Further and Higher Education Bill [H.L.]

HL Deb 12 December 1991 vol 533 cc875-935

3.31 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 20 [Constitution of corporation and conduct of the institution]:

Lord Addington moved Amendment No. 173:

Page 16, line 25, after ("Act") insert ("subject to the inclusion of student representatives on the corporation").

The noble Lord said: This amendment deals with student representation on the new corporations for further education colleges. Primarily what we are talking about here is having some form of representation for those who are consumers of education courses. It is ridiculous that those who are actually experiencing the courses should be denied representation among those who are organising the courses and the types of education available to them.

The Government have in the past stated that they are not opposed to any form of student representation. Indeed, the Under-Secretary of State for Education and Science said in another place on 17th November 1987: The Government have no wish to diminish the role that student governors can play … We recognise … the value of student participation in governing bodies … we believe that it is of benefit both to the institution, by directly involving the students, and to the students themselves, for whom it is good training".—(Official Report, Commons, 17/11/87; cols. 1028–29.)

Has this attitude changed? Perhaps we may at least be able to glean that from the Government. What on earth can the Government gain by not having this representation? Students know what is going on from their point of view as consumers of courses. In few other areas of society is the customer ignored. We must make sure that these young adults are not ignored—they are young adults in many cases. A high percentage even in further education colleges are over 18. If they are ignored the colleges will be denied an important source of information which could improve the quality of the courses and enable the colleges to deliver what is required. Bearing those points in mind, I believe that the Government would improve the Bill if they accepted the amendment. I beg to move.

Lord Morris of Castle Morris

In supporting the noble Lord, Lord Addington, I should like to speak to Amendments Nos. 174 to 176A. This is an important and indeed potentially explosive group of amendments. Rightly or wrongly, a wide range of people and organisations—local authorities, universities and students throughout the country—are concerned about this question. It is widely believed, rightly or wrongly, that the clause is designed to make it as difficult as possible for students to get proper representation on these governing bodies. The National Union of Students has just held its winter annual conference in Blackpool. Delegates from colleges all over the United Kingdom have expressed the deepest concern at the lack of any form of guarantee in the Bill as regards student representation.

In the past the Government have committed themselves wholeheartedly, openly, publicly and repeatedly to the principle of student representation on and participation in governing bodies. I refer to the words of Mr. Chris Patten when Minister of State for Education. He said: We recognise that student participation on governing bodies is a recognised and valued feature of college life". Similarly, Mr. Robert Jackson, when Under-Secretary of State with responsibility for higher education, said in November 1987: We recognise … the value of student participation in governing bodies … we believe that it is of benefit both to the institution, by directly involving the students, and to the students themselves, for whom it is good training". —[Official Report, Commons, 17/11/87; cols. 1028–29.] Fine words, but in practice the commitment has not been so conspicuously generous.

The issue of student representation on governing bodies came to the fore once again at the time of the passage of the Education Reform Act 1988. The Government then pushed through changes to the make-up of polytechnics and college governing bodies to allow for only one full-time student representative. Other changes were made at the same time to ensure that business people had a built-in majority on governing bodies.

I remind the Committee that the matter was debated during the Committee stage of the Education Reform Bill on 16th May 1988. Concern was expressed from all sides of the Chamber that student representation should normally be by two students, and not one. The point was made and made repeatedly. It was said that students remain in college for a period of three years or so; that they were not likely to be appointed to such a body during their first year which meant that even if they came in during their second year they would have only two years in which they could represent the students in that institution, which would not give them much opportunity to gain confidence. If one looks at most of the student representation in universities and similar places one finds that normally one student is senior to another. To put it another way, one student comes on board and serves for perhaps two years. There is then an overlap which allows accumulated experience to give the student that continuity of representation and of viewpoint.

Universities have quite long experience of students on governing bodies and they sing with one voice. One noble Lord said in the debate on 16th May 1988: If one looks at the charter and statutes of almost every university in the country, one will find that there are at least two student representatives, never just one".—[Official Report, 16/5/88; col. 109] Experience has shown that it is much the best and most efficient way of having student representation.

Most student representatives do not lack a certain confidence when they attend council or court meetings. How deep that confidence goes will vary from case to case. But they may lack confidence when facing their own constituency—that is, the student members—in what may be difficult and trying circumstances. I invite Members of the Committee to consider the fact that it is comparatively rare to find a student or a vice-chancellor who is equally at ease and an expert at each end of the spectrum: at one end the university council and at the other end a general meeting of a student union.

Surely the general case is unanswerable. Students are intelligent adults who develop their own systems of democracy and representation. As an interest group students gain a collective view which ought to be represented to college decision-making authorities. After all, they are the contributors and the consumers of the educational process and, although they may have very broad interests, they are generally concerned, for the most part, with the nature of their course, its usefulness for their career prospects, the quality and the quantity of the delivery, teacher and student ratios and the quality of teaching. Surely that must be represented on these governing bodies. It is a matter of fundamental concern.

On the whole question of the constitution of these bodies, whether it concerns students or adults, I must repeat that there is a ferment of concern. I recently heard from one old dinosaur of the university system, now poking his nose into situations among these colleges, the comment, "Thank God! We shall soon be able to keep students off these particular bodies." He said that with some relish.

I have worked with students on governing bodies in universities for more than 25 years. I remember what it was like without them. In the early years of student representation there was indeed suspicion, excessive reaction and disharmony. But those days are long gone; indeed, 20 years gone. In my experience, one of the most notable characteristics of students on governing bodies is that when they have nothing to say, they say nothing. Many professors, and some of us, could profit by that example.

I trust that the Minister will give us an unambiguous assurance today that the Government's policy on student representation remains and will continue to remain unchanged.

3.45 p.m

Lord Callaghan of Cardiff

I should like to support the plea put forward by my noble friend Lord Morris of Castle Morris. He has so much more experience than I in this world that I hardly dare to speak in his presence. But, as someone who has to preside at courts of governors and the council, I find the presence of student representatives exceedingly helpful. It serves a number of positive functions. One that I would not exclude is that it demonstrates to the students how such a body works. Without being patronising, it helps to educate them in matters of administration. They can begin to see some of the difficulties with which university councils are faced. They can also see some of the problems with which they are confronted and why they cannot solve all of them.

I very much agree with my noble friend that students speak only when they know what they are talking about. That is more than some of us can say on some occasions. I say that because they speak from their own experience. I remember one of the student representatives who appeared on our council. He had long hair, half of which was coloured green and the other half pineapple. I must say that I viewed him with a certain amount of distaste. However, after the meeting I thought that I would go and speak to this strange creature to see what he was like. I found him to be a most eminently sensible young man. He had said nothing during the course of the meeting, which of course commended him to the chairman. I sat down to talk to him. At the end of the conversation we had got on so well that I asked him, "For heaven's sake, why on earth have you dyed your hair in those colours?" He said, "Frankly, it was the best way to call attention to myself and get myself elected." Having got himself elected, I found out later that his hair reverted to its natural colour and that he had become a most useful member of our council.

As I said, I very much support the remarks made by my noble friend. But basically I rise to call attention to the group of amendments relating to the position of local authorities. I believe that the Government are cutting themselves off from a very useful source of information which is especially relevant to the institutes and colleges of higher education.

Perhaps I ought to tell Members of the Committee that last Friday I had the honour of being awarded an honorary fellowship. I am now an honorary fellow —I hope that that fact will be appreciated—of the Cardiff Institute of Higher Education. I have accumulated a number of these fellowships and also some degrees, none of which, I am bound to admit, have I earned. But, never mind, I am there and so I see something of what is going on.

The chairman at the function last week was on the education committee of the South Glamorgan local authority. Councillor Peter Perkins is an excellent chairman, one who has himself benefited from a college of higher education of a further education authority and did not have any of the natural advantages of those who went to university. I have a great deal of empathy with him. There were other people present on that occasion—for example, local businessmen, members of trade unions and people working in all sorts of capacities—but they had made him chairman. He is chairman because of his ability.

I must tell the Government that they will really be doing a great disservice if they do not have a representative of a local authority on these bodies. For one thing, taking the Cardiff Institute as an example, most of the students are part-time students. They are resident and work in the area covered by the local authority. They far outnumber the number of full-time students. Therefore, the local authority councillors, with their local knowledge, have a particular connection with these part-time students who are resident in their area.

I hope it is not the irrational dislike of local authorities which has characterised the prejudices of the administration over the past 10 years that has resulted in local authorities being omitted as a statutory body from the corporations which are to be set up. I am sure that it is in the best interests of those corporations that local authorities should be represented on them as a matter of right. I am certain that nothing but good could come from it. As I said, I strongly support my noble friend's plea and urge that local authorities should be included in these bodies.

Baroness Blackstone

I should like to express my support for the remarks made by my noble friends Lord Callaghan and Lord Morris of Castle Morris with respect to both students and local authorities. I should also like to say a few words about two other groups which we on this side of the Committee think should be included in the governing bodies of these new corporations. From my own experience—admittedly, running a higher education institution rather than a further education institution; although from that point of view I really do not think that there is a great difference between them—it seems to me to be absolutely inconceivable that students should be left off governing bodies. It is enormously valuable and helpful to involve students in the decision-making processes of educational institutions for people who are no longer children but young adults. I very much hope that the Government will think again on the matter.

I turn now to the subject of local education authorities. I should like to reinforce the remarks made by my noble friend Lord Callaghan. We shall see a split between the further education funding councils and the local authorities in terms of responsibilities for the education of 16 to 19 year-olds. It is vitally important that we should avoid duplication and that we should have sensible co-operation between the local authorities on the one hand and the new corporations (the further education colleges) on the other.

There will be many areas where co-operation will be required. For example, we may want to make it possible for students who are actually attending full time in sixth forms to go to the further education college for a particular course, so as to benefit from facilities that the FE colleges have but which the smaller school sixth forms cannot possibly provide. I could give countless other examples; for example, there is careers advice. It may be that there can be more specialist advice in the FE colleges which have larger numbers of young people in that age group than in a small sixth form. Surely it would be sensible for a member of the local education authority who has responsibility for the running of good sixth forms to be on the governing body of the local further education college. Indeed, there should be an elected member from the authority on each college board in that authority's area.

I can see no reason why the Government should oppose that and why they do not accept that there should be statutory rather than co-opted representation. Moreover, I add that there are people with many years' experience on local education authorities who have a great deal of knowledge and expertise and a lot to offer the new corporations. From that point of view also, it is important.

Those are not the only two groups. Amendments Nos. 175 and 176 refer also to the representation of staff on governing bodies, the representation of TECs and someone with knowledge of the needs of persons with learning difficulties. I cannot conceive of being able to run a higher education institution sensibly and properly without having some staff representation on the governing body. Again, that is extremely important from the point of view of involving staff in decision making and from the point of view of communicating effectively with them. Their exclusion could only lead to greater problems and difficulties in the governance—I use that rather ugly word —of an institution.

Earlier in this Committee stage we heard a great deal about the importance of not excluding those students who have special needs and learning difficulties. That area can be rather esoteric. Many people who teach in further education and who have positions of special responsibility in further education are rather unfamiliar with the needs of that particular category of disadvantaged student. For that reason alone it would be extremely desirable if just one member of the governing body of the new corporations could have that particular and special knowledge.

Finally, Amendment No. 176 suggests that there should also be somebody from the local training and enterprise council on an FE college governing body. Again, that seems to me to be only sensible in terms of developing and maintaining the vitally important links with the work of the TECs in work based training as well as in college-based training.

I hope that when the Minister replies he will be able to give an explanation for that change. It is not comprehensible to the people whom it most affects in the educational world.

Baroness Seear

I support the amendment and speak also to Amendment No. 176 with particular reference to TECs. The importance of TECs is that the value of the exchange works both ways. When I was chairman of an area manpower board, we found that some colleges had a good understanding of what modern industry really needed, but some had no understanding at all. The representation of TECs on these bodies could have a very educative effect on colleges as well as the other way round. Therefore, that representation is extremely important.

Although the amendment refers to one representative of students and one representative of the various categories—and at this point I cannot suggest an amendment—I do not believe that one representative is a good idea. It puts a tremendously heavy burden particularly on a student representative who may have to agree to matters which are sensible but not popular. If a student has to be the sole representative, he can be absolutely pilloried by other students. He needs the support of one of his own kind. I see the other academics nodding. We have all observed that situation happen. That may not apply to the other categories but I am certain that it applies to students, and I ask that the limitation should not be to one representative.

Baroness Young

This is clearly a very important group of amendments. All Members of the Committee who have taken part in discussions on the Bill recognise the importance of the composition of the new institutions' governing bodies. I have listened carefully to the preceding speeches supporting these amendments. As I understand it, it is proposed that there should be at least one, if not two, student representatives, staff and academic representatives, representatives of the local authorities from the TECs and someone to represent those students who have learning difficulties.

I shall not discuss the whole list in detail, but my difficulty on this is that the Bill proposes something quite unlike that which was formerly something like a much larger governing court or governing body which included, as of right, representatives of different groups. One can see the reasons for that. Many people who have had experience in these matters will recognise that what is wanted in this new organisation is something rather unlike a representative body where those who are representatives come to it plead their own particular causes. What is being looked for is a group of people who will work together for the good of the organisation.

Many of the problems which have been identified —I am sure that the Minister will tell us whether this is what the Government have in mind—could have been overcome because those who are nominated to the boards could include among them those who have the particular qualifications. It is not exclusive. However, it is not necessary to write that on the face of the Bill.

I have some sympathy as regards the question of local authority representation because it will be very important that the links between the local authority and the colleges of further education are maintained. I shall be interested to hear what my noble friend says about that. However, I cannot support this series of amendments because it seems to me that it is a kind of carry over from what has happened before. In fact in this Bill we are seeking the establishment of new bodies.

Lord Campbell of Alloway

Perhaps the key amendment is Amendment No. 175. With the greatest respect, is that not an attempt to reinstate the old governing bodies which gave a kind of majority representation to the local authorities? That inevitably involved certain trade unions who represented varieties of staff.

4 p.m.

Baroness Blackstone

I wonder whether I can help the noble Lord. Amendment No. 175 suggests that there should be two local education authority representatives. They could not possibly constitute a majority.

Lord Campbell of Alloway

With respect, I do not believe that the noble Baroness quite understands what I am putting forward. I suggest that this is an attempt to reinstate the old structure and, by so doing, to carry with it the trade union representation of three types of interest that did not always work for harmony. One was the manual interest, another was the staff interest and another administration.

I hope that my noble friend the Minister will not accept Amendment No. 175. Equally, I hope that he will not accept Amendment No. 173 where again the conduct and activities of students of all ages over the past few years have not given rise to tremendous confidence. Under a new structure it is far better, using the words of my noble friend Lady Young, to have a group of people who would apparently work well together. Again, I mentioned certain trade union activities on the extreme left that have affected the conduct of students.

I think that Amendment No. 174 is about right, but that is only a personal view. I hope that the Minister will consider it with an open mind but there may be some reason that I do not understand which would render it objectionable to the Government. I can see none.

Baroness Lockwood

I support this series of amendments, in particular those which refer to local authority representation. During the course of the Committee proceedings I have mentioned the Bradford and Ilkley Community College, one of the largest colleges in the country. My association with the college is not directly as a member of it but through my membership of the council of Bradford University which is next door and which has a close working relationship with the college.

The college has 26,000 full-time equivalent students. It also has 10,000 adult education students. That means that most of the 26,000 full-time equivalent students will come under the umbrella of the new funding council, but the 10,000 adult education students are likely to come under the control of the local authority.

The governing body of the college will have a dual responsibility to both the local authority and the funding council. Therefore, I believe it is essential that there should be representation from the local authorities on colleges such as this.

I agree entirely with the noble Baroness, Lady Young, who said that what is wanted is people working together for the good of the organisation. Perhaps I may quote from a communication that I received from the Bradford and Ilkley Community College: Its success has been built on systematic response to local needs, an effective and supportive relationship with its Local Authority and a close academic association with its Local University.

Lord Henderson of Brompton

I wish to make a brief intervention with reference to Amendment No. 176 in the names of the noble Baronesses, Lady Seear and Lady Blackstone. The final provision is that there shall be included, a person with knowledge of the needs of persons having learning difficulties". There should be included someone with knowledge of their difficulties although it does not mean at all that he or she has to be disabled. It is immensely helpful to have a person with that qualification on the board although the provision could he incidental to other reasons for someone coming on the board. I sincerely hope that that will not be forgotten.

