Further and Higher Education Bill [H.L.]

HL Deb 10 December 1991 vol 533 cc602-62

3.35 p.m.

The Paymaster General (Lord Belstead)

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

Moved, That the House do now resolve itself into Committee.—(Lord Belstead.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 3 [Part-time education, and full-time education for those over 18]:

Earl Russell moved Amendment No. 67:

Page 3, line 20, leave out subsection (6).

The noble Earl said: By quarter to 12 last night I fancy that there may have been a few noble Lords in this Chamber who were feeling a little tired of education. If so, they may perhaps be relieved to know that I was one of them. In that case, some Members of the Committee may be little relieved that, for the duration of this amendment, we can offer a change of diet. Instead of education, we are discussing a constitutional issue in this amendment, which would delete Clause 3(6).

However, some Members of the Committee may feel that we have got out of the frying pan into the fire. In this clause we are dealing with what is perceived in a number of quarters of this place as a threat to parliamentary sovereignty. The Government have talked a great deal in principle about the need to defend parliamentary sovereignty. But they have not always done very much to defend it in practice, especially when parliamentary sovereignty has been used to attempt to do its proper job; that is, to control the Executive.

There is nothing more central to parliamentary sovereignty than the proposition that Parliament makes the law. The question before the Committee is whether, or to what extent, the subsection I seek to remove threatens that principle. It is what is known as an "Henry VIII clause". That is a type of clause which first came into parliamentary legislation in the reign of Henry VIII. It allows the Minister power to amend the law by statutory instrument.

I suppose that one might argue on both sides about how far the latter actually threatens the principle that Parliament makes the law. I feel that changing the law by statutory instrument is not really sufficient to uphold the principle of parliamentary sovereignty. I appreciate that one cannot go into the procedure of another place. However, I believe that I am not saying anything controversial when I say that the other place does not always have time to debate every negative instrument which is laid before it.

In this Chamber we are under considerable restriction in any attempt to vote on any statutory instrument. There is a severe difficulty in amending any statutory instrument. Therefore, the powers of this place in trying to ensure that the law is properly made are used, if at all, with very great difficulty when we are dealing with a statutory instrument.

I believe that there is a strong case to be argued for the view that changing the law by statutory instrument is a potential threat to parliamentary sovereignty. When looking at any Henry VIII clause, we must consider what are the powers that the Minister wishes to take by order. In this case he wishes to take powers to, amend Schedule 2 to this Act". He wishes to be able to lengthen or reduce the lists and types of institutions which are to be put under the control of the funding council instead of the local authority.

I said that this was a constitutional issue. I shall not go into the rights and wrongs involved. But I think that anyone who was in this Chamber yesterday will appreciate that it is a controversial question. To give the Minister power to change the law in a major area of controversy such as this, with no more formal powers than simply a statutory instrument, is something which, to put it no higher, causes me misgivings. It seems to me to involve a limited respect for Parliament.

There has been much argument over a long period of time about these clauses. The Donoughmore Committee, set up in 1929, produced a complete and well argued report in which I have confidence. It argued that there were certain rare circumstances in which those powers might be legitimate, but that when they were used it was necessary to provide both Houses with a full and careful explanation of why they were necessary on that occasion. Henry VIII clauses are like railway journeys during the war. One has to explain why one's Henry VIII clause is really necessary.

The Donoughmore Committee took the matter so seriously that it proposed that the justification should be included in a Bill's Explanatory and Financial Memorandum. So, when we refer to the matter being on the face of the Bill, we mean that literally. That is a strong case.

For a long time after that we had an interval in the spread of such clauses; but since 1987—I regret to say since my arrival in this place, and I hope there is no connection—such clauses have suddenly become extremely common. We had one such clause in the Children Bill; we had them in the Courts and Legal Services Bill; we had one in the Education (Student Loans) Bill; and we had one in the Statutory Sick Pay Bill, which we defeated and sent back. It gave me great pleasure that it was not reinserted into the Bill. We had one in the Child Support Bill. They were all hotly contested in this place. The noble and learned Lord, Lord Simon of Glaisdale, in particular, spoke with great learning and great eloquence on the subject.

After that, one might have hoped that it would have become known, to parliamentary counsel at least, even if not to others in the Government machine, that such clauses are liable to give rise to debate. Last week, we had another Henry VIII clause in the Local Government Bill, which I am pleased to say we defeated. It caused me some dismay when listening to replies to the amendment to delete that clause to discover that the powers that be had no idea why that clause might give rise to argument. The replies suggested that we might be interested only in matters concerned with details of compulsory competitive tendering. No doubt many Members of the Committee were, but if they were not expecting a move to delete that clause as constitutionally improper, they should have been.

After the defeat of the clause in the Statutory Sick Pay Bill, the noble Lord, Lord Renton, last March, put down a Question asking whether the Government would abandon the use of such clauses. To my eternal regret—I have offered the noble Lord my apologies for this—I did not on that occasion go all the way with him. I should have done so. I stuck to the position of the Donoughmore Committee: that there were certain circumstances in which those clauses might be legitimate. What subsequent history has made me more inclined to believe is that the use of Henry VIII clauses is addictive. We have here a special sub-species of the proposition that power corrupts. The ability to alter the law without full recourse to Parliament is attractive to those who think that they enjoy it; so if it is once regarded as legitimate, it becomes more and more common. Nevertheless, I shall listen with great interest to the Minister to see whether he can convince me that in these circumstances there is some special reason why his Henry VIII clause is necessary. I am not beyond the reach of all persuasion. I beg to move.

3.45 p.m.

Lord Campbell of Alloway

I oppose the amendment. This, properly speaking—I speak with deference to noble and learned Lords—is not a true Henry VIII clause. This clause enables the Secretary of State, by order, to amend a list in a schedule. It would, for example, enable the Secretary of State to amend it to produce what is sought in Amendment No. 71. It is not a Henry VIII clause. I say that with respect to the Committee, and I shall be brief.

I consider Clause 77 to be a Henry VIII clause and I shall be moving that it should not stand part of the Bill. That is a Henry VIII clause. It is a clause which obliges councils to comply with any directions contained in an order made by the Secretary of State". Directions may be general or special, and relate to the provision of financial support by the council in respect of activities carried on by any particular institution or institutions. That is a true Henry VIII clause. It is abominable. It is objectionable, and I hope that the Committee will have none of it. Clause 3 is not a Henry VIII clause. I oppose the amendment for those reasons.

Lord Renton

We need to distinguish between one type of power given to amend and another. It is generally the practice—I wish it were more frequently the practice—that the principles of the Bill should be stated in the clause, and any detail needed to amplify those principles or apply them, should be put into schedules. In the second schedule we have detail —quite small detail. It is fair and permissible that power should be given to amend such detail. We are not altering the principles of the Bill on this occasion; and so, although I appreciate the interest that the noble Earl has taken, which I share, I too find myself unable to support him on this amendment.

Lord Peston

I was not going to join in this debate, but I am so astonished by the interventions of the noble Lords, Lord Campbell of Alloway and Lord Renton, that I feel I must, my name having been on the amendment. If Members of the Committee will look at Clause 3 and the schedule they will discover that the schedule is not a matter of detail; it is fundamental to what will be happening in further education. It describes what is meant by further education in this context. In other words, it is not just a matter of adding a few details; it is what this part of the Bill is all about.

I do not want to bandy words over what is a true Henry VIII clause, but the clause clearly allows the Secretary of State to behave in any way that he likes. It just says that he can amend the schedule. We do not have to ask whether it contains the essence of a Henry VIII clause or anything else. It clearly means that the Secretary of State can change the nature of further education merely by saying, "I am now going to do this". The arguments put forward by the noble Earl, Lord Russell, are cogent, and given something as important as this—let us not forget that the Secretary of State can delete and include, merely by order—I should like to know the Government's arguments. Like the noble Earl, I am interested to know how the Minister will justify the clause; but to regard it as a minor technical matter is mistaken. It is fundamental to the future of further education.

Lord Campbell of Alloway

Before the noble Lord sits down, I do not contend that the clause is not fundamental or that it is a matter of mere detail. All I am contending for is that in the order of government, as it exists today and as it has developed since the last war, one has to have a measure of devolved government. There has to be some flexibility. It is a question of degree. All that is being done is to allow the Minister, within the ambit of the schedule, to narrow or to extend it in certain ways. I cannot see that that, of itself, involves a fundamental extension of the principle of the Bill. However, Clause 77 would truthfully enable the Minister to do anything he liked. That is the difference. It is a difference of degree and, with respect, it is fundamental.

Baroness Carnegy of Lour

I am not a lawyer or a historian but I am interested in how the Bill will work. I should have thought that the noble Lord, Lord Peston, would appreciate that in a fast-moving society such as we have now, and with the importance of further education in our society, it is vital that colleges should be able to react to the changing scene with flexibility. The very idea that the definition of what colleges should be responsible for doing and what should be funded through the new councils could only be altered by primary legislation is out of the question.

The argument about the Henry VIII clause—a great English king—is of great interest to us all, but it is simply a perfectly legitimate device, which goes right through legislation, to give flexibility so that colleges can keep up to date. If the noble Lord is going along with this—removing the flexibility—I do not believe that he could properly have understood what the clause is about. It is essential that what local authorities do, what the funding council is responsible for and what colleges can do should remain flexible, to be added to, subtracted from or changed fairly rapidly. I believe that that is all that the legislation states. I do not know what my noble friend on the Front Bench has to say about this.

Lord Dormand of Easington

Before the noble Baroness sits down, I accept the basic argument which she puts forward about flexibility and change. However, in this case, would it not be better to leave out Schedule 2 altogether and give the Minister complete flexibility?

Baroness Carnegy of Lour

Since the whole matter was disputed yesterday, particularly from the noble Lord's Benches, and there was reference to local authorities being sad to lose these responsibilities, it is extremely important politically that the whole matter should be clarified. In future, colleges will want to know in detail what they can and cannot do. Thus it seems to me correct that it should be in the schedule and I see nothing wrong with that.

Lord Simon of Glaisdale

"Henry VIII clause" is merely a sobriquet. The Donoughmore Committee spoke of so-called Henry VIII clauses, so-called because Henry VIII was given power by Parliament to amend by proclamation, by ministerial order, the provisions of an Act of Parliament. The only question before the Committee is whether the Minister is, by this provision, given power to alter the provisions of an Act of Parliament.

Therefore, the first question is whether a schedule is part of an Act of Parliament. That can hardly be gainsaid. The noble Lord, Lord Renton, is obviously quite right that one puts matters of detail into a schedule, but they are nevertheless essentially part of the statute. The age-old way, the revered way of altering any part of an Act of Parliament, including the schedule, is by another Act of Parliament. That principle was vindicated at the revolution of 1688 and 1689.

The noble Earl, Lord Russell, mentioned the way in which the so-called Henry VIII clauses have latterly been increasingly infiltrated into Acts of Parliament. He mentioned the Children Bill of a few Sessions ago. In fact, one finds that suddenly in that Session the so-called Henry VIII clauses were infiltrated into no fewer than three statutes.

Your Lordships have shown disapprobation on a number of occasions and have vindicated the constitutional right of Parliament to legislate. Of course it is convenient for Whitehall to legislate by order. It is tiresome to come back to Parliament and go through the age-old, tried legislative processes to amend an Act of Parliament. It is so much easier to lay an order or regulation which cannot be amended, even by affirmative resolution. At best, it can be disapproved.

By tradition, your Lordships do not even vote against orders or regulations. If they are voted against in the House of Commons, nothing is simpler than to take them back and re-lay them in a slightly altered form. I myself deprecate the convention of your Lordships' House in not opposing affirmative resolutions. Nevertheless, one has only to look at the situation to see how much less effective is the parliamentary scrutiny of a provision introduced by order amending an Act of Parliament than if it goes through the full legislative process.

Thus, in the end it comes down to the schedule. The noble Lord, Lord Peston, rightly said that it is an important schedule embodying more than matters of mere detail. However, even if it were not so important, it would be utterly wrong to seek to use this extraordinary legislative method to amend it.

My noble and learned friend the Lord Chancellor in two Bills recently said that the Government accepted the Donoughmore recommendations. They were absolutely clear. Henry VIII clauses, said Donoughmore, are derogatory of parliamentary privilege and legislation. The committee went on to say that they are permissible but only if they are necessary and not merely convenient. Not a single argument can be advanced in relation to this provision to show that it is more than convenient—that it is necessary. I shall certainly support the noble Earl if he chooses to challenge the matter in a Division. It is of fundamental, constitutional importance. It relates to the right of Parliament to legislate and not to see its powers whittled away and given to Whitehall regulation.

Lord Hailsham of Saint Marylebone

I am afraid that I must take issue with my noble and learned friend on the Cross Benches. We are making heavy weather of a small baby. With respect, we have travelled a long way since the reign of Henry VIII who killed two of his wives and two of his Lord Chancellors. We have travelled quite a long way since Lord Hewart's publication, The New Despotism. We have travelled quite a long way since the Donoughmore Report. I do not differ from their views in respect of the time when they lived and I shall not enter into a great argument about the constitution.

Lord Simon of Glaisdale

Will my noble and learned friend allow me to intervene? He will recollect no doubt that our noble and learned friend the Lord Chancellor accepted Donoughmore, at the time of both the Children Act and the Courts and Legal Services Act. They are not so ancient.

4 p.m.

Lord Hailsham of Saint Marylebone

I am expressing my own opinions and not those of my noble and learned friends, either my noble and learned friend on the Cross Benches or my noble and learned friend on the Woolsack. We have travelled a long way since the days we have been discussing. I venture to express my own opinion on the subject and on the subject of this amendment. The great danger to parliamentary government, as it has developed over the past 50 years—I have had some experience of that—is the great prolixity and number of Acts which we are called upon to pass. In 1911 when a Liberal Government was in power, they passed about 450 pages of public general Acts a year. Between the wars—apart from the odd year of 1925—that figure had risen to about 1,000 pages of public general Acts. Up to the 1970s we have passed about 3,000 pages of public general Acts a year with about 10,000 pages of secondary legislation.

The other day I was horrified to hear a noble Lord, who I believe spoke from the Opposition Benches, claim that since the 1980s we have passed about six volumes of public general Acts. That process utterly prevents effective parliamentary control of the Executive. That volume of work is the real enemy and not these King Charles's head clauses or the Henry VIII's head clauses which deal in the main with the smallest minutiae. It is important that we should control the Executive, but we shall not do so until we have more time in which to do that. That is the real point we should be discussing. I can see my noble friend on the Front Bench beginning to stir in his place. I shall therefore sit down having said what I wanted to say. Nevertheless I could have added a great deal more.

Lord Belstead

Under this Bill the statutory duty to provide all types of further education for adults will remain, but in future the duty will be split between the new further education funding councils and local education authorities. Schedule 2 to the Bill, around which this amendment revolves, describes the types of course which will fall within the scope of the funding council duty. The duty to provide all other types of further education for adults will fall to local education authorities. The noble Earl who moved this amendment said it would be necessary to show that the journey he referred to was really necessary. I believe it is necessary.

Schedule 2, as drafted, sets out those kinds of course which the Government believe need to be secured at national level by the funding councils. However, we must allow for the possibility that Schedule 2 might need to be modified at some stage in order to reflect changes in the types and categories of further education and the way they are described. We do not believe that it should be necessary to have to undertake fresh primary legislation in order to make such a modification. My noble and learned friend has just made a formidable intervention on that point.

The Committee has only to think back to our discussions yesterday to realise there is a divergence of view that crosses party boundaries as regards what should and what should not be included in Schedule 2. My noble friend Lord Campbell of Alloway made a telling point when he commented on Amendment No. 71. My noble friend favours that amendment and he would like to see its provisions added to Schedule 2. That provision may or may not be included in the Bill or we may wish to add it in years to come.

The most important point was made by my noble and learned friend Lord Hailsham. As every Member of the Committee is aware—the statistics on this matter have from time to time been given in this Chamber—we are dealing with an ever increasing number of Bills. The Government are castigated again and again for being the author of this increasing workload. Nonetheless there it is.

I believe the noble Earl, Lord Russell, is taking rather a rigid view on this occasion. The fact is that over the past 10 to 20 years the character of courses in further and higher education has changed considerably. It is not just a matter of having sandwich courses, day release courses and modular courses. Many of the experts on this subject in this Chamber know better than I do that today there is a whole variety of amalgamations and mixtures of courses and a whole variety of new courses. So far as I am aware, those courses did not exist a couple of decades ago. It was reasonable for my noble friends on these Benches, including my noble friend Lady Carnegy of Lour, to ay they felt that in this case the measure we have discussed was necessary and desirable. I add that there is nothing sinister about the power in this subsection.

