Lords Sitting of 16 January 1992

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chichester.

Osteoporosis
The Viscount of Falklandasked Her Majesty's Government:
Why osteoporosis was omitted from the targeted conditions in The Health of the Nation.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, the Green Paper—the consultative document, The Health of the Nation—is a first step in the Government's approach to targeting health needs. We recognise that osteoporosis is an important condition, but it was not considered as much a priority as the 16 target areas selected for the consultation process.
The Viscount of Falkland: My Lords, I thank the noble Baroness for that Answer. My Question was prompted by the list of specific items in the consultative document. Although they are all very worthy and deserve attention, does not this disease (which for the guidance of noble Lords I shall refer to in layman's terms as crumbling bones) take up an inordinate amount of ward space each year? Is it not reckoned in some medical circles to take as much as £1 billion a year in National Health Service costs? Does the noble Baroness agree that it would be encouraging if she could say whether it could be included in future references to the consultative document?
Baroness Hooper: My Lords, I should point out to the noble Viscount that it was made clear in the consultative document that the areas chosen for consultation would be narrowed down to some five or six areas in the final White Paper, because, to be effective, targeting must be very precise and fulfil the criteria that we have laid down. There are other aspects of the White Paper, including advice on a healthy lifestyle and physical exercise, which are important as regards osteoporosis; but I can assure the noble Viscount that we shall review the key areas over a period of time.
Baroness Macleod of Borve: My Lords, can my noble friend the Minister tell us whether any research is being done into a disease of which some of us are not perhaps as fully aware as the Minister?
Baroness Hooper: My Lords, my noble friend makes an important point. Research is the most effective way forward in that area. The department is currently funding a cost-benefit analysis of hormone replacement therapy, which is due to be reported on in April. We have also commissioned a critical review of screening techniques for detecting osteoporosis, which will also be reported on shortly. The Medical Research
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Council has a major programme of relevant research and has set up a specialist group to look at the further research required in that area. We are also participating in a European Community programme on prevalence.
Lord Carter: My Lords, does the noble Baroness have an estimate of the cost to the nation of the condition? A figure of £1 billion has been mentioned. Does she agree that it is not only a burden in terms of the number of sufferers who take up orthopaedic beds, but that it is a longer term problem for carers if sufferers are not able to continue to live independently?
Baroness Hooper: My Lords, as I said, we recognise the importance and widespread nature of the condition. One of the problems is that there are no sound epidemiological statistics, and I cannot therefore give the noble Lord an exact figure. However, I can refer to the fact that in 1987–88 there were 45,000 hospital admissions for hip fractures, which can be taken as some kind of estimate in that area. Of those, 35,000 were women and 27,000 were women of over 75 years of age. The cost of hospital stays for fractured hips is estimated at about £126 million a year.
The Countess of Mar: My Lords, does the noble Baroness agree that, with the ageing population, it is necessary that the disease should be prevented as women in particular tend to live much longer now than they did 10 or 20 years ago? As osteoporosis has become more obvious in the fractures that women suffer, may I urge the Minister to make this a priority?
Baroness Hooper: My Lords, I can certainly reassure the noble Countess that we give the condition due importance. In addition to the increased awareness, we continue to use channels of education to inform and encourage people to take up screening on an individual, personal basis.
Lord McColl of Dulwich: My Lords, does my noble friend agree that, in preventing osteoporosis, probably the most important point is a healthy diet, adequate calcium and exercise and the cessation of smoking; in other words, that it is another DIY job?
Baroness Hooper: My Lords, as in so many other areas, there is clearly a certain amount of self-responsibility. The thrust of the Green Paper and the effect of the consultation process is to emphasise the importance of a healthy lifestyle and adequate physical exercise. That is also underlined in other government publications relating specifically to areas of women's health and the health of elderly people.
Lord Whaddon: My Lords, is the noble Baroness aware that hormone therapy and certain other therapies have proved dramatically successful in recent years in treating this appalling condition? Does she appreciate that bone density scanning is most effective in pinpointing the women at risk? Will she give the highest priority to the scanning of women who are in the appropriate age bands?
Baroness Hooper: Yes, my Lords. As I said, we are encouraging people to be screened on an individual, personal basis. We also encourage hormone replacement therapy in the sense that it has a role to play not only in the treatment of menopausal symptoms but also in the prevention of osteoporosis. The noble Lord may be interested to know that GP prescriptions for hormone replacement therapy have tripled over the past 10 years.
Lord Bruce of Donington: My Lords, in view of the emphasis put on the importance of this condition by the noble Baroness and its wide acceptance in the medical profession, can she now explain why it was omitted from the targeted conditions?
Baroness Hooper: My Lords, in my original reply, I indicated that we regarded this as an important area. Nevertheless, we considered that there were other priority areas which were even more important. Having said that, clearly some of the steps envisaged in the White Paper will be directed at the causes of osteoporosis.
Lord Monkswell: My Lords, the House will note the advice from the Government about the need for a healthy lifestyle. No doubt we all accept that. However, are the Government aware of the two-fold problem faced by people suffering from this condition; namely, late diagnosis and inappropriate advice given before a diagnosis has been made? Are they further aware that the recommendation to take exercise may not be the best advice to give to elderly women who suffer from this condition? What action are the Government taking to ensure that, once the condition has appeared, effective diagnosis is made and appropriate advice given?
Baroness Hooper: My Lords, that is not a role entirely for Government. It is also an important role for health care professionals. The Government are doing everything possible on the education front to raise the level of awareness and encourage people to take steps to try to avoid this condition.

NHS: Dental Treatment
3.16 p.m.
Lord Dean of Beswickasked Her Majesty's Government:
Whether they are aware that people in certain areas are having difficulties in obtaining dental treatment under the National Health Service, and what proposals they have to deal with the situation.
Baroness Hooper: My Lords, we are aware of some pockets of difficulty; but more than three-quarters of the country's dentists accept all patients who seek National Health Service treatment. An even higher proportion accept all children. Over 25 million patients are now registered under the new system with a dentist in England or Wales. Nevertheless, we are in discussion with family health service authorities and representatives of the dental profession further to improve the implementation of the new dental contract.
Lord Dean of Beswick: My Lords, I am extremely grateful for the welcome details given by the Minister. Is she aware that a recent report issued by her own department, the Department of Health, showed that in parts of London 75 per cent. of dentists refuse all national health patients. Does she agree that if certain dentists want to behave badly it leaves the people in those areas open to some form of exploitation? Can she indicate whether the Government are aware of this situation and whether they will try urgently to resolve it?
Baroness Hooper: My Lords, we are certainly very much aware of it. To some extent the findings of the survey and analysis that we made reflect a situation which was already in existence. A number of dentists already offered a mixed service of private and national health treatment and some remained exclusively private, particularly in the central London area. It is true to say that in Kensington, Chelsea and Westminster there are more dentists per capita than in any other family health service authority in the country. Nevertheless, as a result of our survey, I met with the chairmen of the FHSAs in the four worst areas. They assured me that if anybody goes to them they are able to find a suitable National Health Service dentist. We are looking at other ways of communicating to people that when seeking a National Health Service dentist they need to approach their FHSA in order to obtain the information that they require. We are also looking at use of the community dental service and the employment of salaried dentists, where appropriate.
Baroness Gardner of Parkes: My Lords, will the Minister confirm that it is the high cost areas, such as London, in which the problem exists? Does she agree that the situation was drawn to the Government's attention before the new contract came into force? Will she also confirm that those members of the British Dental Association General Dentists Services Committee who negotiated the contract were not re-elected by the members of their profession because they considered that the contract had not taken into consideration the high cost areas and the inability of dentists, even those who wished to provide National Health Service treatment, to do so? I ask the noble Baroness to confirm that the Government will review the matter with the newly elected committees which may be more aware of the real problems.
Baroness Hooper: My Lords, we are aware of the problems indicated by my noble friend. Indeed she herself drew them very forcefully to my attention during the course of your Lordships' proceedings. We reacted by ensuring that there should be direct reimbursement of rates for all dentists. We are continuing discussions with the GDSC in terms of simplification of the administration and documentation relevant to the new contract. We are looking at other ways of improving its administration.
Lord Ennals: My Lords, does the Minister accept that, even from the figures that she has given us, one quarter of all dentists now deny NHS treatment, and that there are some parts of the country where it is

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virtually impossible for patients to obtain their dental health treatment on the National Health Service? Is that not depriving them of the choice about which we have been told so much by this Government? Is there not something more energetic and active that the Secretary of State can do to deal with a serious problem?
Baroness Hooper: My Lords, it is simply not true to say on the evidence that we have that it is impossible to find National Health Service treatment in any part of the country. I have already indicated that anyone who has difficulties must approach his or her local family health service authority.
Earl Russell: My Lords, the noble Baroness mentioned the difficulties in Kensington, Chelsea and Westminster. Is she aware that a number of the dentists who offer comprehensive health service treatment in those areas are in a great deal of doubt about how long they can afford to continue to do so? In reviewing the treatment of high cost areas in the dental contract, will she convey that the anxiety expressed by the noble Baroness, Lady Gardner of Parkes, is not confined to any one quarter of the House?
Baroness Hooper: My Lords, I emphasise that in terms of funding and remuneration of dentists, the new contract did not change the level of dentists' remuneration: it simply changed the way that they are paid. It is welcomed by many dentists up and down the country. It gives a stable, regular income from continuing care payments for adults and the capitation fees for children. The proportions of the dental pool allocated to adult and child care were not changed by the new contract.
Lord Carter: My Lords, does the Minister agree that it is not a problem for London alone? The survey referred to quoted no less than 15 areas. In Bolton 36 per cent. of dentists and in Surrey 52 per cent. of dentists refused to offer NHS treatment to all their patients. In the Minister's first Answer she used the phrase, "some pockets of difficulty". I am sure that that is an understatement of the problem.
Baroness Hooper: My Lords, no. In the department's own survey, which was a sample survey of the 90 family health service authorities throughout the country, it was quite clear that every authority area can provide National Health Service treatment. It is only in certain small areas that there are specific problems which we are now addressing.
Lord Molloy: My Lords, many examples have been cited from both sides of the House of people unable to get to a dentist. Does that not oppose the principle of preventive medicine? Children and grown-ups may not have something seriously wrong, but they believe it advisable to visit their dentist before they do.
Baroness Hooper: My Lords, the concept of the new contract which emphasises the need for continuing care was to reinforce that preventive
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approach. We believe that any problems that may have arisen over implementation of the new contract will be, and should be, ironed out shortly.
The Countess of Mar: My Lords, has not the combination of the new contract and the charges raised for dental inspections and so on previous to the implementation of the new contract reduced the numbers of dental patients? For example, I can now obtain an appointment with my dentist within a week whereas I used to have to wait six weeks. That seems an indication that he does not have so many patients and that therefore dentists' income is not so high as it was.
Baroness Hooper: My Lords, we have no indication that fewer people are being treated; on the contrary. The figure of about 25 million people who have already registered is over and above the expectations that had been suggested by the profession and estimated within the department.