Lord Boyd-Carpenter

I have a great deal of sympathy with what has just been said, although I do not see why the person appointed should be a representative. He should surely be someone who has knowledge of the subject. The only point on which I desire to trouble the Committee is the use practically throughout these amendments of the word "representative". I am all in favour of the appointment of students. Apart from anything else, it is extremely good for them. But why should they be appointed as representatives of students? Why indeed should the other people mentioned in Amendment No. 175 have to be representative of these various bodies?

If a person is appointed to a body to represent some other body or outside organisation, he naturally feels it his duty to press that body's views and interests. However, what we want on these bodies is a number of people with wide experience who use that experience to carry out sensible policies for the education of the young people concerned.

If we line up on such a body people who are inclined to think that their first duty is to represent the interests of some other body, I suggest that we will not get a smoothly working organisation. Therefore, while there is an enormous amount to be said for the appointment of various people with the qualifications mentioned in the amendments, I suggest that it would be a mistake for them to be appointed as representatives of the outside bodies.

I hope that my noble friend will say that the Government will be likely to appoint people with these kinds of qualifications—most of them fairly obvious —and that they will make it clear that they will be appointed as the persons most suitable to do the job and not as representatives of some other organisations.

Lord Peston

Perhaps I may say something in reply to the noble Lord, Lord Boyd-Carpenter, because I do not believe that he heard—or perhaps he did not understand—the words of the noble Baroness, Lady Seear. I restrict myself solely to students. The essence of the position with respect to students is as follows. One possibility is that there would he no students on the body. I cannot believe that anyone would rationally argue that at all. Secondly, the council itself or governing body would choose the students. Nothing could be more damaging. Anyone with any experience of higher education institutions will know that nothing could be more damaging than that students should somehow be chosen by this other body of people, the grown up people. As the noble Baroness said, the main problem is to sell hard decisions to the student body.

I might add that the student representing the student body —to which I shall come later—does not represent another group of people. These institutions exist for the student body; there is no separation. But it is because, especially in these harsh times, many of the decisions are harsh that we need on these bodies students in whom the students themselves have faith. There can be no doubt whatever about that. That was the point made by the noble Baroness.

I speak from a great many years' experience, but there are other academics present. The only people in whom the student body will have faith are its own people. It will not accept people appointed by me as a head of department or by vice-chancellors. It will accept people whom it has chosen as its representatives.

My noble friend Lord Callaghan makes the point that such students are immensely helpful. They do not act to split the group; they act to co-operate and they are sensible. I do not believe that the noble Lord, Lord Boyd-Carpenter, has any experience in the matter. I shall not discuss the other representation questions because I know that there are two sides, but on that subject students not only ought to be but must be representative if they are to have any use whatever.

Lord Boyd-Carpenter

I must reply as the noble Lord has attacked me. He has not answered or even attempted to answer the point that I made. When we appoint students to this body, the question is whether we want them to come on as representing the other body of students in this case and with the prime obligation to support its interests and views, rather than to contribute to a useful discussion of the whole conduct of the organisation. That is the point. If the noble Lord suggests that I have little experience of this, I can tell him that I am a former president of the Oxford Union.

Lord Peston

I think that confirms exactly what I said. My point is precisely that there is no division here. I do not believe that the noble Lord has understood the logical point. It is not like the local authority case about which one could argue, although I support my noble friend's view. In the case of the students it is vital that they should be represented. They are not representing something outside the institution. The institution is the students, plus, I hope, the academic staff—the teachers. The students are not an alien body. The students are the reason for the institution. I cannot see the point of the institution without them.

Lord Renfrew of Kaimsthorn

I hope I may clarify the matter. The noble Lord, Lord Peston, may be missing a distinction here. It may be appropriate for the students who would sit on such a body to be elected by the students. However, that does not necessarily make them representatives in the sense in which the noble Lord, Lord Boyd-Carpenter, was speaking. Students themselves would certainly understand the distinction between mandated persons who have to represent a policy of an organisation and, on the other hand, students who are freely chosen. The latter students will then speak, as the noble Lord, Lord Boyd-Carpenter, suggested, as members of the body and will not feel obliged—mandated delegates would have an obligation—to carry out some line. There is a distinction there that ought to be observed.

Lord McCarthy

There might be a distinction here if the amendment contained a reference to a mandate. However, we are not talking about a mandate. We have gone so far in terms of individualising almost everything that we cannot recognise representation as a function. Each Member down the other end of the Corridor is a representative. Each Member represents his constituents. Scottish Members represent Scotland. No one suggests that those representatives are mandated to do precisely and absolutely what their constituents say. Nevertheless the Members are representatives. What we want on the bodies we are discussing are, certainly, people who have personal capabilities, but we also want people who are considered by the other members on the body to be representative in the sense that they know how the students feel and what the students want. When they report back to the students on what has happened at meetings, they will be listened to, in exactly the same way as Members of Parliament are supposed to be listened to.

Lord Beloff

Listening to this debate, I once again realise how unsuited this assembly is to discuss matter; of this kind. We are, after all, a body of the elderly unemployed. I doubt whether there are many Members of the Committee who are in full-time employment, although there may be a few more who are in part-time employment. Generally, however, we are unemployed. That means we consider that our time is disposable. If one of us were asked to sit on a governing body of an institution, we would not find it difficult to attend. But the real difficulty in creating bodies for the governance of institutions at any level —this applies to schools, institutions of further education and universities —is to find people who are competent in these matters and have time and energy to devote to them. That is one of the great problems with the Government's belief that businessmen are very suited to such duties. Anyone who has had experience of a body such as a charitable trust or a university council knows that until the last moment one cannot tell whether a businessman will turn up because he is bound to give priority to other matters. I shall not discuss in detail what such a businessman is bound to give priority to at the moment. However, such a businessman has other priorities.

Therefore we need the Government to reassure us that the kind of people on the governing body of an institution will be able to attend meetings. One of the arguments used in favour of student representation is that, on the whole, students are likely to attend meetings If the students have been elected to their positions, they are even more likely to attend, as otherwisc their conduct would be called into question. That argument could probably be used as regards the staff representation because they have a direct interest in this matter. It may well be that those who have served on local authority education committees have also arranged their time and interests in such a way as to give full service to a body. It is much more important to rely on regular attendance, including the reading of agendas, than on any other aspect as regards the government of a body.

4.15 p.m.

Lord Redesdale

I wish to speak on this matter as I am probably the most recent student in this Chamber, having left higher education three years ago. I am surprised at the use of the word "representation" in this debate. We are talking about institutions that students attend. We are not discussing boards that governors attend. Students have a direct interest in student representation because it involves issues that affect them such as housing; benefits; where they will have their meals; and how their courses will be run. Those are the important issues for students.

There must be student representation in further or in higher education because it is the students who attend those institutions who are aware of the institutions' problems. People from outside will not be aware of the problems in an institution. I realise the Bill is concerned with further education. Newcastle University plans to increase its number of students. That is a good idea; but the housing stock is finite. Where will the new students be housed? Those are the kind of issues that concern students. Those are the issues students know about. If students do not become representatives on these bodies, one will have a system that alienates the consumers as it were. I use the word "consumer" as that is part of the Government's language.

In listening to this debate, one has the impression that students are a by-product of further education, whereas they are the product. They attend institutions to receive education. If they are alienated from the institutions they attend, they may take extreme action. There are destructive aspects of such action, for example, sit-ins and student marches. Such behaviour may return if students do not consider their views are listened to.

The Lord Bishop of Guildford

I wish to say a few words, in part to assure the noble Lord, Lord Beloff, that not everyone in this Chamber is semi-retired. Those of us who are in full-time, paid employment have some difficulty in attending this Chamber because of our other duties. However, that is not the main point of my contribution. I am grateful to the noble Lord, Lord Renfrew, for making an important distinction in his speech. I for one am not unhappy with the word "representative". These people—I think particularly of students and of the local education authorities—need representatives, but not delegates. I hope we are clear about that. They are chosen by the bodies they represent and they are a vital link in the management of an institution.

The noble Lord, Lord Campbell of Alloway, said the governing bodies should not follow the same old traditions in terms of representation. However, the clause states the bodies are to have responsibility for the conduct of the institution concerned. One cannot give responsibility to a body for the conduct of an institution and exclude the students who have the main personal interest in the institution as a whole. My own limited experience of student representatives on governing bodies has been that they are an enormous asset. Having experienced their presence on such bodies, I could not adopt a system where they were not present. They make vital contributions to discussions. Taking part in such discussions is an educational experience for them and for the older members of the body, too—even those who are retired.

My only difficulty with these amendments is that by the time representatives have been secured from all the interested bodies, there is not much room left for anyone else unless one is to turn the corporation into a public meeting. I appreciate there is a difficulty here, but I hope we shall not do anything which would make it difficult for students to be represented on these bodies.

Lord Pearson of Rannoch

My Lords, I have no direct experience of this matter. However, speaking as one of the businessmen who is still in full-time employ, perhaps I may remind my noble friend Lord Beloff that one of the reasons why businessmen find it so difficult to attend the meetings to which he referred is that they are making the profits which pay the taxes to pay for the whole system.

My experience at second hand comes from a number of polytechnic directors. At the time of the passing of the 1988 Act they were somewhat nervous at the prospect of the inclusion of union representatives on governing bodies—which is what Amendment No. 175 would provide. I understand from talking to a number of polytechnic directors that that nervousness has been confirmed in practice. Although in running an institution of that kind one must refer to the students and talk to them and understand their needs, the best way to do that is not to have union representatives on the governing body or council. I suggest that the experience of the polytechnic sector, which is perhaps more senior than the sector we are discussing, indicates that we should not accept the amendment.

Baroness Perry of Southwark

My Lords, I have listened very carefully to all the arguments that we have heard from both sides of the Chamber. I have a great deal of sympathy with many of the arguments which have been put forward. However, surely the important point is not whether or not individual representation is useful to a governing body but that we do not seek to place any restrictions on the membership of the governing body on the face of the Bill.

Members of the Committee will remember that a great deal of detail concerning the constitution of polytechnic governing bodies was included on the face of the 1988 Act. This Bill loosens that very restrictive nature of the polytechnic governing bodies. I should be very reluctant to see a further restriction put on to the face of this Bill so that there was no freedom for individual institutions to choose for themselves the exact nature of their governing bodies. Some will need more than one local authority representative because of their geographical location. Some may wish to have larger and different representation from staff and students. The point is not whether it is a good thing or a bad thing to have such representation on governing bodies but whether it is a good or bad thing to have it on the face of the Bill. I would urge very strongly that it is not put on to the face of the Bill.

Baroness David

There is one amendment in the group of amendments which has not yet been spoken to—my own amendment, Amendment No. 176A. Before I speak to that amendment, I should like to comment on some aspects of the debate. Having listened to the debate, I have the feeling that perhaps the noble Lords, Lord Campbell of Alloway and Lord Boyd-Carpenter, have never served on governing bodies of further education colleges. I can claim to have had that experience. It was invaluable to have a student representative, a teacher representative and a representative from the academic board. The rest of the governors want to be well informed about what is happening in the college they govern. The only way to achieve that is to include somebody from the teaching body and from the academic board to inform them, otherwise the governors will be extremely ill-informed. There will be no local authority officers to help them understand the position. Local authority representatives who have such knowledge and who have perhaps served on the governing body previously, would be extremely helpful to the governors.

Lord Campbell of Alloway

Will the noble Baroness accept that, speaking for myself and for my noble friend Lord Boyd-Carpenter, we do not object to students? In fact, I regard myself as still a student. That is not the issue. The issue is the quality of their relationship and whether they are delegates and act in that way and also whether, as seems so often to be the case, they are mandated by union representation. That is what one objects to. We do not object to students being present. We must not be misunderstood on that point, we do not object to students at all.

Baroness David

That is a great relief. We agree on something. Those are not trades union representatives. The students would be elected by the student body of the institution. The teacher representative would be elected by the teachers, and the academic representative would be elected by the academic board. That is my experience of what happens. They are certainly not trades union representatives, and they are not mandated. As the right reverend Prelate said, they are not delegates.

Having put a few misapprehensions out of the way, I should now like to speak to my own amendment, Amendment No. 176A, which tackles a slightly different aspect. The amendment would ensure that college governing bodies have in their membership at least one person representing the funding council or regional committee, as the case may be, who may be examined about the policies and practices of the council committee and who may act as a conduit for representation in either direction.

Some 550 colleges in England and Wales are to be grant-aided by two councils, advised by a number of regional committees in England—and we do not know how many. There is therefore considerable risk of a bureaucratic distance developing between colleges and councils and regional committees. The amendment would put councils or regional committees under a greater obligation to explain their policies and practices directly to governing bodies, thus improving colleges' understanding of the grant processes. I consider that regional committees would be much more sensible. The limited membership of the funding councils could hardly attend meetings of the huge number of further education colleges. However, it should easily be possible to have representation from the regional committee. That would achieve cross fertilisation and provide direct feedback in both directions. That must be extremely helpful.

Lord Hunt

Perhaps I may say a few brief words based on personal experience in this field. That relates to higher education but it must apply equally to the further education institutions.

I was elected to serve for three years as Rector of Aberdeen University. I believe that my noble friend Lord Grimond would echo the sentiments which I am about to express. As everyone knows, the purpose of the rector in Scottish universities is to represent the interests of the students. It was obvious to me when I took up the post, coming from the opposite end of the United Kingdom, that I was inadequately qualified for that task. It was during my time as rector that the university court decided to invite two student representatives on to the court of Aberdeen University. It was a measure of my inadequacy that that was done, but I was convinced that that necessary and it proved a complete success.

Lord Annan

It seems to me that in this debate, as the noble Baroness, Lady Perry said, what we are really arguing about is whether or not the proposal appears on the face of the Bill. I agree with everything that has. been said about student representation by the noble Lord, Lord Peston. Of course, he is right. One is bound to have students on governing bodies these days and almost certainly they will be elected by the student union. How they behave is another matter. If they are good representatives they go along with a reasonably open mind and listen to the arguments. No doubt they put the case from their constituents, but if they are good they understand that those views may not always be acceptable to the council as a whole. If they are bad representatives, they may say, characteristically, that they are mandated and can agree to nothing but what they have been mandated to accept.

Nor is there any doubt that the other groups which it has been suggested should be represented on the council are admirable people. The question is whether councils will be forced to include those people. Once one begins to multiply the numbers of people who represent this interest or that interest the council grows and grows in size. What happens next? The only way that you can govern the institution is then to appoint a general purposes committee or an executive committee, or whatever you like to call it. That is the body which will have the power.

However, in one way, the larger the council becomes, the easier it is for the executive committee because, if you have a large council, it can do very little. If you want an efficient council, you must restrict the numbers. That is why I am a little alarmed at the multiplication of places for specific interests earmarked on those bodies. I should much prefer the matter to be left to the good sense of those who run the institutions. They are not cretins. Of course, the bodies will have students and members of staff on them. I should not like to restrict them in numbers, but let us leave things to the people who are running the show.

4.30 p.m.

Baroness Seear

I cannot resist pointing out to the noble Lord, who believes that all those people should be on the body, that only in the case of the local authority is there more than one representative. We must at least have the same number, minus one, that is down here if we are to comply with what he wants. You cannot have a number smaller than one.

Lord Callaghan of Cardiff

I do not know how we shall vote on these issues, but I hope that we can vote separately on some of the amendments. There is an overwhelming case for the local authorities, which have hitherto been responsible for those bodies and which have a deep personal interest in them, to be represented on the board as of right. I notice that the noble Lord did not refer to Amendment No. 174 which provides for that. I therefore hope that we can take decisions on these matters separately.

Baroness Blackstone

I should like to make a couple of points in response to the remarks of the noble Lord, Lord Annan. Even if every one of those groups that we have discussed this afternoon were to be represented on FE college governing bodies, that would give a total of nine people. Assuming that those governing bodies will have between 18 and 20 representatives on them, that gives plenty of scope for the new instruments. That does not seem a particularly large size to me; again, from my experience, you can manage a governing body rather larger than that perfectly well as there will always be a few people who cannot attend. The Government have provided for a wide range of other people, including a number of businessmen, so I cannot accept that what the noble Lord, Lord Annan, said, is logical from that point of view. But if, in any case, as the noble Baroness, Lady Seear, said, he thinks it is desirable for those people to be included, there will be about nine such people. There is a lack of logic in what he said.