The noble Lord, Lord Peston, was absolutely right to say this is an important matter. Schedule 2 is indeed an important schedule and is a fulcrum part of the Bill. However, Schedule 2 does not purport to describe further education—I believe that was what the noble Lord said. The schedule sets out which parts of further education should be funded by the further education funding councils and which parts should be funded by the local education authorities. I am not a raging beast who wants to legislate by diktat. I happen to believe that on this occasion the subsection we are discussing is necessary.

Lord Peston

Before the noble Lord sits down, I must say I am not as opposed to Henry VIII clauses as are some Members of the Committee. I look forward to the use of Henry VIII clauses as much as anyone. I hope the Minister can give us a better example of what the Secretary of State might have in mind as regards amending Schedule 2. I believe that the intervention of the noble Baroness, Lady Carnegy, was completely beside the point. The measure we are discussing gives no flexibility whatsoever to the institutions. It is the Secretary of State who may act: no one else can.

I ask the Minister to look at headings (a) (b) (c) and (d) of Schedule 2 which already appear to give the Secretary of State power to choose to do almost anything he likes anyway. I do not think the subsection we are discussing is sinister, but if the Secretary of State wishes to change the substance of a provision, some of us in this Chamber who take Parliament seriously would like to be involved in debates on that change. We would not necessarily disagree with the Secretary of State. The Secretary of State may change some of the items in headings (e) to (h) or may add to them. I would not like to read in a newspaper that a new subject was proposed under heading (i). I find this matter slightly frustrating. Will the Minister give me an example of the kind of provision he thinks the Secretary of State may one day introduce?

Lord Annan

If the provision remains as it is, am I correct in saying that the Secretary of State could abolish A-levels without further ado?

Lord Belstead

I should say, with respect, that I do not believe that is the case as regards Schedule 2. I would say to the noble Lord, Lord Peston, that if there were to be changes to the public examination system—those changes would occur in an entirely different way to the way we are discussing—then it would be necessary to take them into account in considering heading (b) of Schedule 2. Arguably it would not be necessary to return to the Chamber with such a matter as the argument about a change to the examination system having taken place in entirely different fora at an entirely different time.

Earl Russell

I thank the Minister for a careful and considered reply. We have had an interesting and important debate. It would have been worth tabling the amendment simply to initiate this debate as we have covered ground that we shall examine again. The noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Belstead, referred to the increasing workload on the statute book. That point is of course central to the whole debate. But as that increase is before us, we are not absolved from the duty to attempt to scrutinise what is going on. We are, after all, a parliament and it is our duty to consider what goes into legislation and to revise it and improve it if we can.

The noble Baroness, Lady Carnegy of Lour, illustrated precisely why it was important that I had put down the amendment. The noble Baroness invoked flexibility. I heard in that a voice which is very old indeed. It is the voice of the Executive through the centuries. It is what used to be called necessity. In each case it means immunity from parliamentary control, which is very convenient for Executives of all times. It is precisely because it is convenient to Executives that we should not allow it.

Lord Harmar-Nicholls

On that particular point, perhaps I may say that it is not possible to remove power from Parliament. The power would still exist until we undertake any rectification which the noble Earl may have in mind. One must admit that it would mean that exercising that power would take longer and the whole of the parliamentary procedure would be invoked. However, I do not believe that it is fair to say that doing what is proposed, particularly when it is set out in a schedule which places a certain boundary around it, gives complete control to a delegated power.

Earl Russell

In the past I have heard the noble Lord, Lord Harmar-Nicholls, express misgivings about the prospect of Parliament signing away its power. In that case also there was room for argument about how much there might be a chance of resuming it, but the noble Lord's misgivings were not diminished. Nor are mine on this occasion. I appreciate that there is scrutiny of statutory instruments, but on that subject I agree with everything said by the noble and learned Lord, Lord Simon of Glaisdale. Such scrutiny is extremely difficult. I agree with the noble and learned Lord that it is a great deal less effective than the sort of scrutiny we bring to a Bill.

I listened with very great care and even more than usual attention to the noble Lord, Lord Renton, and the noble Lord, Lord Campbell of Alloway. I must confess that I found the reply of the noble and learned Lord, Lord Simon of Glaisdale, more persuasive. A schedule is legislation. Altering it by order, as far as I understand, is a Henry VIII clause. It may be that this is an example of the growing tendency to put too much into primary legislation. The more one puts into primary legislation the more there will be a problem with finding time to amend it. It is possible that we ought to look in general at the way we draft our parliamentary legislation with that question in mind.

Baroness Carnegy of Lour

I thank the noble Earl for giving way. I believe that he misunderstood what I was trying to say. I was trying to bring the debate back to the subject of further education as opposed to the legal arrangements for our country. As I understand the amendment, if it should turn out that helping people to achieve basic literacy could be better achieved by local government as opposed to through the colleges because the system was not working very well, there would have to be primary legislation in order for that change to be made, if we pass the amendment. From my experience of the adult literacy movement and further education colleges, that would be unfortunate. That is what I was saying.

Earl Russell

I thank the noble Baroness for that explanation, for which I am grateful. Of course I take her point about the difficulty of needing primary legislation every time one wants to make a change of the type she described. However, that illustrates to me that either too much has been put into Schedule 2 in the first place, or the basic principle of Part I of the Bill—by creating in the form of a statutory definition the division across which there will always be a need to shift people—will call either for perpetual new legislation every time we want to vary it or for perpetual Henry VIII clauses and orders. That may be a way of illustrating that the principle set out in the Bill is a bad principle. If the principle in the Bill is a bad principle, I should not be surprised if it gave rise to considerable difficulty in its implementation.

The noble and learned Lord, Lord Hailsham, argued that we have travelled a long way. So indeed we have. I suspect that for much of that time we have been travelling in the wrong direction. We have been travelling away from parliamentary control of the Executive. The Executive in this country is already a great deal too powerful, and I commend the amendment to the Committee.

4.14 p.m.

On Question, Whether the said amendment (No. 67) shall be agreed to?

Their Lordships divided: Contents, 107; Not-Contents, 142.

Division No. 1
CONTENTS
Addington, L.	Dean of Beswick, L.
Ailesbury, M.	Desai, L.
Airedale, L.	Donaldson of Kingsbridge, L.
Alport, L.	Donoughue, L.
Aylestone, L.	Dormand of Easington, L.
Banks, L.	Ewart-Biggs, B.
Beaumont of Whitley, L.	Falkland, V.
Blackstone, B.	Fitt, L.
Blease, L.	Foot, L.
Bonham-Carter, L.	Galpern, L.
Boston of Faversham, L.	Gladwyn, L.
Bottomley, L.	Glenamara, L.
Brookes, L.	Graham of Edmonton, L. [Teller.]
Buckmaster, V.
Callaghan of Cardiff, L.	Gregson, L.
Carmichael of Kelvingrove, L.	Grimond, L.
Carter, L.	Hampton, L.
Castle of Blackburn, B.	Harris of Greenwich, L.
Cledwyn of Penrhos, L.	Hilton of Eggardon, B.
Cocks of Hartcliffe, L.	Hollis of Heigham, B.
Combermere, V.	Holme of Cheltenham, L.
David, B.	Hooson, L.

Houghton of Sowerby, L.	Parry, L.
Hunt, L.	Peston, L.
Irvine of Lairg, L.	Prys-Davies, L.
Jeger, B.	Richard, L.
Jenkins of Hillhead, L.	Robson of Kiddington, B.
Jenkins of Putney, L.	Rochester, L.
John Mackie, L.	Ross of Newport, L.
Kearton, L.	Russell, E.
Kennet, L.	Sainsbury, L.
Kilbracken, L.	St. John of Bletso, L.
Kinloss, Ly.	Scanlon, L.
Kirkhill, L.	Seear, B.
Kirkwood, L.	Sefton of Garston, L.
Leatherland, L.	Serota, B.
Listowel, E.	Shackleton, L.
Llewelyn-Davies of Hastoe, B.	Shannon, E.
Lloyd-George of Dwyfor, E.	Shaughnessy, L.
Lockwood, B.	Simon of Glaisdale, L.
Longford, E.	Stallard, L.
Lovell-Davis, L.	Stedman, B.
Lytton, E.	Stoddart of Swindon, L.
McCarthy, L.	Taylor of Blackburn, L.
McFarlane of Llandaff, B.	Taylor of Gryfe, L.
Mackie of Benshie, L.	Tordoff, L. [Teller.]
Mar, C.	Turner of Camden, B.
Mason of Barnsley, L.	Underhill, L.
Mayhew, L.	Warnock, B.
Meston, L.	Whaddon, L.
Milner of Leeds, L.	Wharton, B.
Mishcon, L.	Wigoder, L.
Morris of Castle Morris, L.	Williams of Elvel, L.
Mulley, L.	Winchilsea and Nottingham, E.

NOT-CONTENTS
Aldington, L.	Ellenborough, L.
Annan, L.	Elles, B.
Arran, E.	Elliott of Morpeth, L.
Astor, V.	Erroll of Hale, L.
Auckland, L.	Faithfull, B.
Bauer, L.	Ferrers, E.
Belhaven and Stenton, L.	Flather, B.
Belstead, L.	Fortescue, E.
Bessborough, E.	Fraser of Carmyllie, L.
Birdwood, L.	Gisborough, L.
Blatch, B.	Gray, L.
Blyth, L.	Gray of Contin, L.
Boardman. L.	Gridley, L.
Borthwick, L.	Grimston of Westbury, L.
Boyd-Carpenter, L.	Guildford, Bp.
Brabazon of Tara, L.	Hailsham of Saint Marylebone, L.
Braye, B.
Brigstocke, B.	Harding of Petherton, L.
Brougham and Vaux, L.	Harmar-Nicholls, L.
Caithness, E.	Harmsworth, L.
Caldecote, V.	Henderson of Brompton, L.
Campbell of Alloway, L.	Henley, L.
Campbell of Croy, L.	Hesketh, L. [Teller.]
Carnegy of Lour, B.	Hives, L.
Carnock, L.	Holderness, L.
Cavendish of Furness, L.	Hood, V.
Cawley, L.	Hooper, B.
Charteris of Amisfield, L.	Howe, E.
Clanwilliam, E.	Ironside, L.
Cockfield, L.	Jeffreys, L.
Colnbrook, L.	Jenkin of Roding, L.
Constantine of Stanmore, L.	Knollys, V.
Cottesloe, L.	Lauderdale, E.
Cox, B.	Lloyd of Hampstead, L.
Craigmyle, L.	Long, V.
Crickhowell, L.	McAlpine of West Green, L.
Cross, V.	Mackay of Clashfern, L.
Dacre of Glanton, L.	Macleod of Borve, B.
Darcy (de Knayth), B.	Mancroft, L.
Davidson, V. [Teller.]	Melville, V.
Denham, L.	Merrivale, L.
Denton of Wakefield, B.	Mersey, V.
Dilhorne, V.	Milverton, L.
Downshire. M.	Mottistone, L.
Dundee, E.	Mountevans, L.
Eccles of Moulton, B.	Mowbray and Stourton, L.

Munster, E.	Selsdon, L.
Nelson, E.	Sharples, B.
Nelson of Stafford, L.	Skelmersdale, L.
Norfolk, D.	Slim, V.
Norrie, L.	Strange, B.
Northbourne, L.	Strathcarron, L.
Orkney, E.	Strathclyde, L.
Oxfuird, V.	Strathcona and Mount Royal, L.
Park of Monmouth, B.
Pearson of Rannoch, L.	Sudeley, L.
Perry of Southwark, B.	Swansea, L.
Perth, E.	Swinfen, L.
Peyton of Yeovil, L.	Swinton, E.
Porritt, L.	Terrington, L.
Pym, L.	Teviot, L.
Radnor, E.	Thomas of Gwydir, L.
Rankeillour, L.	Trumpington, B.
Reay, L.	Tryon, L.
Renfrew of Kaimsthorn, L.	Ullswater, V.
Renton, L.	Vinson, L.
Rodney, L.	Waddington, L.
Romney, E.	Wade of Chorlton, L.
St. Albans, Bp.	Westbury, L.
St. Davids, V.	Whitelaw, V.
Saltoun of Abernethy, Ly.	Wise, L.
Seccombe, B.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.23 p.m.

Clause 3 agreed to.

Schedule 2 [Courses of Further Education]:

[Amendment No. 68A not moved.]

Baroness David moved Amendment No. 69:

Page 66, line 48, at end insert ("or a course which when completed entitles the person undertaking the course to an Open College credit").

The noble Baroness said: In moving this amendment I shall speak also to Amendments Nos. 87, 89 and 91. The amendment and those linked to it would recognise Open College networks and allow the further education funding councils to fund their activities. Perhaps I should say a word about Open College networks which may not be familiar to everyone. They are consortia of post-school education providers which together deliver an accreditation system that enables adults with few, if any, qualifications to achieve and accumulate credits which they can then use to progress into mainstream certificated courses.

The Bill introduces a new divide into the adult education sector while at the same time removing the planning and co-ordinating role of the LEAs. There will be a greater need than ever for new forms of guidance and new mechanisms for progression of students within and across all parts of the sector. Open College networks have developed independent organisations facilitating those processes and fostering practical methods of accrediting prior learning and credit accumulation and transfer appropriate to the ways in which many adults participate in learning activity. The role of such organisations should be recognised and encouraged and direct funding by the funding councils is an obvious and direct way of doing that.

The Government's measures are designed to protect opportunities for adults to progress and to gain certification. Open College networks strongly support those aims, but so far there is no recognition in the Bill of their role nor of the work that they do. We are worried that, without that recognition, this unique route and set of opportunities for adults will be closed.

Because the Open College networks system ascribes a level and method of assessment to any course (employer-based, academic, vocational informal) in any mode of delivery (one day or one year, day or evening, full or part-time, taught course or distance learning), it has the potential to over-arch all kinds of learning and the current confusing plethora of qualifications. Thus, Open College networks may accredit programmes as different as child minding, flower arranging, computing, theatre design, sport leadership, access to engineering or hairdressing.

We want to know whether the Government will definitely encourage the funding councils to support the funding of Open College networks. Furthermore, does the Secretary of State intend the list in paragraph (a) of Schedule 2 on page 66 to include courses carrying Open College credits? I hope that the answer will be yes. I beg to move.

Lord Campbell of Alloway

I listened with attention, but perhaps I may ask the noble Baroness for clarification on one point. Is the amendment directed primarily to the best way of funding or to the appropriate way of providing education, or to both?

Baroness David

It is directed to both. It is definitely directed to funding and to the recognition that it is a worthwhile method to enable adults to learn.

Baroness Perry of Southwark

As a former member of the Open College Council, I have a deep respect for the work of the Open College. I hope that full recognition is given to the value of the work that it does. However, there are difficulties with the amendment for the very reasons that the noble Baroness, Lady David, made clear. People following the programmes of the Open Colleges do so in a variety of modes and for a variety of reasons. Some of them pursue more substantial courses for credit. Others simply follow courses at home for their own enjoyment and pleasure. Sometimes they attend courses of only an odd one or two days. To attempt to shift the funding arrangements for this absolutely splendid work in the way proposed in the amendment would not be at all appropriate. I therefore oppose the amendment.

Baroness Blackstone

I wonder whether the noble Baroness, Lady Perry, is aware that we are not talking about the Open College, but about Open College networks, which are entirely different. In her intervention she referred to the Open College.

Baroness Perry of Southwark

Perhaps I may reiterate what I said. The Open College networks, of one of which my own institution in South London is a member, are often of the nature that I described. They often provide short learning experiences for mature people as well as more substantial access to higher education courses. They are not in themselves an institution or a course. They are a network of opportunities for people to take, either as leisure activities or for their own enjoyment, or, more substantially, as courses leading to higher education. It would not be appropriate to fund them in the way proposed in the amendment.

Baroness Blackstone

I am puzzled by what the noble Baroness said. Schedule 2 is entirely concerned with what she has just described. It therefore seems to me that there should not be any great difficulty with the amendment.

Lord Belstead

The noble Baroness Lady David moved Amendment No. 69 and spoke to three other amendments with it. Basically the thrust of the amendments is to add to the list of courses in Schedule 2 for which the funding council has a duty to provide the funds; namely, courses within the scope of the Open College networks.

The noble Baroness asked what was the Government's attitude with regard to the work of the networks. The Open College network groups of further education colleges, adult education colleges and higher education institutions do admirable work at local level in mapping out progression routes for adults. I was interested to hear my noble friend Lady Perry, with her professional experience, being so unstinting in their praise. There is every reason to expect that the progression of adults from informal to more formal study will continue under the Bill, whether through the Open College networks or otherwise. Under the Bill, students will be able to enroll on courses and progress to more advanced courses just as they do now.

The kinds of courses listed under Schedule 2 are those which we believe should be secured at national level. They concentrate on education which provides improved skills and which in many cases will lead to certificated awards. The Government want to see a guaranteed progression route of opportunities all the way from basic skills to higher education. Many of the courses for which the Open College networks provide credits will come within the Schedule 2 categories—for example, access to higher education—and therefore they would come within the scope of the funding council's duties.