British Nuclear Deterrent
3.25 p.m.
Lord Mayhewasked Her Majesty's Government:
Whether it remains their view that the British nuclear deterrent should be capable of penetrating the defences of Moscow.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, it has been the practice of successive governments not to discuss matters of targeting.
Lord Mayhew: My Lords, I do not believe that the facts are in dispute. Is the noble Earl aware that while it is still necessary to maintain Trident, it makes no sense to continue to spend large sums of money in order to be able, independently of our allies, to penetrate the defences of Moscow and flatten the city?
The Earl of Arran: My Lords, I really think that the noble Lord, Lord Mayhew, should understand very clearly that it is not so much a question of our targeting policy as the need always to ensure that our deterrent keeps pace with developments in technology in order to maintain our credibility. The whole point is that we must set our course for the long term. Weapons systems simply cannot be produced out of a hat if in later years we do not have them but wish that we did.
Lord Jenkins of Putney: My Lords, the Government have signed NATO documents under which they undertake to run down their nuclear arms in association with other NATO countries. Why are they increasing them so greatly at the present time?
The Earl of Arran: My Lords, it is true that the NATO stockpile will be run down by about 80 per cent., but certainly we are keeping pace. As I have said before, we are making quite sure that our deterrent nuclear capability is always there at the right time.
Lord Mellish: My Lords, the Government quite rightly are not saying what any targets will be. Is it not

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a fact that ownership of the deterrent has meant that we have had peace in this country for the past 40 or so years?
The Earl of Arran: My Lords, the noble Lord is absolutely right.
Lord Mayhew: My Lords, is the noble Earl aware that the whole point of the Labour Government re-equipping Polaris with Chevaline was in respect of what has been termed "the Moscow priority"; namely, to be able to penetrate the defences of Moscow if required without allies, and that policy has been continued by the Government? To deny that is quite unacceptable.
The Earl of Arran: My Lords, who knows where the next ABM defensive system may be required? There is one around Moscow certainly, but who knows, in this very dangerous world in which we live, where we may have to penetrate that particular system?
Lord Holme of Cheltenham: My Lords, while I accept that a nuclear component is necessary in an uncertain world in both the British and NATO armoury, is it not sensible for the Government to accept the principle of minimum nuclear deterrence? Does the Minister believe that the very considerable escalation of the strike power of Trident at the same time as the ABM and ground-to-air missile defences around Moscow are going down seems incompatible with the notion of minimum deterrence?
The Earl of Arran: My Lords, the whole point about Trident is that it still is a minimum deterrent.
Lord Boyd-Carpenter: My Lords, is my noble friend aware of the fact that this country will not forgive a government of any political colour which allow our defence system to be undermined?
The Earl of Arran: My Lords, yes, of course I agree with my noble friend. It is the defence of the realm, the defence of our country, that always keeps us in our seats and here today.
Lord Beloff: My Lords, does the Minister agree that to put down such a Question and to prolong the discussion of the possible bombardment of the capital of a country with which, at the moment at any rate, we are in friendly relations is no help to our diplomacy, whatever it may do for the self-esteem of those who wish to wave that particular wand?
The Earl of Arran: My Lords, my noble friend is quite right. As I said, we never discuss our targeting policy. But it is important that we are vigilant at all times across all parts of the world.
Lord Mackie of Benshie: My Lords, will the Minister concede that it might be more profitable to co-operate with France, our neighbour, instead of having a separate independent deterrent?
The Earl of Arran: No, my Lords, we have always said that we should deliver an independent system to NATO and that continues to be our policy.

Unemployment: Current Figures
3.30 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What is the total number of people unemployed at the latest convenient date.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, in December 1991 seasonally-adjusted unemployment in the United Kingdom was 2,546,000.
Lord Dormand of Easington: My Lords, is not that figure disgraceful by any standard? Is the Minister aware that long after this Government have ceased to exist they will be remembered in particular as being the Government of high unemployment? In view of yet another substantial increase in unemployment announced today, will the Minister confirm that during the past 12 months there has been an increase in unemployment of 800,000 and that according to an OECD figure 10.2 per cent. of the workforce in this country is unemployed? That is well above the average for the European Community of 8.9 per cent. As the Minister frequently tells the House that this country is doing so much better than the rest of the EC, would he care to comment on those figures?
Viscount Ullswater: My Lords, the rate of the increase in unemployment eased considerably during 1991. In the last three months of that year the increase was only one-third of that recorded in the first three months. However, more importantly the December rise in the stock of unfilled vacancies at jobcentres was the biggest since records began in January 1980. The number of new vacancies notified to jobcentres during December was the highest monthly total for seven months.
Lord Marlesford: My Lords, does my noble friend agree that while in a period of high unemployment there may be a case for increasing government borrowing on a temporary basis, as has been done, there is no case for increasing personal direct taxation? Has my noble friend noticed that there appear to be some slight indications that the British people might be a trifle reluctant to endorse a proposal to increase the maximum rate of personal effective tax from 40 per cent. to 59 per cent.?
Viscount Ullswater: My Lords, it comes as no surprise to me because, as we all remember, a Labour Government are a government of high taxation. That is no help in these circumstances, and neither is the suggestion of a national minimum wage. The only two countries in Europe which have a national minimum wage such as that proposed by the Labour Party are France and Spain. France has just published its highest recorded figures for unemployment. Spain has an unemployment record of 16.3 per cent., which is the highest of the European Community.
Lord Mason of Barnsley: My Lords, does the Minister recall that the Secretary of State for Employment said when releasing last month's unemployment figures:
"There are many encouraging signs that the recession is coming to an end"?
How does the Minister square that remark with the monthly figures announced today showing that another 80,000 are on the dole, that during the past 12 months 800,000 have been placed on the dole and that employment in manufacturing industry has fallen by 354,000 compared with 94,000 last year? Was that not double talk by the Secretary of State? Is there not still an industry and job crisis?
Viscount Ullswater: My Lords, I believe that the noble Lord considers that this country can operate in a vacuum, in isolation from the rest of Europe and from the rest of the world. As I have said previously, rising unemployment is not unique to the United Kingdom. In recent months it has risen in all European countries except the Netherlands. Today unemployment is higher than it was a year ago in every EFTA country and in every G7 country apart from Japan. Indeed, the latest United States jobless figures are the highest for five years. The noble Lord says, "Excuses, excuses". I have already indicated that the rate of increase has fallen considerably and that the number of vacancies is higher than it was seven months ago. I believe that indicates that the economy is beginning to surge again.
Lord Hailsham of Saint Marylebone: My Lords, does my noble friend agree that the repeated treatment of this serious problem in purely party political terms is beginning to pall upon the public?
Viscount Ullswater: My Lords, I agree with my noble and learned friend. I believe also that the Government have a wide range of assistance to help those people who unfortunately have lost their jobs.
Baroness Turner of Camden: My Lords, may I raise with the Minister a special problem based on the unemployment figures that have just been issued? They show 13.9 per cent. unemployment for Northern Ireland, the highest in the United Kingdom. I believe that is a general figure because in some troubled areas it is as high as 50 per cent. Is that not a large contributory factor to the problems that we now face and is there not a case for giving the matter special attention?
Viscount Ullswater: My Lords, yes, the problem with Northern Ireland has been with us for some time. I am sure that the noble Baroness realises that the rate of unemployment has risen by only 0.8 per cent. in a year and that we have been faced consistently with the higher unemployment figure in Northern Ireland. However, it contributes to our average percentage figure.
Earl Russell: My Lords, it is common ground that unemployment has a considerable cost to public funds. Will the Minister accept the estimate of the
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unemployment unit of a net cost to public funds, including lost revenue, of £14 billion per annum? If not, is he in a position to supply a better figure?
Viscount Ullswater: My Lords, I am not familiar with the figures that the noble Earl has given. However, it is important to ensure that the people who become unemployed have the best possible opportunity to seek work again. That is what the employment service and the TECs are endeavouring to do.
Lord Stallard: My Lords, will the Minister accept that this is the 21st consecutive month in which unemployment figures have increased? He glossed over that worrying fact. Will he also accept that the construction workers whom we discussed in our debate yesterday are not bored by the fact that we often mention the plight of that important industry, the construction industry? If the Minister reads yesterday's debate he will learn that adequate money and labour are available to start building again. The workers are certainly not bored by the prospect of work but they are bored by the prospect of continued unemployment. Will the Minister say how soon the Government will release some of the money in order that at least the construction workers can get back to work?
Viscount Ullswater: My Lords, in a time of recession which is obviously upon us just as important is the fact that there are almost 2.5 million more jobs than in 1983. The Government have taken firm action to defeat inflation and the number of stoppages is at its lowest level for 60 years.

Business
3.38 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Report stage of the Further and Higher Education Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment a Motion for resolution in the name of my noble friend Lord Mottistone will be taken.

Protection of Badgers Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to consolidate the Badgers Act 1973, the Badgers Act 1991 and the Badgers (Further Protection) Act 1991. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Business of the House: Debates, 22nd January
The Lord Privy Seal (Lord Waddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.

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Moved, That the debates on the Motions in the names of the Baroness Cumberlege and the Lord Laing of Dunphail set down for Wednesday 22nd January shall each be limited to 2½ hours.—(Lord Waddington.)
On Question, Motion agreed to.

House of Lords Offices: Select Committee Report
3.40 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the Second Report from the Select Committee be agreed to.
There is only one paragraph of the report to which I shall draw your Lordships' particular attention; it is paragraph 2, "Accommodation". We should congratulate the noble Lord the Leader of the House on his success in obtaining additional finance for this House in order to lease accommodation on the third floor of No. 7 Millbank. That could well be a considerable contribution to solving the many problems which we face in the field of accommodation. I beg to move.
Moved, That the Second Report from the Select Committee be agreed to. (HL Paper 25).—(The Chairman of Committees.)
Following is the report referred to:
1. BLACK ROD
The Queen has approved the appointment of Admiral Sir Richard Thomas as Gentleman Usher of the Black Rod and Serjeant-at-Arms in succession to Sir John Gingell from 13th January 1992.
The Committee has agreed to the appointment of Sir Richard Thomas as Agent to the Administration and Works Sub-Committee to carry out on its behalf control of accommodation and services in the House of Lords area of the Palace of Westminster.
The Committee wishes to record on the occasion of his retirement its gratitude to Sir John Gingell for the assistance which it has received from him during the seven years he has served as Agent to the former Administration Sub-Committee.
2. ACCOMMODATION
The Leader of the House informed the Committee that additional funds have been made available to the House of Lords to lease accommodation on the third floor of No. 7 Millbank, where the House of Commons is arranging to lease certain other floors.
3. REPORT FROM THE FINANCE AND STAFF SUB-COMMITTEE
(1) Works Services and HMSO Expenditure
The Memorandum of Understanding approved by the House in July (3rd report, Session 1990–91, HL Paper 69) has now been signed by the Speaker and the Chairman of Committees on behalf of the two Houses. The Memorandum deals with the funding of works and the terms of reference and employment of the Director of Works. It provides for the House of Lords to pay 40 per cent. of the cost of joint works and of the Director and his staff. A space audit of the Palace of Westminster has confirmed that a 40:60 split between the Houses is appropriate.
The Committee has endorsed a proposed overall structure for the staffing of the Directorate of Works.
The two Houses will assume responsibility for funding expenditure on works and printing, publishing and office equipment from 1st April 1992. Negotiations on supply and service agreements with the Department of the Environment and HMSO are in progress.
It is expected that a Bill will be introduced this Session to make provision for the two Houses to hold property and enter
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into contracts, by conferring the status of corporations sole on the Clerks of the two Houses, who would thus be able to act on behalf of their respective Houses.
(2) Financial Management
Initial proposals to introduce new financial monitoring and control arrangements in this House have been put forward in the light of the Ibbs Report to the House of Commons Commission (HC(1990–91)38). These involve decentralisation of the House of Lords Vote and delegated control of budgets, giving senior staff more responsibility for financial management. The Finance and Staff Sub-Committee has endorsed these proposals strongly. The Sub-Committee will be considering proposals for delegation of authority to the Clerk of the Parliaments in respect of certain categories of expenditure, thereby enabling the Sub-Committee and the Offices Committee to concentrate on policy issues rather than on the approval of items of expenditure which raise no novel issues.
The Offices Committee intends to keep the House informed of progress made and the part which Members of the House can play.
(3) Financial provision etc.
The Committee has agreed to the following recommendations from the Finance and Staff Sub-Committee—
(i) Works services and HMSO expenditure
Future arrangements for expenditure on works services and printing, publishing and office requirements.
(ii) Staff of the House

(a) Creation of a post of sandwich student and

(b) Extension for one year of a temporary post of Hansard word processor operator.

(iii) Parliamentary Broadcasting Unit
Provision for a 22 per cent. share of the salary and administrative costs of the Joint Supervisor of Parliamentary Broadcasting and his office.
(iv) Education Unit
Provision for a 22 per cent. share of the staff costs of the Education Unit of the House of Commons Library.
(v) Judicial fees
(a) Fees payable on judicial proceedings as follows—

£

Petition of Appeal

60

Notice of Appearance..

7

Waiver of Security for costs

15

Petition not referred to Appeal Committee
(including incidential petition to conjoin or consolidate)

30

Petition referred to Appeal Committee (including report thereon)

35

Joint Petition (from each party thereto)

15

Application to set down for hearing

320

Final Judgment

35

(b) that fees payable to Nautical Assessors should in future be the same as those payable in the Admiralty Court and the Court of Appeal.
(vi) Official Shorthand Writer
A revised scale of fees for the Shorthand Writer, subject to the continuing longer term review of the arrangements for shorthand writing in both Houses.
(vii) Hansard Reporting Staff
A revised scale of charges for the supply of an agency word processor operator.
(viii) Uniform allowances
An increase in the allowances paid to Clerks at the Table, the Gentleman Usher and the Yeoman Usher of the Black Rod and Doorkeepers for the purchase and maintenance of dress cloths.
(4) Appointments
The Committee took note of the following appointments by the Clerk of the Parliaments—Mr. D.L. Jones as Librarian from 1st August 1991.
Mr. P.G. Davis as Deputy Librarian from 1st August 1991.
Mr. D.J. Johnson as Clerk of the Records from 17th November 1991.
Mr. S.K. Ellison as Deputy Clerk of the Records from 17th November 1991.
Mr. D.A.W. Dunn as Staff Adviser from 1st November 1991.