The other point that I should like to make is that, although the noble Lord is right to say that most of those organisations and those who head them will not be cretinous, it is important that we should ensure that the bad college which is not well run and which decides to exclude members of its staff or its students should not be able to do so. If we think that that is a good thing and highly desirable, we should make sure that the provision is enforced. It should therefore be in the Bill.

Lord Cavendish of Furness

I have listened with care to the distinguished contributions from many noble Lords who have spoken in this interesting debate.

Clause 20 requires each further education corporation to have an instrument of government and articles of government. Schedule 4 provides that the instrument of government shall provide for the number of members of the corporation, the eligibility of persons for membership and the appointment of members.

The amendments require the Bill to specify that the instrument of government for each further education corporation shall provide for the membership of the corporations to include specific categories of people. At present, the instruments of government for further education colleges generally provide for the governing body membership to include representatives of the local authority and of staff and students. Some of them provide for representatives of the local training and enterprise council.

Under the Bill, further education colleges, county and voluntary controlled sixth form colleges, will transfer to the new further education sector and will become further education corporations. LEAs will no longer be responsible for those institutions and will no longer provide financial support to them. There will therefore be no need for formal LEA representation on governing bodies of further education corporations. That is not to say that local education authorities will lack any opportunity to make their views known.

In practice, we envisage that the regional committees will liaise closely with the local education authorities and with the TECs about educational provision and the needs of students and employers in their region. There is no question of cutting off local authorities, as was suggested by the noble Lord, Lord Callaghan. We expect there to be sensible cooperation, as the noble Baroness said.

The majority of members of the governing body of further education will be appointed in a personal and not in a representative capacity. To that extent, I share the views of my noble friend Lord Boyd-Carpenter. Perhaps I may correct him. As I understood it, he suggested that the Government would make those appointments. But the corporations will in fact make them.

Lord Boyd-Carpenter

Yes, indeed.

Lord Cavendish of Furness

I apologise to my noble friend. I thought that he said that the Government would make the appointments.

Governing bodies will be able to co-opt local authority employees or members in a personal capacity. Co-opted members have votes. We are sure that governing bodies will take the opportunity to retain those individuals whose presence they value.

But the decision must be one for the governing body. It would be wrong to insist that the membership must include representatives of the local education authority.

There are no proposals to change—

Lord Callaghan of Cardiff

Will the noble Lord please tell us why he thinks that it would be wrong to include representatives of local education authorities?

Lord Cavendish of Furness

I have touched on that point. The position has changed in that local education authorities no longer have responsibility for running and financing those bodies. The noble Lord, Lord Callaghan, put the point forcefully. I am giving the reason why the Government take that view; namely, the shift in responsibility for managing and financing.

Lord Callaghan of Cardiff

I am much obliged to the noble Lord. He is no doubt following the instructions of his Minister. Has he any discretion to take the matter back in view of the arguments that have been advanced and to ask for it to be reconsidered?

Lord Cavendish of Furness

The noble Lord will have an opportunity to intervene if he thinks that I have not taken the matter further in the course of the debate.

There are no proposals to change the present position in relation to staff and student representatives. There is certainly no intention to make it difficult for students to contribute, as was suggested by the noble Lord, Lord Morris of Castle Morris. Further education corporations will be free to include staff and student representatives in their membership; and, like other noble Lords, I would be amazed if they did not.

To respond to the point made by the noble Baroness, Lady Blackstone, we intend that the membership of each further education corporation will include a person nominated by the local training and enterprise council. That is in recognition of the special relationship between the education service and the TECs by virtue of the core funding that they provide to colleges in the form of money for work-related further education.

As to representatives appointed by the relevant council or regional committee, there will be over 500 further education corporations. It would not be practical to insist that the membership of each corporation should include at least one representative appointed by the funding council or by the regional committee. It would not be reasonable to expect either the funding councils or the regional committees to put in place procedures for selecting representatives for the membership of every further education corporation.

The noble Baroness, Lady Blackstone, spoke of students with special needs. It is still open to colleges to have persons with a knowledge of students with learning difficulties on governing bodies, and many already do. No changes are expected in that area.

My noble friend Lady Young was quite right in her description of the kind of body that we require—she described it very well—and was right in saying that the bodies should not be representative. I thought that the contribution from my noble friend Lady Perry was very important. Part of the reason that we do not want to specify these bodies is that we want to retain that very flexibility, and in some areas a different mix will be needed.

Lord Peston

Perhaps I may interrupt the noble Lord. It is a point which I would like him to clarify. Flexibility means the ability not to include the kinds of people about whom we are talking. That can be the only meaning of flexibility can it not? Is the answer yes or no? Are the Government saying that they would be happy if that flexibility were exercised in that way? That is the essence of the debate that we have just had. We d 3 not believe that there should be such flexibility; the Minister says that, yes, there should be. Let me ask him indirectly. The Government would be happy if students, local authorities and all kinds of people were not included. The Government have no view on the matter, as it were. Is that right?

Lord Cavendish of Furness

My noble friend Lady Perry was right when she said that in certain areas there could be a greater need for local authority representatives, perhaps to take over from somebody else. However, the point has been made by a number of noble Lords that there are limits on how big that body can he. Does the noble Baroness wish to speak? I should like to finish my sentences occasionally.

Baroness Blackstone

I am sorry to interrupt the Minister again but the fact is that we propose a basic number of two local education authority representatives. Any corporation which wishes to have more may do so. The flexibility is still there. Can the Minister at least agree with that?

Lord Cavendish of Furness

I believe that the institutions, through the good sense that was talked about, are better placed than the noble Baroness to make that decision. It is a difference of view. The noble Lord, Lord Peston, may shake his head, but that is the view that we hold; namely, that it should be at their discretion.

Lord Beloff

Perhaps the noble Lord will give way. I should like to ask a question for information. Both he and my noble friend Lady Perry said that the institution would make those decisions. Who is the institution before the governing body has been created'?

Lord Cavendish of Furness

My noble friend raises rather a good point. Perhaps I may, first, comment on some of the contributions that he made earlier. He put a slight slur on people in business whom he claimed to be unreliable. I have spoken about people with personal qualities. I do not believe that businessmen with high personal qualities are people who will skip important meetings. That is the essence. It must be well known to my noble friend, as to other noble Lords, that there are people from the business communities who give enormous service, as do people from other areas, whether or not they are employed.

Lord Annan

Perhaps I may help the Minister in answer to the question of the noble Lord, Lord Beloff. Is it not a fact that when the new universities were set up, it was the Privy Council which appointed the first council of the university, and hence in this case it would be the department.

4.45 p.m.

Lord Cavendish of Furness

I am grateful to the noble Lord. The answer to the noble Lord is that the corporation is the existing body less the LEA representatives. So there is a corporation.

The noble Baroness, Lady Seear, raised a point with which I have some sympathy, about the number of students being limited to one. We always come up against the problem of overall size, despite what the noble Baroness said, because we shall have more people of different qualities contributing. The other categories are also limited. There is one teaching and one non-teaching member of staff plus the principal plus one other.

I must tell the noble Baroness that we believe that the bodies must be kept small. That point was made by a number of Members of the Committee. For that reason we do not favour allowing more than one student representative although, as I said, I understand her point. I agree entirely with the noble Lord, Lord Annan, that smallness and manageability will be an important feature of the process.

There were a number of exchanges about the nature of the representation. If the right reverend Prelate had not mentioned it, I should have said that what we are getting away from is the word "delegate". That is the key word. It is bound to have a slightly different flavour. However, I do not believe that one can escape from the fact that, where there are students on the body, they will be elected by the student bodies, as the noble Lord, Lord Peston, said.

Baroness Seear

If we are to get away from the word "delegate", we are in agreement, are we not? It does not say "delegate" on the paper; it mentions "representative". We all seem to be agreed, do we not? The Minister said that he wanted to get away from "delegate". It is not "delegate"; it is "representative".

Lord Cavendish of Furness

There is a difference of interpretation. The noble Lord, Lord Peston, put it better than I could. As part of the organisation the student is in a slightly different position from an LEA representative. Even the noble Lord would admit that the LEA representative has nothing to do with the institution. These are rather abstruse points but the right reverend Prelate picked up the flavour of the matter when he talked about "representative" and not "delegation".

The Bill provides for instruments of government to be prescribed in regulations. Those regulations will set out the composition of the membership of further education corporations. The draft regulations will be the subject of consultation in the New Year. Further education corporations will be able to propose changes to the composition of their membership to suit their individual needs. I do not feel that it would be appropriate for membership of the corporations to be prescribed on the face of the Bill.

After such a long debate and in the light of what I have said, I ask the noble Lord not to press the amendment.

Lord Callaghan of Cardiff

I regret having to hold up the Committee but I want to return to this point. The noble Lord was kind enough to tell us that the composition of the new bodies will emerge from the existing bodies less the local authority representatives. He gave the Committee that fact. Can he please tell us why existing members of local authorities serving on those committees should be excluded from helping to decide who will be their successors? I am sure he must realise, when he pauses to think, that the local authority representatives are the people who are most closely associated with those who will be attending the institutions. They are local students drawn from the community.

It is a slur upon people—a number of whom he must know and certainly I know some of them—who are devoted to those institutions. Some of them regret that they are being removed, but that is another matter. That is a point of principle which I shall not take up. But those people care about these matters and surely they ought to be allowed the dignity of having a hand in deciding their successors. Again, this is one of those irrational prejudices which excludes any local authority representative from a committee of that kind. It is saying: "You are second class. You may not, in company with your business associates and the rest of the people sitting here, decide who is going to set up this new institution". I beg the Minister to think again about this matter.

Lord Cavendish of Furness

I believe that no slur is intended upon the LEA representatives. The difference is that they are on the eve of that association becoming radically different from what it has been hitherto. That is the argument. I accept that I shall not persuade the noble Lord, Lord Callaghan, of the rightness of that approach, but that is the answer.

The Lord Bishop of Guildford

Perhaps the noble Lord would explain one matter to me. If I heard him aright, he said that the local education authority would have nothing to do with the further education colleges. In any funding and ownership in the sense of control, that is undoubtedly true. However, as I understand the matter, the further education colleges and the local authorities will each have responsibility for adult education. It is vitally important that that responsibility should be properly interlinked in order that the whole provision is managed and that there is strategic planning. Is it not on those grounds, among others, that the local education authority has a vital part to play in the management of the further education colleges?

Lord Cavendish of Furness

I hope I did not mislead by any of my subsequent answers, but in the body of my speech I said that under this Bill further education colleges, county and voluntary controlled sixth form colleges will transfer to the new further education sector and will become further education corporations. LEAs will no longer be responsible for those institutions and will no longer provide financial support. The right reverend Prelate will say that, everything else being equal, we should expect not only that LEA people through their own personal qualities will join those corporations but that the two bodies will be in constant touch, the LEAs giving their views on local needs.

Lord Campbell of Alloway

Will the regulations be subject to affirmative resolution? That might go some way to meet the anxieties expressed by the noble Lord, Lord Callaghan.

Lord Cavendish of Furness

No, that is not the case.

Baroness Blackstone

I regret to say that the Minister missed the right reverend Prelate's point. Adult education is now to be a divided responsibility. The local education authorities are to provide adult education with respect to so called leisure classes; and the new corporations are to provide adult education with respect to vocational courses, academic courses, basic skills courses and so on. However, as has been said on a number of occasions in the Chamber, there will be difficult distinctions to be made. Again there must be much involvement between the new corporations and the local authorities in making sure that the important provision for adults in our community is in no way diminished by those administrative changes. Surely having a local education authority representative on the new corporations' governing bodies will help to ensure that that does not occur. Will the Minister please answer the right reverend Prelate in that respect? He did not do so in his previous response.

Lord Cavendish of Furness

I acknowledged the link. However, I stated also that the arrangements that we anticipate will he adequate for the purposes. I do not believe that I can go further.

Lord Addington

The Government have rejected each amendment saying, "Of course such representatives will be included. It is inconceivable that they will not. Of course they should be included". The roads to hell are generally regarded as being paved with good intentions. If we do not put the requirement on the face of the Bill, such representation will not occur.

Amendment No. 173 stands in my name and that of the noble Lord, Lord Morris of Castle Morris. Students are a college. Without students a college means nothing; it is a collection of desks in empty classrooms. Students are consumers; they are not the product of a college. If we regard people as the product of any institution, we go down a very slippery slope. We have to consider their input in the colleges. It is inconceivable that they should not have a voice in running the colleges. It is also inconceivable that such a requirement should not be written in the Bill. If the Government are not prepared to do that, I have no option but to test the opinion of the Committee.

4.53

On question, whether the said amendment (No 173) shall be agreed to?

Their Lordships divided: Contents, 93;Not-contents,120

Division No.1
CONTENTS
Addington, L.	Hunt, L.
Adrian, L.	Irvine of Lairg, L.
Airedale, L.	Jeger, B.
Ardwick, L.	Jenkins of Hillhead, L.
Beaumont of Whitley, L.	Kagan, L.
Beloff. L.	Kilbracken, L.
Birk, B.	Kilmarnock, L.
Blackstone, B.	Kirkwood, L.
Bottomley, L.	Lawrence, L.
Braye, B.	Lloyd of Hampstead, L.
Broadbridge, L.	Lockwood, B.
Bruce of Donington, L.	Longford, E.
Callaghan of Cardiff, L.	Macaulay of Bragar, L.
Carmichael of Kelvingrove, L.	McCarthy, L.
Cledwyn of Penrhos, L.	McFarlane of Llandaff, B.
Clinton -Davis, L.	McIntosh of Haringey, L.
Dacre of Glanton, L.	Mallalieu, B.
Dainton, L.	Mason of Barnsley, L.
Darcy (de Knayth), B.	Molloy, L.
David, B.	Morris of Castle Morris, L.
Dean of Beswick, L.	Northbourne, L.
Desai, L.	Parry, L.
Donaldson of Kingsbridge, L.	Peston, L.
Donoughue, L.	Redesdale, L.
Dunrossil, V.	Richard, L.
Ennals, L.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Robson of Kiddington, B.
Ezra, L.	Rochester, L.
Falkland, V.	Russell, E.
Flowers. L.	Russell of Liverpool, L.
Gallacher, L.	Seear, B.
Gladwyn, L.	Serota, B.
Glasgow, E.	Shackleton, L.
Graham of Edmonton, L. [Teller.]	Stallard, L.
	Strabolgi, L.
Gregson. L.	Thomson of Monifieth, L.
Grimond, L.	Thurlow, L.
Guildford, Bp.	Tordoff, L. [Teller.]
Hanworth, V.	Turner of Camden, B.
Harris of Greenwich, L.	Underhill, L.
Hatch of Lusby, L.	Wallace of Coslany, L.
Henderson of Brompton, L.	Whaddon, L.
Hilton of Eggardon, B.	Wharton, B.
Hooson, L.	White, B.
Houghton of Sowerby, L.	Wigoder, L.
Howie of Troon, L.	Williams of Elvel, L.
Hughes, L.	Young of Dartington, L.

NOT-CONTENTS
Abinger, L.	Cavendish of Furness, L.
Aldington, L.	Clanwilliam, E.
Ampthill, L.	Clitheroe, L.
Annan, L.	Cockfield, L.
Arran, E.	Constantine of Stanmore, L.
Astor, V.	Cottesloe, L.
Belhoven and Stanton, L.	Cox, B.
Belstead, L.	Cross, V.
Bessborough, E.	Davidson, V.[Teller.]
Boardman, L.	Denton of Wakefield, B.
Boyd-Carpenter, L.	Eden of Winton, L.
Brabazon of Tara, L.	Elles, B.
Brigstocke, B.	Ferrers, E.
Brookes, L.	Flather, B.
Brougham and Vaux, L.	Fraser of Carmyllie, L.
Butterworth, L.	Fraser of Kilmorack, L.
Caithness, E.	Geddes, L.
Caldecote, V.	Gisborough, L.
Campbell of Alloway, L.	Goold, L.
Campbell of Croy, L.	Grimthorpe, L.
Carnegy of Lour, B.	Hailsham of Saint Marylebone, L.
Carnock, L.