Of more concern to me—as I understood my noble friend Lady Perry it is also of concern to her—is that not all the courses for which the networks offer credits are of a type which the Government believe should be secured at national level. They will relate to courses which fall within the responsibility of the local education authorities. Some people may progress from those courses. The noble Baroness, Lady David, mentioned courses of a kind which quite clearly, as the Bill is drafted, will fall within the local education authority's responsibilities. Some people may progress from those courses to others which fall within the funding council's duties, but many will not do so. Those courses are of a more local nature and will often fulfil leisure interests for adults as well as other valuable purposes. I do not think it is right to expect the funding councils to pick up the tab for the LEAs, which themselves will receive support from public funds for courses which fall within their duty.

Perhaps I may add a few words about the way in which funds can flow toward those colleges. The funding councils will have powers to fund those colleges in the further education sector, not only in respect of their courses falling within Schedule 2 and for activities related to such courses, but also in respect of any kind of further education. The relevant power is found in Clause 5(1). Under Clause 6(5) and (6) the funding councils, through the further education colleges, are also able to provide funding for Schedule 2 courses and for activities related to such courses made by adult colleges and centres or by voluntary bodies.

Some local education authorities currently provide funding to the Open College networks and they will have powers to continue doing so under Clause 11. Therefore there is no question that there will be any diminution of powers for money to flow towards that kind of work. The whole of the work of the Open College networks can be financially supported under the previsions of the Bill. However, what the funding councils cannot do under the Bill is to fund courses or activities in local education authority adult education colleges; and centres unless they are related to Schedule 2. Courses of related activities not so covered would fall to the local education authority.

I hope that the noble Baroness does not regard the funding councils in any way as open purses for all eventualities. Let me repeat that I do not believe it would be right to expect the funding councils to subsidise other agencies which have a legitimate interest in a certain activity and have powers to fund it but choose not to give priority to that activity. To be blunt, if the local education authorities could look to the funding councils for funds in such circumstances, they would have very little incentive to carry out their own functions.

Another point which concerns me about these amendments is that the Open College networks, admirable though they are, do not have a status in law. Their credits are not part of a nationally recognised credit system in the same way as are NVQs and GCSEs. We recognise that they can have great—I emphasise great—local value, but that does not necessarily mean that they are a suitable subject for legislation.

However, that is not my real objection to the amendment. The real objection is that I do not believe that it would be right to extend the scope of Schedule 2 in this way; and it would indeed mean extending the scope in a very major way if we were to agree to Amendment No. 69. In moving the amendment, the noble Baroness expressed her concern that the Open College networks are not mentioned in the Bill. However, the powers to fund courses and other activities of the Open College networks are fully present within the Bill. I have mentioned them at perhaps too great length. I trust therefore that the noble Baroness will be persuaded by what I have said and after this exchange feel able to withdraw her amendment.

4.30 p.m.

Lord Campbell of Alloway

I ask my noble friend the Minister whether he considers that, as regards funding, in his view and that of the Government the case is not made out for, so to speak, moving the goal posts on Schedule 2.

Lord Belstead

Yes, indeed it does. Perhaps I was not following as carefully as I should have done what the noble Baroness, Lady David, said. I did not detect an argument as to why it is so undesirable for those parts of the Open College network activities which would fall clearly outside Schedule 2 as it is drafted at the moment. I should have thought that the relationship with the Open College networks and the local education authorities is one which has been fruitful.

Baroness David

I am sure it has. But we return to the old argument of the division between leisure classes and vocational classes. That division does not in fact exist. We are keen to ensure that there can be progression. What happens is that someone takes what is called a leisure class, moves on and gets a credit, and moves on again to a vocational course and a vocational qualification. We are just back to the old argument.

I should have thought that the courses that I proposed, which entitled a person undertaking a course to an Open College credit, would fit in very well with the access courses in Schedule 2. It seems to me to be exactly right.

I do not intend to divide the Committee on this amendment. I shall take further advice from the Open College networks and the National Institute of Adult Continuing Education, which is very anxious about this matter. I shall very probably come back on Report if not with this amendment then perhaps with something rather similar. Meanwhile I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Radnor moved Amendment No. 70:

Page 67, line 1, at end insert ("appropriate to the needs of the pupil").

The noble Earl said: I find myself in a little difficulty in that this amendment, Amendment No. 70, is grouped not very well with my Amendment No. 77. With the Committee's permission I shall leave Amendment No. 77 to its rightful place in the Marshalled List. What I do with it later will depend upon a debate which has yet to come. I do not want to pre-empt that position.

Amendment No. 70 is relatively simple. The Committee will have noticed that there is a theme—an attempted theme—which tries to get a certain amount of recognition for people who have special difficulties with language and in reading and writing. I was surprised to see in Schedule 2 that literacy came quite far down the list. I thought that it would have been of prime importance and hold first position because, as I said yesterday, if one does not have literacy there is very little to come after it. I was surprised to see that the schedule just mentions basic English literacy. That is all very well but—I think it fits well with the Bill—it must be tailored to the needs of the person involved.

Many people will not respond to the ordinary teaching of literacy but will respond if the proper means are available. My noble friend knows well my interest in dyslexia but that is not the only target. It will be much wider and will cover a number of Bills. The provision appears to fit extremely well into this Bill. It fits into Clause 4 which we are soon to discuss.

We have suffered the disappointment of being unable to have the issue mentioned in the make-up of the councils but now perhaps we shall see in the Bill a provision similar to that described by the noble Baroness, Lady David. I have not always agreed with including so much detail about adults who need remedial attention. However, I believe that there are four places in the Bill where the matter should be mentioned strongly. This is the second and the others are yet to come. I beg to move.

Lord Campbell of Alloway

I support the amendment. It is not a question of detail; it is a matter of principle. It affects the principle enunciated in Clause 4 which we shall soon debate. By using the term, appropriate to the needs of the pupil the amendment brings into play immediately the concept of a pupil with special educational needs. Of course that includes dyslexia but it is much wider. I know that we are coming to Clause 4 but surely this matter is of the greatest importance. One must bear in mind that, as regards the case law decisions on whether appropriate provision is made in accordance with statute for children with special educational needs as defined by statute, two-thirds are concerned with learning difficulties of the type related to reading or learning English. This is an important aspect of the Bill and, as a matter of principle, it is an appropriate adjunct to it in the interests of disadvantaged children.

Lord Addington

I support the general thrust of the amendment. It is fundamentally important to address in the Bill the individual needs of students. The words, appropriate to the needs of the student might have been more appropriate to further education than the word "pupil". It cannot be stated strongly enough that unless the right kind of teaching is provided for those with special educational needs they will not be helped. I shall use the example of dyslexia because I am most familiar with that. A dyslexic who is given more of the basic look-and-say English tuition will not benefit because his brain is slightly differently connected and he has a different neurological problem. Therefore, one is giving him the wrong kind of help. It is a little like putting in front of a blind person a book that is not printed in braille. That will not help him. If people are given the wrong kind of help their learning achievements decline and they become more resentful. We must ensure that we provide the correct type of help; we shall not assist such people merely by providing the help that is given to the majority. I support the amendment.

Baroness Faithfull

I too support the amendment. There are different degrees of deafness and blindness. Some children are totally deaf or blind; others are only partially deaf or blind. Every child, including those with special learning difficulties, needs individual care and treatment. Therefore, I support the amendment.

4.45 p.m.

Lord Annan

I sympathise with the views expressed about deaf and blind children. I understand that if the amendment were passed it would open the gates to the very thing that I understand the Government have been trying to prevent. It is the view that there is no such thing as basic English; that you can express yourself in any way you like; and that you do not need grammatical rules or anything of that kind. I believe that the Government were concerned to stop that.

Lord Cavendish of Furness

Amendment No. 70 qualifies the list of types of course for which the FEFCs have a duty. Included in that list are courses for basic literacy in English. The amendment would mean that the FEFCs' duty extended only to courses which were appropriate to the needs of the students. The result would be that courses for basic literacy in English that were not appropriate to the students' needs, should any exist, would be covered by the duty applying to local education authorities.

I sympathise with my noble friend's concern to ensure that these courses are appropriate to the students' needs. Indeed, I venture to hope that all courses will be appropriate to the students' needs, not just courses for basic literacy. That is a basic requirement of any educational system. They would be very poor lecturers, and very poor college management, who offered courses of this or any other kind that were not appropriate to their students' needs.

To ensure the educational appropriateness of a course we rely on the professional competence of the lecturers and college management. Pitching the course accurately at the students' needs is absolutely fundamental to their professional discipline. And to back that up we are providing, as the Committee knows, for a quality control mechanism to be set up under the Bill. Clause 9 requires the new further education funding councils to establish quality control machinery. This will undoubtedly concern itself with the match between what is offered to the students and what they require.

I appreciate the concern expressed by my noble friend and other Members of the Committee that suitable provision should be available to students with problems of literacy who are unable to respond to more orthodox teaching methods. That encompasses dyslexia. The FEFCs' responsibilities will include securing the provision of courses for basic literacy in English. In discharging that responsibility college lecturers will be able to use a variety of practices and methods, including arrangements which are most appropriate for students who are unable to respond to orthodox teaching methods. It is part of the professional stock in trade of the lecturers to be able to deploy a variety of teaching methods to meet the variety of students' needs. That will continue and the FEFCs will be able to support resourceful teaching.

I hope that I have understood my noble friend's amendment correctly. I also hope that he is reassured by my comments and will feel able to withdraw his amendment.

Lord Campbell of Alloway

My noble friend the Minister is assuring the Committee that, in effect, appropriate provision is already made for children with special educational needs and that there is no reason to suppose that will not continue. As a result of that assurance the amendment is otiose. Is that what the Minister is saying?

Lord Cavendish of Furness

Indeed, that is the thrust of what I am saying.

Baroness Carnegy of Lour

I understand that this part of Schedule 2 refers to, among others, the 1 million people in this country who have great difficulty filling in simple forms or carrying out simple calculations. They do not necessarily have any other disability. Many of them are engaged in occupations such as lorry driving and they have great difficulty in finding a particular street. They use all kinds of devices to get people to tell them where they are and where the street will be found. Many of those people have been identified by the Department of Employment when attending job centres. My noble friend Lord Young of Graffham did a lot of work on that when he was the Secretary of State.

In Scotland the funding for that work consists of a lump sum which is set aside for that purpose. I believe that that is also the case south of the Border. I assume that that lump sum will be part of the funding of the funding councils. Of course it must be "appropriate to the needs of the pupil". Much of the work is individual. That is written into the situation and it could not be otherwise than appropriate for the student in that particular area of work. Therefore, the definition is not necessary. Adult literacy work is always appropriate to the needs of an individual.

Baroness Seear

I hope that the noble Earl will not be persuaded that this amendment is unnecessary. The Minister spoke as though methods appropriate to the needs of the pupil can be relied upon. Those of us who have experience know that that is not always the case and that what is provided is not always "appropriate to the needs of the pupil". I could give chapter and verse on that but I shall not do so.

If it is written into the Bill, people with special needs would be in a much stronger position. They would be able to say, "Look, this teaching is not appropriate to my needs and the Act says that it must be appropriate to my needs". It is desirable that that should be written on the face of the Bill.

Lord Cavendish of Furness

As regards the point raised by my noble friend Lady Carnegy, I am not sure how the lump sum to which she referred is administered but I shall write to her on that matter.

I refer the noble Baroness, Lady Seear, to that part of my reply in which I spoke about quality control mechanisms. That is where the safeguard lies. I do not know that anything would be advanced by merely adding the words: appropriate to the needs of the pupil".

The Earl of Radnor

To a certain extent my noble friend has misunderstood me. With the greatest respect, I heard him say all the things that I have heard said over the years. He said that all the facilities are available and that of course literacy will be taught in the way in which it should be. However, experience shows that that has never been the case. It seems to me quite probable that it will not be the case from now on.

As the noble Baroness said, this amendment aims to emphasise that point. It is not a large matter but I wish to emphasise the point that pupils must be taught in a way that they can understand. I cite an example to my noble friend which will involve him casting his mind back. Some years ago there was a national adult literacy campaign and people volunteered to teach those who were not good at reading. They put stickers in their cars and in their windows at home. That was an extremely good idea but it fell down completely for a large number of the population because the teaching was carried out in an orthodox manner.

That is why I wish to see the words of the amendment written on the face of the Bill. I do not think that it should upset my noble friend on the Front Bench. It is so far from being a wrecking amendment that it could hardly be observed from that standpoint. As I have had a certain amount of support from important Members of the Committee, I believe that I should test the opinion of the Committee.

4.55 p.m.

On Question, Whether the said amendment (No. 70) shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 132.

Division No. 2
CONTENTS
Addington, L. [Teller.]	Gladwyn, L.
Airedale, L.	Glenamara, L.
Aylestone, L.	Graham of Edmonton, L.
Beaumont of Whitley, L.	Gregson, L.
Blackstone, B.	Grimond, L.
Blease, L.	Hampton, L.
Bonham-Carter, L.	Henderson of Brompton, L.
Boston of Faversham, L.	Hilton of Eggardon, B.
Bruce of Donington, L.	Hollis of Heigham, B.
Buckmaster, V.	Holme of Cheltenham, L.
Callaghan of Cardiff, L.	Hooson, L.
Carmichael of Kelvingrove, L.	Houghton of Sowerby, L.
Carter, L.	Hughes, L.
Cledwyn of Penrhos, L.	Hunt, L.
Cocks of Hartcliffe, L.	Jeger, B.
Combermere, V.	Kilbracken, L.
Cudlipp, L.	Kirkhill, L.
Darcy (de Knayth), B.	Kirkwood, L.
David, B.	Lawrence, L.
Dean of Beswick, L.	Listowel, E.
Desai, L.	Llewelyn-Davies of Hastoe, B.
Donaldson of Kingsbridge, L.	Lockwood, B.
Donoughue, L.	Longford, E.
Dormand of Easington, L.	Lovell-Davis, L.
Ewart-Biggs, B.	Lytton, E.
Faithfull, B. [Teller.]	McCarthy, L.
Falkland, V.	Macfarlane of Beardsdcn, L.
Fitt, L.	Mackie of Benshie, L.
Foot, L.	Mason of Barnsley, L.
Galpern, L.	Mayhew, L.

Mishcon, L.	Stedman, B.
Morris of Castle Morris, L.	Stoddart of Swindon, L.
Mulley, L.	Strabolgi, L.
Northbourne, L.	Swinfen, L.
Parry, L.	Taylor of Blackburn, L.
Peston, L.	Taylor of Gryfe, L.
Radnor, E.	Tordoff, L.
Redesdale, L.	Tryon, L.
Richard, L.	Turner of Camden, B.
Robson of Kiddington, B.	Underhill, L.
Rochester, L.	Warnock, B.
Ross of Newport, L.	Whaddon, L.
Russell, E.	Wharton, B.
Sainsbury, L.	White, B.
Seear, B.	Wigoder, L.
Sefton of Garston, L.	Williams of Elvel, L.
Serota, B.	Winstanley, L.
Shackleton, L.	Zuckerman, L.

NOT-CONTENTS
Aldington, L.	Hailsham of Saint Marylebone, L.
Allenby of Megiddo, V.
Alport, L.	Harding of Petherton, L.
Annan, L.	Harmar-Nicholls, L.
Arran, E.	Harmsworth, L.
Astor, V.	Henley, L.
Auckland, L.	Hesketh, L. [Teller.]
Balfour of Inchrye, L.	Hives, L.
Bauer, L.	Holderness, L.
Belhaven and Stenton, L.	Hood, V.
Belstead, L.	Hooper, B.
Blatch, B.	Howe, E.
Blyth, L.	Hylton-Foster, B.
Boardman, L.	Ironside, L.
Borthwick, L.	Jenkin of Roding, L.
Boyd-Carpenter, L.	Killearn, L.
Brabazon of Tara, L.	Knollys, V.
Braye, B.	Lauderdale, E.
Bridgeman, V.	Long, V.
Brigstocke, B.	Lucas of Chilworth, L.
Brookeborough, V.	Mackay of Clashfern, L.
Brookes, L.	Macleod of Borve, B.
Brougham and Vaux, L.	Mancroft, L.
Butterworth, L.	Massereene and Ferrard, V.
Caithness, E.	Melville, V.
Caldecote, V.	Merrivale, L.
Campbell of Alloway, L.	Mersey, V.
Carnegy of Lour, B.	Milverton. L.
Carnock, L.	Mottistone, L.
Cavendish of Furness, L.	Mountevans, L.
Cawley, L.	Munster, E.
Clanwilliam, E.	Nelson, E.
Colnbrook, L.	Nelson of Stafford, L.
Constantine of Stanmore, L.	Newall, L.
Cox, B.	Norrie, L.
Craigmyle, L.	Orkney, E.
Crickhowell, L.	Orr-Ewing, L.
Cross, V.	Oxfuird, V.
Cullen of Ashbourne, L.	Park of Monmouth, B.
Cumberlege, B.	Pender, L.
Dacre of Glanton, L.	Perry of Southwark, B.
Davidson, V. [Teller.]	Peyton of Yeovil, L.
Denton of Wakefield, B.	Platt of Writtle, B.
Dilhorne, V.	Porritt, L.
Downshire, M.	Pym, L.
Eccles of Moulton, B.	Quinton, L.
Elles, B.	Rankeillour, L.
Elliott of Morpeth, L.	Reay, L.
Ferrers, E.	Renfrew of Kaimsthorn, L.
Flather, B.	Renton, L.
Fortescue, E.	Romney, E.
Fraser of Carmyllie, L.	St. Albans, Bp.
Fraser of Kilmorack, L.	St. Davids, V.
Gainford, L.	Saltoun of Abernethy, Ly.
Gisborough, L.	Seccombe, B.
Glenarthur, L.	Sharpies, B.
Gray of Contin, L.	Skelmersdale, L.
Gridley, L.	Slim, V.
Grimston of Westbury, L.	Strange, B.