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Mrs. M.B. Bloor as a Clerk in the Committee Office from 31st October 1991.
Mr. J. Grist as the Supervisor of Parliamentary Broadcasting, a joint appointment with the House of Commons.
On the retirement of Mr. H.S. Cobb CBE as Clerk of the Records the Committee expressed its warm appreciation of his long and valuable service.
(5) Revised scales of pay and allowances
The Committee confirmed the application of the following Civil Service memoranda to staff of the House of Lords—

(i) DEO letter dated 3 May 1991—Pay of Legal Officer.

(ii) DEO letter dated 17 May 1991—Pay of Clerks at AT and HEO(D) level.

(iii) CM/956—Pay of Administrative Staff below Grade 7 and automatic data processing allowances.

(iv) CM/960—Responsibility allowances.

(v) CM/965—Pay of staff linked to IPMS grades.

(vi) CM/967—Pay of Grades 4, 5, 6 and 7.

(vii) CM/968—Subsistence and meal allowances.

(viii) GM/463—Fees to Specialist Advisers.

(ix) IM91/2—Industrial staff pay.

(x) GC/375—Performance related bonus to staff employed under fixed termed appointments.

(6) Superannuation
The Committee was notified of the following awards made under the House of Lords Staff Pension Scheme—

(a) Revised pension and lump sum to Mrs. M. Jones, Cleaner, who retired on 20th April 1991;

(b) Pension and lump sum to Mr. R.H.V.C. Morgan, CBE, Librarian, who retired on 1st August 1991;

(c) Preserved pension and lump sum to Mrs. G.A. Morgan, Reporter, who resigned on 19th October 1989;

(d) Pension and lump sum to Mrs. K. Wills, Cleaner, who retired on 26th October 1991;

(e) Pension and lump sum to Mrs. J.A. Seager, Cleaner, who retired on 26th October 1991;

(f) Pension and lump sum to Mr. J.H. Davis, Senior Doorkeeper, who retired on 1st November 1991;

(g) Pension and lump sum to Mr. W.A. Titmarsh, Judical Doorkeeper, who retired on 3rd November 1991;

(h) Pension and lump sum to Mr. P. Reardon, Nightwatchman, who retired on 3rd November 1991;

(i) Pension and lump sum to Mr. H.S. Cobb, CBE, Clerk of the Records, who retired on 17th November 1991.

4. VEHICLE ACCESS AND NEW PASS OFFICE
The Committee has approved a recommendation from the Finance and Staff and Administration and Works Sub-Committees that provision be made within the parliamentary works programme for design studies and consultations with regulatory and other interested bodies on improved traffic access into the Palace of Westminster via Black Rod's Garden and for a new security gate house there.
The Committee has also authorised an investigation into ways of improving parking facilities for the House of Lords.
5. CHAIRMAN'S ADVISORY PANEL ON WORKS OF ART
The Committee has agreed that the following Lords should form the Chairman's Advisory Panel on Works of Art—

M. Cholmondeley V. Hood

L. Fanshawe of Richmond

L. Crathorne L. Morgan

B. Trumpington

B. David L. Palumbo

L. Gibson (Chairman)

B. Ewart-Biggs L. Renton

Lord Bruce of Donington: My Lords, I raise the question of paragraph 3(2) of the report which refers to financial management. The last sentence of that paragraph states:
"The Sub-Committee will be considering proposals for delegation of authority to the Clerk of the Parliaments in respect of certain categories of expenditure, thereby enabling the Sub-Committee and the Offices Committee to concentrate on policy issues rather than on the approval of items of expenditure which raise no novel issues".
I am sure that the House would be glad to know just what are the certain categories of expenditure which the committee has in mind.
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At present I believe that certain proposals are being considered about the work of the Select Committees of your Lordships' House, particularly the Select Committees dealing with EC affairs and various other Select Committees. I should like to be assured that if expenditure on those committees is included in the term "certain categories", your Lordships' House will have the opportunity to consider the report which, I understand, is now being prepared as a result of questionnaires that have been sent out to Members of your Lordships' House concerning the functions of the Select Committees to which I have referred.
The Chairman of Committees: My Lords, most of those matters will go to the Finance and Staff Sub-Committee of the Offices Committee. It is only the Offices Committee itself which we hope will be able to deal with matters of major principle. All matters of finance will be considered in detail by the Finance and Staff Sub-Committee.
Lord Bruce of Donington: My Lords, I am greatly obliged.
Lord Cocks of Hartcliffe: My Lords, if some of your Lordships are to be accommodated at 7 Millbank, how much time does the committee think should be allowed for your Lordships to get into the Division Lobbies?
The Chairman of Committees: My Lords, I am afraid that that matter still has to be considered.
On Question, Motion agreed to.

Broadcasting: Select Committee
3.42 p.m.
The Chairman of Committees: My Lords, I beg to move the Second Motion standing in my name on the Order Paper.
Moved, That the Earl of Strathmore and Kinghorne be appointed to the Select Committee on Broadcasting in the place of the Viscount Davidson.—(The Chairman of Committees.)
On Question, Motion agreed to.

Further and Higher Education Bill [H.L.]
3.43 p.m.
The Paymaster General (Lord Belstead): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Belstead.)
On Question, Motion agreed to.
Clause 12 [Provision of further education in maintained schools]:
The Lord Bishop of Guildford: moved Amendment No. 77:
Page 10, leave out lines 33 to 42.
The right reverend Prelate said: My Lords, in moving this amendment we return to a point which I raised in Committee. It relates to what is known popularly as family education. The Bill as drafted

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excludes the possibility of parents and children being taught together. Indeed, in proposing the amendment in Committee I cited the case of children with low literary skills of parents who perhaps also have low literary skills. If taught together their motivation might mutually support one another. However, that is excluded by the Bill.
When the Minister responded to me, he responded graciously as always. For one moment I thought that he was giving me a skilful tour of how to get round the provisions of the Bill. I recognise that it was not quite that. In fact the Minister was showing how narrow and precise is the exclusion. I fully recognise that.
Nevertheless, it seems to me that there is a case for making it at least possible for children and parents to be taught together. It seems needless to exclude it. Some useful experimentation has taken place in that respect. I have no knowledge of there being any abuse of that. The Minister may have a different view, but I know of no abuse. If there is no abuse and it is found to be of benefit to children and parents, it seems to me unnecessary specifically to exclude it from the Bill rather than leaving the matter free, at least for the time being, to enable further work to be carried out. I beg to move.
The Chairman of Committees: My Lords, if this amendment is agreed to, I cannot call Amendment No. 78.
Baroness David: My Lords, I support what the right reverend Prelate said. Perhaps the Minister does not realise what a strong prohibition the Bill contains. Looking at Clause 12(3), Section 16A(2) states:
"It shall be the duty of the governing body of any such school which provides such education to secure in the case of a primary school, that such education is not provided at any time in a room where pupils are at that time being taught; and in the case of a secondary school, that such education is not provided at any time in a room where pupils are at that time being taught unless the majority of the pupils are over compulsory school age".
I agree with the right reverend Prelate. I do not believe that there has been any abuse of that. Adults do not join classes very often but when they do, it is extremely beneficial. It would be a great shame if because of lack of understanding, the amendment were not allowed.
At Committee stage I read a letter from somebody who was very much involved with this work. I sent her a copy of Hansard and I received a response. I should like to read some of what she said. She thought it would be helpful to list a few of the provisions so that they could be considered in the light of the Bill. The letter stated:
"Many Family Workshops take place in Primary and Secondary schools where parents and school age children learn together. The subjects offered range from Family French to Computer Studies. These workshops can take place in school hours, after school and in school holidays".
Of course, we are talking about those taking place in school hours. She continues:
"They can consist of "one-off" Family Days or they can extend over a much longer period, e.g. one afternoon per week over a number of years.
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They are often taught jointly by school teachers and adult education tutors or by parents themselves and can help to break down barriers between professionals and parents and give an opportunity to share a wide range of skills …
A number of schools welcome adults in school classes where there are vacant places and adequate resources. This is always done with the full co-operation of the class teacher and in most cases has proved most successful. School age children also take part in classes run by Adult Education on school premises where it is felt that the child would benefit from being in an adult environment or where there are resources or skills on offer that the school may be unable to provide. e.g. craft facilities".
Those are examples of what goes on. It takes place infrequently but can be extremely helpful both to the children and to the parents, perhaps in areas of deprivation. I hope that the Minister, who seemed quite sympathetic to the whole idea in Committee, will this time be prepared to accept the amendment.
Lord Renton: My Lords, I find that this subsection of Clause 12 is very strangely worded and, indeed, obscurely worded in a way. If we look at subsection (2), which is the one to which the right reverend Prelate referred, we find the words, "any such school". In order to find what kind of school that means, we have to turn back to subsection (1) which refers to:
"Any county, voluntary or maintained special school".
I assume—and I stand open to correction—that the expression "special school" governs the words "county, voluntary or maintained", and there are such special schools. We have to assume that we are here dealing only with special schools. If that is not so, rewording is necessary. That is my first difficulty. My second difficulty is that, in the new subsection (2) (a) of the new Section 16A to be added to the Education (No. 2) Act 1986, we find these words,
"such education is not provided at any time in a room where pupils are at that time being taught".
We find that reference in both subsection (2)(a) and (2)(b). It does not specify what pupils.
The right reverend Prelate may have rightly assumed, for all that one knows, but it is not clear from the wording, that the pupils referred to are those of school age and that the people with whom they might be educated are those referred to in subsection (1) of the new Section 16A; namely, those who are to receive part-time education and who are,
"over compulsory school age; or full-time education … who have attained the age of nineteen years".
The right reverend Prelate has referred to the possibility of children and parents being educated together. I shall come to that matter in a moment, but I am not certain whether that is desirable. Parents are not referred to at all in this respect. If it is the intention of the Government that parents should be referred to, then it is better for that to be made clear and stated.
Let us assume that adults are to be educated with children. The right reverend Prelate has said something with which some noble Lords may agree, but I have doubts about it and for this reason. The interests of children must always be paramount when we are legislating as regards education. In some cases it might be to the advantage of children and parents for them to be educated together. However, it would be a very rare situation.
It might be that in some cases such an arrangement would be advantageous to children. If adults other

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than parents are to be educated with children I doubt whether that could be to the advantage of children. It might embarrass them; it might cause problems for the teacher because necessarily the teacher would have to communicate with adults and children in slightly different ways. If parents and children are all to be in the same class, is it really going to be in the interests of children for adults to be present? This is a very difficult subsection. I hope to hear from one of my noble friends on the Front Bench that, in view of what has been said, they will reconsider the whole subsection. It is full of obscurity in drafting and obscurity of intention and yet could have rather strange consequences.
Lord Campbell of Alloway: My Lords, leaving aside for one moment the question of construction with which my noble friend Lord Renton has dealt, perhaps we may consider briefly the point of principle at stake. I accept that the main principle is the interests of children, though in this context one must not forget the legitimate wishes of parents. I agree, not only for the reasons that were given by my noble friend Lord Renton, but for other reasons, too, which I shall not take up your Lordships' time to express.
The firm statement of principle in this part of the Bill is neither necessary nor apt. It seeks to establish a principle that is breached in practice and apparently to no harmful effect—some might say to beneficial effect. This whole passage is adrift. What are we to do about it? I suggest that that depends on the attitude of the Government. If my noble friend the Minister is prepared to accept that this passage is not apt and is willing to take it back, take on board what has been said in your Lordships' House and reconsider the position, then there is no object in taking this passage out of the Bill. I totally agree that in a sense it is incomprehensible, but let the Government have a chance to make it right.
Lord Addington: My Lords, perhaps I may briefly pass some comment on this amendment. The idea of using the time for educating children also in a supplementary manner for educating adults is not one on which we should turn our backs. It is a very sensible idea. There may be considerable benefit to children if they have parents, or the friends of parents, with them in the classroom. It will enhance the teacher's control because the teacher will be able to see that the parents, who have considerably greater control over a child than any teacher ever will (or should have) are seen to be teaching and learning as well. It can only enhance the position of the teacher and also the respect which children have for their teacher.
As regards the drafting of the Bill, I did not understand it either, but that is nothing unusual. I have always found such material rather difficult to follow. However, this matter was particularly perplexing. I would appreciate some clarification on the point.
Lord Renfrew of Kaimsthorn: My Lords, what we have heard from noble Lords in general must surely be correct. As the Bill stands—even if we are not too
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perplexed by the difficulties which the noble Lord, Lord Renton, has raised and which I certainly could not solve; and even if we stand aside from those difficulties for a moment—to have this blanket embargo which the Bill proposes does not make sense. As we have heard, there are clearly cases where children and adults are appropriately educated together. In certain cases parents of primary school children are taught with those children and no doubt there are many other cases where this is successful in practice. With this Bill it would be absurd to abolish what is current good practice in schools.
At the same time, the amendment seems a little too sweeping. With all deference to what we have heard, there is a general principle in education that, other things being equal, one educates by age segments and key stages. One does not want simply to abolish that principle and return to the mediaeval schoolroom where the entire age range is educated in a single classroom with a single teacher. However, that is not the proposal. What is needed here is something which is more carefully considered than this amendment and certainly more carefully worded. Therefore, I echo what noble Lords have said. This is a case where the Government will have to think again. The Bill as it stands is inadequate, but I am not sure that the amendment as proposed is going to solve the problem.
4 p.m.
Lord Peyton of Yeovil: My Lords, as mention has been made of the wording of the Bill and the drafting, perhaps I may take the opportunity of making what is a forlorn but routine protest regarding the drafting of the clause. It seeks to amend Section 9 of the 1944 Act, Section 13 of the Education Act 1980, Part III of the Education (No. 2) Act 1986 and for good measure the Education Reform Act 1988. According to my calculations that means that any member of the education world who has the quite absurd ambition of trying to understand what Parliament intended and what Parliament has done, needs to have a whole mass of volumes in front of him or her.
I find the deaf ears upon which these pleas fall frustrating, but it will not stop me repeating them. As a legislative habit it is shabby, sloppy and misleading. I hope that the Government will learn better habits before long.
Lord Cavendish of Furness: My Lords, this amendment removes the requirement on the governors of schools to secure that, where they provide further education to post-16 year-olds, such persons may only sit in a classroom alongside registered pupils of a secondary school if the majority of pupils in the room are over compulsory school age and that, in primary schools, they may not share a room at all with registered pupils of the school.
I thank noble Lords for their constructive contributions to this subject, which is difficult. Perhaps I may first deal with the comments of my noble friend Lord Peyton. I shall certainly not be deaf to what he says and will pass on, adding to the voices