Harmsworth, L.	Pender, L.
Harvington, L.	Perry of Southwark, B.
Hemphill, L.	Peyton of Yeovil, L.
Henley, L.	Platt of Writtle, B.
Hesketh, L. [Teller.]	Plummer of St. Marylebone, L.
Hives, L.	Porritt, L.
Hood, V.	Quinton, L.
Hooper, B.	Rankeillour, L.
Howe, E.	Reay, L.
Kimball, L.	Renton, L.
Lauderdale, E.	Renwick, L.
Lindsey and Abingdon, E.	Saltoun of Abernethy, Ly.
Long, V.	Sanderson of Bowden, L.
Lucas of Chilworth, L.	Sandford, L.
Lyell, L.	Seccombe, B.
Lytton, E.	Selsdon, L.
Mackay of Ardbrecknish, L.	Shannon, E.
Mackay of Clashfern, L.	Shaughnessy, L.
Malmesbury, E.	Shrewsbury, E.
Mancroft, L.	Simon of Glaisdale, L.
Marlesford, L.	Skelmersdale, L.
Marsh, L.	Stockton, E.
Massereene and Ferrard, V.	Stodart of Leaston, L.
Merrivale, L.	Strathclyde, L.
Mersey, V.	Strathcona and Mount Royal, L.
Meston, L.
Monckton of Brenchley, V.	Strathmore and Kinghorne, E.
Monk Bretton, L.	Sudeley, L.
Monson, L.	Terrington, L.
Morris, L.	Teviot, L.
Mottistone, L.	Thomas of Gwydir, L.
Mountevans, L.	Trumpington, B.
Munster, E.	Ullswater, V.
Murton of Lindisfarne, L.	Vaux of Harrowden, L.
Nelson, E.	Vivian, L.
Newall, L.	Waddington, L.
Orkney, E.	Wade of Chorlton, L.
Orr-Ewing, L.	Wise, L.
Oxfuird, V.	Young, B.
Pearson of Rannoch. L.

Resolved in the negative, and amendment disagreed to accordingly.

5.1 p.m.

Clause 20 agreed to.

Schedule 4 [Instruments and articles of government for further education corporations]:

[Amendments Nos. 174 to 176A not moved.]

Lord Peston moved Amendment No. 176AA:

Page 69, line 14, at end insert: ("8A. The accounts shall be audited by persons appointed in respect of each financial year by the Corporation. 8B. The Corporation shall consult and take into account any advice given by the Audit Commission for Local Authorities in England and Wales before appointing any auditor under paragraph 8A above in respect of their first financial year. 8C. No person shall be qualified to be appointed auditor under that sub-section except—

1. (a) an individual, or firm, eligible for appointment as a company auditor under section 25 of the Companies Act 1989;
2. (b) a member of the Chartered Institute of Public Finance and Accountancy; or
3. (c) a firm each of the members of which is a member of that Institute.

8D. In this Schedule in relation to a corporation— the first financial year" means the period commencing with the date on which the Corporation is established and ending with the second 31st March following that date; and financial year" means that period and each successive period of 12 months.").

The noble Lord said: Members of the Committee will not be surprised to learn that I did not invent the amendment. It was given to me by an admirable institution; that is, the Chartered Institute of Public Finance and Accountancy. It has written to other Members of the Committee about the matter. This is a technical amendment of some importance. Although it was tabled only a short time ago I hope that the Government have reflected on it and will respond positively to it.

There appears to be an absence in the Bill of provisions for qualified auditors to audit the accounts of the further education corporations. The Bill provides for the establishment of the corporations, for the instruments and articles of government and for the initial and subsequent instruments and articles. However, no explicit mention is made of audit of the accounts. That is in contrast to the higher education corporations because provision is made in Clause 67 by an addition to Section 124 of the Education Reform Act 1988 for the accounts of higher education corporations to be appropriately audited.

It is the view of CIPFA that it would be advantageous to all concerned if a similar provision to that relating to higher education were made for further education in respect of audits. Clause 20 requires compliance with Schedule 4. Amendment No. 176AA suggests that a requirement to the like effect relating to audit is placed on the face of the Bill.

I wish to draw the attention of the Committee to one further matter and I hope that it will meet with approval. The list of persons who would be regarded as eligible to be appointed auditors should include members of CIPFA. I appreciate that that is a slightly biased view but CIPFA is an admirable body. It is worth mentioning its members as being specifically valuable in addition to the other persons who would be valuable in the audit field. I know that in the present circumstances I do not need to emphasise to anyone the enormous importance of audit more generally. This matter is rather more technical compared with the long debate that we have just had. However, I hope that the Government are persuaded of the usefulness of the amendment in this form or, if not, will bring forward their own amendment in another form.

Lord Cavendish of Furness

I am grateful to the noble Lord for bringing forward this amendment which is intended to improve the Bill. It would place on the face of the Bill specific provisions in respect of the audit of colleges. I do not believe that there is any argument between us about the principle of audit of colleges. Clear requirements must be set out about the arrangements for the audit of colleges when they become independent bodies. The Government attach much importance to that.

Clause 20 makes clear that the further education corporations will be conducted in accordance with instruments and articles. The initial instrument and articles will be such as are prescribed by regulation or order under Clause 21. Schedule 4 sets out the broad framework for instruments and articles and the broader areas that must be covered in those important documents. In accordance with paragraph 8 of Schedule 4 the instruments prescribed in the regulations will require the further education corporations to keep proper accounts and records. They will also set out the detailed requirements in respect of the annual audit of the accounts.

My right honourable friend the Secretary of State is to consult on these regulations when in draft. Members of the Committee and associations with a professional interest in audit requirements will have an opportunity to comment on them at that stage. I assure the noble Lord that colleges will be subject to the requirements in respect of audit. I hope that in the light of my comments and the fact that the amendment was tabled only recently the noble Lord will withdraw it.

Lord Peston

I thank the Minister. I have no intention of dividing the Committee on a matter of this kind. The moment I started on the debate I knew that I should be out of my depth within 10 seconds. Does the Minister's briefing contain an explanation of why it appears that the further education corporations are not being treated on all fours with the higher education corporations? I considered it important to table the amendment because I was troubled by the fact that the audit requirement was not the same for each. I do not need to pursue the matter further because the Minister gave a helpful reply. Does he have an answer to that question?

Lord Cavendish of Furness

The arrangements for the constitution and conduct of the higher education institutions was set out in the Education Reform Act 1988. We shall soon debate the relevant provision in Part II relating to the higher education corporations becoming part of the new higher education funding sector. The arrangements for the constitution and conduct of the further education corporations are not set out in detail in the Bill. The proposal before the Committee is that they should be covered in the instruments and articles made under Clause 21 and Schedule 4. I hope that answers the noble Lord's question.

Lord Peston

It takes me a little further along the road and of course I shall read the Minister's reply. The essential point of his reply is that his right honourable friend the Secretary of State will consult the relevant bodies. That is most important and it is not necessary for me, let alone the rest of the Committee, to become involved. With that assurance, I am delighted to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 176B:

Page 69, line 26, at end insert: (". An instrument shall provide for the corporation to draw up and publish its arrangements for monitoring and reporting on the quality of provision made by the corporation. The arrangements shall be substantially independent of the corporation itself and shall provide assessment by persons having substantial experience of post-16 education and training and in employment fields relevant to the activities of the corporation. The findings of assessment exercises shall be passed to the relevant Funding Council and made public.").

The noble Baroness said: This is a probing amendment and I hope that we shall obtain information as a result of tabling it. Its purpose is to require individual colleges to establish and declare publicly their arrangements for quality assurance. They are to include assessment by people with relevant experience in education, training and employment, and to provide that the conclusions of assessment exercises shall be relayed to the funding councils and made public. The Education (Schools) Bill is very strong on the principle of independent inspection of schools and there is absolutely no comparable provision in this Bill. We therefore want to know what is intended. The vague provisions under Clause 9 for quality assessment committees within the funding councils are not an adequate substitute. Effective quality assurance at institutional level requires the involvement of people with the appropriate experience in education and training and of employment fields relating to a college's activities. All that should be in the public domain. As I say, we are making comparisons with the Education (Schools) Bill. I beg to move.

Lord Cavendish of Furness

The amendment would require the instrument or articles of government for further education corporations to provide for the corporation to draw up and publish its arrangements for monitoring and reporting on the quality of provision made by the corporation. The instrument or articles would also have to provide that the arrangements be substantially independent of the corporation itself and provide assessment by persons having substantial experience of post-16 education, training and employment fields relevant to the activities of the corporation.

The findings of assessment exercises would need to be passed to the relevant funding council and be made public. The present colleges of further education have primary responsibility for quality control. Most already have mechanisms for assessing the quality of the education and training they provide.

Performance indicators relating to quality are being developed as part of college management information systems. I am sure that we all agree that colleges need effective systems to improve their quality and contribute to their own efficiency and effectiveness. A number of systems are being explored by colleges.

I do not believe that there is disagreement between us on the matter. The Government attach great importance to systems which will ensure the quality of education and training by the further education corporations. The corporations must have effective monitoring systems. However, neither the instrument nor the articles of government need contain specific provisions relating to quality assurance arrangements. That will happen anyway.

Clause 5 provides for the funding councils to determine the terms and conditions on which they provide financial support to institutions. The Secretary of State will require the councils to draw up financial memoranda with the corporations, outlining the conditions under which funding would be provided to them. The Secretary of State will expect the financial memoranda to contain provisions relating to quality assurance, but did not think it appropriate for the Bill to specify what provisions should be included in the financial memoranda. I hope that gives some answer to the noble Baroness.

Lord McCarthy

The point being made by my noble friend relates to independent surveillance. It is not a question of quality assurance. We are all in favour of quality assurance. Is the noble Lord saying that subsequently in the Bill it says that there will be independent surveillance, or merely that the councils will be associated with the process of quality assurance? It is independent surveillance that we want; somebody independent of the colleges to survey and look at this new and, some would say, extremely dangerous but valuable practice. It is independent surveillance that we require.

Lord Cavendish of Furness

The noble Lord has more experience than myself in the matter. I was looking to see what advice I had. Perhaps we can leave the point. I shall look further into it and come back to Members who are interested before the next stage of the Bill.

Baroness David

I am grateful for that offer, which I accept. I agree with my noble friend; it is the independent quality of the surveillance that is important. That is where I drew the comparison with schools which have independent inquiries.

I am grateful for the noble Lord's comments. If he wishes to discuss the matter with me before the next stage, I shall be grateful. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 21 agreed to.

5.15 p.m.

Clause 22 [Subsequent instruments and articles]:

Lord Cavendish of Furness moved Amendment No. 177:

Page 17, line 13, after second ("the") insert ("appropriate").

The noble Lord said: On behalf of my noble friend, when moving Amendment No. 177 I shall speak also to Amendment No. 179. Clause 22 allows further education corporations to replace or modify their instruments and articles of government with the consent of the Secretary of State. It also allows the Secretary of State to make changes to instruments and articles following consultation with the council and the corporations concerned, as appropriate.

As the Bill is drafted, the Secretary of State is required to consult the council before making an order under subsections (1) and (2), which would make a new instrument for government for a further education corporation or modify an existing one. The amendments provide that references to the, "council" in Clause 22 were to the, "appropriate council", within the meaning of Clause 1(6). That would ensure that where an educational institution received financial support from both the English and Welsh funding councils the Secretary of State would be required to consult both those councils before making an order under Clauses 22(1) and 22(2). I hope the Committee will feel able to accept the amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 178 not moved.]

Lord Cavendish of Furness moved Amendment No. 179:

Page 17, line 30, at end insert ("appropriate").

On Question, amendment agreed to.

[Amendment No. 180 not moved.]

Clause 22, as amended, agreed to.

Clause 23 [Transfer of property, etc.: institutions maintained by local education authorities]:

Lord Peston moved Amendment No. 180A:

Page 18, line 10, after ("conduct" insert ("together with all outstanding debt relating to those assets").

The noble Lord said: I am going to trouble the Committee with another technical amendment which I did not invent. It was also given to me by CIPFA and again I find it rather interesting.

Clause 23 relates to a subject which we could have debated. It provides for the transfer of local authority assets to the new further education corporations. Clause 38 deals with the transfer of certain loan liabilities. Neither clause provides for the transfer of outstanding debt relating to the assets to be transferred. A careful reading of the Bill suggests that the debt relating to current schemes on which the relevant bodies are engaged will be transferred. At least that is one way of reading the Bill. However, I am advised that there is no way of reading the Bill which indicates that the debt corresponding to completed schemes will he transferred.

It is the view of the Chartered Institute of Public Finance and Accountancy that good practice suggests that all the outstanding debt relating to the assets should be transferred. The reason for tabling the amendment is precisely to air that point before the Committee. I would not dream of calling a Division on a matter of this kind and do not expect the Minister replying necessarily to give more than the beginnings of an answer. However, I plead with him that whatever his answer, can he make it one that I can understand. More to the point, if his answer can include consulting with relevant bodies, as did his previous answer, that will keep me happy.

Lord Cavendish of Furness

I am grateful to the noble Lord for again introducing something which he feels will improve the Bill. I have had to rely more than usually heavily on advice received, but the answer will at least be a matter to be read and considered.

As is known, Clause 23 is concerned with former local education authority-maintained institutions which are to transfer to the new sector, and provides that any land or other property held on their behalf by local authorities will transfer on 1st April 1993 to the ownership of the further education corporations established to conduct those institutions.

The amendment tabled by the noble Lord would dictate that all debts relating to these assets should also transfer. I am advised that that is all very well in theory, but in practice it would not be possible to administer. I am advised that the amendment could not be made to work. Clause 23 follows the precedent set by Section 126 of the Education Reform Act 1988 which dealt with property transfers to institutions within the polytechnics and the colleges' funding sector. It breaks no new ground.

Under Section 126 of the 1988 Act, land and other property formerly owned by local authorities transferred to the ownership of the relevant higher education corporation, but debts relating to those assets did not transfer. Debt charges arising from capital projects relating to local authority maintained further education institutions are currently the responsibility of local authorities, who receive support through the capital financing block of the local authority finance settlement.

In the further education White Paper the Government made clear their intention that the liability for charges relating to college property incurred until 1st April 1991 would remain with local authorities and not transfer with the colleges to the new funding councils. The reasoning behind that is that local authorities' debts relate to projects going back many years and it would be an exceedingly complex and tedious process to separate those debts relating to the college property from the rest of the local authorities' historic debt.

Furthermore, any debt transfer could not be properly based on total college debt liabilities, since that would in effect reward those local authorities which have in the past overspent—that is to say, those whose expenditure exceeded the level that the Government considered was appropriate at the time. That would not be fair. Local authorities will continue to receive support via the revenue support grant to meet liabilities arising from approved levels of historic debt.

For new capital projects starting in the financial years 1991–92 and 1992–93, it is intended that local authorities will start off bearing the cost of charges in the normal way. Consequent on the provisions of Clause 38, from 1st April 1993, the councils will take responsibility for reimbursing local authorities for the cost of servicing debts arising from certain contracts entered into between 1st April 1991 and 31st March 1993 which are approved by the Secretary of State. The proviso is that the debts do not exceed the level of capital allocations for 1991–92 and 1992–93 for further education and sixth form colleges in each authority.

Any borrowing in excess of these allocations will be the sole responsibility of the local authority; but where such borrowing is within the limits of the authority's overall all-service credit approval, support will be provided by means of the normal local authority financial settlement. The debt charges repayments provisions of Clause 38 are designed to encourage local authorities to continue to invest in capital expenditure for colleges in the run-up to independence. These provisions will give local authorities reassurance that they will receive identifiable support for the liabilities arising from such borrowing. It has been a long and rather technical reply, but I hope that it has been able to assist the noble Lord, Lord Peston.

Baroness Carnegy of Lour

I remember moving a very similar amendment to that moved by the noble Lord on this occasion. It related to the last piece of legislation to which my noble friend referred. It struck me as quite extraordinary that the local authorities should continue to bear the debt until I discovered that they would be totally reimbursed. That was merely a convenient mechanism for carrying through the change. I found that the local authorities were quits satisfied by that so I did not press the matter. I understand that the provision appears to have been working. I listened with great care to my noble friend's reply. Provided the local authorities do not spend above their capital allocation it seems they will have the total sums reimbursed each year; so it is simply a book matter.

Earl Russell

I was relieved to hear what the noble Baroness, Lady Carnegy of Lour, had to say because I also felt a certain amount of concern about the Minister's reply. I appreciate that the matter is deeply technical. I am very much reassured by what the noble Baroness said about reimbursement. However, I shall be extremely relieved to hear the Minister say that in relation to this amendment. It does not seem equitable to take away the assets and leave behind the debts. That might begin to look, to put it no higher, a little unfriendly.

Lord Cavendish of Furness

When the noble Earl asked me to speak in connection with the amendment, I believe that I covered the point fairly fully concerning reimbursement. I hope that the noble Lord is satisfied.