Strathcarron, L.	Thomas of Gwydir, L.
Strathclyde, L.	Trumpington, B.
Strathcona and Mount Royal, L.	Ullswater, V.
	Vaux of Harrowden, L.
Sudeley, L.	Vinson, L.
Swinton, E.	Waddington, L.
Terrington, L.	Whitelaw, V.
Teviot, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.3 p.m.

Baroness Darcy (de Knayth) moved Amendment No. 71:

Page 67, line 5, at end insert: ("'(i) a course in independent living and communication skills for persons with learning difficulties").

The noble Baroness said: The purpose of Amendment No. 71 is to extend the list of courses for which FEFCs are responsible to include communication and daily living skills courses for people with learning difficulties. It is much broader than the amendment of the noble Earl, Lord Radnor.

Councils were made responsible for some basic skills courses; for example, English as a second language, Welsh in Wales, basic literacy and basic numeracy. There is therefore a strong argument for making one authority responsible for all courses which come under the heading of basic skills. The amendment is an essential addition to make the list comprehensive.

Independent living classes can include cookery or learning to handle money, which are essential for people with learning disabilities if they are to take part in community life. Self advocacy classes are aimed at helping people to speak up for themselves and to be aware of their rights as individuals. Many of those classes are provided at FE colleges.

I should like to say in parenthesis that I am not suggesting that vocational courses such as carpentry and horticulture, which enable people with learning difficulties to lead useful and productive lives, are of less importance. They are vital. But they are already written into Schedule 2(1) (a); life skills are not.

I return to life skills. Mobility training for a person who has become blind can mean the difference between dependence and independence; braille courses can help to end the isolation that denial of printed information can cause. It can open up job opportunities. Sign communication classes are important. Ninety per cent. of deaf children are born to hearing families and their early years are spent in isolation and frustration because their families cannot understand sign. Courses for hearing families are needed to enable the children and the family to overcome those feelings. Lip reading courses for people who are hearing deprived later in life are crucial if they are to maintain their jobs, family relationships and some degree of sanity during the disorientating experience of becoming deaf in adulthood. Basic skills like literacy and numeracy equip people with learning difficulties to live independently in the community and, in some cases, to go on to higher education, obtain jobs and become taxpayers.

I should like to repeat something said by the noble Lord. Lord Belstead, at the end of his introduction at Second Reading of the Bill on 21st November. The Minister said, The new framework set out in this Bill will enable institutions to offer more opportunities for young people and adults to develop their potential. The reforms will equip more people with stronger basic skills and more high level skills. They will help to bridge the traditional academic and vocational divide. That will bring benefits to the individuals who study, to their employers and to the economy and our society as a whole".— [Official Report, 21/11/91; col. 1027.] That is exactly what the amendment seeks. I hope the Minister will respond positively to it. I beg to move.

Lord Campbell of Alloway

I support the amendment in principle. In the exercise of its functions under Clause 3 each council is enjoined by Clause 4(1) to have regard to the requirements of persons with learning difficulties. That duty is not readily enforceable at law other than in wholly exceptional cases. Therefore I ask my noble friend to cast an avuncular eye over the amendment because in a sense we need the Government's help and sympathy.

Unless something is written on the face of the Bill there will be an unfortunate gap which perhaps at the moment my noble friends do not realise will arise. I support the amendment because one of the requirements of persons with learning difficulties, as night follows day, is a course in independent living and communication skills. I am not an expert on these matters. But I understand that those skills are provided by charitable bodies, which are excellent institutions. So far as is known, the courses are satisfactory. However, under the new structure envisaged by the Government under the Bill, the matter is of such importance and has such humanitarian implications that it should be brought into the schedule.

I appreciate that by virtue of subsection (6)—on which the noble Earl, Lord Russell, divided the Committee—the Minister could extend Schedule 2. But why leave it like that? Why leave it merely on the basis that we ask my noble friend to consider whether in due course Schedule 2 should be included? If the case is fair, reasonable and strong enough, why not ask the Minister now to accept the spirit of the Bill?

Baroness Warnock

I too strongly support this amendment. It is not generally appreciated that many young people with learning difficulties begin to learn only when they reach the age of about 16 or 17. They are often beginning a moderate upward curve between the ages of 16 and 21. It is therefore absolutely essential that some of these fundamental skills which have been referred to as life skills, should be taught them at this further education stage. I also believe that unless this provision is in the Bill at the beginning as part of the schedule it will be increasingly difficult to apply to the funding councils for money to cover the courses. The courses will not come cheap because it is not an easy matter to teach these kinds of fundamental skills to people who have failed all the way while at school, even if they have been given special education.

They are now only just beginning to learn. It would be extremely good and helpful if these kinds of courses could be mentioned as part of the schedule.

Lord Henderson of Brompton

I too like the amendment. It may not be drafted exactly as it should be. This is an area in regard to which many of us are puzzled. We want to be able to pin responsibility for these most important late developers, for whatever reason, on the councils. For instance, we know that some forms of help with communication such as speech are provided by the Department of Health. I believe it is the responsibility of local education authorities to see that those who have speech difficulties are taught in schools.

We have also had reference by the noble Lord, Lord Campbell, to the voluntary bodies who do a great deal of very important work themselves. Under this new structure we want to be able to place a duty on the further education funding councils to provide courses in communication which include speech. I am very much in favour of the Government's argument against the noble Earl, Lord Russell, for their ability to retain in the Bill the statutory right to amend the schedule. If the Minister is not prepared to amend the schedule in this way now I hope—and this is very much a second string to my bow—that he will in due course, after the enactment of the Bill, take such a course and amend the Act in the sense in which we want it to be amended.

I have said that there is some overlap between education and the Department of Social Security. There is also an overlap between education and health. These matters need to be sorted out. This seems to be a very good method of airing the difficulties which the new structure has posed for us all. I hope that we shall have a constructive reply from the Government.

5.15 p.m.

Lord Renton

I entirely support the spirit of the amendment. However, one should bear in mind that as regards mentally handicapped people, we need to concentrate on not only independent living and communications skills but also we must bear in mind that they are able, using the words in Schedule 2 (a), to obtain a vocational qualification". Many of them have been trained in carpentry, animal husbandry, horticulture and so on. Both these forms of training are vital and we should not let the one detract from the importance of the other.

I prefer to see the effect of this amendment embodied into Clause 4. Doing so would create the advantage that the Secretary of State would be unable to remove it from the second schedule if he felt so inclined. The noble Earl, Lord Russell, and the noble Lord, Lord Peston, would then be reassured on this matter. I believe that a very important matter is raised by this amendment. I hope that the Government will deal with it sympathetically in one way or another.

Baroness Faithfull

I support the spirit of the amendment, but I am worried about its administration. For example, for the 16 to 18 year-olds, the responsibility should fall to the local education authorities. However, we know that many education authorities in the country are not even implementing the Education Act 1981. I am in some difficulty because, while supporting the spirit of the amendment, I am worried about the administration and the funding of it. I shall be interested to hear what my noble friend the Minister has to say.

Viscount Caldecote

I too support the spirit of the amendment. My noble friend Lord Campbell of Alloway mentioned the excellent work that is done in this field by the charities. I have been interested for some time in a charity called OIC which specialises in helping those with communication and learning difficulties to overcome them. That is particularly important in learning how to present yourself when applying for a job. Without having self-confidence and reasonably good communication skills it is impossible for young people of this kind to get a job, however good their vocational qualifications.

I very much hope that the Government will look sympathetically on this amendment. I have seen the most effective work of this charity operating both in this country and overseas among disadvantaged people with the kind of difficulties that we have been speaking about. I am sure that if something on the lines of this amendment was included in the Bill it would be of great value. I accept that there may be better ways than are provided for by the amendment of including the measure in the Bill. I hope that the Government will look at it sympathetically.

Lord Swinfen

I cannot see how the Government can fail to look at this amendment sympathetically bearing in mind their desire that everyone should be able to live independently. Courses of this kind are essential to that aim. It may not be the aim of this particular ministry which is handling the Bill, but it is the aim of the Government overall. As my noble friend Lord Renton said, it may be better that a similar amendment should be in another place in the Bill. I cannot see how the Government can totally reject the amendment.

Lord Cavendish of Furness

This amendment would reposition the responsibility for securing the provision of courses in independent living and communications skills for students with disabilities. As the Bill is drafted the duty to secure the provision of these courses would rest with the local education authorities. The amendment would place the duty on the further education funding councils instead. It is important to avoid confusion as to the issues. We are not debating the importance of these types of course. Certainly on this Bench there is no doubt whatever as to their value. We are not talking about the importance of ensuring that they continue to be available; nor yet are we debating whether there should be a duty to secure the provision of these types of course. The Government are absolutely clear that there should be such a duty as there is now and we have provided for that duty in the Bill.

The Government fully accept the value of these courses and that there should continue to be a duty to secure their availability. We are debating whether this duty should lie on the LEAs or the FEFCs. I acknowledge that there are good arguments either way. There are also some arguments which are specious. When I say that, I am not necessarily saying that the arguments advanced by Members of the Committee are specious, but there are arguments around which are specious.

I do not accept that making something the province of the FEFCs rather than the LEAs would give it a higher status. Clearly both types of provision—LEA and FEFC—are important, and the Government are not trying to suggest that one is more important than the other. Nor do I accept that giving something to the FEFCs rather than to the LEAs would mean that it would be more likely to happen. The Bill provides that any type of further education provision that is not subject to a duty applying to the FEFCs is automatically subject instead to a duty applying to the LEAs. A duty is a duty: it is equally strong whether the LEAs or the FEFCs have to discharge it. Another argument that I do not accept is that the FEFCs are more likely than the LEAs to have funds for the type of provision allocated to them. We shall of course make sure that the FEFCs are funded for the types of provision for which they are responsible; but we have made it clear that, where the duty remains with the LEAs, funding will continue to be available for them too.

Lord Campbell of Alloway

My noble friend referred four times to a duty. Where on the face of this Bill is there an enforceable statutory mandatory duty to do this? I cannot find it. It is not in Clause 4.

Lord Cavendish of Furness

There is existing legislation which transfers this. I cannot immediately look it up but I shall write to my noble friend.

Having come thus far, I should explain that the Government's view is that courses for students with disabilities in independent living and in communication skills should remain a local education authority responsibility. We see the FEFCs as concerning themselves with a specific range of courses. There are vocational and academic courses; access courses in their various manifestations; and basic skills courses. We do not see courses that are not in this range as less important; we do see them as different, and, for that matter, as more appropriate to LEA responsibility.

I acknowledge, as I said, that there are arguments the other way. There is a similarity between courses for students with disabilities in independent living and in communication skills, and courses in basic literacy and numeracy for those who are not disabled. On the other hand, we would not want to add these courses to the FEFCs' responsibilities if the FEFCs would be ill-placed to organise them. This would be the case if these courses were mostly provided in adult education centres under LEA supervision or through the agencies concerned with social services and health.

I have heard compelling arguments this afternoon. May I say that I would like to help and would like a chance to cast my, as my noble friend Lord Campbell of Alloway puts it, avuncular eye over the matter? While I am referring to him perhaps I may add that it has come to me where the duty is specified. It is in Section 41 of the 1944 Act.

As I said, I should like a chance to look further at this matter. I hope the noble Baroness whose amendment this is, and other Members of the Committee, will allow me to reflect and reflect hard on the arguments which have been expressed so very cogently and with such force this afternoon. If I may be trusted to do that constructively then I ask the noble Baroness if she feels able to withdraw her amendment.

Baroness Warnock

Before the noble Lord sits down, may I ask him for some clarification? Am I to understand from what he has just said that all provision for those with learning difficulties should fall to the local education authority where other provision for people without learning difficulties will be likely to fall to the funding council, with various differences which we shall come to? If that is so, then I do not understand the force of Clause 4, to which we are just about to come. I ask this genuinely for clarification. Clause 4 states that: Functions under Sections 2 and 3 … shall have regard to the requirements of persons having learning difficulties. If, as I understood the noble Lord to say, all such person are to be the province of the local education authority then I do not quite see what Clause 4 is doing there.

Lord Renton

Before my noble friend answers that question it would also help if we could be told up to what age would people with learning difficulties remain the responsibility of the local education authority; and after what age they will come within the purview of the funding council.

Lord Campbell of Alloway

Perhaps I may make a last point so that my noble friend the Minister can deal with everything together. Section 41 of the 1944 Act, which my noble friend the Minister says creates a duty, does not in effect, with respect to him, create a mandatory statutory duty enforceable at law. It is amended by Clause 11 of this Bill, which appears on page 8. It is because of that defect that an amendment has been tabled to amend subsection (8) of Clause 11 in order to make a mandatory statutory duty. With respect to my noble friend and to the Committee, I thought it would be easier to deal with all this at this stage because there is an issue as to whether there is the mandatory statutory duty which my noble friend, on his instructions, informs the House that there is.

Lord Cavendish of Furness

I should need to look up the Act. But nothing has changed. It is as much a duty as it ever was—I think that is the point we are making. The noble Baroness, Lady Warnock, asked about the division for students with learning difficulties between the LEAs and the FEFCs. The division of students with learning difficulties between the LEA and FEFC areas will be the same as that of students without learning difficulties. Perhaps that clarifies the situation.

My noble friend Lord Renton asked about the upper age limit. The division between LEA and FEFC is not age related. There is no upper age limit. The division is based on whether the course is of the Schedule 2 type or not.

Baroness Darcy (de Knayth)

I should like to thank noble Lords on all sides of the Committee who have given tremendous support. I should particularly like to thank my noble friend Lady Warnock for her most valuable contribution. It is most welcome that we should have her expert opinion and backing. It is clear that there is strong support for the spirit, if not for the detail, of the amendment on all sides of the Committee. The Minister said it was debatable whether the responsibility should be that of the LEAs or the FEFCs. I must say that I should be surprised if he did not really think that independent living skills were basic skills courses. There is also the question of age, because communications skills go on. If one becomes blind or deaf later in life one will need to learn those skills. With 90 per cent, of totally deaf children having hearing families, it is the families—the grown ups—who have to learn the sign language in order that the family can communicate with the child.

However, I am delighted by the Minister's reply and to hear that he would like to cast his avuncular eye over the amendment and give it some thought. I feel that I also need to think and I need to learn a lot more about the whole matter too. I am delighted that he says he will also reflect. When we have both gone away, and thought and reflected and consulted, perhaps we can use our communications skills together and have a meeting about a possible amendment. Will the noble Lord agree to that? I am delighted. I have no hesitation in withdrawing my amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

5.30 p.m.

Clause 4 [Persons with learning difficulties]:

Lord Henderson of Brompton moved Amendment No. 72:

Page 3, line 22, leave out ("regard to the requirements") and insert ("a duty to meet the educational needs").

The noble Lord said: We now return to the main body of the Bill and come to Clause 4. We have had many trailers for Clause 4 and it is the shortest clause in the Bill and easy for everyone to understand. I have an important amendment and should like to adopt the words of the noble Lord, Lord Cavendish, in the last amendment when he said a duty was a duty. I might perhaps go further than that and, in the words of Gertrude Stein, say that a duty is a duty is a duty and that is the purport of these amendments. Because, if we look at this very short clause, all that is said is that councils have to have "regard to the requirements". The LEAs have to have regard to the requirements. That simply is not good enough.

That is not good enough, especially in the light of the debate we have had on Schedule 2. Clearly, what we all want is to find out where the duty lies. If we agree to this series of amendments, which apply both to the councils and to the LEAs, we shall have made a solid improvement and we shall know where we stand, which we certainly do not know now. The amendments, taken together, seek to replace the vaguer words "have regard to" and impose a duty on further education funding councils and LEAs and, incidentally, to secure boarding accommodation or provision outside the further education sector where that is necessary.