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no doubt passed on before, the comments regarding this kind of legislation. We would like our legislation to be more easily understood.
I shall begin by explaining the underlying reasons for the requirement in the Bill. Our aim is to protect pupils below compulsory school age from possible risk. I hope that I do not need to spell out today what those risks are. At one end of the spectrum there is the risk of distraction and at the other end the risk of child abuse in all its forms. I hope that noble Lords will agree that our aims in the matter are entirely laudable.
Some noble Lords said that they were unaware that the system was being abused—using that word in a different sense. However, the intentions of the provisions in the Bill are to avoid that happening. Perhaps I may explain also that the clause concerns the provision of further education by the governors of a school. It has no effect on activities which are not further education. There is nothing in the clause to prevent adults and children from coming together for informal activities which, with regard to the adults, do not constitute further education.
I heard what the right reverend Prelate said in regard to family or parent education, and support those activities. However, from what I have heard I do not believe that we are talking about the provision of further education in the case of these classes and there is no reason therefore why those activities should not continue.
Lord Peston: My Lords, perhaps I may interrupt the noble Lord to make sure that I understand correctly what he is saying. Following the noble Lord, Lord Peyton, I assumed that we were discussing the wording in the Bill as it is before us. There is a straightforward question which I hoped the Minister intended to address; namely, whether parents and children—in the case of parents probably for remedial purposes—can be taught reading at the same time.
I read the Bill as prohibiting that because teaching parents remedial reading is further education. I understand why the Government thought that they should get into this—though I think it is wrong—but can the Minister say categorically, since I read the Bill differently, that parents and children can be taught reading together in the same room at the same time in school hours? I think that the words of the Bill say that they cannot. That is why the intervention of the noble Lord, Lord Peyton, is important. We need to know exactly what the Bill says rather than what the Government hope will happen. Will the Minister answer that point?
Lord Cavendish of Furness: My Lords, I have not got far into my speech, if I may say so, and nor do those comments have much to do with what my noble friend said, which concerned the general drafting of Bills.
The clause deals with the provision of further education by the governors of a school and what can and cannot be done under the definition of "further education". I have also heard—not this afternoon but generally—about the desirability of parents of children from ethnic minorities among others being
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able to come to the school with their children, to assist them, for example, with interpretation. Again, there is nothing in the clause to prevent that continuing, nor does the clause have any effect on provision being made by others—for example, by a further education college or adult education institute—on school premises.
In direct answer to the noble Lord, Lord Peston, the provision will prohibit the teaching of reading as further education in schools. I have already given the reason for that; namely, the protection of the children. That is why it will not be allowed.
I do not believe that there are grounds for the anxieties expressed regarding the position of family or parent education or the ability of parents to come into classes to help their children or the teacher. However, I must agree that the clause as drafted would prevent post-16 year-olds from joining GCSE classes in schools unless the majority of the pupils were over compulsory school age. I explained the background to the restrictions imposed by the clause, which were included for the reasons I explained and were designed with the protection of the child in mind. I accept that it would not make sense to prevent post-16s from joining GCSE or other public examination classes in schools. That is already happening and appears to be generally regarded as desirable.
My noble friend Lord Renton suggests that the Bill refers only to special schools. I am sorry that he, with his experience finds it obscure. In fact Clause 12(3) refers to the governing bodies of county schools, voluntary schools and maintained schools; that is, special schools maintained by local education authorities.
Since it has been said repeatedly that this part of the Bill is thought to be obscure and for the reasons I have given, I am pleased to assure the House that we will consider the clause further with a view to bringing forward an amendment to enable, among other things, post-16 year-olds to join classes in schools for courses leading to public examinations. As a number of noble Lords raised the question of obscurity in the Bill, we will at the same time look at that.
Baroness Blackstone: My Lords, before the Minister sits down perhaps I can take up a couple of other points with him. He mentioned that there would be nothing to stop parents participating in a class with either primary or secondary school pupils where the object was to help their children. The concept of the community school involves parents taking part in the activities of the school with the aim of helping themselves and not just directly helping their children. Am I right in assuming that the clause would basically undermine the concept of the community school in that respect? For example, will it prevent parents joining in a GCSE class in history, geography or computer science? As I understand it, that would be the result of the clause. Perhaps the Minister will clarify that for us.
The other question is whether the Minister can give an illustration of how child abuse could take place as a result of parents or other adults participating in a class with teachers present. It seems to be a rather absurd and far-fetched example. I am grateful that the

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Minister agreed that the Government will come back with something better than what is before us. However, perhaps he will answer my question.
Lord Cavendish of Furness: My Lords, the noble Baroness knows more about education than I do. However, it has been long accepted that certain categories of ages are vulnerable—and we are not talking about the child and parent here but rather of young adults with very much younger people. If she cannot imagine the risks attached to that, then she is not using much imagination. Bullying is an example that might spring to mind. If she thinks that that can he stopped by a teacher being present, I would have thought that everyone's experience would demonstrate that that is not so. In spite of her first question, I do not think that it would undermine the spirit behind the community school. I have given the House an undertaking that I shall look at this part of the Bill again. I am very pleased to do so. I have listened very carefully to what has been said, and I hope that in those circumstances the right reverend Prelate might feel able to withdraw his amendment.
Baroness Phillips: My Lords, before the Minister deals finally with this matter, perhaps he would explain something. I was one of the people who taught in a village school during the war. We taught all ages. Age was not the important factor that people seem to make it now. Some children at seven are not the same as other children at seven. Some children at 11 are not the same as other children at 11. It was quite usual to have all ages in a school. That is now very heavily criticised.
It seems to me that the Minister is insulting people when he suggests that someone who is interested enough to go along to a class would then abuse the children. That must not go unchallenged on the record because it is a rather frightening concept. Most people who take the trouble to attend classes for further education at the same time as 16 and 17 year-olds must be people who are totally dedicated to the idea of being educated to the same level as their children. It would be wrong to leave this point.
Earl Russell: My Lords, is the noble Baroness asking a question before the Minister sits down? Because if not, I am afraid that at Report stage she is out of order.
Baroness Phillips: My Lords, I do not worry about that. I have expressed my opinion.
Lord Strabolgi: My Lords, I do not think that the noble Earl is right. My noble friend is not out of order. What is out of order is to speak more than once, which the noble Earl has done.
The Lord Bishop of Guildford: My Lords, perhaps it would help if I spoke at this particular moment. I am very grateful to the noble Lord, Lord Cavendish, for agreeing to reconsider this matter. Support has been demonstrated from all sides of the House—and I have had support from quarters that I had not expected. I am particularly grateful to the noble Lord, Lord Renton, for pointing out considerable difficulties in the clause as drafted. In the context of education, I
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certainly wish for priority to be given to the children. But the Government have gone on record as saying how they want parents to take increasing responsibility for their children. When parents do so by attending school with their children in order to increase motivation, it seems absurd then to exclude what is happening.
I do not think we need to discuss the matter further. We have had an undertaking from the Government for which I am extremely grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Davidmoved Amendment No. 78:
Page 10, leave out lines 35 to 42 and insert:
("(a) in the case of a primary school that no pupil shall be taught for more than one tenth of any school week in a room where such education is at that time being provided;
(b) in the case of a secondary school that no pupil shall be taught for more than one fifth of any school week in a room where such education is at that time being provided unless the majority of pupils present are over compulsory school age; and
(c) that the provision of such education in a room where at that time pupils are being taught is without detriment to the education and welfare of the pupils.").
The noble Baroness said: My Lords, in moving Amendment No. 78, I shall speak also to Amendment No. 79. These two amendments deal entirely with the same subject; it was just a different method of dealing with the problem. As the Minister has said that he would look again at Amendment No. 77, if, when considering that, he will also consider this method of changing the Bill, I shall be very happy. I beg to move.
Lord Cavendish of Furness: My Lords, I am grateful to the noble Baroness for abbreviating her speech. It is true that the amendments concern exactly the same matters. I shall be pleased to undertake to give them exactly the same treatment.
Baroness David: My Lords, with that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Provision of further education in grant-maintained schools]:
[Amendment No. 79 not moved.]
4.15 p.m.
Clause 15 [Initial incorporation of existing institutions]:
The Lord Bishop of Guildfordmoved Amendment No. 80:
Page 13, line 31, leave out (", controlled school").
The right reverend Prelate said: My Lords, in moving Amendment No. 80, I shall speak also to Amendments Nos. 81, 87–90, 100, 101, 105, 106. I return to a matter which I raised at Committee stage. Since then, I have been able to discuss the matter with the Minister, and also our respective officials have met. However, I am sorry to say that I am still not satisfied. Although this point is in large measure technical, there are some significant consequences. For that reason, I feel I must return to the matter and attempt to explain the position to your Lordships.