Lord Peston

I thought I heard the noble Lord the Minister make that point. Obviously, it was a technical answer and I cannot claim that I fully understood what the Minister was reading out. I shall read what the Minister said. CIPFA is a body of very great significance. It is considerably concerned with good practice, notably good accounting practice. I do not believe that that organisation would have written to me and other noble Lords if it did not feel that there was a point to be made here. Having pointed out that his right honourable friend the Secretary of State would be consulting on the other matter that I raised, I asked the noble Lord the Minister whether, in order to be on the safe side, in case it has a better point than the one I have been able to make, the Minister would at least ask his right honourable friend to meet CIPFA or accept representation from that body, as regards this matter as well. I was reassured, but I do not feel I am expert enough to let the issue rest at that point.

Lord Cavendish of Furness

We want to get this matter right. I was minded to go back because, when I said rather fiercely that the matter was unworkable, I did not mean to cast aspersions on a suggestion that was intended to be extremely helpful. If the noble Lord can leave the matter with me I would like to explore it a little further.

Lord Peston

I gladly leave the matter with the Minister I apologise to the noble Baroness, Lady Carnegy. because I should have mentioned her in my remarks. She put the point very clearly. In a technical area like this, particularly where the LEAs themselves are involved, they may well wish to make representation. It is safer to consult even if one is fairly confident that one has got the matter right. With that assurance from the Minister, I am glad to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Lockwood moved Amendment No. 181:

Page 18, line 23, leave out ("given his written approval") and insert ("been provided by the parties concerned with a copy").

The noble Baroness said: I believe that this amendment is fairly straightforward. It is to delete the words "given his written approval" which is that of the Secretary of State, and to insert instead, been provided by the parties concerned with a copy so that the Secretary of State would know what was happening. It should be possible for a governing body and a LEA to enter into a legally binding agreement without requiring the ratification of the Secretary of State in every case. That is particularly so when there are safeguards. Subsections (5) and (6) have adequate safeguards if there is any default at all under subsection (4).

During the course of the debate on various amendments there has been a great deal of criticism about the Bill giving additional powers to the Secretary of State. It seems unnecessary that we should give him additional powers when no powers are really needed. I believe that to be so in this case. If a governing body and a local education authority are able to reach a voluntary agreement it seems entirely unnecessary for the Secretary of State to have to give his blessing. I beg to move.

Earl Russell

My name is attached to this amendment and I am happy to support it. It seems to be unnecessary to involve the Secretary of State in a business of this kind. It is perfectly possible for two parties to reach an agreement without needing to call in the Secretary of State on every occasion. If the Secretary of State and his immediate advisers are continually involved with business on this level, it may tend to diminish the time they have available for the formation of policy. The Bill seems to be taking a Secretary of State to crack a nut. I support the amendment.

5.30 p.m.

Lord Cavendish of Furness

The amendment would allow for land to be excluded from transfer under this clause by agreement between the local authority and the institution concerned, but without the added safeguard of the Secretary of State's consent. I do not think that that is desirable.

The Government have made clear that those colleges which are to transfer to the new sector shall have responsibility for the management and maintenance of the land, buildings and other property that they use. This reflects our policy of conferring upon colleges the maximum flexibility to conduct their own affairs. The main objective of Clause 23 is to provide for all land and property held by local education authorities on behalf of an institution currently maintained by that authority to transfer to the ownership of the further education corporation established to conduct the institution. However, we recognise that there are occasions where the transfer of assets could seriously undermine a local authority's ability to discharge its duties, and accordingly have made provision under subsection (4) for certain land to be exempt from transfer, provided that both parties agree and the Secretary of State consents.

The Secretary of State will take a dispassionate interest in such matters; his role will be to ensure fair play. I am wondering whether the noble Baroness and the noble Earl have misunderstood the thrust of this provision. I consider this an important safeguard to the interests of both parties to a transfer and one which, I might add, has been warmly welcomed by all concerned. The local authorities in particular have voiced their approval to what they see as the "increased validity" of agreements which have received the Secretary of State's blessing. Furthermore, without the reassurance of the Secretary of State's approval, it is likely that many of the agreements facilitated by Clause 23 would not occur. That would be a great pity both for the local taxpayer and for colleges alike. I shall be interested to hear whether the amendment has been tabled against a background of misunderstanding. I hope the noble Baroness will feel able to withdraw the amendment.

Earl Russell

That reply caused me a certain amount of surprise—in particular, the Minister's invocation of flexibility. On occasion flexibility is clearly a good thing. The question is whose flexibility? It seems to me that according to the amendment, we would have been providing for the flexibility of the contracting parties. I think the Minister is anxious about the flexibility of the Secretary of State. We need to think about who is doing the flexing and who is being flexed.

I am beginning to wonder whether flexibility is simply a euphemism for what is always described on this side of the Committee as the proposition that the Secretary of State may do whatever he likes. I take the point about fair play. However, there is always room for dispute about what form of play is fair. Is the Secretary of State's verdict on what is fair play always, in all circumstances, final? Is he always the appropriate umpire?

Baroness Lockwood

I was interested to hear the Minister's response. He wanted to give as much scope as possible to the further education institutions. Yet he goes on to say that they must have the authority of the Secretary of State. Perhaps we can get round this clause by leaving the Secretary of State some powers, where it is necessary in the transfer of property, but at the same time giving the parties where there is agreement the right to proceed with that agreement and keeping the Secretary of State informed. It seems unnecessary that his approval should be sought every time. I shall look carefully at what the Minister has said and see if we can reword the amendment for a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clauses 24 and 25 agreed to.

Clause 26 [Transfer of staff to further education corporations]:

Lord McCarthy moved Amendment No. 182:

Page 20, line 18, at end insert: ("( ) Following a transfer under sections 26 or 27 of this Act, a further education corporation, coming within section 26(1) of this Act, or a recipient of a transfer, under section 27 of this Act. shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination of expiry of the collection agreement or the entry into force or application of another collective agreement.").

The noble Lord said: Clause 26 deals with the transfer of staff into the new institutions. The Notes on Clauses relating to the Bill say that the aim of this clause is to ensure that the staff employed are able to continue their work. That gives one a fine sense of priorities. To be fair, it goes on to say that they should suffer no material disadvantage in regard to their contracts of employment or transfer.

It is true that on the face of the Bill there are at least four different ways in which the rights of the staff employed are underwritten as individuals. Subsection (1) defines who are the staff as individuals; who is to be covered. Subsection (2) provides that the individual contract dates of individuals shall continue. Subsection (3) ensures that the new employers shall inherit the obligations of the old employers; and subsection (5) safeguards individuals against constructive dismissal.

But all that refers to individuals. It is true that in subsection (5) we get as near as we can get on the face of the Bill to the formulation of something collective because subsection (5) refers to classes. It provides that the Secretary of State may make orders which refer to classes of employment. What he will make orders about, what those classes are, and what it will all mean is not on the face of the Bill.

That is where this amendment comes in. It provides that: Following a transfer under sections 26 or 27 of this Act, a further education corporation, coming within section 26(1) of this Act, or a recipient of a transfer, under section 27 of this Act",

—and here it is— shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination of expiry of the collection agreement or the entry into force or application of another collective agreement". In other words, we are moving into specified groups —groups covered by collective agreements. What is being said in this amendment is that the results of collective agreements should be underwritten until they are renegotiated or changed in the course of time. In other words the workers will be guaranteed their existing pay. They will be guaranteed their existing pay as individuals; but they will also be guaranteed, as parties to the collective agreement, anything which has been negotiated about pay structures; about their grading, about their right of progress through a grade; and about their promotion prospects—all the things that tend to get embodied in collective agreements rather than individual contracts.

They would also be guaranteed the right to raise grievances and to take those grievances to the respective representatives of their trade unions. They would have the right, in other words, to participate in the grievance procedures. They would even have the right to negotiate collective improvements to those agreements.

I wish that I could say that the amendment is unnecessary because it is unthinkable—as it would have been 10 years ago—for a public sector employer to undermine collective agreements as a systematic act of policy. But that is no longer possible to say. There are many public employers—British Rail, British Gas, British Telecom and others—who have quite intentionally—as they are entitled so to do—sought to gain advantages by giving employees concessions which they only get outside the collective agreement. We are saying that for this period, under this Bill, it should not be the case that those collective rights—all the ones that I have specified—should be guaranteed to the people who are being transferred from one institution to another. I beg to move.

Earl Russell

On behalf of my noble friend Lady Seear, who has her name to this amendment and may add a word of her own in a moment, I wish to support the amendment. It is a sensible, practical provision that agreements entered into should be continued until they reach their appointed time of termination. It will be a great deal easier for everyone that way at a time when enough upheaval will be going on anyway.

In common with most other noble Lords, I listened yesterday to the noble Lord the Lord Privy Seal make a Statement on the Maastricht Summit. He referred—I quote from memory—to the obscene doctrine that people are not bound by agreements they enter into. I may not have expressed myself quite so colourfully as the noble Lord, but the basic point commands general sympathy on these Benches and in most other quarters of the Committee. What is sound in one quarter is sound in another. That is an excellent reason for supporting the amendment.

Lord Cavendish of Furness

The purpose of Clause 26 is to transfer contracts of employment. It is right that staff transferring to the new corporations should have such contracts safeguarded, as is set out in the clause. It is entirely another matter to extend such a principle to any collective agreement which may have been entered into by a previous employer. That might significantly constrain the new corporations' freedoms to manage their own affairs in an efficient and cost effective manner.

It will of course be the case that elements of collective agreements between institutions' management and their staff representatives will have been incorporated into contracts of employment. That being so, the elements concerned will be protected through the transfer of those contracts intact. But the new managements must be free to re-examine if appropriate other non-contractual parts of such collective agreements and not be hampered or bound by any provisions which would jeopardise these management aims. In other words, these institutions must be allowed to start with a clean sheet with respect to collective agreements and not be hide bound or constrained by the policy or practice of their predecessors.

The Committee will be aware that in practice the contracts of employment of individual members of staff which are safeguarded by the clause will indeed incorporate many important features which have arisen as a result of collective agreements made over the years. In this sector there is what is known as the Silver Book, the document recording the outcome of national bargaining between the local authority employers and the lecturers' unions. That document and other agreements which have been made will have influenced what contracts have to say about such important matters as lecturers' duties, arrangements for remuneration and procedures to be followed on such matters as grievances. Where rights and obligations of that kind have been secured as a matter of contract, the clause as put before the Committee secures them. We see no further need to enshrine collective agreements as such by statute. That would be wrong in principle. The new sector, both employers and staff, must be able to negotiate freely on the future handling of these matters.

The approach in the clause is essentially the same as that of Section 127 of the Education Reform Act 1988, which provided for the transfer of staff to the higher education corporations—the newly autonomous polytechnics and colleges. That clause similarly transfers only matters enshrined in contracts and not collective agreements generally. I believe that it has worked satisfactorily for both management and staff. With that response I hope that the noble Lord will not press his amendment.

Lord McCarthy

One is surprised to receive an answer of that kind. The noble Lord is quite right. The clause constrains the employer. It is supposed to constrain the employer. That is why it is there. But it constrains the employer in relation to individuals, not in relation to collectivities. The Government's objection is to the constraint of the employer from the point of view of a collectivity—a collective agreement signed by a trade union. Nor does it follow that it would not be capable of termination. That is what we are suggesting in the amendment. We are saying that the existing agreement would continue until notice was given of termination. That would be open to the employer as it would be open to the trade union. The constraint would not be unlimited; it would be the normal constraint, the to and fro of collective bargaining.

Finally, the Minister said that the corporations must start with a clean sheet—but of course only from the collectivity. From the point of view of the collectivity, the Minister is implying that there may not be any negotiation at all; no guarantee is being given as we transfer from one employer to another that the new employer will respect the procedures and the substantive results of collective agreements. We are not surprised but we will not press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord McCarthy moved Amendment No. 183:

Page 20, line 30, leave out ("for the time being").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 184 to 187. I hope that the Committee agrees that they all go together.

Clause 26, and specifically Clause 26(7), defines who gets transfer rights. Subsection (7) contains three ambiguities —three limitations—with which we deal in the course of our five amendments. All these ambiguities make one wonder whether the framers of the Bill intend to protect full-time employees and part-time employees or only full-time employees. They make one doubt how far they have thought through what a full-time employee is, because on some possible definitions of what a full-time academic is I have to say that I know no full-time academics. That surely cannot be what the Minister intends. The fact is that academia is a pluralist game. All academics are endemic pluralists. If one interprets "full-time" in certain ways and if one interprets some of the words on the face of the Bill, all academics that I know would fall out of the protection of the clause.

In our amendments we are trying to deal with the matter in three respects. First, we want to take out "for the time being". That phrase has to be taken out. It is taken out by our Amendment No. 183 and by our Amendment No. 187. In the context of the Bill as we read it, "for the time being" suggests that the Bill may not cover those who when the transfer takes place are on sick leave, on maternity leave, on sabbatical leave, on secondment, or some other possibility. That cannot be the Government's intention and therefore we feel that the phrase "for the time being" is redundant and ambiguous and is best taken away.

We are also concerned about the presence of the word "only". That is taken out by Amendment No. 185. We submit that not to do so would be dangerous. It would mean that those extracurricular activities which are endemic to academia might be regarded as suggesting that one was employed not only by the college. Most further education lecturers from time to time live on marking A-level papers at weekends. How would we get A-levels marked if full-time lecturers did not mark them at weekends? They serve as external examiners. Sometimes some of them take on part-time private tuition. Some of them who cannot get part-time academic work perform in the evening at gigs. Some of them clean windows; some of them write books. Some of them talk on the local radio—some of them happen to make quite a lot of money talking on local radio. It cannot be the Government's intention to take all those people out and to say that only an academic who does nothing more than lecture and attend five days a week at his academic post is to be covered by the Bill.

We are saying that there is in the Bill no definition of categories that we recognise. Therefore we want to rewrite this part of the Bill. If all our amendments are accepted the clause would read that transference is covered if his, employment with the transferor involves work at that institution on a full or part-time basis, and (b) subject to subsection (8) below, a person employed by the transferor is … solely at an institution if his employment with the transferor (disregarding any employment under a separate contract with the transferor) is on a full or part-time basis". We think that makes it clear. We think that that is probably what the Government intend. I beg to move.

Earl Russell

I should like to speak briefly in support of this amendment. The growing tribe of part-time workers in academic life is an unfortunate feature of the present scene. Such workers are often extremely poorly paid and on extremely weak contracts, with a great lack of security. There is much hardship in the field.

I should like to support the remarks made by the noble Lord, Lord McCarthy, about the use of the word "only". If that were applied equally in the higher education sector, we would, for example—just to add one more to the noble Lord's list—have very few books reviewed in the Sunday newspapers. I am happy to support the amendment.

Lord Cavendish of Furness

The amendments all relate to the transfer of contracts of employment of staff employed in institutions which are conducted by further education corporations. The deletion of the expression "for the time being", proposed in Amendments Nos. 183 and 187, would not allow the transfer of contracts of staff who might be employed by an LEA under a contract simply to work at such a place or places as might be specified from time to time; that is to say, without an explicit reference to a particular college.

Such contracts are quite common. The words "for the time being", which would be removed by two of the amendments, provide that the contracts of such staff, who are in fact employed by a college at the time of transfer, would be transferred. I hope that the noble Lord will agree that that is the right approach.

Amendments Nos. 184 and 186 are intended to ensure that staff employed solely at transferring institutions on both full-time and part-time contracts are covered by the terms of Clause 26. Perhaps I may assure the noble Lord that the clause as drafted already has that effect as it does not differentiate between full-time and part-time staff.

Amendment No. 185 proposes the deletion of the word "only". The inclusion of the word is essential to provide for the circumstances where a person has a general contract of employment with a local education authority but in practice may work at several institutions. A groundsman might be a typical example. It seems right that such a person should not automatically transfer from the LEA's employ. But that is a matter which should be looked at on its merits. Where appropriate, such a person could be transferred under the order-making power in Clause 26(1) (b). However, we expect that most cases will be settled by local agreement without an order being necessary. I believe that the staff will be better protected without these amendments to the clause. I hope that the noble Lord will not press his amendment.