It is within the knowledge of most Members of the Committee that there is enormous variation within LEAs in the opportunities available to people with disabilities and learning difficulties. It depends—and that is inadmissible—on where they happen to live and on which LEA is their own. I do not wish in any way to cast aspersions on those LEAs which fully perform their duties but there is, I am afraid, solid evidence that some LEAs fail to inform eligible students of what their entitlements are and also fail to implement the legislation in such a way as to be obstructive to their students—I hesitate to say that, but I must say it. That is intolerable and inadmissible. The amendments will, I hope, secure the remedy to that unfortunate situation. There is not sufficient obligation now. The amendments seek to place the obligation where it should lie.

I wish to make only one other point before finishing with a telling quotation from the Prime Minister. I wish to say a few words about unemployment. It is a plague on the whole country but it is especially a plague on disabled people. In the latest OPCS survey of 1989 unemployment among disabled people was put at 70 per cent. Unless these duties are imposed on the councils and on the local authorities in order to bring disabled people into employment—useful employment which will be far better for the country and for disabled people than leaving them where they are—the prospects for disabled people are bleak.

I referred yesterday to the Prime Minister's statement in the White Paper. It is relevant to these amendments because in it he declared that it is the Government's intention that those with learning difficulties and others should have equal opportunity. He said: Our objective is simple: it is to encourage all our young people to develop to the best of their ability. We want to knock down barriers to opportunity.

That is exactly what the amendment does. We want higher standards. We want more choice"—

and here is the nub: In short, our aim is to give every one of Britain's young people the chance to make the most of his or her particular talents. That is what the amendments will bring about. We want to impose these duties. I ask for the support of the Committee. I beg to move.

Lord Campbell of Alloway

I support this crucial set of amendments. Amendments Nos. 72, 74, 78A and 135 together construct the duty, which is no phantom in the imagination of my noble friend the Minister, as he sought to inform the Committee quite recently. The amendments go to the crucial question. On the amendments I say quite frankly that I propose to go into the Lobby against the Government. I have given notice to that effect.

The duties of the LEA under the 1981 Act have been the subject matter of judicial decision on the construction of the 1981 Act and on the requirements of natural justice in this context. In this series of decisions it was established that a duty lies upon the LEA to make appropriate provision for a child with special educational needs irrespective of whether such provision is available within the maintained sector; if it is not available within the maintained sector, such provision must be made outside the maintained sector at the expense of the council. Considerations of financial stringency afford no excuse whatever for non-compliance with this mandatory statutory duty.

This mandatory duty is whittled away by the provisions of the Bill: as soon as the child reaches 16 and enters full-time education, under Clause 2 of the Bill; or part-time education, under Clause 3 of the Bill. Amendment No. 72 deals with the question which has arisen before and which will arise again, but which arises now in its crucial context. The words "shall have regard to" impose no legally enforceable duty by judicial review in any ordinary case. Therefore, Amendment No. 72 seeks to impose a duty. Amendment No. 74 seeks to impose a duty because "may" as drafted is permissive and "shall", as proposed in the amendment, is mandatory.

Amendment No. 78A proposes to include in the Bill the words "where necessary" and pinpoints the decision of the courts that where appropriate provision cannot be made within the maintained sector it must be made, where necessary, outside the maintained sector at the expense of the LEA.

Under the system of funding these councils it is convenient to deal with Amendment No. 135 at this stage because it is the choke barrel in this regard. The amendment seeks to leave out in Clause 11(8) "have regard to" and insert "meet the educational". Clause 11 amends Section 41 of the Education Act 1944 and transforms what is not a duty into what would be a duty—hence, as I say, the choke barrel on this.

Clause 11(8) reads: In exercising their functions under this section a local education authority shall also have regard to the requirements of persons over compulsory school age. By way of Amendment No. 135, we propose that the words "have regard to the" should be replaced by the words proposed so that the authority shall "meet the educational requirements" involved. There is the structure by which, under these amendments, we seek to impose and to codify in fairly clear terms this mandatory statutory duty.

Under the system of funding about £5 million a year will be involved in respect of the councils set up under Clause 1 of the Bill. Surely in that context it is hardly right or humane that the needs of disadvantaged children should be met by conferring a mere permissive discretionary power which cannot be effectively enforced by judicial review, instead of a mandatory duty. That is what this is all about. As I understand it, the Government are not prepared to accept that there should be a clear, enforceable mandatory statutory duty. That is the issue between us. It is as simple as that, but it is a little complex to explain.

Is the disadvantaged child with special educational needs (recognised as such under the 1981 Act) as he or she passes the magic age of 16 to enter into another world, a disparate regime, under these proposals? I suggest that that makes little sense. The 1981 Act and the decisions to which I referred were all years subsequent to the 1944 Act which Clause 11 seeks to amend. Let us just think about the length of time involved. First, there was the 1944 Act, then the Act of 1981 followed by the amendment Act of 1988 and, finally the statutory implementing regulations—I shall not trouble the Committee with details—of 1983 and 1990. We have moved on many years from the 1944 Act. By judicial decision we have established, or the judges have established by construing the 1981 Act, a mandatory statutory regime. That regime is one which I stand to support before the Committee as applicable past the age of 16.

The noble Baroness, Lady David, took that very point and, if I may say so, as always took it jolly well on Second Reading at col. 1055 of Hansard. She said—I think that I have her words correctly—that what was happening was that Clause 4(1) provides a formulation which weakens the position of persons with special educational needs. My noble friend Lord Pearson of Rannoch at col. 1107 in the same debate referred to the noble Baroness's speech and heralded the amendments to which I speak today.

A curious thing happened towards the end of the Second Reading debate. I have given my noble friend Lord Belstead notice of what I am about to say. In that debate he said: The definition in Clause 4(3) of learning difficulties is the same as in current legislation. That makes it clear that those with either a physical or mental handicap are included. The Bill thus ensures that the current duties towards young people with learning difficulties are maintained".—[Official Report, 21/11/91; col. 1124.] I think that I am right in saying to my noble friend that the use of the word "may" has to be taken in conjunction with the use of the words "must" or "shall" as expressed earlier. The word "may" refers to the buying-in of services for young people with learning difficulties if necessary provision cannot be made in a maintained establishment. First, I believe that that, on the advice received, is a totally false construction in law. It is a matter of law. I am prepared to stand by that in any court, certainly including this place. Secondly, if my noble friend's construction is right, is it not manifestly apparent that there can be no objection whatever to accepting all these amendments. I say that because if my noble friend is saying that there is an enforceable mandatory statutory duty, why not make it plain and use the word "shall" instead of "may"?

My noble friend the Minister cannot have it both ways. If, as a matter of construction, there is a mandatory statutory duty, as he is advised, then he must accept these amendments to clarify the position. But, if there is no mandatory statutory duty and his advice is wrong, he ought to accept our amendments to make one. I am obliged to Members of the Committee for their patience.

5.45 p.m.

Lord Addington

I should like briefly to add to what has already been said. Unless we are prepared to meet the actual needs of students who are in further or higher education, have special educational needs and need this assistance, there is very little point in them being in further education. I suggest that if the implication is that this proportion of the population is to enter into further and higher education their special needs should be met so that they will be able to undertake the courses, gain the qualifications and, it is to be hoped, contribute to society.

The Earl of Radnor

As my name is attached to this amendment, I should like to express my support for the noble Lord, Lord Henderson of Brompton, and for my noble friend Lord Campbell of Alloway. I shall certainly not speak for more than half a minute. For people with difficulties this clause is of vast importance. It is so permissive that I have the feeling that, if it passes through in its present form, it will be useless to them. The two points where mandatory instruction is suggested are absolutely vital. We live in an age where resources are always short. I can just see the latter being used as an adequate excuse all down the line if Clause 4 goes through unamended.

I gathered from the remarks made by the noble Lord, Lord Cavendish, yesterday that there is a difficulty with resources and that they, so to speak, have to be parcelled out fairly. That is all right. But so far as I and many people are concerned, people with difficulties should have first call. That points us back again to the necessity for something mandatory in this respect. As regards a mandatory requirement to go outside the maintained section to look for expertise, in a debate which was initiated about three weeks ago by the noble Baroness, Lady Warnock, I said that such expertise already exists but that it is not being fully used. In fact, it is being very little used in some instances. In my view, it is about time that this under-used national resource was brought into play. I support the amendment.

Baroness Warnock

The amendment is of the greatest importance. As the noble Lord, Lord Campbell of Alloway, has said, it would be a sad day if we turned our backs on the advantages which came with the 1981 Act, when a statutory duty was clearly laid on the local authority to provide education up to the age of 19 for young people with disabilities. I shall be happy to see there being no age restriction—in the Bill there will not be—on the provision of further and higher education.

We must make it clear that there is a statutory duty to provide for those with special needs. If the provision is merely a continuation of the 1981 Act then undoubtedly the words "must" or "shall" should be inserted in the appropriate cases. If it is not a continuation of the 1981 Act that would be a shame, but we should say so clearly.

Baroness David

My name is attached to the amendment and, as the noble Lord, Lord Campbell of Alloway, said, I made my position clear on Second Reading. We on these Benches support everything that has been said.

Baroness Darcy (de Knayth)

I warmly support the amendment even although my name is not on the amendment. I want to make clear that I believe that it is important. I shall say no more, because the Committee has heard enough from me.

Lord Cavendish of Furness

The amendments would place a new duty on the FEFCs and the LEAs in relation to their responsibilities for securing provision for students with learning difficulties. Amendments Nos. 72 and 135 would put the councils under an unlimited duty to meet the requirements of students with learning difficulties. While I recognise the honourable intentions behind the amendments, such an unlimited duty would be unreasonable.

The Government are committed to promoting the availability of further education for students with disabilities. Clauses 4 and 11 of the Bill reflect that commitment. Those clauses require the further education funding councils and local education authorities in discharging their functions to have regard to the requirements of students with learning difficulties. That means that the Bill applies to the funding councils the same duty as applies now to local education authorities and continues that duty on authorities where they are responsible for making the provision. It thus maintains the existing statutory framework within which provision is made for students with learning difficulties.

The amendments would extend the existing duty into a requirement to meet those students' needs without regard to cost or other considerations. In an ideal world that might be desirable. But governments have to live in the real world, and the Government do not believe that the proposed duty would be appropriate. Such an unlimited duty could pre-empt for one group of students a considerable proportion of the resources available for the new further education sector. That cannot be reasonable. Provision for students with disabilities can be expensive and the needs of those students have to be balanced with the needs of other students in the light of the available resources.

My noble friend Lord Radnor said that students with special needs should have the first bite. I am sure he will accept that a balance has to be drawn in those matters. Individual students, whether or not they have disabilities, could never expect provision to be based on their particular needs, irrespective of the cost. In the nature of things, judgments always have to be made about priorities.

The Bill is designed to ensure that a raft of opportunities is available for all students. The amendments would prescribe what the councils and local education authorities must provide for one group of students. They would thus limit the flexibility available to those bodies in discharging their functions and could force them to allocate resources in a way which would be disproportionate to the number of students involved. The Government believe that the councils and local education authorities must be able to take an overall view of how the available resources can best be deployed to meet the needs of all students. Those choices are best made by the people on the ground, in daily contact with the students: they should not be delivered once and for all from the Palace of Westminster.

I appreciate that the promoters of the amendment would like more to be done for students with learning difficulties. I understand the sense of opportunity that leads to the case being presented now; but we cannot act as if the resources available for the new sector will be limitless. It is necessary to strike a reasonable balance between the rights of students with learning difficulties and those of other students. The Government believe that the Bill strikes that balance.

I turn now to Amendment No. 74 and to consequential Amendment No. 78A. The amendments would introduce a new duty into the existing arrangements for providing for students with disabilities in the independent specialist colleges. Clause 4 empowers the further education funding councils to arrange placements in independent specialist colleges which cater for students with learning difficulties, where they consider that that is appropriate. Clause 5 backs that up by giving the councils power to pay any fees charged for such placements. Those provisions reflect the current practice of the local education authorities, which arrange further education provision for students with learning difficulties outside their own institutions, if they consider that suitable provision for those students is not available in the institutions they maintain. I should make it clear that there is no existing statutory duty covering those arrangements; they are made entirely at the discretion of individual authorities. Clause 4 ensures that that option is available also to the further education funding councils in discharging their responsibilities towards students with learning difficulties in the new further education sector.

The amendments would turn that option into a duty in the case of the funding councils. I note in passing that, where the local education authorities are responsible for funding provision under the Bill, they would be left with their current discretion, not a parallel duty. As the Bill indicates, the Government's view is that a duty in that area would not be appropriate.

The Bill already places a duty on the funding councils relating to the needs of students with learning difficulties. My noble friend Lord Campbell of Alloway has tried to persuade the Committee that a duty towards students with learning difficulties is non-existent. There is such a duty. Under Section 41 of the 1944 Act there is a duty to provide for all students, and in doing so to have regard specifically to the needs of students with learning difficulties. We can debate whether the duty is strong enough, but it is surely not possible to debate whether the duty exists. There is plainly a duty on the statute book, and without it much existing provision for students with learning difficulties would not be happening. We do not believe it helpful to add a second duty specifying how that first duty shall be discharged.

The Bill, as drafted, is sufficient to ensure that students with learning difficulties will continue to have access to the specialist provision available outside the further education sector. It will be for the councils to determine whether independent sector provision should be arranged in the light of the circumstances of the individual case.

I must acknowledge, however, that there have been arguments the other way which have been strongly expressed this afternoon. The position is not straightforward. In particular, if there were a duty on the FEFCs to secure independent sector provision for students with disabilities, should there not also be a parallel duty on the LEAs where they have the responsibility of securing provision? As the Committee is aware, it is not our intention to introduce new duties.

I hope that I may be allowed to reflect upon some of the arguments. I ask for that opportunity because my noble friend Lord Campbell of Alloway has said that it is his intention to divide the Committee and to take his supporters through the Lobby. I ask for time for amendment, so to speak. He and other Members of the Committee have said a great deal. I have said quite a lot. I hope therefore that my noble friend will feel that he does not have to press the amendment.

Lord Renton

I am glad that my noble friend has decided to reflect upon this matter. Will he amplify two points that he has mentioned? It seemed to me that his main reason for not accepting the amendment immediately was that the cost could be excessive, bearing in mind the small number of students in any one place. But the Bill makes no mention of costs even though there is much mention of duties. Clause 4 begins: In exercising their functions"— and their functions happen to be duties under Clauses 2 and 3— each council shall have regard to the requirements of persons having learning difficulties". If we turn to Clauses 2 and 3, we find that, for example, there is a duty, to secure the provision … of sufficient facilities for education", and a duty, to take account of the different abilities and aptitudes". In Clause 3, there is, the duty of each council to secure the provision…of adequate facilities", mentioned in later paragraphs and the schedule. At no stage is that duty modified or limited by the matter of costs. In his further reflection, therefore, I hope that the Minister will realise that if he is not careful he will be working himself into a position which contradicts what he said.

6 p.m.

Lord Campbell of Alloway

Perhaps I may at once express my gratitude to my noble friend and those in his department who are prepared to consider with an open mind the views expressed in the Committee. Under those circumstances, if there were a Division, I should decline to enter the lobby.

Lord Cavendish of Furness

I thank all Members of the Committee. My noble friend Lord Renton speaks as though I introduced a new concept of costs for the first time, but that subject is brought up for the first time when one first creates an unlimited duty. Our preoccupation is with the freedom for the providers to fix priorities. There are other difficulties with the clause; I shall not attempt to make too much of them. The matter which I raised of there not being a parallel duty on the LEAs is significant and makes for bad law. My noble friend was right to highlight that factor in the debate and I shall carefully read what he said in the Official Report if I am given the chance to reflect on the amendment.

Earl Russell

The Minister is quite right to introduce the issue of costs. One must consider the cost of anything one proposes to do. But one must also consider the cost of the alternative, which is not usually cost-free. The Minister said that he could not undertake an unlimited duty. I see his problem, but I am afraid that he cannot get away from it. The only question facing him is which unlimited duty the Government shall undertake.

The crucial point was made by my noble friend Lord Addington that if many of the people whom we are discussing cannot get the help envisaged, they cannot enter further education at all. There is a large number of people with difficulties who live on the social security budget and will continue to do so at the Government's cost for a long time. We now have a great many ways in which people with difficulties can be helped with equipment to become capable of regular employment. Thus, they do not merely cease to cost the Treasury money but contribute to it through taxation.

If we do nothing to give these people opportunities, they will continue to depend on the social security budget which is large enough already. The cost to the Government may become very great indeed. I appreciate that the cost of many things that can be done for people with learning difficulties may be great in the short term, but it should be measured against the long-term cost of doing nothing for them.