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The Bill provides for voluntary-aided schools to come into the further education sector by designation under Clause 28, but for all other voluntary schools, or former voluntary schools, by incorporation under Clause 15. However, what distinguishes voluntary schools is not the cash provided by a voluntary body, but the trust deeds. It may be easier to get at the point by taking an example. Let us suppose that there is a controlled school—a voluntary school—owned by the Church, but nonetheless a Church-controlled school. We do have to remember when we use that phrase that the word "control" does not mean controlled by the Church but controlled by the state, though in the ownership of the Church. Let us suppose there is a Church controlled school which, by this Bill as it is drafted, becomes a body corporate. Supposing that subsequently the Church decides that it wishes to invest money in this school, let us say in order to make a special development and to build a chapel because of its voluntary and Church status.
This will become precarious and probably unacceptable under the Bill as drafted, because there will be lack of clarity about whether the new building belongs to the trustees as such under the trust deed or belongs to the body corporate as a secular body. Because of the risk of confusion I think the net result will be that Church money will not be able to become available except under considerable risk. It is for these reasons that my own technical advisers say that the present system of dealing with voluntary schools does not meet the requirements that I think both the Government and I have in mind.
The Minister may reply that what is proposed here is not in substance different from what already obtains under the 1988 Act whereby if a controlled school becomes grant-maintained, then it has become a body corporate, and under that mechanism we have exactly what is proposed here. That is true. But under the 1988 Act, where such a thing happens it is automatic under that Act that there shall be a majority of foundation governors, so that both the trustees and those who are responsible for the body corporate are in majority. In that way, there is not the same confusion as to who is owning what for which purpose.
So far I do not think that the Government have given any reason why they want in this instance to act out of line with what they agreed in 1988. When writing to me, the Minister referred to his officials meeting with our board of education officials and he said that the Church officials agreed that there is no legal impediment to the Bill's proposals. That is true. We recognise that there is no legal impediment. My understanding is also that the officials of the Department of Education and Science agreed that there was no legal reason why we should not proceed by what I am proposing. Therefore I do not think that there is a clear cut legal argument either way. I ask the Government to look again at this matter. Why introduce a pattern different from that which was worked out in the 1988 Act? Why introduce legal and
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administrative complexity? Why put at risk some future co-operation between voluntary bodies and the state authorities?
I hope that even at this stage, in spite of the discussions that have already taken place—or perhaps because of them—the Minister will agree that this matter should be looked at again and we should reach amicable agreement if possible outside the Chamber. I hope that the Government will reconsider the matter. I beg to move.
The Duke of Norfolk: My Lords, I support in the simplest terms the right reverend Prelate. Under the 1988 Act the former aided sixth form colleges were allowed to have their voluntary character preserved. I should like to see preserved the voluntary character of all existing voluntary or former voluntary institutions.
Lord Belstead: My Lords, the overall objective of these amendments is, as the right reverend Prelate clearly explained, to place all voluntary sixth form colleges, whether aided or controlled, and any future special agreement sixth form colleges or 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 as eligible to receive funds under Clause 28.
We went over this ground in Committee and I have met the right reverend Prelate to discuss this and other matters affecting the Churches. I have listened very carefully again this afternoon to the right reverend Prelate's arguments for a single route to the new sector for all voluntary schools on the grounds that this would be neater and simpler. I have to say that we, on the other hand, remain committed to a broadly coherent institutional structure in the new sector and wish only in exceptional circumstances to depart from the principle that further education colleges will be conducted by further education corporations. We see no reason to treat voluntary controlled sixth form colleges differently from county sixth form colleges, subject of course to safeguards with respect to the trust deed, to ownership of property and to the preservation of the existing character of the school.
I listened carefully to the right reverend Prelate's example. He said that if the Church of England wished to invest money in a voluntary controlled school which became, as the Government would wish, a body corporate under the Bill there would be a lack of clarity as to whom the new building would belong. The right reverend Prelate also said that the position of the voluntary controlled sixth form colleges is not, as it were, all that far from the position under the Education Reform Act 1988 where the voluntary controlled schools became grant maintained except that the voluntary controlled schools that went into the grant-maintained sector had a majority of foundation governors. When we come to a subsequent amendment—I apologise for the fact that I cannot remember which one it is—I shall be in a position to give an assurance to the right reverend Prelate that if application is made by denominational schools, or indeed other voluntary controlled schools, for a majority of foundation governors, such application will be looked at sympathetically.

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The reason why I do not think I shall be able to go further and write something on the face of the Bill is that in talking about voluntary controlled schools we are not talking entirely about denominational schools, as the right reverend Prelate will be the first to remind me. Some of them might not wish to squeeze out other members of the governing body by increasing the number of foundation governors. I shall be in a position later this afternoon, when we are talking about the number of foundation governors in voluntary controlled schools, to say that an application for increases in numbers in order to give a majority in voluntary controlled schools will be looked at very sympathetically by my right honourable friend.
I shall say no more on that except to express a certain degree of sadness that we did not reach agreement outside the Chamber before we came to the Report stage. In the few remarks I have made in answer to the right reverend Prelate I have laid out the desire to stick to incorporation so far as concerns the voluntary controlled schools. As noble Lords who have taken an interest in the Bill will be very well aware, in recognition of their unique position under the state system we have made an exception in the case of existing voluntary aided sixth form colleges, which will be designated under Clause 28 as eligible to receive funds from the further education funding councils. We expected the Churches to welcome that. Indeed the right reverend Prelate welcomed it at previous stages of the Bill. We are not convinced that we should depart further from the principle of incorporation so far as concerns the treatment of voluntary controlled sixth form colleges or any special agreement schools which might become eligible for the new sector.
Having said that, I shall accede to what the right reverend Prelate has said and look once again very closely at this point with the Department of Education and Science in order to see whether investment in a capital project might be put at risk and whether there are any other angles that we have not thought of. I knew that the right reverend Prelate felt that it would be neater and simpler to go for designation but I had thought we had reached agreement on the technical watertightness of the matter. I am sad that we have not. In that context, having laid out what the Government believe is the right way of going about it, which is incorporation for the voluntary controlled sector and not designation, nonetheless I am happy to look at this once more.
The Lord Bishop of Guildford: My Lords, I am most grateful to the Minister for that generous and, if I may say so, gracious response. For my part, I am sorry that we have not yet reached agreement but I hope that we can pursue the matter. I am reassured by his undertaking not just to look again at this point but as regards favourable consideration of any application for a majority of foundation governors in a controlled school. We shall deal with that matter when we reach it.
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I am grateful for the information that all the noble Lord's speeches begin with that admirable phrase which refers to my speeches. On that happy note, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 81 not moved.]
Baroness Davidmoved Amendment No. 82:
Page 13, line 32, at end insert (", and
(c) each consortium of educational providers which appears to him to fall within subsection (2) below.").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 83, 84 and 85. In respect of Amendment No. 85, I tried to have deleted the words "in advance of the appointed day" but, not surprisingly, the Public Bill Office had a great deal to do and missed deleting those words. That may make no difference to the Minister's reply but I thought I should clear up that point before moving on.
The purpose of the amendments is to extend the FEFC sector to include major institutions/providers of adult education which are at present excluded form direct membership of the FEFC sector by virtue of having no full-time students. The Bill as it stands excludes from incorporation in the new FE sector institutions without full-time students no matter how high a proportion of their part-time students are studying Schedule 2 courses, which are the Government's priority. Preserving a distinction by mode of study in the definition of a college is actually more exclusive of adult education colleges and institutes than was the 1988 Act. The present Bill discriminates between full-time and part-time learners in a way which is unnecessary.
The Government increasingly recognise the serious and vital contribution made by adult education services, colleges and institutions. The inclusion of all major bodies providing substantial elements of Schedule 2 work can be said, properly and publicly, to acknowledge that fact. Increasing numbers of people will be studying part time, even for clearly and strictly vocational reasons. The bias in the Bill towards full-time study is outmoded and unnecessary.
The Government argue that the major adult education colleges will be protected. But as it stands that protection will depend upon the good will and enlightened attitude of new bodies—the FEFCs. Given the extent of parliamentary concern on the issue, is it not safer to deal with it on the Floor of the House?
The amendment has been reworded. I hope that in that way we have got away from the difficulties to which the Minister referred in Committee. I should like to point out that a significant proportion of LEAs with freestanding adult services are already in a position to group them into consortia of the kind envisaged.
Incorporation in the new FEFC sector has been sought by the largest adult education colleges and services on the grounds that they are just as large, or larger in many cases, and certainly no less serious educational institutions than the FE colleges. The amendment would secure that aim. However, it would mean severing their links with the local education

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authorities which have supported them in the past. The purpose of the addition to the last part of Amendment No. 85 is to allow the governors of the college to decide in the interests of the students whether it is necessary to take that step. It would give them the right to incorporation and parallels the suggested amendment to Clause 28 on designation. I beg to move.
4.30 p.m.
Viscount Combermere: My Lords, I fully support the amendment as it will allow major providers of adult education to make their bids direct to the FEFCs. Underlying the amendment lies the concern that major providers of adult education which are outside the FE colleges will have to apply for funds for Schedule 2 work through an FE college. That raises the same objection which was put forward in Committee. If the FE colleges largely cater for 16 to 19 year-olds, and indeed may not be at all familiar with the special needs of adult education, how can they decide if the work at the AE colleges is to be properly addressed?
In addition, it is absolutely vital that various progression routes involving access to higher education be guaranteed. If the amendment is rejected, there will be no such guarantee at least so far as concerns one progression route. I should like to give the House an illustration. An adult education college may offer basic French at levels 1, 2 and 3 to GCE level. That then becomes a springboard for students to go on to higher education. However, under the terms of the Bill the adult education college would have to apply for funds through its neighbouring FE college which would act as an intermediary and would in turn pass on the request for funds to the FEFC. If the FE college rejects the request for any reason, then one route of access for an AE student to higher education would not be available. The students in question may indeed then decide to go to a neighbouring FE college, but not all mature students would wish to do so. In fact, the great majority of them would probably not want to follow that particular route for perhaps a variety of reasons.
In any case, in more general terms, how will the FE colleges be able to assess the level of demand at adult education colleges? Their expertise is in the provision for 16 to 19 year-olds. Further, if unamended, the Bill could well introduce an element of confrontation between FE and AE colleges. For example, the FE college may reject a bid by an AE centre for any number of reasons, including lack of funds. I accept the comment made by the noble Lord, Lord Belstead, that the Secretary of State would come down like a ton of bricks if subjectivity enters into its rejection. However, that seems to me rather like using a sledgehammer to crack a nut. But if the rejection is due to lack of funds, the AE college would go to the local education authority; but the LEA may well reply that it is ratecapped and therefore has no funds for adult education in any event.
Therefore, what would happen is that an important progression route for adult education students from basic to higher education would be blocked; that is,
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unless the LEA received earmarked funds. Through damaging one progression route, the total provision for higher education itself could be adversely affected. That would be the very thing, as I understand it, that the Government do not want to happen. There are large numbers of adults in higher education. The question needs to be asked: how did they get there? In supporting the amendment I do not believe, as was suggested in Committee, that I am overstating the case. Amendments to Clauses 15 and 18 are unanimously supported by AE colleges and in my view they are crucial for the health of adult education. Moreover, I do not know of anyone in adult education who is against them.
Lord Renton: My Lords, before the noble Viscount sits down, perhaps he could explain an expression which appears in Amendment No. 82. I refer to the phrase "consortium of educational providers". I cannot find reference to it in any previous legislation, and there is no definition of it in the Bill. I wonder whether the noble Viscount can enlighten us as to what it means and what it includes.
Viscount Combermere: My Lords, as I understand it, so far as concerns Clause 15, it applies to a major single adult education college which uses other buildings for a variety of purposes, including courses which it might like to lay on. I believe that the word "consortium" applies more to Clause 28. It refers to a variety of smaller adult education centres within one major county—for example, Essex or Northumbria—which would come together in order to present one bid, as in this case and as the Bill stands, direct to the FE college. It would also apply to the 28 short-term adult residential colleges which would come together as a consortium to make one bid. That is my understanding of the amendment.
Lord Addington: My Lords, I should just like to say briefly that we on these Benches support the thrust and aim of the amendment. We hope that the Government will be able to look upon it favourably.
Lord Belstead: My Lords, the noble Baroness, Lady David, put forward a powerful case for the special claims of the various different institutions, including the consortia of colleges to be included in the process of incorporation under the Bill. Although this is by no means the first time that we have discussed the matter both in previous stages of the Bill and on Report, the amendment is nonetheless important. If your Lordships will forgive me, I shall for a few moments endeavour to go through the points made by the noble Baroness and the noble Viscount, Lord Combermere.
First, perhaps I may remind your Lordships that under Clause 15 the criteria for automatic transfer to the further education sector will work by the Secretary of State making an order specifying for transfer colleges 15 per cent. of whose students attend on a full-time, sandwich, day or block release basis. We are confident that a good proportion of students enrolled at all such colleges will be following courses of the kinds for which the funding councils will be responsible. We have not introduced that threshold