Lord McCarthy

I thank the Minister for that response. He has made some reassuring remarks, but they were not entirely reassuring. I wonder whether I could induce him to give a little more reassurance. He said that the phrase "for the time being" would work in the interests of the staff because it allows contracts to be transferred. If that is the case, it is an advantage. However, I still maintain that it has a disadvantage. I suggest that some people may say that because someone was sick or on secondment he or she is not covered by the clause. As I said, the Minister's remarks were reassuring but not entirely so.

The Minister then said that it is a general clause and that the word "only' is essential because it covers people who might work at several institutions. But he continued to say that it may not cover people who work at several institutions. I find the latter worrying. It may be said that a person who spent a number of hours working for an external studies department while working for a university down the road was working at several institutions. That seems to me to be unfair.

Therefore, we come to the central point of whether this clause covers part-time working. If I understood the Minister correctly, he said that it did cover part-time working. In that case I do not see why the word "part-time" cannot be put on the face of the Bill. Can the Minister tell me unequivocally that the Government's intention is that this clause should cover part-time as well as full-time workers? If that is the case, can he say how the word "part-time" is defined?

Lord Cavendish of Furness

I think that part-time is not full-time. However, I can give the noble Lord the assurance that I said—and this will appear in the Official Report—that the effect of the clause does not differentiate between full-time and part-time staff.

Lord McCarthy

In the light of those reassurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 184 to 187 not moved.]

Clause 26 agreed to.

Clause 27 [Dissolution of further education corporations]:

[Amendments Nos. 188 and 189 not moved.]

Lord Belstead moved Amendment No. 190:

Page 21, line 9, leave out ("the") and insert ("a").

The noble Lord said: The amendment is a technical one. The Bill does not define "the council" only "a council" in Clause 1. The amendment changes the reference in Clause 27 to "the council" to "a council". It will allow the transfer of the property rights and liabilities of a dissolved further education corporation to the funding council for England or to the funding council for Wales, or both, but only by using the expression "a council". I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 191 and 192 not moved.]

Lord McCarthy moved Amendment No. 193:

Page 21, line 25, at end insert ("and (c) Such persons appearing to him to be representative of employees employed at the institution.").

The noble Lord said: I thought that if Amendment No. 192 was not moved then we would not move Amendment No. 193. However, I am quite happy to move the latter. The amendment suggests that, in the process of consultation, one should consult the persons who are representative of the workers. It is an attempt to change the face of the Bill. On looking at the Bill, we take the view that it is allowing the Minister to decide whether or not he wants to recognise a particular group of workers or a particular representative of the workers; for example, a particular trade union.

We are saying that there should be something on the face of the Bill to ensure that the Secretary of State is not free to decide who he recognises. Therefore, we propose the insertion of a paragraph which would ensure that the Secretary of State consults: Such persons appearing to him to be representatives of employees employed at the institution". I beg to move.

Lord Belstead

As they stand, the provisions of Clause 27 precisely mirror those of Section 158 of the Education Reform Act 1988 which deals with the dissolution of higher education corporations. I must say that I do not think there is a reason for applying different provisions in respect of further education corporations. The amendment proposed would require the Secretary of State to consult representatives of employees employed at a further education corporation before making an order to dissolve the corporation.

I remind the Committee that this clause introduces statutory requirements in respect of the closure of further education colleges where none has ever existed before. At present there are no statutory requirements on local education authorities to inform or consult about proposals to close FE colleges. In this Bill we have ensured that such proposals in respect of FE colleges are the subject of publication and consultation. In practice that gives an opportunity to all concerned, not least staff and students, to submit their views to the Secretary of State if that is what they wish to do.

6 p.m.

Lord McCarthy

The noble Lord seems to have two answers. He said that they have done some good where there was no good previously. He said that nobody had to consult anybody, but now we have permitted somebody to consult somebody. He says that it is a small baby, but a good baby. Our answer to that is to ask why it cannot be the right and proper baby.

The noble Lord's answer to the amendment is that it was wrong before, so it must remain wrong. He says that it was not done before, so it cannot be done now. That is also not convincing, but I shall not press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27, as amended, agreed to.

Clause 28 [Designation of institutions]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

The next amendment is Amendment No. 194. I should point out that if this amendment is agreed to, I shall not be able to call Amendments Nos. 194A and 195 owing to pre-emption.

Baroness David moved Amendment No. 194:

Page 21, line 36, leave out subsection (2) and insert: ("(2) The institution must be one of the following—

1. (a) an institution maintained or assisted by a local education authority, or which is grant-aided or eligible to receive aid by way of grant, which
1. (i) has a total enrolment number calculated in accordance with paragraph 1(2) of Schedule 3 of this Act of not less than 200 FTEs, and
2. (ii) satisfied the requirements of subsections (2A) and (2B) below;
2. (b) a consortium of educational providers which
1. (i) has a total enrolment number calculated in accordance with paragraph 1 (2) of Schedule 3 of this Act of not less than 400 FTEs, and
2. (ii) satisfies the requirements of subsections (2A) and (2B) below;
3. (c) a voluntary body with a national programme of further education work which satisfies the requirements of subsections (2A) and (2B) below, and
4. (d) a consortium of voluntary bodies operating across more than one local education authority, which
1. (i) offers a programme of further education including some which is of the types outlined in Schedule 1 to this Act, and
2. (ii) satisfies the requirements of subsection (2B) below.

(2A) Subject to subsection (2) above, to be eligible for designation under subsection (1) above any institution, consortium or organisation must have not less that 20 per cent. of its students enrolled on the types of provision outlined in Schedule 2 to this Act.

(2B) Subject to subsection (2) above, to be eligible for designation under subsection (1) above any institution, consortium or organisation must have satisfactory management, monitoring and quality assurance arrangements in place.").

The noble Baroness said: I am supported in this amendment by the noble Viscount, Lord Combermere, who unfortunately is not able to be here this evening. The aim is to extend the criteria for designation. The purpose is to enable a range of bodies with experience in the education of adults to become designated institutions provided they satisfy criteria relating to size and satisfactory internal arrangements. Since the Government acknowledge the size and seriousness of many adult education services, it seems inappropriate that they should—and these are the adult education colleges and other institutions—need to route their applications for funding for Schedule 2 work through a neighbouring institution.

Like previous amendments—for example, amendments to Clause 15 which were moved on Tuesday—this amendment is designed to extend the new FE sector to include major providers of part-time Schedule 2 education. It allows those large institutions, whether or not maintained by an LEA, provided they satisfy management, monitoring and quality assurance criteria, to apply direct to the funding councils for funding. They should not have to route their requests for funding through the further education colleges.

Institutions and services fulfilling those criteria could choose to seek designation (and thus apply direct to funding councils) or to route their requests through an FE college as seems most appropriate to local circumstances. The amendment also opens up a direct route to funding councils' funding for major voluntary bodies like the National Federation of Women's Institutes or the Pre-School Playgroups Association, should they prove to qualify and if they wish to avail themselves of that.

Some adult education colleges and voluntary bodies have very good relationships with their local FE colleges, but some do not. We believe that they should have a right to direct access for funding if they qualify under the conditions laid down in the amendment. Therefore, I hope that the Government will look sympathetically at this matter. We have a great respect for all those colleges and voluntary bodies which I mentioned. They would be reassured about the Bill, which is causing great anxiety, if the amendment were agreed to. I beg to move.

Lord Belstead

I certainly agree with the noble Baroness, Lady David, about the importance of the colleges to which she has referred. However, I am worried about several aspects of the amendment. I recognise that the amendment sets very careful conditions as regards size and the proportion of the student body enrolled in Schedule 2 education which would govern the eligibility of institutions and bodies. However, despite that, there are problems with the amendment.

The White Paper Education and Training for the 21st Century announced the intention to designate the Workers' Educational Association and the long-term residential colleges. But the conditions set by the amendment appear to rule out the WEA on the grounds of the proportion of its student enrolment in Schedule 2 education. The amendment insists that it should have no less than 20 per cent. Similarly, it appears that the amendment does not catch all of the long-term residential colleges which, to fulfil the conditions set by the amendment would have to have at least 200 full-time equivalent students (FTEs). I do not believe that one of them is as large as that. The amendment helpfully allows the WEA and residential colleges to enter consortia in order to be eligible for designation, which was referred to specifically by the noble Baroness, Lady David. But this does not square with the undertaking given in the White Paper and is most unlikely to be attractive to the WEA and many of the colleges themselves.

I do not believe that the amendment is workable in relation to its inclusion of maintained schools other than voluntary-aided schools. Those are now governed by schools legislation. Yet under Clause 29 schools, as designated institutions, would be subject to a quite separate set of provisions for their government and conduct. There is a conflict of legislation between that and the provision in this amendment.

I shall now turn to the voluntary bodies. We know that they have a very important role in the provision of further education. Most of their provision falls within the scope of the LEAs' duty to secure the provision of adequate facilities for FE. A small amount of provision made by voluntary bodies falls within Schedule 2 and therefore within the remit of the funding councils. At present, it is funded in different ways—by LEAs, perhaps, by central government departments, by TECs and through students' fees. It is that type of provision which the amendment seeks to address.

There appear to be two main anxieties. One is that voluntary bodies can no longer expect to look to LEAs for the funding of provision which will in future fall to the councils' duty. Of course, the LEA continues to have power to fund provision outside its duty, but I nonetheless understand this worry. The second anxiety is logistical. Those bodies making national or regional provision might find it more straightforward to relate to the funding council than to local FE colleges.

I believe these worries can be met. First, voluntary bodies will be able to consider whether Clause 6(5) is useful to them. Under that clause they can ask FE colleges to forward to the funding councils on their behalf an application for support. Secondly, it is open to voluntary bodies to approach the funding councils direct to explore the possibility of designation, where Clause 6(5) is not an appropriate channel of funding for them.

I am aware that three major voluntary bodies—the National Federation of Women's Institutes, the Pre-School Playgroups Association and the National Association for the Care and Resettlement of Offenders—have been named by the National Institute for Adult Continuing Education as proper candidates for designation. It is interesting that two of those bodies were not consulted on the intentions which others had for them. I am confirmed in my view that those bodies, and any other voluntary bodies, should themselves explore the question of designation carefully with the funding councils, if they have worries about the future of the Schedule 2 provision which they make. This is particularly the case where bodies have close funding relationships with government departments or with TECs. Designation may well not be right in all cases.

I am sorry to resist the amendment because I realise that we are dealing with important colleges. However, perhaps I may say that it is wrong to run away with the idea that that means that by being part of the continuing local education authority system, they will in some way be at a disadvantage.

I remind the Committee that my right honourable friend the Secretary of State made it absolutely clear before the Bill commenced its passage that the Government intend to maintain funding for the local education authority adult education sector in the future.

Baroness Seear

I ask this through my ignorance and it is a. request for information. The colleges will go to local education authorities for "leisure work" but they will also be doing Schedule 2 work and therefore will be able to claim moneys from the councils. Is it intended that they should have to go for the Schedule 2 work to be funded from the councils, but through another institution, or can they go direct? I can well believe that there would be many cases when going through another institution would, to put it mildly, be unacceptable. What is the point of making them go through another institution? Does the other institution act as a post office or does it have the right to say, "This is a respectable body that can be financed", or not? That would cause an enormous amount of trouble.

Perhaps it is clear to everyone, but it is not clear to me where there are the two sources of funding. There are two questions: where colleges have two sources of funding, can one go direct? If the colleges with two sources of funding cannot go direct but have to go through a further education college, does the further education council have a right of veto on the application from the college?

Lord Belstead

The point which the noble Baroness raises is in Clause 6(5). It is for Schedule 2 work. What happens is that the college would be mainly an adult education college receiving its funding from the local education authority. When the Bill comes into effect it can, as the noble Baroness said, reach in and make an application through a further education college which is doing entirely Schedule 2 work. What the noble Baroness did not say is that there are criteria which the reaching in college must address. The main criterion is that the work being applied for under direct funding from the further education funding council is work which is not being properly addressed in that locality at that time.

If there is any nonsense about the "post office" college, as the noble Baroness puts it, which has looked at the claim, if there is any nonsense about holding up an application unreasonably, then the applying college can complain. As the noble Baroness may recall, there are two powers in the Education Act 1944 under which the Secretary of State can open an inquiry and proceedings against the post office college. It could be found that they have acted either unfairly or unreasonably.

Baroness Seear

That is very important and I am grateful for that reply. It takes us a long way but there is still one point I wish to get quite clear. Does the further education college simply look at the adult college and say, "The work it is doing is already being done elsewhere". Or does it say, "The work it is doing is not good enough". Will it stand as judge on the matter, or is it merely making an administrative decision that the work is already being carried out in another college, therefore it duplicates the work and is unnecessary? Or is it in judgment on the application, saying that the work is not good enough? That is where the rows could arise.

6.15 p.m.

Baroness David

The noble Baroness has covered many of the points I wished to make, but it could be that the further education college to which the application goes is already doing the work. It may wish to keep it for itself and not fund the other college. However, it may well be that the students who are doing the Schedule 2 work in the adult education college have gained the confidence to do the work through doing earlier so-called leisure courses. They wish to continue the work at the same institution.

I have been told this by a number of people involved in the colleges. They are worried that if they get an unsympathetic further education college which wants to keep the work for itself because it will receive more funding if it attracts more students, it may treat the college unsympathetically. That is why they wish to apply direct in certain cases. Is it clear that if they receive an answer they do not like they can go straight to the funding council?

Lord Belstead

No, my Lords, this type of application comes under Clause 6(5). On my reading of the Bill I can give an assurance in answer to the noble Baroness, Lady Seear. It is not a question of judgment. Clause 6(5) (b) states that where: there are no arrangements for the provision in that year of any facilities of the kind specified in the application for the population of the sponsoring body's locality by any other institutions or the arrangements for such provision for that population in that year by other institutions are inadequate"— there is an element of judgment here— the sponsoring body shall apply to the council specified in the request". That is a duty, and it is where the Secretary of State would come in if the duty were not complied with.

Baroness Seear

I thank the noble Lord for that reply.

Baroness David

I thank the Minister very much for that. He has cleared up a number of points. It is obvious that the amendment which I moved did a number of things which I did not fully intend it to do. It clearly needs reconsideration and we shall probably need to come back to the point, with perhaps a better drafted amendment, when advice has been taken.

I should also like to consult those people who made representations to me from the adult education colleges and who are worried about this aspect. I wish to obtain their advice. I thank the Minister for the clarification. I was certainly not trying to upset the WEA, or the residential colleges. I did not realise that my amendment had any effect on them.

Baroness Carnegy of Lour

Before the noble Baroness sits down, it seems to me in relation to the voluntary organisations that it is important that from this moment voluntary organisations begin to understand how the provision will work. They are rightly worried, they do not understand where to find the two sources of funding and how they are to know to which organisation to go. That is important.

The prevention of duplication which the arrangements involve must be understood by the colleges to which the noble Baroness, Lady David, referred. There is no question that if a course is running in one college, it will not receive funds for the course in the other one if it is not needed. We must realise that. These are two tricky points which people need to understand. I think I can see it working, but it is important that everyone should know exactly what the arrangements are or they will become more and more worried. That would be a pity.

Baroness David

I agree with the noble Baroness that it is important that people should understand how it works. We must get it clear. There has been some clarification but we may well need a little more. For the moment, I beg leave to withdraw the amendment, but we shall come back again.

Amendment, by leave, withdrawn.

The Lord Bishop of Guildford moved Amendment No. 194A:

Page 21, line 37, leave out ("aided school") and insert ("school or a grant-maintained school which was a voluntary school before becoming grant-maintained").

The right reverend Prelate said: In moving Amendment No. 194A I should like to take also Amendments Nos. 197A and 197B. I fear this is a little complicated. It refers back to the exchange I had with the noble Lord, Lord Belstead, late on Tuesday night, when I contended that in our view the voluntary colleges—whether controlled or aided or formerly controlled or aided—should not be declared bodies corporate under Clause 15 but should become designated institutions under Clause 28.

The first of these amendments is part of that package. The noble Lord was kind enough to say that he would have some further discussion with me on the point. It inter-relates to the matters in Clause 30 which deal with the special provision for foundation governors being in a majority in those schools where there is a trust deed. Unless I secure the position in relation to this amendment on Clause 28, I shall be in difficulty with Clause 30, hence my attempt to deal with it now.

Clause 30 as drafted makes provision for those voluntary aided colleges with a trust deed to have a majority of foundation governors. It is our contention that that should be the case for voluntary controlled colleges and for those colleges which are now, or will become, grant maintained, but which were formerly voluntary colleges. The reason for that in the first instance is that they all have trust deeds and those trust deeds must be honoured. Therefore, in our view, all those schools should be treated alike in this respect.