There is the question of which department should bear the cost. I can see that that may concern the Department of Education and Science, but the Committee should be concerned not with that but with the way in which the total cost to the Exchequer would be smallest. That is something on which we may all think again.

Lord Cavendish of Furness

The noble Earl did not specifically ask me a question in that intervention, but I should like to take to heart what he said. He has great experience at various ends of the problem, not only with students but also—as I know from speeches he has made in your Lordships' House—through the intense interest he takes in the welfare and balance in how the provision reaches students. He is also concerned about their personal financial situations as a result of the existing provisions. I should like to read what the noble Earl said and consider it during the weeks ahead before we reach the next stage of the Bill.

Lord Skelmersdale

The longer the debate has gone on, the more confused I have become. Of course the funding council should take account of persons with learning difficulties who have been referred to as people with special educational needs. Clause 4 is all about that, but it starts with the words: In exercising their functions under sections 2 and 3 of this Act. Among the duties mentioned in Clauses 2 and 3 are that the places of education that we are talking about and the courses are to be: sufficient to meet the reasonable needs of all persons to whom the duty extends". I hope that in the further consideration of the whole matter by my noble friend on the Front Bench he will bear the point very much in mind.

Lord Cavendish of Furness

Yes, we have different interpretations here. There is a genuine feeling among many Members of the Committee that duties which some of us take to be well established need strengthening. We shall bear all these points in mind when we come to consider the matter.

Lord Henderson of Brompton

The noble Lord, Lord Cavendish, made a pretty rigorous speech against the amendments. Then suddenly at the end he said that because of the expression of opinion throughout the Committee he would be prepared to take the matter away and give it serious consideration. Until he came to those final words, I was minded to divide the Committee because 1 felt it would represent the Committee's wishes. However, I have never heard of a ministerial offer seriously to consider a proposal in the light of discussion in the Committee without a sympathetic response. As he has made this serious offer, I feel that I must take it at its face value and it would therefore not be right to press the amendment at this stage.

However, I do not believe that the Minister's reply—rigorous though it was—avoided the "fork" of the noble Lord, Lord Campbell, which remains a pretty dangerous weapon. It will be wielded when we return to the matter on Report. Nor do I believe that the Minister's reply avoided the fork of the noble Lord, Lord Renton. He was instancing many duties in the Bill which were not qualified in any way and, as the noble Lord, Lord Cavendish, said, would not be considered an unlimited duty which would be unreasonable.

Thus, if the duties already in the Bill are not qualified in any way and are not considered by the Government to be unreasonable, the duty in Clause 4 would not be unreasonable if it was unqualified. These are two nasty forks upon which I hope the noble Lord will not be impaled. I wish to express my gratitude to all those who have taken part in the debate and who have persuaded the Minister to take this reasonable attitude. I hope that he will come back with a solution which expresses the wishes of the Committee so clearly expressed this afternoon. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 73:

Page 3, line 23, at end insert ("and shall in particular ensure that such provision as is made under sections 2 and 3 of this Act is complementary to that of local education authorities discharging their functions under the provisions of the Educational Act 1981 so as to maintain a continuum of educational provision for students with special educational needs.").

The noble Baroness said: This amendment attacks a slightly different problem. In moving this amendment I wish to speak also to Amendment No. 140. There is a need to ensure that both FE colleges and the two funding councils are given the duty to provide for pupils with special educational needs and promote the co-ordination necessary for pre and post-16 special education provision. The Bill takes no account of the need to see pre-16 and post-16 special education provision as an educational continuum.

Over the years LEAs have made considerable attempts to co-ordinate their special and secondary school and FE post-16 provision. It is a great concern that the requirements of the 1981 Education Act will not apply to further education. Each funding council must have regard to the statutory responsibilities of LEAs for special education and meet the requirements of students with learning difficulties. We have had much discussion about the term "have regard to". That term can mean a great deal or it can mean nothing at all. There should be a duty on the funding councils to have adequate liaison arrangements with local authorities to ensure a continuum of provision for students with special educational needs. That stipulation could be written into each corporation's instruments and articles.

Unless the issue of special educational needs is addressed further, references to disproportionate expenditure and reasonable need for education could be a problem for students with special educational needs who have greater resource needs than their co-students. The noble Lord, Lord Henderson, pointed that out yesterday evening.

The Bill should place a duty on FE colleges to meet the requirements of pupils with learning difficulties and take into account the statutory responsibilities of local authorities. This would include the need to take on board the requirements of pupils who have statements of special educational need and to address the method by which the general learning needs of pupils with learning difficulties without statements may be estimated. There may be a number of those.

Although the reference to the local education authority having the final say in relation to post-16 provision in a maintained special school is welcomed in Clause 12(3), there are instances where secondary schools provide specific support for pupils with statements of special educational needs post-16. The LEA should be allowed to determine whether to provide or cease to provide such education in a secondary school.

I hope that this problem that I have drawn to the attention of the Minister will receive a sympathetic response. I beg to move.

Lord Renton

I hope that I am no less keen than the noble Baroness in wanting to get this provision right. We are both anxious that people with learning difficulties should be fully and properly treated by the Bill. However, quite frankly, from a technical point of view I doubt whether the amendment is necessary at all. The noble Baroness is a well educated person. Therefore I hope she will not mind me saying that I think it is rather strange she should use a Latin word in the fourth line of her amendment when a perfectly good English word is available. I suggest that if we are to accept the amendment the final few words should state, so as to maintain continuous educational provision for students with special educational needs". I hope the noble Baroness does not mind my saying that.

Lord Addington

I support the intention of the amendment even if the wording is defective. There should and must be some mechanism for ensuring that there is continuing provision for people with learning difficulties. The problems do not change according to the courses those people are undertaking. I believe the Government have accepted that point. The only reason I did not add my name to the amendment was that I did not see it in time.

6.15 p.m.

Baroness David

My learned friend on my right informs me that the word continuum means a full range. It does not mean continuous.

Lord Cavendish of Furness

These amendments would add to the duty of the further education funding councils in relation to students with learning difficulties and introduce a requirement for the governing bodies of all schools with sixth forms to seek the consent of the local education authority before providing or ceasing to provide further education. As the Committee is aware, the Bill provides that the councils will have regard to the requirements of these students in discharging their functions.

Amendment No. 73 would in addition require the councils to ensure that their provision is complementary to that of local education authorities in discharging their functions under the 1981 Act. The noble Baroness has in her amendment helpfully specified that her intention is to ensure that a continuum of educational provision for students with learning difficulties is maintained. The Government do not dissent from that desirable aim, although we do not believe that the amendment is necessary. I appreciate the comments of my noble friend Lord Renton in that regard.

Our view is that the Bill already makes adequate provision for this purpose. In practice colleges need to make some assessment of their students to determine what their needs are and how they should be met. That is what happens now and it will be no different in the new further education structure. The Committee will appreciate that assessments are particularly important in the case of students with learning difficulties. Colleges clearly need to take account of provision previously made for students. That includes provision made by LEAs under the 1981 Act.

For students with learning difficulties who have statements of special educational needs made by a local education authority, existing good practice is that the information in those statements is available to the colleges making further education provision for them. There is no reason why such good practice should not continue in the new further education sector.

The Bill, as drafted, requires further education provision to be made for students with learning difficulties in the light of their needs. That duty could not be discharged properly unless the provision made for those students is complementary to their previous educational experiences and reflects the stage of development they have reached. An explicit requirement in legislation is not necessary to ensure that for students with learning difficulties any more than it is for other students.

Amendment No. 140 would require all county and voluntary schools which have or may have on their rolls pupils over compulsory school age who are subject to a statement of special educational needs, to seek consent of a local education authority before they provide or cease to provide such education. Effectively all schools maintained by LEAs which cater for pupils aged 16 and over would have to seek such consent. I should point out that the full-time education of 16 to 18 year-olds in schools' sixth forms is not further education.

I share the concern of the noble Baroness that the governors of a school should not do anything with respect to the provision of education which might in any way disadvantage pupils with statements of special educational needs. However, I do not believe this amendment is necessary to achieve that. Governors of county and voluntary schools have clear statutory duties conveyed by the 1981 Act towards their registered pupils who have special educational needs, both with and without statements. Those duties would not be impeded by the provisions of this Bill.

A person attending school for further education is not a pupil as defined by this Bill and therefore cannot be subject to a statement of special educational needs. The duty to have regard to the requirements of those with learning difficulties applies to both further education funding councils and local education authorities in respect of their responsibilities in relation to the provision of further education. Both the councils and the authorities must take into account further education facilities provided by school governors. I am convinced that we have put all the necessary provisions in place to ensure that account is taken of those people with special educational needs.

The noble Baroness mentioned provision for pupils in schools who are above the age of 16. I can reassure the Committee that there is nothing in the Bill to diminish the responsibilities of LEAs. If a pupil with a statement wishes to stay on at school beyond 16, the LEA concerned will have to honour the obligation of his statement. With that explanation I invite the noble Baroness not to press her amendment.

Baroness David

I thank the Minister for his very full reply, which I shall read in Hansard with care. Behind many of the anxieties is that the obligation with respect to the special needs of young people over 16 in further education colleges is not the same as it is in relation to schools in the 1981 Act. The amendment specifically calls for the provision by councils to be complementary to that of the LEAs in the discharge of their functions under the Education Act.

I shall read very carefully what the Minister said and consult with those who have encouraged me to put down the amendment. I reserve my right to return to the matter at Report stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 74 to 78A not moved.]

Baroness Darcy (de Knayth) moved Amendment No. 79:

Page 3, line 30, at end insert: ("(c) secure the provision of appropriate transport facilities between the person's place of residence and the institution").

The noble Baroness said: The purpose of Amendment No. 79 is to ensure that in the case of students with learning difficulties there is a body with a clear responsibility for securing appropriate transport arrangements. Last night in Committee (col. 544 of Hansard) the noble Lord, Lord Cavendish of Furness, said that the amendments dealing with students with special learning difficulties could be separated into two kinds: those which seek to ensure that in the transition to the new structures the arrangements for students with learning difficulties are not accidentally weakened or harmed in some way, and those which seek to improve the present arrangements. Amendment No. 79 falls somewhere between the two.

The provision of transport is an aspect of support which has not been satisfactorily resolved in the past and may be even less satisfactory as a consequence of the Further and Higher Education Bill. The Government's position, which was set out by civil servants for SKILL—the national bureau for handicapped students—in a letter dated 21st November, is that: The responsibility for providing transport for Special Educational Needs Students, as for other students, remains with local education authorities under the Bill. They will be under a duty to treat students on full-time courses within the new further education sector no less favourably than pupils of the same age in schools.

That does not resolve the confusion because up to the age of 16 transport must be provided by local education authorities for children living more than three miles from schools. That includes the use of taxis in addition to bus services. From the ages of 16 to 19 school pupils continue to have that same right but in further education it applies only to full-time students following local education authority sponsored courses. LEAs provide that service for part-time further education students with learning difficulties and often extend eligibility beyond the age of 19. Some authorities, however, do not.

The types of transport needed will be varied. It could be expensive to provide someone to accompany a person with a learning disability on a bus or train, and it may be necessary to help with the cost of a taxi or accessible transport for a wheelchair user. The essential nature of transport facilities to college is clearly highlighted by an example given by MENCAP of a young man in Sheffield who had a college place for three days a week on a segregated course dealing with life skills. He had to turn down the place because no transport was funded by the education authority.

The further education funding councils are responsible for funding colleges which provide learning programmes. They are also responsible for ensuring that colleges deliver services appropriate to students with learning difficulties. The disability organisations argue that until other legislation concerning transport is clarified it should be the responsibility of funding councils to secure transport arrangements for those students with learning difficulties who are in need of transport help.

As I said, the amendment is between a probing and an improving amendment. It is really intended for clarification and I hope that we shall remove the confusion eventually. I look forward to hearing what the noble Lord has to say. I beg to move.

Lord Henderson of Brompton

I support the amendment. We do not know what the position is and we want to know that. We hope that the Minister will explain.

A child with special educational needs is provided with transport. If that child remains in education until the age of 19 he or she continues to have transport. If the child ceases education at the age of 16 or goes into further education at 19 we do not know whether transport would be provided and we seek clarification.

Lord Cavendish of Furness

There is no dissent in the Committee on the importance of ensuring that disabled students' access to education is not hampered by a lack of transport. However, the Government believe that the Bill already provides for that need.

Transport to educational provision is at present a responsibility of the local education authorities. The Bill provides for that to continue. The responsibility is contained in Section 55 of the 1944 Act. The Bill amends Section 55 to cover the new further education arrangements. The amendment is to paragraph 5 of Schedule 8 of the Bill. In summary, the amendment extends local education authorities' existing responsibility to include the new sector, and requires authorities to make no less favourable provision for transport to the colleges in the new sector compared with the arrangements they make for pupils of the same age attending the authorities' own schools. The Bill thus ensures that the existing transport responsibilities are carried over. Those responsibilities naturally extend to students with disabilities.

There is an obvious question as to whether that will be good enough. The Government believe that it will. To suppose that local education authorities would be less willing to provide transport to colleges in the new sector is a slur on their sense of responsibility. We have no plan to reduce their standard spending assessments on that account. We have no reason to suppose that the arrangements proposed in the Bill will be inadequate, and no reason therefore to transfer the responsibility from the LEAs to the new funding councils.

Lord Henderson of Brompton

Will the noble Lord give way so that I may ask him a question? Would that apply where the further education is outside the area of that person's LEA?

Lord Cavendish of Furness

In that the responsibility is carried across, my feeling is that it almost certainly would. However, I shall check on that.

We recognise that there may be cases in which it would make sense for the transport responsibility to be met in the FEFC structure rather than by the local education authority. If so, there is nothing in the Bill to prevent that. The Bill as drafted would allow the further education funding council and the colleges in the new sector to support transport. That is the effect of the powers given to the councils in Clause 5 and to the colleges in Clause 19. Where the FEFC decides in a particular case that provision for a student should be made in one of the independent specialist colleges, the cost of transport could similarly be borne by the FEFC. I repeat, however, that we have at present no reason to suppose that that will be necessary on a routine basis.

I understand the argument that there may be cases in which the LEA is reluctant to pay for the transport to the provision which the FEFC selects as educationally most appropriate. In those cases there will have to be some dialogue between the two agencies. I regard it as entirely healthy that the LEA should not let the FEFC get away with choosing educational provision without regard to the cost of the transport In making its choice the FEFC will know that if it fails to persuade the LEA that the transport cost is justified it can be expected to dip into its own pocket. The arrangements we propose rely on checks and balances, a familiar and effective way of ensuring sensible results. I much prefer that pattern to the proposal contained in the amendment, which seems to be intended to expose the FEFCs to an all-embracing and unlimited liability for transport costs.

I hope that I have made it clear that the amendment is redundant in so far as it duplicates the possibilities that the Bill contains. It does not help very much if it is intended to extend the FEFCs' liability. We believe that we have provided adequately for transport through Clauses 5 and 19 and Schedule 8. I therefore hope that the noble Lord will not press the amendment.

6.30 p.m.

Lord Peston

Before the noble Lord sits down, perhaps I may ask him to clarify his answer. It sounded entirely satisfactory in the sense that it appeared to suggest that what the amendment says is already in the Bill. We must remember that the amendment is preceded by the words "may also". It is not an open-ended commitment. I understood the noble Lord to say that the Bill already allows the LEAs to provide transport. Then the noble Lord appeared to backtrack a little and say, "No, it's an open-ended commitment". As I understood it, the main part of his answer indicated that the LEA responsibility remains and that the funding councils may also provide transport. If that is what he means, it corresponds with the amendment, but he then appeared to say that he did not like the amendment for other reasons. I got a bit lost towards the end. Am I right in thinking that the Government's general view is that the proposal in the amendment is essentially already contained in the Bill?

Lord Cavendish of Furness

Yes. Essentially, all that the noble Lord, Lord Henderson of Brompton, is seeking is already here. The amendment approaches the problem in an undesirable way in that it places an all-embracing, limitless obligation on the FEFCs.

Lord Swinfen

The amendment refers to "appropriate transport facilities". Where in the Bill, or indeed in an Act, is there specific provision for transporting students in wheelchairs? At least one authority has recently circulated all parents advising them to approach the student services department of individual colleges, Rotary and Round Table groups, local volunteer bureaux and similar organisations.

Lord Cavendish of Furness

I do not know of any clause in the Bill that relates directly to wheelchairs, unless a provision has been carried over from previous legislation.

Lord Parry

As the noble Lord is still answering questions, perhaps I may ask him whether, in reaching his conclusions, he has had the benefit of any real study of the changes that have taken place in the transfer of young physically and mentally handicapped people into other sectors of education? I take the point made by the noble Baroness in presenting the amendment, but is the noble Lord aware that support to local authorities from organisations contributing to schools of special interest to the handicapped is often removed? When those children go to other centres of further education, they lack the support that they receive in the present circumstances. Has the Minister taken that point on board and is he aware of those changes which appear to cut across some of the reassurances that he gave the Committee?