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arbitrarily; we have done so because we believe that it is the best way we can make the process work. I say that because there is a purely technical issue involved.
The Bill's present provisions will allow the Secretary of State to decide which institutions are eligible for transfer on the basis of publicly available and well-validated information. That information may be obtained from the annual statistical returns such colleges make to the Further Education Statistical Record. Other institutions do not make returns to the FESR; nor is it possible to establish on the basis of the FESR as it stands precisely how much of a college's provision falls within Schedule 2. Returns have not been classified on that basis. Therefore, we must use the statistical information that we actually have. We believe that the 15 per cent. threshold that has been chosen is the one that would not exclude colleges which should be in and would not include colleges which, arguably, should not be in.
Secondly, Clause 16 already allows other institutions which do not meet the automatic criteria to be included in the sector. In other words, Clause 16 provides a safeguard. If an institution is not covered by the criteria for transfer, and if it concludes that its interests would be best served by joining the new sector, it will be possible for it to apply directly to the funding councils to recommend its inclusion. My right honourable friend will ask the councils to consider all such applications as a matter of priority.
Before making applications to the funding councils, colleges would obviously want to consider whether inclusion in the new sector is right for them. The adult colleges make provision which falls to the duty of the funding councils but the majority of their provision falls to the duty of the local education authorities. They may therefore feel most comfortable staying with their maintaining local education authorities. It is right that such colleges should think in an informed way about the sector which they feel is the right one for them. They should not have incorporation, as it were, thrust upon them by the Secretary of State.
Having said that, I am puzzled by the proposed new subsection (2A) in Amendment No. 85. It provides that transfer to the new sector should not take place before a decision of the relevant governing body to request incorporation has taken place. Consequently, the incorporation of those colleges would not in fact be automatic. It is right that proper consideration of their position should take place, but that can be achieved adequately through the procedures in Clause 16. I do not think it would make sense to set up a procedure for automatic transfer which is then found not to be automatic. Many colleges would be sad about that provision.
The amendments refer to consortia of providers. It is an important point and one which has arisen many times in Committee and on Report. I believe that my noble friend Lord Renton was justified in questioning what the word "consortium" means. Despite the fact that the noble Viscount gave him a pretty good reply, if I may say so, it is unclear what the size, shape and composition of such consortia would be and what status they would have in law. While the noble Baroness and the noble Viscount may be able to
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enlighten us on those points, it is doubtful that a further education corporation could sensibly run such an amalgam of institutions.
I should also remind your Lordships that under the new arrangements adult colleges and centres will be able to apply to FE colleges for funding for that part of their provision which comes within Schedule 2. At the risk of being tedious—I apologise to your Lordships—this point has arisen again and again. Under Clause 6(5), they can ask the FE colleges to forward that application to the funding council and FE colleges will be under an obligation to do so if the provision in question is inadequate in the locality. There are two things I shall say here. First, the FE colleges cannot do that in a subjective way. They must do it objectively. There is no mention of the view of the FE colleges. On receiving a bid from an adult education centre, for instance, the FE college must look objectively to see whether that course is being provided adequately in the locality.
The noble Viscount said that it was difficult to know what would be the criteria. We should not forget that provision in that sector must be at such places, of such character and with such equipment as to be suitable for the needs of the people in the area. There are criteria to determine whether a course is being put on in the right way. If, as the noble Viscount was good enough to say, it is clear that the FE college has looked at the matter in a way in which is should not look at it—in other words, it has not looked at it objectively—then it is open to the Secretary of State to come down like a ton of bricks on that FE college for having acted outside its powers.
Clause 6(5) is a real way of reaching in to the new FE sector. In that context perhaps I may cross swords with the noble Viscount on one matter. He said that he felt that the FE colleges which would be dealing with many of the bids do not know as much as they might about the education of adults. There are over 1 million adults in further education colleges. They constitute the majority of students in that sector, and so I do not agree that FE colleges do not have much expertise in dealing with adults.
I am sorry to appear to be so negative on the amendments. I know that they reflect deeply held views and some apprehensions about adult education centres and the local authority sector and institutes. That is why I have gone into some detail when answering the amendments.
4.45 p.m.
Baroness Perry of Southwark: My Lords, before my noble friend sits down, will he confirm that if the amendments were accepted it would result in large adult education centres becoming incorporated into the new sector. If consortia of the small adult centres were also taken into the new sector, that would take out of local authority control a large number of institutions currently controlled by the local authorities which make local provision for the needs of those adults within the local authority sector for which they are responsible.
Lord Belstead: My Lords, I am grateful to my noble friend because—speaking off the cuff—I believe that she is right. The whole thrust of my remarks over the past 10 minutes has been that when one is talking about the larger adult education centres or institutions—if I may chance my arm—it is almost certain that they will find that a great deal of their Schedule 2 provision will be funded by the new funding councils. They will have to go through the mechanisms about which I have reminded your Lordships this afternoon.
The likelihood is that the larger adult education centres and institutions will be successful in reaching into the new FE funding council sector. At any rate, we shall have to see. From what I have heard and learnt, I do not believe the idea of a consortium will be a runner, for the reasons that I have given. There are legal difficulties about forming consortia. That will mean that the idea of forming consortia—this is only a view that I can give from the Dispatch Box—to be able to achieve incorporation is one that it is difficult to entertain.
Lord Peston: My Lords, will the Minister reflect a little upon what he has just said? Clause 15(2) is not about size in the absolute sense, and so I am afraid that the intervention of the noble Baroness, Lady Perry, was not germane; it is about ratio. It refers to at least 15 per cent. One can have 15 per cent. and be big or small. It follows—does it not?—as a matter of elementary arithmetic that if the ratio of the consortium were 15 per cent., it must include some institutions which have more than 15 per cent. to offset some with less than 15 per cent. It is all about ratios. It has nothing to do with size.
The Minister may be right—I was wondering whether he would care to reflect upon the point—about the complexity of forming a consortium. The point about the consortium is that if the institutions get together the correct ratio can be achieved. In other words, if there is an institution with a ratio below 15 per cent. that can be offset by an institution with a ratio above 15 per cent. As I understand it, that is the whole point of the consortium idea.
The Minister did not address himself to the ratio question. I do not suggest that his other arguments were erroneous because I well understand the problem of consortia generally, plus the point made by the noble Lord, Lord Renton, that he cannot find the word "consortium" in the Bill. That may not be a fundamental flaw if the idea is good. Will the Minister reflect upon the point that it is all about ratios rather than about big versus small?
Lord Belstead: My Lords, perhaps I may have leave to reply. I shall certainly reflect upon the ratio aspect, but I kept away from it because I had put forward—not for the first time on the Floor of the House—the fact that there are other considerations about the consortium idea which may mean that at the end of the day it is not an easy one to entertain.
Baroness David: My Lords, of course I am disappointed with the Minister's reply. I wish to thank the noble Viscount for his support. It is useful to have someone who works in the area, with his personal and
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special knowledge, speaking in favour of the amendment. The Minister admitted that there was a strong feeling, but his point about the statistical returns is rather petty and he previously made it at col. 718 at the Committee stage on 10th December 1991. If he wants statistical terms, I am told that they can be found quite easily and this need not be a point of objection.
I am sorry that the noble Lord objected to the last part of Amendment No. 85; it was inserted because we thought that it would please him. However, it clearly did not. He mentioned Clause 6(5) over and over again as being a help, but it is not considered to be sufficient—that is the difficulty. I take the point of the noble Baroness, Lady Perry, about the LEA perhaps losing some of its authority and power. I am a great supporter of LEAs, but the fear of the adult colleges is that they will not have enough money and there will be inadequate funding because, as we well know, LEAs are always in difficulty as regards funds. When we tried to get it more certain that they would have the funds under Amendment No. 70, on which we voted on Monday, we did not succeed. That is why in this case I support what the adult education colleges want.
It was interesting that the Minister made no reply on the part-time issue which was one of the main points of the amendment. I do not believe that we shall get any further on this matter. The objections are held very strongly by the Government and, although technically the amendment may be faulty in one or two places, I shall test the opinion of the House.
4.51 p.m.
On Question, Whether the said amendment (No. 82) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 125.

Division No. 1

CONTENTS

Addington, L.

Hanworth, V.

Adrian, L.

Hatch of Lusby, L.

Airedale, L.

Henderson of Brompton, L.

Ardwick, L.

Hilton of Eggardon, B.

Aylestone, L.

Hirshfield, L.

Beaumont of Whitley, L.

Hollis of Heigham, B.

Birk, B.

Houghton of Sowerby, L.

Blackstone, B.

Howie of Troon, L.

Blease, L.

Hughes, L.

Bonham-Carter, L.

Hunt, L.

Bruce of Donington, L.

Jeger, B.

Carmichael of Kelvingrove, L.

Jenkins of Hillhead, L.

Carter, L.

Jenkins of Putney, L.

Cledwyn of Penrhos, L.

Kilbracken, L.

Clinton-Davis, L.

Lovell-Davis, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

Combermere, V. [Teller.]

Mallalieu, B.

David, B.

Milner of Leeds, L.

Dean of Beswick, L.

Mishcon, L.

Desai, L.

Molloy, L.

Donaldson of Kingsbridge, L.

Morris of Castle Morris, L.

Donoughue, L.

Morris of Kenwood, L.

Dormand of Easington, L.

Mulley, L.

Ennals, L.

Nicol, B.

Falkender, B.

Peston, L.

Gallacher, L.

Phillips, B.

Galpern, L.

Pitt of Hampstead, L.

Gladwyn, L.

Porter of Luddenham, L.

Graham of Edmonton, L.

Prys-Davies, L.

[Teller.]

Rea, L.

Grey, E.

Redesdale, L.

377

Richard, L.

Strabolgi, L.

Rochester, L.

Tordoff, L.

Russell, E.

Turner of Camden, B.

Seear, B.

Underhill, L.

Serota, B.

Wallace of Coslany, L.

Shackleton, L.

Whaddon, L.

Shepherd, L.

Wharton, B.

Stallard, L.

White, B.

Stedman, B.

Williams of Elvel, L.

Stoddart of Swindon, L.

Wilson of Langside, L.

NOT-CONTENTS

Abinger, L.

McColl of Dulwich, L.

Allenby of Megiddo, V.

Mackay of Ardbrecknish, L.

Ampthill, L.

Mackay of Clashfern, L.

Astor, V.

Macleod of Borve, B.

Auckland, L.

Mancroft, L.

Balfour, E.

Marlesford, L.

Barber, L.

Merrivale, L.

Bauer, L.

Mersey, V.

Belhaven and Stenton, L.

Middleton, L.

Beloff, L.

Morris, L.

Belstead, L.

Mottistone, L.

Birdwood, L.

Mountevans, L.

Boardman, L.

Mowbray and Stourton, L.

Boyd-Carpenter, L.

Munster, E.

Brabazon of Tara, L.

Nelson, E.

Brigstocke, B.

Norfolk, D.

Brougham and Vaux, L.

Norrie, L.

Butterworth, L.

Onslow, E.

Carnegy of Lour, B.

Orkney, E.

Carnock, L.

Orr-Ewing, L.

Cavendish of Furness, L.

Oxfuird, V.

Clanwilliam, E.

Palmer, L.

Cochrane of Cults, L.

Park of Monmouth, B.

Colwyn, L.

Pearson of Rannoch, L.

Constantine of Stanmore, L.

Pender, L.

Cork and Orrery, E.

Perry of Southwark, B.

Cottesloe, L.

Peyton of Yeovil, L.

Cross, V.

Plummer of St. Marylebone, L.

Cullen of Ashbourne, L.

Quinton, L.

Cumberlege, B.

Reay, L.

Denham, L.

Renfrew of Kaimsthorn, L.

Denton of Wakefield, B.

Renton, L.

Eccles of Moulton, B.

Renwick, L.

Elles, B.

Romney, E.

Elliot of Harwood, B.

St. Davids, V.

Elliott of Morpeth, L.

Sandford, L.

Elton, L.

Seccombe, B.

Faithfull, B.

Selsdon, L.

Ferrers, E.

Shannon, E.

Fortescue, E.

Simon of Glaisdale, L.

Fraser of Carmyllie, L.

Skelmersdale, L.

Gainford, L.

Slim, V.

Gibson-Watt, L.

Soulsby of Swaffham Prior, L.

Haig, E.

Strathcarron, L.

Hayter, L.

Strathclyde, L.

Henley, L.

Strathcona and Mount Royal,

Hesketh, L. [Teller.]

L.

Hives, L.

Strathmore and Kinghorne, E.

Hood, V.

[Teller.]

Hooper, B.

Sudeley, L.

Howe, E.

Terrington, L.

Hylton-Foster, B.

Teviot, L.

Ilchester, E.

Thomas of Gwydir, L.

Jeffreys, L.

Trumpington, B.

Killearn, L.

Ullswater, L.

Kimball, L.

Waddington, L.

Kimberley, E.

Weir, V.

Knutsford, V.

Westbury, L.

Lane of Horsell, L.

Wigram, L.

Lauderdale, E.

Windlesham, L.

Lloyd of Hampstead, L.

Wise, L.

Lucas of Chilworth, L.

Wolfson, L.