Furthermore, the Education Reform Act 1988 provided that where a voluntary school became grant maintained, there should nevertheless be a majority of foundation governors. The 1988 Act secures that provision for voluntary controlled schools as well as aided schools, and my amendments seek to secure that for sixth form colleges too. Amendment No. 197B seeks to cover those schools or colleges, which we believe should become designated institutions if the necessary provisions are agreed to, even if they do not have a trust deed.

Some voluntary schools do not have trust deeds, either because they never had them or because—this is the case with one or two schools—they have been lost. The 1944 Act provided that where there is no trust deed, the school should continue to operate in the same way as it did before that Act was introduced; that is, as though it had a trust deed.

The amendments seek to secure that there should be a majority of foundation governors for all schools which are or were voluntary schools. I apologise for the complexity of my speech. I hope I have satisfactorily explained my concern. I beg to move.

The Duke of Norfolk

I support the right reverend Prelate on these amendments. I wish to speak also to Amendment No. 197C which seeks to insert a new clause into the Bill. That is the meat of the whole matter.

Noble Lords

Not yet!

The Duke of Norfolk

I hope that I may still continue. The right reverend Prelate seeks to maintain the status quo as regards religious education.

The Lord Bishop of Guildford

That is a different issue.

The Duke of Norfolk

Plainly I had better sit down.

Lord Belstead

We shall reach the amendment which the noble Duke addressed in just a moment. I preface my remarks by reiterating what the right reverend Prelate has said. I offered to discuss this matter with the right reverend Prelate and the right reverend Prelate has accepted my offer. We have covered some of this ground before. The overall objective of these amendments is to place all voluntary sixth form colleges, and any future grant maintained sixth form colleges which were formerly voluntary schools, on the same institutional footing in the further education sector; that is, as institutions designated under Clause 28 to receive funds from the further education funding council rather than as institutions conducted by further education corporations. These amendments would also require the governing bodies of all institutions in the new sector which were formerly voluntary schools, including any which have passed through the grant maintained schools sector, to have a majority of foundation governors.

Under the Bill as it is currently drafted, designation of voluntary schools under Clause 28 would not extend beyond the small number of existing voluntary aided sixth form colleges, with their particular status involving shared financial responsibilities, which will enter the further education sector automatically in April 1993. I listened carefully to the right reverend Prelate but I still believe there is a sound framework in place which will ensure that the position of the trustees and the foundation governors, and the charitable status of the institutions which are voluntary aided, will be preserved. Having listened to the right reverend Prelate, I do not think that we disagree about that. In other words, the path through Clause 28 for the voluntary aided institutions is, in all respects, preserved I understand that the right reverend Prelate finds that satisfactory.

I now turn to the voluntary controlled sixth form colleges which will enter the new sector in 1993, and any voluntary schools, or former voluntary schools, in the grant maintained sector which transfer to the further education sector subsequently. The right reverend Prelate is concerned that they should continue to make their contribution in line with their former voluntary status. However, I believe I am right in saying that no one can envisage a grant maintained college starting up in the near future because there would not be sufficient 16 to 18 year-olds to qualify.

The Government believe that it is right to make provision for the preservation of the majority for foundation governors of former voluntary aided sixth form colleges which are designated to receive funds under Clause 28 from the further education funding council. However, we do not believe there is a case for extending that privilege to all former voluntary schools. The right reverend Prelate appeared to suggest that there should be a majority of foundation governors in voluntary controlled colleges. Foundation governors commonly hold 25 per cent. of the membership of voluntary controlled school governing bodies and this has been accepted by the interested parties as being sufficient to enable them to fulfil their role with respect to the character of a voluntary controlled school.

The position of foundation governors of former voluntary schools in the new sector which did not have aided status would not therefore deteriorate. Moreover, the institution will continue to be conducted in accordance with its trust deed. The right reverend Prelate explained that for some unfortunate reason a school may no longer have its trust deed. In that case its character will be reflected in the articles of government.

The Government do not believe at the moment that there are grounds for extending the influence of foundation governors in the way proposed for the reasons I have just given. Nor do we believe there is a need for any additional provision in the articles of government. I hope that my comments do not sound negative. My words derive from my conviction that we are being fair and are doing our best to lay the groundwork for what is referred to in another clause of the Bill as keeping a good balance between denominational and voluntary colleges and colleges which have come from the maintained sector. However, I finish as I began. I believe that the right reverend Prelate wishes to discuss this matter outside the Chamber in addition to our discussions in the Chamber.

The Lord Bishop of Guildford

I am grateful to the Minister for giving an undertaking to discuss this matter further. I remind the Committee that Section 53 of the Education Reform Act 1988 specifically provides that in the case of any school that was a voluntary school immediately before it became a grant maintained school, the foundation governors would be in a majority.

All that my amendments seek to do is to continue the arrangements that were secured under the 1988 Act. It is not as if I wish a further extension to that or anything new. I am merely trying to secure what has already been agreed in the discussions relating to the 1988 Act. However, I suspect that it would not be helpful to take up any more of the Committee's time at this stage as the Minister has kindly agreed to hold further discussions on the matter. I shall therefore be happy to withdraw the amendment and continue the discussions elsewhere. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 195 not moved.]

Clause 28 agreed to.

Clause 29 [Government and conduct of designated institutions]:

[Amendments Nos. 196 and 197 not moved.]

Clause 29 agreed to.

Clause 30 [Special provision for voluntary aided sixth form colleges]:

[Amendments Nos. 197A and 197B not moved.]

Clause 30 agreed to.

6.30 p.m.

The Lord Bishop of Guildford moved Amendment No. 197C:

After Clause 30, insert the following new clause:

("Religious education

.—The provisions relating to religious education and religious worship contained in the Education Reform Act 1988 shall apply to all further education institutions which were formerly maintained or grant-maintained schools.").

The right reverend Prelate said: The amendment brings us to the discussion which we nearly started by accident a moment or two ago. The question at issue—to which I referred in the Second Reading debate—is whether, if the sixth form colleges are to be transferred to the further education sector, the provisions of the Education Reform Act in relation to religious education and religious worship should still apply, as they do at present. The amendment seeks to provide that that should be the case.

I have no desire to re-open the fairly lengthy discussions which we had in the course of the debates on the Education Reform Act. It seems simplest merely to say that, notwithstanding that the funding arrangements have changed, the religious education and religious worship provisions should continue to apply. I hope that that will be acceptable to the Government. 1 beg to move.

The Duke of Norfolk

The new clause which the right reverend Prelate has moved seeks to maintain the status quo over religious education in institutions of further education covered by the Bill. Legislation on schools provides for religious education to be given and religious worship to take place in all schools. Those provisions were re-approved by Parliament as recently as 1988 in the Education Reform Act. Members of the Committee will no doubt recall the lengthy debates which took place in this Chamber and the strong support which was expressed for the religious provisions of the Act. The Bill would quietly drop them in the case of sixth form colleges, leaving the decision to individual governing bodies. That would mean the disappearance of religious education and worship in many of those colleges, particularly in non-church colleges. The position in sixth form schools would remain unaltered but in sixth form colleges it would be changed.

The justification for that change is alleged to be that the tradition in further education is different and does not include religious education at that age. I do not find that an adequate reason, particularly as the Bill itself does not adopt what is described as the further education tradition since it apparently leaves the decision to local choice by the governing body.

I cannot think that we live in a time when the 16 to 18 age group does not need the help of religious education. I hope that we can maintain the status quo and not embark on changes so soon after Parliament reviewed the matter in the Education Reform Act.

Lord Renfrew of Kaimsthorn

It is with considerable diffidence that I rise to speak on this matter, on which I am much less qualified to speak than the right reverend Prelate the Bishop of Guildford who moved the amendment. I do so as the head of an institution which has a chapel in which, by the statutes of the college, divine service is celebrated every day of the term and has been for more than seven centuries. It is the case, however, that in the higher education sector attendance at an act of collective worship is on a voluntary and not a compulsory basis, and that has been the case for many years.

The right reverend Prelate is correct in asserting that in sixth form colleges at present such participation is on a compulsory basis because under Section 9 of the 1988 Act the parent—and I find it somewhat curious that it refers to "the parent" rather than "a parent" but that is not an important point—has to request that the pupil be excused from the act of collective worship.

It is the case that the present Bill makes a number of significant changes, which have been very fully discussed already in this Committee. Sixth form colleges now move to the further education sector and will be subject to the provisions applying to that sector. That distinction, arising mainly out of Clause 3 of the Bill, was very fully discussed. The matter was questioned in the amendment proposed by the noble Lord, Lord Beloff, and dealt with fully.

There is here an important element of choice for the schoolboy or schoolgirl who has passed the age of compulsory education and may choose whether to remain within his or her school at sixth form level, if there is such provision within the school, or to go to another sphere of education, namely further education. Some may prefer the more structured and closely disciplined environment of school. Others may prefer the new world of a college in the further education sector which much more closely resembles the institutions which they may enter some years later at the age of 18 if they proceed to the higher education sector. These are now young adults—students not pupils. It is within the logic of the Bill that that is where the division comes between pupils and students, between the secondary and the further education sectors.

The time comes when children become adults, albeit young adults, with new responsibilities and freedoms, among which is the discretion to take their own view concerning collective worship. Were the right reverend Prelate's amendment simply to assure the provision of a single act of collective worship, as in Section 6 of the 1988 Act, that would be an entirely appropriate provision and one which I should be very happy to support. However, I am afraid that it goes further. It entails also the provisions of Section 9 of the 1988 Act. It would make attendance compulsory at the sixth form college unless the parent of the pupil were to request otherwise. I feel that in the further education sector we should be encouraging students to thin1 for themselves and to take responsibility for themselves.

Therefore, although I should be happy if the amendment were to make the provision of a single collective act of worship compulsory, I cannot support the notion that attendance should also be compulsory.

Lord Peston

Perhaps I may say a word in support of the noble Duke, the Duke of Norfolk, on this matter. 1 do not want to go into the substantive matter of religion, on which my views may well differ significantly from those of the noble Duke and of the right reverend Prelate. However, as a matter of principle it seems to me to be wrong that, purely as an incidental consequence of a Bill dealing with further education, we should amend some very detailed provisions which, as the right reverend Prelate said, we debated at great length in connection with the 1988 Act.

If the Government wish to reconsider the question of religious education and religious worship they ought to place the matters before us so that we can have a long-winded row on the matter if need be. However, merely for that to happen as a consequence of legislation dealing with further education would be wrong. We should not be involved in matters of this kind as a consequence of a desire to reform further education. That should be dealt with on another occasion. I consider that a good point arises as a result of the amendment.

The Duke of Norfolk

At present religious education is compulsory up to the age of 18. Parents can opt out if they want to do so. In direct grant schools, grant-maintained schools and voluntary aided schools religion is part of the curriculum in the school. However, I agree that there is an opportunity to opt out. If such schools are transferred to the further education sector we believe that the religious elements should remain compulsory or available up to the age of 18.

Lord Belstead

This is quite a difficult matter. The intervention of the noble Lord, Lord Peston, was perfectly reasonable. I was in no way surprised to see the amendment on the Marshalled List in the name of the right reverend Prelate.

The Committee will be aware from the discussion that religious education and collective worship have been compulsory in schools since the Education Act 1944. The Education Reform Act 1988 emphasises that it is the duty of all schools to provide a curriculum which promotes the spiritual, moral, cultural, mental and physical development of pupils. I believe that that provision was inserted by your Lordships' House. Religious education and collective worship play an essential part in that process. Parliament was clear in its view that they should continue to be provided in the schools, but, partly for the reasons given by my noble friend Lord Renfrew, such provisions have never extended to further education or other post-16 institutions outside the schools sector. The details of the curriculum have traditionally been left to the governing bodies of those institutions to determine for themselves.

I take the issue head on. It is this point that will affect the sixth-form colleges which go into the new, centrally funded further education sector; but, in saying that, perhaps I may make two points. First, individual institutions are to make such arrangements as their governing bodies see fit or—this is an I important point to bear in mind—as their trust deeds may dictate. In making such arrangements as the governing bodies see fit, it is fair to say that some of the considerations to which my noble friend Lord Renfrew gave voice would be in the minds of the governors.

Secondly, we should not forget that the voluntary-aided colleges which are to go into the new further education sector will enter that sector through designation. The foundation governors will be in a majority and will be able to preserve the provision of religious education. The voluntary-controlled colleges, over which the right reverend Prelate and I still have outstanding points to resolve, would be able to apply for foundation governors to be in a majority and would therefore be able to preserve the provision of religious education. It would be open to them to do that.

As the right reverend Prelate reminded us, grant-maintained schools were given a majority of foundation governors when voluntary-aided and voluntary-controlled schools became grant-maintained. I realise that that does not answer the main point in the amendment, but we should not forget that quite a large swathe of colleges which go into the new sector will undoubtedly wish to address in a positive manner the question of religious education, and possibly religious worship.

We do not intend by this amendment to fetter unnecessarily the freedom of anyone. It is rather the other way round. The sixth-form colleges that go into the further education sector should then be free to make the provision that they think right in this matter.

Lord Hailsham of Saint Marylebone

There is one point with which my noble friend has not dealt, or at least I did not hear him deal with it; namely, the distinction between compulsory and available facilities for religious worship in those colleges. I take the point that he has just made that, once they move into further education, it may be right for governors to have the say as to the degree to which religious education and worship is allowed or provided. However, one cannot altogether forget that the origin of the schools which are dealt with in the amendment is one in which they were originally governed by a trust deed for the purpose of the religious ethos of the school.

I take the point that, at age 16 plus, it may well be that attendance at a religious ceremony might be left to the voluntary decision of the pupil. However, the availability of religious facilities in an institution that was once founded by charitable endowments for the purpose of providing available religious worship as a collective act is rather a different matter. I wonder whether my noble friend has thought of that point.

6.45 p.m.

Lord Belstead

I must be truthful, because it is not much good being untruthful with regard to my noble and learned friend, and say that I do not think that the matter has been addressed, certainly not by myself. In referring to the availability of religious facilities in institutions that were founded by religious denominations, he is talking about the maintained sector which sprang originally from the churches. Perhaps I may take that point away because I have no better answer to give my noble and learned friend this evening. It is a telling point. Perhaps I may put it in rather homely language for my own personal consumption. The question arises: what about the facilities that exist? To what use will they be put in the future? My noble friend Lord Renfrew may have provided some of the answers, but perhaps I may take the question away to see whether I can find an answer.

The Lord Bishop of Guildford

I am grateful for this brief debate and wish to say at once that I am sensitive to the arguments put forward by the noble Lord, Lord Renfrew. I do not for one moment wish to dismiss the importance and seriousness of what he said.

My anxiety is that if, as the Government appear to indicate, it is their intention that those who attend sixth forms in sixth-form colleges are no longer required to have religious education and to attend a collective act of worship on the grounds that have been put forward—namely, that young people of that age are free to choose—it automatically applies that, similarly, 16 year-olds in schools should be allowed to choose. I therefore contend—I almost gave a warning—that, if we open all that up again, we are bound to enter into all the discussions that we had prior to the 1988 Act. I would rather not do that because that was a long and difficult process and I was only on the touchline. Heaven forfend that we should have to go through it all again with me in the front line!

However, I am grateful to the Minister for saying that further discussions are to take place. I may have misunderstood the noble and learned Lord, Lord Hailsham, but the amendment applies to all sixth-form colleges, whether they have trust deeds or not, because that is the current position.

Lord Hailsham of Saint Marylebone

Perhaps I was foolish not to make the point that I had just been listening to my noble friend on the Front Bench. He made what appeared to me to be a valid point; namely, that in the case of the voluntary-aided group, the majority of governors would probably be foundation governors. They could therefore have the say. That was the point I should have made, and the right reverend Prelate is perfectly right to take me up for not making it.

The Lord Bishop of Guildford

I do not wish to detain the Committee further on this point. I hope that it is recognised that it is a point of some sensitivity and importance. I therefore hope that it will be possible for us to discuss the matter further. It may be necessary for me to come back with further amendments if we cannot achieve a successful outcome to the discussions that must take place. On that basis, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 31 to 33 agreed to.

Clause 34 [Making additional property available for use]:

Baroness David moved Amendment No. 198:

Page 26, line 14, at end insert (", and (c) he has received assurances from the governing body of the new sector institution that the use to which the property which is the subject of this order will for a period of not less than three years after the order shall take effect he the same as that for which the property was used prior to the local education authority discontinuing, or planning to discontinue its use.").