Lord Cavendish of Furness

I am afraid that I have failed to understand the drift of the noble Lord's question. Does his question refer in any way to transport?

Lord Parry

Yes, precisely. If the Committee will allow me to respond, it is well known that many special schools have special coaches provided by working charities. I can think of many, including the Variety Club of Great Britain, that specifically provide coaches which help to ease transport problems and are often specifically designed to carry wheelchair patients. When children go on to further education or are taken into different systems within the secondary school organisation, they often lack that facility and are therefore further handicapped by accident. Are the Government aware of that problem and have they applied the findings to this case?

Lord Cavendish of Furness

I am sorry to have been so slow. I thank the noble Lord for drawing the matter to my attention. It would be futile to pretend that I had understood the nature of the problem. Perhaps I may make inquiries and write to the noble Lord.

Baroness Darcy (de Knayth)

Once again, I thank noble Lords on all sides for having supported the amendment. The RNIB said that there was no specific provision for transporting students in wheelchairs. One authority has recently circulated all parents advising them to approach the student services department of individual colleges and the local Rotary and Round Table groups, local volunteer bureaux, social services and the health authority. The RNIB says that, if provision for students in further education is dependent upon the accident of local voluntary support, students who need such services will clearly be at a disadvantage. That is one of the reasons why the amendment was tabled. There is confusion in the area, although I appreciate that students will not be treated any less favourably than they are now.

I should like to thank the Minister for his detailed reply. I shall read it extremely carefully. I may consult on and think about the matter. Perhaps the Minister will look into the matter too. We are not seeking to impose a new duty, but the matter needs clearing up. I reserve my right to come back at a later stage, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Desai moved Amendment No. 80:

Page 3, line 39, leave out subsection (4).

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 136 which stands in the name of the noble Lord, Lord Addington, and myself. Both amendments seek the same end.

This amendment seeks to delete subsection (4) of Clause 4. Surprisingly, although learning difficulties are defined in Clause 4, subsection (4) defines what is not a learning difficulty. I find that somewhat astonishing. It is not written in that direct way, but, bearing in mind that most instruction will be in English, someone whose mother tongue is not English will not be deemed to have a learning difficulty simply because of that reason.

This is a sin of commission. I fail to understand why one must say what is not a learning difficulty. The problem will afflict a small minority of students, but they are important people because they will have difficulty in acquiring basic skills. I recall that, in the days of the late-lamented ILEA, 130 languages other than English were spoken by children at home. This is not a small problem. It is a rather large problem. People continue to be plagued by the problem even when they are in further education. It is difficult for someone to change from a language other than English into English. We should recognise that help may be needed. That is all I wish to say. I beg to move.

Lord Renfrew of Kaimsthorn

I should like to express great sympathy and a measure of agreement with the point made by the noble Lord, Lord Desai. Speaking from the higher education perspective, we do not have many entrants into higher education in this country. We are talking about British people, not overseas students whose domestic, family tongue is not English. That clearly points to a shortcoming in the secondary and further education sector. This is an important point to which much more attention might appropriately be devoted.

However, I am doubtful whether the amendment proposed by the noble Lord, Lord Desai, is the appropriate way of dealing with the matter. If he had wanted to emphasise the point, instead of entirely deleting subsection (4), he might have said that a person shall or might be taken as having a learning difficulty. I do not think that that would have overcome the matter because, when we use the term "learning difficulty" in the Bill, it appears that we are talking about what might be described as an incapacity or an innate problem of some kind. The definition under paragraph (b) mentions: a disability which either prevents or hinders him, while paragraph (a) states: a significantly greater difficulty in learning than the majority of persons of his age".

No doubt it would be possible to class with those the social difficulty (if such it is) or social circumstance of not having English as the domestic or mother tongue. There must be a better way of dealing with the problem. I do not imagine that that does a service to those people who have that social circumstance—namely, that because their mother tongue is not English they may not be so adept at secondary school age in speaking English as are their friends in school or the college system. I cannot imagine that an appropriate way to deal with the matter is by lumping them together with those who require special provision because of disabilities.

It should be noted also that the Bill at least makes reference to the problem in Schedule 2(f), where there is explicit reference to the provision of teaching in that category. That is a positive factor. Perhaps I may say that it is to me a little surprising that the noble Lord, Lord Desai, did not weigh in yesterday when Amendment No. 15 to Clause 1 was proposed. There was much wisdom in what my noble friend the Minister said about not wishing to enlarge the membership or the terms of reference for the membership of the further education funding councils. I accept that the Minister may have had reservations, but I can well see the argument for having on a funding council a representative who was particularly aware of such problems, or indeed might himself or herself at a younger age initially have spoken a language that was not English.

I hope that these are matters to which more consideration can be given within the system. One sees at the higher education level that there are not as many entrants as there ought to be from persons in that category and any other categories where there may be social difficulties which could well be addressed. I very much take the point made by the noble Lord but it seems to me that his suggested solution of deleting the passage may not be the most appropriate way to meet the difficulty.

Lord Jenkin of Roding

I should like first to echo the points which my noble friend just made. I have some small contact with the problem addressed by the noble Lord, Lord Desai, in that I chair an advisory committee for a public policy research unit at Queen Mary and Westfield College—although I hesitate even to mention that in the presence of the noble Lord, Lord Peston, who holds a very distinguished chair at the college. One of the elements to which that PPRU addresses itself is the problem of the Bengali minority in East London. There is not the slightest doubt that the younger members of that community need help to enable them to become more integrated with the society in which they live, to make their way and to earn their living. One of the factors of deprivation in that respect is their acute language difficulties and the problems they face in gaining access to the education facilities that are available. I do not necessarily mean the education facilities at Queen Mary College. We are not discussing higher education but further education. However, that situation applies equally to both. I agree with my noble friend Lord Renfrew that this amendment is not the right way to tackle the matter.

Of course there needs to be, and is, a considerable amount of help given. My noble friend has already mentioned the paragraph in the second schedule to the Bill. I too would like to urge my noble friends on the Front Bench, as we move from local authority financing to financing by the further education funding councils, to take account of the fact that for ethnic minorities in this country in particular language is a source of some difficulty. I do not like the idea that they should, as it were, be subject to all the considerations that have been addressed on all sides of the Committee with regard to those with learning difficulties. The speeches on that subject made by the noble Baroness, Lady Darcy (de Knayth), and other noble Lords were in particular addressed to problems of disability and handicap. I do not think it right to consider in the same light people with language difficulties.

That is not to say that there are not quite severe problems which require a special effort when there are concentrations of people who suffer in that way, as there are with the Bengali population in the East End of London. I hope that my noble friend on the Front Bench will recognise that point and view this problem—not the amendment, because I do not support it—as one which requires to be constantly addressed. It is to be hoped that it is of a transitional nature. However, as the communities become more integrated with the population generally and as the children go to school and grow up, the language problem diminishes.

The health trust of which I am now the shadow chairman covers part of the London Borough of Waltham Forest. There is there a substantial ethnic minority community. I talk to the leaders of that community about the problems of translating health matters into their languages. They agree with me absolutely. We are speaking about a 10-year or 15-year problem in this country. Nevertheless, it is a serious problem which has to be addressed and I hope that my noble friends will take it on board.

6.45 p.m.

Lord Adding ton

My name is on this amendment. I should have thought that a learning difficulty is exactly what someone has if he or she does not have a good command of English. It is not a disability but it is a learning difficulty. Subsection (3) (a) and (b) confirm that they are different matters.

As a short-term disability a learning difficulty will not be anywhere near as hard to correct and should be much quicker to put right. I suggest that the amendment is appropriate; at least it appears so to me, although I defer to the greater knowledge of other noble Lords. However, in my reading it appears to be appropriate. If this amendment is passed, that passage will be removed. If someone has a short-term learning difficulty—it becomes a short-term difficulty if it is dealt with—it will probably be easier to put right. We are talking about giving people a functional command of English. If they are given that, it gets rid of the problem. Thus I support the amendment.

Baroness Lockwood

I should like to support the principle behind the amendment of my noble friend. It would perhaps have been better to have put it in a more positive way but nevertheless the principle is extremely important and I support it. I should like to take up the point made by the noble Lord, Lord Jenkin, which seemed to imply that once the responsibility was passed to the funding council, the problem would more or less be solved.

Lord Jenkin of Roding

I am sorry if I gave that impression. That is not what I meant. I meant that in substantial communities in this country where English is not the mother tongue and where young people are going through the education system, it is a transitional problem. That is all I intended to say.

Baroness Lockwood

Yes, I take that point and agree completely with it. But I refer to a point that the noble Lord made earlier. I should just like to point out that many local authorities are already trying to tackle this problem. For example, there is a very substantial ethnic community within the Bradford metropolitan district. The Bradford and Ilkley College is doing quite a lot in regard to that matter.

One of the difficulties that might arise and which is certainly envisaged by that college is that there is likely to be some confusion between the responsibilities of the local education authorities and what they do and the funding councils and what they now propose to do. It is rather like the problem about which my noble friend Lady David spoke when she mentioned a continuum, to use the word in her amendment.

I support the principle of the amendment. I believe that the funding councils should have some responsibility. However, we must not forget that local education authorities and some colleges in particular have already done a great deal of work in this sphere. We should do all that we can to encourage that work to continue.

Lord Peston

Members on these Benches support the principle behind the amendment. The noble Lords, Lord Renfrew and Lord Jenkin of Roding, are right in saying that "learning difficulties" is now a term of art. It does not mean difficulty in learning; it means a special kind of difficulty in learning. Therefore it could well be that the wording of the amendment is incorrect. However, as many Members of the Committee have pointed out, the principle behind the amendment makes good sense. Not having a command of English makes learning difficult, particularly in the FE sector. Essentially, that is the spirit of the amendment.

I wish to make only two additional points. I agree that the Bengali and other immigrant populations are now part of our community. Their difficulties will be transitory. However, when thinking more generally of a wider Europe and the greater mobility of labour, the problem will again emerge. When the Germans and the French come to this country their children or young people will have language difficulties. Although the problem will not be as major as one finds in communities in East London it will not go away entirely.

As regards the suggestion put forward by the noble Lord, Lord Renfrew, relating to Schedule 2, Clause 4 (1) states clearly the obligation that: each council shall have regard to the requirements".

I understand that as regards the other language problems my noble friend Lord Desai and the noble Lord, Lord Addington, would like the concept of "shall have regard to" still to apply. The noble Lord, Lord Renfrew, drew our attention to Schedule 2(f). There is no "shall" about that provision; it is "may" which is a different thing. Although the noble Lord has guided us correctly to the area in which the Government can make the relevant contribution, my noble friend and the noble Lord, Lord Addington, wanted "shall" in addition to the recognition of the language problem. The noble Lord, Lord Jenkin of Roding, encouraged the Government to think further about the matter. I do not believe that my noble friend will press the amendment further than hoping that the Government will come back at a later stage. One looks forward to a sympathetic reply from the Minister.

Baroness Seear

For the sake of clarification, and taking up the point made by my noble friend Lord Addington, Clause 4(3) (a) and (b) provides for two categories of handicap. Subsection (3) (b) provides for: a disability which either prevents or hinders him". That covers people who are deaf, blind, mentally retarded and so forth. However, subsection (3) (a) provides another category and states: has a significantly greater difficulty in learning than the majority of persons of his age". He or she must be a person not suffering from a disability otherwise there would be no point in including the two categories. Who are these people? If they do not have a disability but they still have a difficulty the obvious difficulty is the language. If that is not the difficulty, what is it? It is not clear what kind of people come under subsection (3) (a) if it is not those with language difficulties, because the rest are covered by subsection (3) (b).

Lord Parry

I, too, support the amendment on the grounds that it cannot be assumed that the handicap of not speaking the indigenous language will go away when we continually criticise the general education system on the grounds that those who speak the indigenous language are unable to read, write and spell. There is a compounding of a difficulty in the education system and therefore these people will be handicapped not in a transitory way but for the rest of their lives.

Lord Cavendish of Furness

The noble Lord's amendment has stimulated quite a debate. I was interested in what was said by my noble friends Lord Jenkin of Roding and Lord Renfrew about language and how it affects people. I do not believe that the amendments are entirely desirable or necessary. They would cause a student for whom English is a second language to be classed as having a learning difficulty within the definition contained in the Bill. The intention of the Bill is to ensure that the needs of those with mental or physical disabilities are taken into account. It would not be appropriate to class an intelligent student for whom English is a second language as having a mental handicap. However, that would be the effect of the amendments proposed—

Lord Desai

Will the Minister accept a distinction between having a mental handicap and a learning difficulty? We are not saying that it is a mental handicap; it may be a learning difficulty.

Baroness Blackstone

I wish to follow up what my noble friend has said. The phrasing of the Minister's remark was somewhat unhappy. Surely he will agree that a student who is blind or deaf may well have a serious learning difficulty but is not necessarily unintelligent.

Lord Cavendish of Furness

That is true. I believe that the perceptions of the noble Lord, Lord Desai, the noble Baroness, Lady Blackstone, and myself are identical. All I am saying is that that would be the effect of the amendment.

Lord Addington

Then why do the two categories appear in the Bill? Subsection (3) (a) states: he has a significantly greater difficulty in learning than the majority of persons of his age, or", as in subsection (3) (b), he has a disability which either prevents or hinders him from making use of facilities of a kind generally provided by institutions within the further education sector for persons of his age". They are two different categories.

Lord Cavendish of Furness

It appears that it would be possible for an intelligent student, regardless of certain handicaps that one could think of, to be put in the same category as someone for whom the language is not spoken at home.

I can understand the desire to ensure that appropriate provision is made for those students for whom English is a second language. However, the Bill already makes provision for such students by making the FEFCs clearly responsible for providing courses to improve the knowledge of English of those for whom English is not a language spoken at home.

I believe that Schedule 2 has not been considered in that connection. Paragraph (f) clearly states: a course to improve the knowledge of English of those for whom English is not the language spoken at home". The noble Lord, Lord Peston, asked whether there was a duty. There is a duty applied to courses covered in Schedule 2 and there is a duty in Clause 3. It is a clear duty, as we have discussed.

The noble Lord, Lord Desai, touched on another matter. If a student lacks the necessary language competence, provision to meet that can be made either within the LEA or the funding councils. I have previously explained that making provisions targeted on need is what the colleges should be all about. However, there is no need to lay down that provision meeting that need should result in a student being classified as having a learning difficulty.

I can say to the noble Lord, Lord Addington, that I do not wish to be thought to be arguing that courses for people with poor English are not important. As several Members of the Committee have reminded us, the further education and adult education colleges make substantial provision for that type of course. We welcome that and in order to bolster it we have included the reference to this type of education specifically in Schedule 2.

I hope that I have explained our position and covered the points that were raised. I hope that the noble Lord, Lord Desai, will withdraw his amendment.

Baroness Seear

The Minister has not answered my question. What kind of people are covered by Clause 4(3) (a)? If they are not disabled who are they?

7 p.m.

Lord Swinfen

Subsection (3) (a) refers to those who are mentally disabled and who therefore have difficulty in learning. Subsection (3) (b) refers to those with a sensory or physical disability which means that they cannot use the normally applied equipment; for example, they cannot see the blackboard or physically handle the test-tubes or whatever the equipment may be.

Baroness Seear

A disability is a disability. It can be physical or mental.

Lord Desai

I thank the Minister for that careful reply and I thank all Members of the Committee who have taken part in the debate. There is still a problem. I believe that if subsection (4) is not in the Bill, that would be a great help. It would leave open the question for those who do not have English as the mother tongue, some of whom may have difficulties and some of whom may not. I do not say that everybody whose mother tongue is not English has a learning difficulty. I am not arguing that. If I wished to argue that I would delete the words "not" in subsection (4). I am saying explicitly that the fact that English is not the mother tongue does not qualify as a learning difficulty. That is a sin of commission, not a sin of omission.

Without subsection (4) it is possible to achieve everything we wish to achieve without necessarily labelling people whose mother tongue is not English as having learning difficulties. The Bill seems to claim that people whose mother tongue is not English should be treated with caution. Subsection (3) (a) and paragraph (f) in Schedule 2 would allow the college or funding council to have some kind of criteria as regards people with learning difficulties. One difficulty may be that English is not the mother tongue. That may be a learning difficulty and it is no good denying it. It is not a disability or a handicap, but it is a difficulty. I take the Minister's point, but I hope that he will bear in mind that the Bill would look better without subsection (4).

Baroness Darcy (de Knayth)

I hesitate to intervene, particularly in the presence of the noble Baroness, Lady Warnock, and the noble Baroness, Lady David. However, the definition of a student with special educational needs is in the 1981 Act. That was put in for a very good reason and this is part of that definition.