Lyell, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5 p.m.
[Amendments Nos. 83 to 86 not moved.]
Clause 16 [Orders incorporating further institutions]:
[Amendments Nos. 87 to 90 not moved.]
Schedule 3 [Calculation of Enrolment Numbers]:
Earl Russellmoved Amendment No. 90A:
Page 70, line 39, at end insert ("no such order being made unless a draft of it has been laid before and approved by resolution of each House of Parliament.").
The noble Earl said: My Lords, your Lordships may think that two Henry VIII clauses in one Bill savours of carelessness. If so, I can only plead that the carelessness was not mine. However, as Henry VIII clauses go, this is not a particularly objectionable one and the provisions of the amendment extend only to making it subject to the affirmative resolution.
We had an excellent debate on this amendment in Committee, which I hasten to reassure your Lordships I shall not repeat. However, I was asked when leaving the House after we had risen on Tuesday to explain again what a Henry VIII clause is and I think that perhaps I ought to do so now. Therefore I hope those to whom this is particularly familiar information will forgive me for spending a minute on it.
A Henry VIII clause permits the Minister, by regulation, to change the provisions of the original Act. It is a clause which allows the regulation to change the provisions of an Act of Parliament. It is, therefore, the only exception that I know to the principle that it needs an Act of Parliament to change the law. The ordinary regulation-making power is using a power delegated by the parent Act. It does not change the parent Act. But under a Henry VIII clause the primary Act itself is changed. It may thus appear to some people, although it is subject to the rudimentary parliamentary control on the use of statutory instruments, to represent nevertheless some risk to the principle of parliamentary sovereignty.
The case that we are discussing is not particularly heinous. It authorises the Minister only to change the multiplier in Schedule 3 to the Bill. We accept that that is something which must be subject to change from time to time. However, we consider that where the law is changed, Parliament should directly he informed by the use of the affirmative procedure, and should be able to take account of it.
There is a question which was not answered in Committee and therefore I hope that the Minister will forgive me if I ask him about it again now. The matter concerns why it was necessary to put the multiplier into statute law in the first place. The more things that are put into Acts of Parliament, the more Acts of Parliament are needed to repeal them. The noble Lord, Lord Henderson of Brompton, when discussing another Henry VIII clause on Tuesday, raised the point of the pressure on parliamentary time caused by increasing amounts of legislation. We agree in every quarter that that is a truly serious problem. However, when we consider the length of time that this House has spent discussing Henry VIII clauses over the past year, we can appreciate that it is by no means entirely clear that their insertion in Acts of Parliament has saved time. There is also the matter of whether it is a

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good idea to free the Executive from the constraints involved in the need to get its programme through in parliamentary time.
It is arguable that the length of the parliamentary Session, like the size of the stomach, is a necessary check on greed, and that the desire of the Executive to carry out more and more things should be subject to control. It is arguable also that the amount the Executive can do by parliamentary processes in one parliamentary Session is perhaps about the maximum amount they can really think through seriously, and therefore is as much as they should perhaps do.
In Committee I asked the Minister whether he would consider making this matter subject to the affirmative resolution procedure. The Minister replied with classic brevity, "No". Rather than push the matter further at this moment, I ask the Minister to justify that answer to me. I beg to move.
Lord Simon of Glaisdale: My Lords, I rise to support the noble Earl on this amendment. Your Lordships are once again concerned with Henry VIII clauses, of which there have been a great number in recent years. They are an important but by no means exclusive part of the current surge of bureaucracy. In this respect the surge of bureaucracy is in derogation of the normal parliamentary processes—in this case its legislative process.
The noble Earl has clearly explained what Henry VIII clauses generally do, and what such a clause would achieve in this case. I respectfully agree with him that this is not a particularly heinous example. With respect, I think he was right not to try to expunge it from the Bill. However, for the reasons he gave, it is most important that any such clause as this should be subject to parliamentary control by way of affirmative resolution. I say any such clause as this, but I can hardly conceive of any Henry VIII clause which would not merit that degree of parliamentary control. I suppose that there might be one of a purely procedural nature, but that is not the case here.
Your Lordships are well aware of the superior parliamentary control vouchsafed by the affirmative resolution procedure. In another place orders which are subject to the negative procedure only are rarely reached. When they are reached it is generally at an extremely inconvenient hour from a parliamentary point of view. Generally they are not reached because the time for their annulment has gone by before they can take their place on the Order Paper. That is what happens in another place, but in both Houses the affirmative resolution has a definite advantage and that is that the Minister introduces it and explains what he is about and why the procedure is necessary. It thereby differs from the negative procedure which has to be raised by a private Member of Parliament and which the Minister replies to, generally to the dissatisfaction of his interlocutors, at the end of the debate.
The matter is really completely concluded by the report of the Joint Select Committee on Statutory Instruments of 1972–73 which went into this matter in great detail. The members of the committee laid down three major criteria according to which an instrument
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should be subject to the affirmative resolution. They were cumulative and I need only mention the first. An extremely powerful committee whose report was accepted by both Houses said that the matter should be subject to the affirmative resolution procedure if it is important. The committee went on to recognise that that is a very grave criterion and it explained what it meant by it. The matter is important unless it can be dismissed as consequential, transitional or trivial. Obviously, there is nothing here that is consequential or transitional. I do not suppose that anyone considering the matters that have to be considered if there is to be an alteration in the law by the direction of the Minister could possibly say that your Lordships are concerned with triviality. I therefore have no hesitation in supporting the noble Earl.
Lord Renton: My Lords, I must say at once that I agree that, within the definition of "importance" given by that committee, we could not say that anything in Schedule 3 was consequential, transitional or trivial. However, I had a good deal of sympathy with the view expressed by the noble Earl, Lord Russell, when he doubted whether it was necessary to have the contents of Schedule 3 written into the Bill at all. That could quite easily have been done by statutory instrument because the contents of the third schedule relate to purely administrative detail of a complicated and technical kind, not the kind of matter that it is easy for Members of either House of Parliament, however closely we concentrate and apply our minds, to deal with by amendment in detail. I should much rather have seen Schedule 3 excluded from the Bill altogether and dealt with by statutory instrument.
It is a well-established fact and has been so for years that, if there are matters which must form a consequence of legislation but which change from time to time—for example, in social security, matters that change with inflation—the Minister should be given power to deal with those matters whether they have been put into primary legislation or have been dealt with by statutory instrument.
However, in relation to that, bearing in mind that the multipliers may have to be altered from time to time, it would be within the usual principles for the matter to be dealt with by statutory instrument. I hope that that point is conceded even by the noble and learned Lord, Lord Simon of Glaisdale. The question is whether altering the multiplier is of sufficient importance to require an affirmative resolution. I have some doubt. I should be interested to hear what my noble friend says. For all I know he may be prepared to accept the amendment. One can but express one's own views, but I doubt whether it is a suitable case for an affirmative resolution.
5.15 p.m.
Lord Peyton of Yeovil: My Lords, I listened to the noble Earl with care and I hoped that he might say something with which I could find it possible to disagree so that I could support the Government in opposing his amendment. In the event, there was nothing in his remarks with which I found that I could begin to disagree. I do not wish to repeat everything

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that my noble friend Lord Renton has said, but I find myself in entire agreement with him. Suffice it to say that I am surprised that those who conduct the legislative machine in our country are constantly surprised that Members of either House of Parliament object to being asked to express an opinion while at the same time being asked to surrender that right so that someone else may make a change with a stroke of a pen whenever it suits them. I am sorry, but I find that quite unacceptable.
Lord Belstead: My Lords, confident in the knowledge that my noble friend Lord Peyton of Yeovil will go through the opposite Lobby to me on this occasion, but saddened because I attach importance to what he says, particularly on matters of procedure in the House, perhaps I may say that the reason why we are embroiled in this discussion on the amendment of the noble Earl, Lord Russell, is that the matter was put on the face of the Bill. I was grateful to my noble friend Lord Renton for pointing out that there is perhaps some contradiction in the noble Earl's otherwise entirely lucid explanation of the merits of the amendment when, on the one hand, he said that he was surprised to find it on the face of the Bill at all, but on the other hand he was was quite clear that it was a matter of such great importance that it was a first cousin to a Henry VIII clause and should certainly be subject to affirmative resolution.
Lord Simon of Glaisdale: My Lords, surely there is no contradiction. The noble Earl finds it on the face of the Bill and therefore has to deal with it. It is sufficiently important in the Government's view to put it on the face of the Bill and that is the basis of the noble Earl's argument.
Lord Belstead: My Lords, with great respect to the noble and learned Lord, I do not agree with that. I should have thought that one must look at the importance of the provision in deciding whether it should attract affirmative resolution if it is to be changed. I would not for one moment venture that as being my own opinion. That was the opinion of the joint committee which the noble and learned Lord quoted to us only about five minutes ago.
The problem here is that we felt that it would be genuinely helpful to try to set out on the face of the Bill the basis of our best estimate of what the multiplier in the regulations should be. Incidentally, it also follows what was done in Schedule 9 to the 1988 Act.
Perhaps I may remind your Lordships that the system of calculating enrolment numbers gives a weighting to each mode of attendance—full time, sandwich, day release or open learning. Those are set out in paragraph 2 of the schedule on which we all have our eye. Those weightings have been developed over time by Department of Education and Science statisticians in consultation with the institutions, local education authorities and others who have an interest, so this is not something that is done in a hole in the corner manner. I assure your Lordships that it is a matter that must evolve over time. It was therefore thought that, as it evolved over time, there would be a need—again, I do not give this as my view; I am
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quoting my noble friend Lord Renton, who is an expert in these matters—for a parliamentary order. Provision for a parliamentary order was therefore put into the Bill. We disagree as to whether it should be subject to affirmative or negative resolution.
I hesitate to cross swords with the noble and learned Lord about whether "importance" is the peg on which we should hang this debate. Although he quoted the Joint Committee on Statutory Instruments of the 1970s, the only quotation that he gave was its very first recommendation: namely, that the guiding light should be the question of importance.
Lord Simon of Glaisdale: My Lords, I am much obliged to the noble Lord for his invariable courtesy in giving way. The Joint Select Committee went on to explain exactly what it meant by "importance"; namely, something that was not transitional, consequential or trivial. That is the point that the noble Lord must face.
Lord Belstead: My Lords, the noble and learned Lord is quite right to have a go at me on that point. However, this is a technical matter and, if I may say so, time has moved on. We are 20 years on. We are also 20 years on so far as concerns the weight of work on this House. If we are to bring a technical matter to the Floor of the House for an affirmative resolution every time, it will not reduce the weight of work on this House. I am afraid that once again this is an amendment to which I must give a negative reply.
Earl Russell: My Lords, I am grateful for the support that I have had from all quarters of the House. I am grateful to the noble and learned Lord, Lord Simon of Glaisdale. I agree entirely with what he said about the difference between the affirmative and negative procedures. I am grateful to the noble Lord, Lord Peyton of Yeovil. I think that the noble Lord, Lord Renton, and I are within a whisker of agreement. We agree that it is a pity that this provision was put into the Bill. I accept what the Minister said about letting the House know how the multiplier was to he calculated. I am grateful for his words and appreciate them. However, it is possible—there is precedent—to publish draft regulations at the same time as the Bill and let the House see them. That would have met this point very well. I agree with the noble Lord, Lord Renton, in his exposition of circumstances in which a Henry VIII clause might be permissible, and the uprating is a classic example.
However, I thought it a little ungenerous of the Minister to say that my argument included a contradiction because I said that the matter was on the one hand too trivial to be in the Bill and on the other hand too important for the negative resolution. The argument that I put forward was that this matter derives its importance from the fact that it is law. I thought that the view that the law is important was one which the Government shared. If this measure were not the law—an Act of Parliament—it would not be necessary to argue that we need an affirmative resolution to change it.
Changing an Act of Parliament, even a trivial section of an Act of Parliament, is not to be

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undertaken lightly. It is not something done in isolation. After all, opinions may, and indeed do, differ on which parts of which Acts of Parliament may be regarded as trivial. Any decision taken on this matter will set a precedent. It will authorise the Executive to use Henry VIII clauses to alter any piece of any future Act of Parliament which they may regard as trivial. That view may be far from being shared in other quarters of the House.
I thought that the noble Lord, Lord Renton, and I were within a whisker of agreement. But we have here a debate which will have to continue. I do not intend to divide the House because I do not feel angry enough about the alteration of the formula in Schedule 3. However, we have a problem of continuing importance. There are 22 minutes showing on the clock. I ask the Minister whether he has saved parliamentary time by using a Henry VIII clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ["Further education corporation" and "operative date"]:
Baroness Blackstonemoved Amendment No. 91:
Page 15, line 10, at end insert:
("( ) The "operative date" appointed by the Secretary of State shall be a date not before 31 March 1994").
The noble Baroness said: My Lords, this is in no sense a delaying tactic. There is a great deal of concern among those working in the further education sector that the proposed implementation date of 1st April 1993 will not allow sufficient time for the preparation that is needed. It is not much more than a year away and we have to remember that the Bill must be considered in another place before it can be enacted.
The amendment would ensure that, while the funding council and corporate governing bodies could be established without delay, the new funding regime would be delayed for one year. That would allow adequate time for the funding councils to consult, as they must do, over the key task of devising coherent funding methodologies, which will be a very complicated and complex task. The corporate governing bodies could be brought into being and allowed to start work planning for the changeover. In the meantime, the continuity that would be provided by the extension of current arrangements for the financial year would allow colleges to receive students in September 1992 and maintain a smooth operation while plans for incorporation were worked out.
The main argument for the amendment rests on the comparison between the task facing the Polytechnics and Colleges Funding Council on the incorporation of the polytechnics, following the 1988 Education Reform Act, and that which will face the further education funding councils. The PCFC inherited the staff and a consistent national funding methodology from the National Advisory Body for Public Sector Higher Education (which noble Lords will remember was known as "the NAB") which spent six years working with 30 polytechnics and another 50 major colleges in developing an agreed and coherent approach to funding in the relatively tightly defined world of higher education.
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I need not remind your Lordships that the further education funding councils will inherit responsibility for over 500 institutions, some of which, such as the sixth form colleges, for legal purposes are at present schools. Those institutions currently operate according to some 150 different funding schemes which differ not only in structure and methodological approach but in their levels of historic funding. The task of the councils will be further complicated by the fact that the duty to fund further education will be split between the funding councils and local authorities on a dividing line that has not previously existed. In many cases therefore there will be no reliable data that could indicate to the funding councils exactly what proportion of a particular institution's budget was devoted to the areas of work that the councils will have a duty to fund under Schedule 2 to the Bill.
I readily admit that the amendment which I moved at Committee stage to delay the establishment of bodies corporate until 31st March 1994 was technically flawed and allowed the Minister to argue quite cogently that it might introduce an unnecessary element of delay into the necessary work of preparing institutions for corporate status. I believe that the new amendment overcomes those difficulties by focusing on the operative date, which is the point at which the newly funded corporations legally take over responsibility for the institutions.
It will therefore be possible for the new funding councils to be set up and the corporation for each individual institution to be established on the timescale envisaged by the Government. But what the additional financial year will provide is the opportunity to ensure that the procedures adopted by the new funding councils are workable before the colleges have to live with the decisions that they have made.
If the Government are correct in their optimism—I believe that they are being somewhat optimistic—about the ability of the funding councils to arrive at sensible decisions on the allocation of funding by the beginning of 1993, they will be able to make that information available to institutions, which would then have time to prepare themselves properly for the following year or make appropriate representations in advance. They will not have that time if they are to go ahead on the Government's present proposed timetable. On the other hand, if the funding councils are unable to deliver on the exceedingly tight timescale proposed by the Government, institutions and students will despair of the chaos that would otherwise ensue.
A further advantage of the amendment is that it would encourage co-operation between the local authorities, the funding councils and the new corporations. On a number of occasions in Committee and at Report the Minister has said that the Government favour such co-operation. In most cases the local authority will still be responsible for funding some of the activities in the newly incorporated institutions. The professional managers of institutions will be largely the same people before and after incorporation and the new corporations are likely to have a number of members in common with the