The noble Baroness said: The purpose of the amendment is to ensure that former LEA premises used for further education provision remain in use for that purpose. Unfortunately, there has been a long history of premises provided or secured for the education of adults being taken over for what have been considered higher priority uses by the controlling institution, be it a school or college.

The more central or mainstream role being afforded to Schedule 2 adult education in the new sector will probably have the effect of making that situation less likely in the longer term. However, there is a need to safeguard premises from the loss of their adult role. That will be of particular importance for premises which are at a distance from the parent college.

We should like to know the Government's attitude to this matter and to hear that there will be some safeguards. I hope that the Minister will accept the amendment. I beg to move.

Lord Cavendish of Furness

The purpose of the clause is to ensure that facilities continue to be available for the provision of further education courses in instances where a local education authority decides to take them out of use but the governing body of a local further education institution believes that they are still needed by local people.

Under the Bill, the Secretary of State will have a power to make available by order a local authority's land or property for use by an institution in the further education sector where it has been used for the provision of further education and where the local education authority has ceased or intends to cease to use it for that purpose.

Clause 34 is intended to make plain that this is a device of last resort. There are a number of safeguards that make clear that it is not possible for a further education college arbitrarily to secure the property of a local authority. I believe that that is what the noble Baroness seeks.

First, the property in question must cease to be used for further education. Thus, if an LEA goes on providing further education in the property, the question of transfer cannot arise at all.

Secondly, the further education sector institution must be unable to secure access to the property by agreement with the LEA. Thus if the LEA concedes a lease of the property on reasonable terms, or guarantees access under a contract, there is again no question of transfer.

Thirdly, it must be necessary or desirable for the further education sector institution to have the use of the property. Thus it must contain facilities needed for further education sector purposes (for example, dedicated facilities for a course listed in Schedule 2), and the further education sector institution must itself lack adequate facilities, or not be able to provide them for the area in which the property is located.

Fourthly, applications must be made within three years of 1st April 1993. Fifthly, the Secretary of State must consult the further education funding council, the local authority and the Education Assets Board before making an order transferring the property, or giving the further education sector institution rights to use it.

This clause is necessary because local education authorities will no longer have a statutory duty to secure the provision of further education of the sort listed in Schedule 2 to the Bill. We want to guard against the situation where a local authority decides to take out of use a facility dedicated to that sort of further education—for example, a centre for basic skills funded through education support grant. If the facility is still needed for the people of the area, the local further education college should be able to secure its continued use. We hope that such matters will be settled by agreement locally. But in cases where no agreement can be reached, it will be necessary for the Secretary of State to retain the powers of last resort set out in this clause.

The amendment suggests that property should only be transferred where the Secretary of State has received assurances from the college that it will be used for the same purpose as before for at least three years. As I said, there are substantial safeguards to secure that property is transferred only where it is really needed. But I do not think that it would be helpful to eliminate altogether the possibility that a college might want to use the property for slightly different purposes—for example, to transfer some of the courses put on in the property to its main site and to use the new property for some of its other courses. That is useful managerial flexibility. In the light of that explanation, I hope that the noble Baroness will not press the amendment.

Baroness David

So far as I could follow, perhaps there was some reassurance there. I should like to examine what the Minister said and, if I am not totally satisfied, come back at the next stage. I understand that this point will be followed up by the noble Baroness who intends to move a Motion that the clause should not stand part of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 34 shall stand part of the Bill?

Baroness Seear

I had no idea that this noble Baroness was making such a proposal. If she did ever say so, she made a mistake because she is not so proposing.

Clause 34 agreed to.

Clauses 35 and 36 agreed to.

Schedule 5 agreed to.

Clauses 37 and 38 agreed to.

Clause 39 [Control of disposals of land]:

[Amendments Nos. 199 and 200 not moved.]

7 p.m.

On Question, Whether Clause 39 shall stand part of the Bill?

Earl Russell

I intend to raise this matter. It may be for the convenience of the Committee to consider together the Motions that Clauses 39 to 42 should not stand part of the Bill. This is an interrelated body of clauses. I believe I am correct in saying that the deletion of the one clause would have the consequential effect of the deletion of the others.

These are clauses which caused a good deal of debate when they were first foreshadowed in the Statement which announced that the Bill was coming. They deal with the wrongful disposal of assets. They make provision for repudiating contracts if necessary in the case of all contracts entered into after 21st March 1991, which is quite some time ago. I appreciate that it is the view of the Chamber that retroactive legislation is not always impermissible. Nevertheless, I believe that it ought to be looked on with a certain amount of suspicion and given a good deal of scrutiny before this Chamber permits it.

An interesting question arises: why the choice of 21st March 1991? I am grateful to the noble Lord, Lord Belstead, for confirming that that was the day of the Statement which foreshadowed the introduction of the Bill. So control on the disposal of property is becoming law from the day of the ministerial announcement. That has a certain vague resemblance—I admit it is only vague—to legislation by decree: a measure acquires the force of law from the day on which the Minister announces it.

That is something about which I feel a good deal of misgiving. It is always a good test for this kind of situation to ask what one would feel if the power were used the other way round. Let us therefore imagine a government not drawn from the Benches opposite. They come into office and introduce a law requiring that all disposals of assets after 1st December 1991 shall be held to be void. One might then hear a certain amount of protest. I think that we should treat the cases as parallel.

There is a good deal of difficulty in controlling the executive. Therefore it needs to be wary in the use of its powers. The use of such powers which give the executive more opportunity to exercise flexibility is addictive. It will be argued that it is a case of making too much fuss about a little thing. However, if one accepts the principle of addiction, then it is not necessarily an answer to say that the first shot is really a very little one.

I listened carefully last Tuesday to the arguments of the noble and learned Lord, Lord Hailsham of Saint Marylebone. He again argued that I was making too much fuss about a little thing. I found afterwards—I wish that I had found it while I spoke—the note that I had made while he was on his feet which referred to "a little cloud no bigger than a man's hand". As the Committee knows, that led to a good deal of disturbance.

Other points need to be taken into consideration. We have another example of government suspicion of local authorities. We have had one already today with regard to Amendment No. 181 about agreements on property requiring the consent of the Secretary of State. We have had another example on contracts. The matter comes up so frequently that it is beginning to sound a little like paranoia. While everyone, in particular Members of the Committee on these Benches, admits that there are local authorities which are rightly viewed with suspicion—I am sure that my noble friend Lady Seear will give examples willingly —not all of them ex officio are necessarily viewed with suspicion.

Much was said when the Statement was made on the Bill about the danger of planning blight as a result of such a long control on disposal of assets. There is also a real problem with contracts which were in the process of being negotiated at the time that the Statement was made which were caught halfway through the process. We are all familiar with the problem of the housing chain. That can also arise in relation to public buildings. When we consider areas where retroactive legislation is to be viewed with suspicion, I should have thought that those persons involved in the disposal of properties ought to be regarded as fairly high up the list. I beg to move that the clause shall not stand part.

Lord Hailsham of Saint Marylebone

Perhaps I may make a short point in answer to the witty observation that the noble Earl made about our previous exchange last week. He seemed to think that he had support for his argument either last week with l'esprit de l'escalier or, for the Motion that he has opposed today, by the reference to the cloud the size of a man's hand which he said had caused a good deal of upset. On the contrary, it proved the fruitful end of a large drought.

Lord Cavendish of Furness

Clause 39 provides that during the "controlled period", which for the majority of institutions will be from 22nd March 1991 to 31st March 1993, local authorities must obtain the consent of the Secretary of State before disposing of any land held or used for the purposes of an institution which is transferring to the new sector. This includes the disposal of and the option to acquire freehold or leasehold interests as well as outright sale.

This clause follows the precedent set by Section 137 of the Education Reform Act which dealt with disposals involving institutions funded by the Polytechnics and Colleges Funding Council. It is nothing new. It is essentially a measure which is designed to prevent local authorities from disposing unreasonably of assets held for the purposes of an institution transferring to the new sector. The aim is to ensure that on independence colleges are not placed in a position where their ability to fulfil their functions is compromised. I am sure that none of us would want to see that happen.

I know that this measure is not likely to find favour with local authorities, but our prime concern must be for the colleges themselves. It is vital that their interests are safeguarded.

It was considered necessary to make a Statement on 21st March to seek Parliament's approval of retrospective legislation in order to protect institutions which will fall within the new sector from local authority depredations in the intervening period. The noble Earl may remember that it was in response to an announcement made on 21st March in another place that two boroughs, Haringey and Rochdale, passed resolutions at emergency meetings to appropriate for other purposes significant parts of their respective college properties. The stated purpose behind the move was to safeguard the authorities' interests. I do not believe that it is too speculative to suppose that the ultimate intention was to dispose of those properties. Indeed, in the case of Haringey the local press reported that a national supermarket chain was the potential buyer for the appropriate site. I held that without the 21st March Statement, and my honourable friend's intention, and the subsequent provision of Clauses 39 and 40, many authorities would seize the opportunity to sell off their colleges' assets in the lead-up to independence.

Furthermore, the Department of Education and Science has intervened on a number of occasions to protect colleges from unwelcome disposals. However, intervention is not all one-sided. For example, in one instance, despite a college's objections, my right honourable friends agreed to the authority's proposal to dispose of a college site.

There will of course be occasions when a local authority might have a just reason for wanting to dispose of property. The Bill recognises this and Clause 39 allows for the Secretary of State to give consent to such disposals. It also allows for such consent to cover groups of disposals and empowers the Secretary of State to give his consent prior to Royal Assent.

The noble Earl spoke to the question whether Clause 42 shall stand part of the Bill. Clause 42 empowers the Education Assets Board to repudiate contracts made by local authorities which are in contravention of the preceding clause: that is to say where the local authority has not obtained the consent of the governing body of the institution and, where appropriate, the consent of the Secretary of State. The clause provides that such repudiation shall take effect as a repudiation by a local authority and any liabilities arising out of the cancellation shall be the responsibility of the local authority; and that is quite right.

I have no doubt that local authorities will resent the power of the Education Assets Board to repudiate contracts made by them. However, this power can only be invoked when a local authority has acted unreasonably, that is, in contravention of Clause 41. The most important consideration is the colleges themselves. Their interests must be protected. Both clauses are essential. I ask the Committee to agree that they stand part of the Bill.

Lord Renton

Before the noble Earl replies, perhaps I may say, first, that the noble Earl in his genial way created quite an interesting precedent when he invited us to consider the question whether four clauses taken together shall stand part. It is something upon which my simple mind is normally incapable of concentrating. However, I believe that he was justified in letting us save time in this way on this occasion.

However, I feel bound to point out that many of the institutions referred to in Clause 39 and in later clauses arc charities. This morning we concluded the Public Bill Committee on the Charities Bill. That is a detailed Bill which to a great extent by reference to previous legislation has amended the law, including the law relating to disposals of land. I merely express the hope —it may be difficult for my noble friends on the Front Bench to reply to it—that those exceedingly able people who are responsible for giving instructions to parliamentary counsel for the drafting of the Charities Bill and this Bill have made sure that in this part of the Bill there has been a proper dovetailing with the detailed provisions of the Charities Bill.

The Lord Bishop of Guildford

I hope that it is not out of order for me to ask for clarification. I have received no brief and may have misunderstood the matter. I understand that Clause 39(2) (c) brings into the controlled period those educational institutions mentioned in Clause 28 of the Bill which are voluntary-aided colleges. Is it the intention of the clause to impose a limitation on schools or colleges which are held under trust deeds?

Lord Cavendish of Furness

I am under the impression that the answer is, no. However, if I am wrong I shall write to the right reverend Prelate forthwith

Earl Russell

I thank the noble and learned Lord, Lord Hailsham of Saint Marylebone, for his observations. I take the point about the end of a large drought, but a certain amount of upheaval is involved. I also take the point about precedent but not everything that has been done before is necessarily correct.

I take the Minister's point about our prime concern being for the colleges. Of course, in this day and age even more than usual many colleges are vitally dependent for their survival on the sale of land. Many are in the London area. Those colleges may find that their future financial plans are completely brought to a halt. They may find that interest on a debt continues to accumulate and their plans for dealing with it are brought to a halt. While I agree with the Minister about the interests of the colleges being put first, I am by no means clear that that necessarily points in favour of the present clause.

I take the Minister's point about Haringey. Such cases exist from time to time but here the Minister is making a judgment about intention. That is always tricky. No doubt the Minister will be familiar with judgments that are made from other Benches about the Government's intention. No doubt from time to time he considers that such judgments are unfair. Indeed, some have been made in connection with this clause.

I listened to the Minister's point about the Secretary of State giving consent to disposals where they are, in the eyes of the Secretary of State, necessary. That is yet another example of an issue about which we on these Benches have complained throughout the progress of what is now the Bill and throughout the progress of what is now the Education Reform Act 1988. We have complained about the continual extension of the power of the Secretary of State into areas where it did not before operate on that level; the continual elevation of the Secretary of State's individual judgment to the point where it is approaching something which is very close to the rule of law.

I appreciate that this is a complicated issue and that there is a case to be made on the other side. I listened with a great deal of care to the noble Lord, Lord Renton, who obviously has a point to make. When I listened to the Minister, however, I heard no perception that there is a point of difficulty. If I had heard that—a recognition that there is a constitutional problem but that maybe I am taking it too seriously —I should not have pressed the matter further. However, I am deeply worried about the extent to which the Executive is unaware that there is a problem about elevating its power in this way. I can think of only one way to bring to the attention of the Executive that there is a problem. I oppose the Question that Clause 39 stand part of the Bill.

7.14 p.m.

On Question, Whether Clause 39 shall stand part of the Bill?

Their Lordships divided: Contents, 66; Not-Contents, 31.

Division No. 2
CONTENTS
Abinger, L.	Jenkin of Roding, L.
Arran, E.	Kitchener, E.
Astor, V.	Lane of Horsell, L.
Auckland, L.	Lauderdale, E.
Beloff, L.	Lindsey and Abingdon, E.
Belstead, L.	Long, V.
Blyth, L.	Mackay of Ardbrecknish, L.
Brougham and Vaux, L.	Mackay of Clashfern, L.
Carnegy of Lour, B.	Marlesford, L.
Carnock, L.	Merrivale, L.
Cavendish of Furness, L.	Mersey, V.
Coleraine, L.	Monk Bretton, L.
Cox, B.	Morris, L.
Crickhowell, L.	Mottistone, L.
Cross, V.	Mountevans, L.
Dacre of Glanton, L.	Murton of Lindisfarne, L.
Davidson, V. [Teller.]	Orkney, E.
Denton of Wakefield, B.	Park of Monmouth, B.
Ferrers, E.	Pearson of Rannoch, L.
Fraser of Carmyllie, L.	Peel, E.
Goold, L.	Perry of Southwark, B.
Guildford, Bp.	Rankeillour, L.
Hailsham of Saint Marylebone,	Reay, L.
L.	Renfrew of Kaimsthorn, L.
Hemphill, L.	Renton, L.
Henley, L.	Seccombe, B.
Hesketh, L. [Teller.]	Shrewsbury, E.
Hives, L.	Skelmersdale, L.
Hooper, B.	Strathclyde, L.
Howe, E.	Strathmore and Kinghorne, E.

Swansea, L.	Vaux of Harrowden, L.
Thomas of Gwydir, L.	Waddington, L.
Trumpington, B.	Wise, L.
Ullswater, V.

NOT-CONTENTS
Addington, L.	Lockwood, B.
Airedale, L.	Macaulay of Bragar, L.
Annan, L.	McCarthy, L.
Avebury, L.	McNair, L.
Beaumont of Whitley, L.	Morris of Castle Morris, L.
Blackstone, B.	Pitt of Hampstead, L.
Carmichael of Kelvingrove, L.	Rochester, L.
David, B.	Russell, E. [Teller.]
Dean of Beswick, L.	Seear, B.
Desai, L. [Teller.]	Stoddart of Swindon, L.
Ennals, L.	Strabolgi, L.
Graham of Edmonton, L.	Tordoff, L.
Hatch of Lusby, L.	Turner of Camden, B.
Hughes, L.	Warnock, B.
Kilbracken, L.	Williams of Elvel, L.
Kirkwood, L.

Resolved in the affirmative, and Clause 39 agreed to accordingly.

Earl Howe

I beg to move that the House be now resumed.

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

House resumed.