Lord Cavendish of Furness

I shall leave that point for the moment. I have some unfinished business with the noble Baroness, Lady Seear, who asked who these people are. Subsection (3) covers the mentally or physically handicapped. As has been said, that takes many forms. However, the point is that subsection (4) aims to ensure that people who need help with their English are treated separately.

Lord Desai

With respect, that is not what it says. It says that not having English as a mother tongue will not be taken as a reason on its own. I believe that the Bill says that people who do not have English as their mother tongue should not claim that to be a learning difficulty. For some it may be, but for others it may not be. I believe that the provision will exclude people from claiming that to be a learning difficulty.

Lord Renfrew of Kaimsthorn

I believe that the noble Lord, Lord Desai, is not doing a great service for the cause for which he is fighting. I am entirely at one with him as regards the general sense of learning difficulty, but there is a special sense in which that term is used which applies to the mentally and physically handicapped. It is not helpful to regard those who have difficulty with English, because they come from a family where English is not spoken frequently, as disadvantaged or handicapped in a mental or physical sense.

While I have the greatest sympathy for the point the noble Lord, Lord Desai, makes—and perhaps there could be a reference to that point in the Bill—it would be a great pity to lump together two categories of difficulty; that is, the innate difficulty of mental or physical handicap and the social difficulty of the language of one's birth. I hope that the noble Lord will find that helpful because I do not believe that there is much disagreement in the Committee other than as regards the wording.

Lord Desai

I thank the noble Lord for that clarification and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Lord Henderson of Brompton moved Amendment No. 81:

After Clause 4, insert the following new clause:

("Assessment for persons with learning difficulties

.—(1) It shall be the duty of each council to secure an assessment for persons with learning difficulties. A council shall discharge that duty—

1. (a) upon request of a student; or
2. (b) upon request of a college; or
3. (c) upon request of a parent.

(2) The assessment shall take the form of a multi-agency assessment which will demonstrate all additional needs of a student arising as a direct consequence of his learning difficulty including whether he will receive education—

1. (a) in the mainstream further education sector; or
2. (b) in colleges whose main purpose is special provision for students with learning difficulties; or
3. (c) in residential colleges.

and any relevant support he may need.

(3) Where an assessment has been made the council shall make a report of the needs of the student and such provision as is needed to meet them as specified in the assessment.

(4) Every council shall make arrangements for enabling the student whom they have assessed, to appeal following the first or any subsequent assessment of the student's needs under subsection (2), against the provision specified in the assessment.").

The noble Lord said: This is an amendment to insert a new clause after Clause 4 which will impose a duty on councils to secure an assessment for persons with learning difficulties. The assessment shall take the form of a multi-agency assessment. Further, there is a provision for a right of appeal against that assessment.

I am not wedded to the precise form of the amendment. I should like to hear the Government's views on implementing its purport. However, it is extremely important that the point should be taken on board in the Bill or possibly under regulations.

We are moving from LEAs towards councils. The better LEAs perform the task of multi-agency assessment. It is important that students with learning difficulties in further education should have that kind of assessment.

Unfortunately there are other LEAs where the assessments are not maintained. No information is available to staff in advance and the response to students' particular needs either is not made or has to be improvised during the early weeks of the academic year by college tutors. That is unsatisfactory and is a waste of time both for the unfortunate student and the college tutor.

I have various case studies which support the need for that kind of assessment which I shall not give to the Committee. However, they are compelling reading because those difficulties which are placed in front of people who are already disabled are common and avoidable. If a duty is placed on councils then that common and avoidable problem which places an extra burden on disabled people with learning difficulties will be removed.

For that reason, it is important for councils to take on the very best practices of LEAs. It would be a dereliction if they were not enjoined to do so. I need not elaborate further and I beg to move.

Baroness David

I support this amendment to which my name is attached. I do not know how many Members of the Committee remember that in 1981 officers of the DES, the two local authority associations and the Welsh Office carried out a review called The Legal Basis of Further Education. It was realised that the legal basis was unsafe and unsure and it was time for that to be looked at and for new provisions to be made.

I looked at that review in the light of this amendment and I should like to read a couple of short paragraphs from that part of the review which deals with the assessment of people with special needs. The review says, where a person who has been the subject of a statement while at school seeks further education, the LEA should be under a duty to have regard to the need expressed in it, and if it is not the same LEA that made the statement, to have a right to see the latest statement made; if there is no previous statement, the student or his parents should have a right to ask for an assessment of the student's special educational needs before FE is arranged for him and the LEA should be under a duty to carry it out unless the request is unreasonable… it is for consideration whether the student should be given a specific right of appeal to the Secretary of State if he is dissatisfied with the LEA's response; the LEA should be under a duty to review annually the needs of students up to the age of 19".

For a long time the need has been felt. Whether or not the wording of Amendment No. 81 is adequate, I do not know. But the idea of assessment for these young people is extremely important and I gladly support the amendment.

Baroness Faithfull

I am in difficulty over the amendment. It presupposes that what has been done in the schools has not been done well. Let us suppose in a perfect world that the 1981 Act had been well carried out; it follows that each child or young person would have a history of how they got on at school, how they did and what were their future prospects and needs. In a perfect world those of us who deal with such young people always want to know, in order to be able to give them the best, their family, educational and emotional history, and their future aspirations. Therefore, if the 1981 Act were being properly administered, the amendment would not be necessary.

Frankly, one must admit that the 1981 Act is not being properly administered throughout the country; indeed, some local authorities are not statementing their children because they say that they do not have the facilities to offer them. Where that is the case the amendment would be necessary. But it is difficult to legislate for something that is not being done properly in specific areas. I therefore have great sympathy with the amendment but do not believe it to be necessary.

Our colleagues in the Department of Education and Science should ensure that the country is administering the 1981 Act properly and that the case histories from the local education authorities go to the local councils on behalf of the students. I shall be interested to hear the Minister's comment on the matter.

Baroness Seear

I do not often disagree with the noble Baroness, Lady Faithfull. However, I do not see what harm the amendment can do. The new assessment would only be carried out at the request of the student, college or parents. It is a "belt-and-braces" approach; that if, as happens and can happen, a new assessment is needed—either it has not been done properly in the school or the student has changed—any of those three people can request that it should be done. Surely that is not a serious criticism of the way the 1981 Act is being administered! Things can change and people may feel that they would like to have it done again before they go to college. Is that too difficult in the light of the 1981 Act?

Baroness Faithfull

In answer to the noble Baroness, of course not. If the student wants the information I see the point. But if the student is to receive the best help possible it is good for the college of further education, or wherever the student wants to attend, to know the past history at school and how the child, then a young person, did at school. If the amendment were to be accepted, I should be worried that the schools would not be consulted and would not have the educational and case history of the student concerned.

Baroness Warnock

There is another category of student for whom it would be extremely helpful if it were certain that a statement could be made either at the student's own request, the request of the parents or indeed at the request of the college itself; that is, students suffering from a progressive disability where the statement made at school may not be adequate to cover what the student needs when he is 17 or 18.

Equally, it would be helpful for students who, through accident, have become disabled and who may not have had a statement when they were at school but nevertheless may desperately need one now so that their educational needs can newly be properly assessed I therefore support the amendment. Although it may well be that in some future golden age, when children are looked after at school with regard to statements, it will be seldom used, as a power I believe it will be a good power.

Lord Addington

I support the amendment for one simple reason; it helps to define the support that is needed. We have already discussed today the fact that we must give the correct help to people with disabilities and special needs. The correct help must be given to the correct person. An accurate assessment, whether or not it is new, is something which should be considered. Indeed, I like the idea of people being reassessed if they have already been statemented—a horrible word—to ensure that we have some idea of how they coped with their difficulties in the past, the progress they have made, or if it is a deteriorating condition. All that can be considered. I suggest that it is important to include in the Bill something on the lines of the amendment. Once we can start to target resources—to use a favourite government expression—the problem can be dealt with more effectively.

7.15 p.m.

Baroness Darcy (de Knayth)

My name is on the amendment and perhaps I may add a few words in support of what the noble Baroness, Lady Warnock, and the noble Lord, Lord Addington, said in regard to reassessments and to continuing need.

I can state two practical cases. Within the past few weeks the RNIB said one student lost a year because there was no continuing assessment through further education to identify her needs. A second student was persuaded by equipment suppliers to buy inappropriate equipment for her specific needs. She lost most of her first term and wasted a large amount of her disabled student's allowance before the university contacted the RNIB. The amendment therefore would have a practical effect in cost saving.

Lord Cavendish of Furness

A number of Members of the Committee have brought more experience to bear on this question than I can offer. It may be that I am not able to deal this evening with some of the points raised and I shall write to the Members concerned.

The new clause would introduce for further education a simplified version of the statementing system that applies in schools. It would require the further education funding councils to secure the assessment of students' needs arising from their disabilities, to provide a specification of those needs and how they should be met, and to allow the student to appeal against the provision specified.

As with many of the amendments relating to students with disabilities, we do not have to debate the merits of the activity that the amendment singles out; but we do have to debate the need to prescribe that activity in primary legislation. There is no dispute from this Bench over the importance of assessing students' needs. That applies of course to all students, but particularly to those with disabilities and learning difficulties.

As the Committee knows, for the schools the 1981 Act lays down in some detail the assessment procedure that should apply. But no such requirement applies to further education. That is not because the assessment of needs is not necessary in further education: it is because a more flexible procedure is required with students at this stage in life. The Government believe that that will be true in the new further education system no less than now.

At present the further education colleges assess their students' needs. There is nothing in the Bill as drafted to prevent them from continuing to do so and we are confident that they will. At present in making those assessments they seek specialist support from their local education authorities. In the new structures, if that is no longer available, they will be able to seek specialist expertise from the FEFCs and from their local offices. Those assessment processes are not prescribed now, and we see no need for Parliament to regulate them in future.

The reason for not prescribing the detail of the assessment process is simply that the college management must have the flexibility to meet the whole range of its students' needs. Where young people are seeking pre-vocational opportunities and other forms of preparation for adult life, the college must be free to use its resources to meet the needs without being constrained by an inflexible system of statementing. I understand the argument that it is unsafe to rely on colleges to carry out assessments without being required to do so. It is, if I may say so, a very bad argument. It places a low estimate on the colleges' professional integrity. And the Bill would not, in fact, leave it to colleges' goodwill to carry out the assessment. There is the explicit duty to have regard to the requirements of persons having learning difficulties. That duty cannot be discharged without first establishing what those learning difficulties are and what provision is required to meet them. The Bill rightly stops short of prescribing how the assessment should be carried out, but it would not allow further education to be provided without any regard to the needs of students with disabilities. In the light of that explanation of how the current arrangements work and how they are carried forward into this Bill, I hope that I have given some assurance to Members of the Committee.

Lord Henderson of Brompton

I do not find that a very satisfactory answer to the debate which has ranged right around the Chamber. I am very grateful, particularly to the noble Baroness, Lady Warnock, for pointing out that this amendment has special relevance to those who have a deteriorating or progressive disability and to those who become disabled one way or another after they have left school. Therefore, some provision must be made for the councils to take on this activity. It should be taken on by them, the schools or wherever the children may go for further education. Those establishments should have some kind of duty laid on them.

Equally, I am very glad to hear that the noble Lord, Lord Cavendish, recognises the need for special assessment. He said that there is no dispute between us on that need. The question is how that is secured. All Members of the Committee who have spoken today have not felt that the colleges will not carry out that provision. They merely believe that, unless there is some special provision in the statute itself or a power to order colleges to implement the measure or—this is very much a second best, but it should work—there should be a ministerial circular, then there will be defaulters. That is our experience. We have heard from the noble Baroness, Lady David, how explicit the 1981 Act is. We have heard from her that there are many defaulting local education authorities. Will not the story be the same again? If nothing is put into the Bill there will be defaulters in the further education scene. We wish to avoid that.

I wonder whether the Minister will take that thought away and see whether he can meet our needs. However, if he does not, we shall have to pursue the matter at a later stage. We would very much rather deal with the matter with his help and co-operation, especially as he said that there is no dispute between us about the need for the subject of this amendment, even though he may not agree that we have got the wording exactly right or that we have the best piece of machinery for ensuring that what we want actually happens.

Baroness Faithfull

If this amendment goes through, it would be very important that the colleges know the educational history in order to give the right kind of help.

Baroness David

I read out the extract from The Legal Basis of Further Education. I wonder whether that can be looked at again. That might make a very good basis for an amendment which can be accepted.

Lord Cavendish of Furness

The noble Baroness did read it out. I need a little time to absorb it. I say to the noble Lord, Lord Henderson, that these are early days. As he will have gathered, I do not have a particular feel for the subject at the moment whereas many Members of the Committee do. I am hesitant to respond too firmly. There has been some suggestion from different parts of the Committee that perhaps the nature of this clause is not suitable for what it seeks to do. I cannot give any commitment because I shall want to look at the issue. Increasingly we seem to be agreeing that there are areas of the Bill which need to be the subject of discussion between now and the next stage of the Bill. I feel that many of these matters can be incorporated. I am sorry not to be more helpful in dealing with these points. This is an area about which so many Members of the Committee know so much more than I do.

Lord Henderson of Brompton

I regard that as an extremely handsome statement by the Minister which I believe we should all very much welcome. I can only reiterate that on this extremely important matter we should talk and decide what to do before the next stage of the Bill. I thank all Members of the Committee who have taken part in this debate and the Minister for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Administration of funds by councils]:

[Amendment No. 82 not moved.]

Baroness Blackstone moved Amendment No. 83:

Page 4, line 3, at end insert ("(including the professional development of full-time and part-time teaching staff and staff undertaking support or administrative functions)").

The noble Baroness said: Many staff working in further education have not been trained as teachers in the same way as staff who work in secondary schools. Indeed, for many years it has not been a requirement to be trained before entering a further education college as a lecturer. Yet at the same time staff at further education colleges are teaching a very diverse group of students in terms of ability and the range of courses that the students are following. At the same time the staff need to be in touch with employers, in their local community and have some knowledge of the changing training needs of employers, whether in the public or private sector. Many of the staff will have to teach young people in the 16 to 19 age group and at the same time teach much older people doing various kinds of part-time as well as full-time courses. The teaching of adults requires different kinds of approach to the teaching of 16 to 17 year-olds.

The administrative and support staff who work in further education colleges will have to take on a wide range of new management responsibilities under the proposals in the Bill. They will need training. For all these reasons staff development in further education is extremely important. This is a probing amendment. I hope that when the Minister replies he will be able to tell us what proposals the Government have for the training of staff at various levels in further education colleges and how the Government see the responsibilities being divided between the funding councils on the one hand and the Department of Education and Science on the other.

It would also be helpful if the Minister can indicate in his reply how the Department of Education and Science intends to support the training of staff in the LEA sector of adult education. In that area it is again very important that skills are developed and that staff are not left without any opportunity for in-service training. I beg to move.

Lord Belstead

Clause 5(1) (b) enables the further education funding councils to provide financial support to the governing body of any institution in the further education sector or the higher education sector in respect of further education. Support may be provided for any activities which the governing body of the institution considers necessary or desirable to conduct in connection with the provision of further education. This amendment which the noble Baroness has moved would specify that the activities to be funded could include the professional development of staff.

If I may say so, the amendment is not necessary. Subsection (1) makes it clear that the funding councils may, as I have said, fund any activities which the governing body decides are necessary or desirable to conduct in connection with the provision of further education. I do not think that it would be appropriate to single out a particular activity for special mention in subsection (1) (b). It is on that ground that I say that the amendment is not necessary. Indeed, the portmanteau reference to being able to provide financial support for any activities which the governing body of the institution considers necessary or desirable to conduct in connection with the provision of further education quite positively would include training.

I regret that I do not have an answer for the noble Baroness this evening about proposals for staff training, although I would endeavour to provide one later on if the noble Baroness were to press me again. So far as concerns the intention to support local education authority staff training, I do not think that there is any intention to alter those particular arrangements.

7.30 p.m.

Baroness Blackstone

I am grateful to the Minister for his reply. However, before he sits down perhaps he would clarify one point for me. Do I take it from what he says that the function of providing funding for staff development and training will pass from the Department of Education and Science and local authorities to the funding councils? It would be helpful if he could clarify that.

Lord Belstead

The answer to that is, yes. I would also add that it will be open to the new councils to fund bodies such as the further education unit, which focuses particularly on curriculum development, and the further education staff college, which provides staff development. The Secretary of State could offer guidance to the councils on the provision to be made in those particular areas. My reply to the detailed questions of the noble Baroness was, I fear, rather terse. What I have just said was intended to flesh that out slightly.

Baroness Blackstone

In view of what the Minister has said, I should like to take away his reply, terse as it may have been, and look at it again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cavendish of Furness

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage should begin again at 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.