here, despite the persuasive arguments put forward by the noble Lord, Lord Mackie.

Lord Macaulay of Bragar

I am sorry that the Minister cannot see his way to giving this matter further consideration, because the Committee has had powerful contributions from the noble Lords, Lord Addington and Lord Mackie of Benshie, in support. We were rather disappointed by the contribution made by the noble Baroness, Lady Carnegy, taking the attitude which seemed to come over to this side of the Committee that it was all about politics. She suggested that we should get rid of these local authority people because they do not do anything else but talk about politics. Let us get the pragmatic men, she says. That is a very interesting word. Is she suggesting that employers' representatives do not think pragmatically in politics as well? Of course they do. It is not the kind of argument that we should get into at this stage.

What we are looking for is what is best for the community and the prospective students. The noble Baroness gives the Conservative game away with the observations that she makes because, when it comes to the pragmatic politics of running a further education college, when the choice is between the pragmatic production of people for an employer's factory (I am not suggesting that they are factories for employers), and going with a limited budget on an outreach scheme to a deprived community to give people another chance in life, I can surely guess which way the decision will go with such a balance on the college council.

It would be helpful if the Government would give the amendment the courtesy of further consideration. I should say one other thing. There are other areas where the local authority is the largest employer. For example, the Western Isles County Council is, I am told, the largest employer in the area, yet its contribution to the college council in Stornoway will be limited to one-fifth. That means that the community and the local authority being badly under-represented in the college council as a result of the present proposals.

However, I have heard what the Minister has said. I can see that there is no sign of him moving any distance towards us at the moment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95 not moved.]

Clause 54, as amended, agreed to.

The Earl of Strathmore and Kinghorne

I beg to move that the House be resumed. In moving this Motion, perhaps I may suggest that the Committee stage begins again at five past eight.