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existing governing bodies. The year of parallel running afforded by the amendment would allow all of those people to work together to make incorporation a success.
Because local and central government funding arrangements are geared to the financial year, a date for incorporation other than 1st April of any year would, I am sure, be resisted by the Government on technical grounds; and I would understand that. For that reason, the amendment does not propose the date of September 1993 but April 1994. The amendment will not create any delays in the work that is necessary to make incorporation a success. However, it will allow a number of difficulties that might cause its failure to be overcome.
A number of responses to the White Paper from further education colleges that supported the proposals in the Bill in principle nevertheless indicated that 1993 as a deadline was much too tight. I hope that the Government will therefore not put unnecessary pressure on the further education colleges and the new funding councils. There does not seem to be a tearing hurry about it. Surely it is better to implement the Bill in a way that guarantees success rather than in a way that could jeopardise an orderly transition. I beg to move.
5.30 p.m.
Earl Russell: My Lords, on behalf of these Benches, I support the amendment. I do not believe that the Government envisage what a complex process they are setting in motion in creating the further education sector under the funding councils. It is a defective imagination of the Government. In order to address that, I ask the Minister to imagine a proposal to merge the two Houses of Parliament and consider the amount of time that we would need to set up and work out an agreed procedure for the two Houses meeting jointly. Decisions would have to be made whether to have a Committee of the Whole House or Standing Committees upstairs and whether to have a stage that the Bill do now pass. I do not need to go on.
However, it is a matter as complex as that that the Government seek. They ask for it at a time when by their own wish there is fairly considerable expansion taking place. That means that the amount of time taken up with teaching is rising considerably. In many places it is becoming very difficult to find time to combine the necessary amount of teaching and meetings. I believe that the amount of meetings envisaged in the Government's timetable, apart from any other confusion, is likely to have a damaging effect on people's teaching. For that reason if for no other, I hope that the Government will consider the amendment with favour.
Lord Renton: My Lords, as the noble Baroness and the noble Earl said, a lot of complicated administrative work will have to be undertaken in order to get these corporations going. I should have thought that that work might well be completed before three years are up. Let us assume that the Bill achieves Royal Assent by, say, 31st March. Perhaps some of the preliminary work has already started for all we know;
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sometimes that happens before Acts of Parliament are passed. Surely it would be wrong to prevent those corporations coming into existence if the gentlemen and ladies in Whitehall have shown such expedition that they can get the work done more quickly.
Lord Peston: My Lords, perhaps I may interrupt the noble Lord. Will he explain where he gets the three years from? It is now 1992. The Bill is expected to come into operation in 1993. I make that only one year.
Lord Renton: My Lords, I should have said two years from now. After all, we would not have had such detail put into the Bill unless the Department of Education had been giving a great deal of thought to it and perhaps the various institutions too. To say that nothing will happen until the Bill attains Royal Assent seems to me a wrong assumption. It is sometimes possible to get some of the most complicated procedure completed in a short space of time. If that can be done, surely the noble Baroness would not wish to see achievement frustrated and progress delayed.
Lord Belstead: My Lords, I acknowledge the magnitude of the task that lies before the colleges. I recognise that the amendment proposed by the noble Baroness, Lady Blackstone, springs from a genuine concern. Getting everything ready by April 1993 will certainly mean working to a tight timetable. Indeed in her remarks the noble Baroness included the work that has to be got through by the funding councils when they are set up. However, I do not believe that it will be impossible to achieve.
One ingredient was missing in the noble Baroness's remarks —the disadvantages of the delay that such an amendment could inevitably imply. Having decided that there should be structural change in an organisation, and on the assumption that the Bill becomes law, it is not to the advantage of that structural change that there should be delay provided that the right arrangements can be made.
My noble friend Lord Renton said that doubtless the Department of Education and Science has been giving thought to those matters. Only today the Minister of State announced a major consultancy study which will help further-education and sixth form colleges prepare for independent status. The study, called Getting Colleges Ready, will establish the present state of college management and provide practical guidance and recommendation on what the colleges need to do to prepare for independence. Mr. Eggar, the Minister of State, among his other remarks said that he knew that colleges would welcome the study, which would provide the guidance that they need to get fully to grips with independent operations and that the study would include advice on establishing financial controls, the preparation of final accounts, the setting up of personnel departments, asset management and the control of capital projects. The study, which will be conducted by the consultants, Touche Ross, will be completed by March. The department will then issue guidance to colleges based on the findings.

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We ought not to forget that the colleges have acquired valuable experience in assuming greater control over their own affairs over the past couple of years under the local management of colleges. I do not believe that they would welcome the amendment.
Lord Renton: My Lords, before my noble friend sits down, will he clarify the point made? It was to the effect that the Bill will not come into force until 1993. As I understand it, it will get Royal Assent this year in a few months' time. If various provisions are not being brought into force until 1993 that is understandable. But will he not agree that the relevant factor is that the Bill will be on the statute book before many weeks have elapsed?
Lord Belstead: My Lords, I believe that my noble friend initially had a slight slip of the tongue. After that he was absolutely right. The effect of the amendment, broadly speaking, would be that there would be a delay of two years in bringing the Bill into effect.
Baroness Blackstone: My Lords, I am amazed by some of the Minister's remarks. I am sorry to put it quite so strongly.
Lord Belstead: My Lords, I am delighted that I give the noble Baroness some cause for amazement.
Baroness Blackstone: My Lords, I was equally surprised by some of the remarks made by the noble Lord, Lord Renton. I do not believe that he has understood the points that I have tried to make. Of course I am aware that the Bill will be on the statute book by about Easter, depending on how much time is given to it in another place. However, legislation of this kind requires an enormous amount of complex administrative and structural change. Anyone who has been involved in running education institutions or local authorities or in the setting up of funding councils will be fully aware of that. Such provisions cannot be rushed through without causing damage to the system.
I am concerned that hundreds of thousands of students in further education colleges should be able to continue with their courses and to benefit from them rather than the institutions having difficulty in delivering the education that they are required to provide because of the pressures that are put on them. I must repeat that the principals of further education colleges are concerned about the timetable that the Government have brought forward.
The noble Lord, Lord Renton, implied that the necessary work will be carried out by civil servants in the Department of Education and Science. That is simply not true. Most of the work must be carried out by the funding councils. We have yet to know who the chairmen, members and chief executives of the funding councils will be. All those people must be found and appointed. We must also have a regional structure. The Minister made something of that fact on Report earlier this week because he said that the
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regional committees would be important. Again, we must find people to sit on the regional committees and set up a bureaucracy to support them.
The amendment will allow all those provisions to be made as soon as the Bill is enacted, but they will take time. I find most surprising the Government's suggestion that all the work can be carried out, the new governing bodies for the corporations can be established and the funding methodologies and transfer with respect to property and assets can take place in about six months. I cannot believe that it will be easy to do that.
The Minister referred to a study. Initially I was delighted to hear him say that a study would be undertaken in order to facilitate these changes. It is important that no change should take place until the study has been completed. I have experience of undertaking studies of this kind. His comment that amazed me the most was that a study that has been announced today will be completed by March. As a social scientist who has carried out a great deal of applied research on policy recommendations I cannot believe that this is anything other than quick and dirty consultancy. The study cannot be rigorous and well carried out if it is completed in such a short period of time.
In the light of what the Minister has said, which was extremely disappointing and showed that the Government are being unrealistic, I have no option but to test the opinion of the House.
5.43 p.m.
On Question, Whether the said amendment (No. 91) shall be agreed to?
Their Lordships divided: Contents, 62; Not-Contents, 110.

Division No. 2

CONTENTS

Addington, L.

Hunt, L.

Ardwick, L.

Jeger, B.

Aylestone, L.

Jenkins of Hillhead, L.

Beaumont of Whitley, L.

Jenkins of Putney, L.

Birk, B.

Longford, E.

Blackstone, B.

Lovell-Davis, L.

Bonham-Carter, L.

McNair, L.

Carmichael of Kelvingrove, L.

Mallalieu, B.

Carter, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Morris of Kenwood, L.

Cocks of Hartcliffe, L.

Nicol, B.

Combermere, V.

Peston, L.

David, B.

Prys-Davies, L.

Dean of Beswick, L.

Rea, L.

Desai, L. [Teller.]

Redesdale, L.

Dormand of Easington, L.

Richard, L.

Ennals, L.

Rochester, L.

Falkender, B.

Russell, E. [Teller.]

Gallacher, L.

Seear, B.

Galpern, L.

Serota, B.

Gladwyn, L.

Shackleton, L.

Graham of Edmonton, L.

Shepherd, L.

Grey, E.

Stoddart of Swindon, L.

Hanworth, V.

Tordoff, L.

Hatch of Lusby, L.

Turner of Camden, B.

Henderson of Brompton, L.

Underhill, L.

Hirshfield, L.

Whaddon, L.

Houghton of Sowerby, L.

White, B.

Howie of Troon, L.

Williams of Elvel, L.

Hughes, L.

Wilson of Langside, L.

389

NOT-CONTENTS

Abinger, L.

Mackay of Ardbrecknish, L.

Adrian, L.

Mackay of Clashfern, L.

Ailesbury, M.

Macleod of Borve, B.

Allenby of Megiddo, V.

Mancroft, L.

Ampthill, L.

Marlesford, L.

Arran, E.

Marshall of Goring, L.

Ashbourne, L.

Merrivale, L.

Astor, V.

Mersey, V.

Auckland, L.

Middleton, L.

Balfour, E.

Milverton, L.

Barber. L.

Morris, L.

Bauer, L.

Mottistone, L.

Belhaven and Stenton, L.

Mountevans, L.

Belstead, L.

Mowbray and Stourton, L.

Boardman, L.

Munster, E.

Boyd-Carpenter, L.

Napier and Ettrick, L.

Brabazon of Tara, L.

Nelson, E.

Brougham and Vaux, L.

Norfolk, D.

Butterworth, L.

Norrie, L.

Carnegy of Lour, B.

Onslow, E.

Carnock, L.

Orkney, E.

Cavendish of Furness, L.

Orr-Ewing, L.

Cochrane of Cults, L.

Pearson of Rannoch, L.

Coleraine, L.

Pender, L.

Constantine of Stanmore, L.

Pennock, L.

Cork and Orrery, E.

Perry of Southwark, B.

Craigavon, V.

Perth, E.

Cross, V.

Peyton of Yeovil, L.

Cumberlege, B.

Porter of Luddenham, L.

Denham, L.

Reay, L.

Elles, B.

Renfrew of Kaimsthorn, L.

Elliot of Harwood, B.

Renton, L.

Elliott of Morpeth, L.

Romney, E.

Elton, L.

St. Davids, V.

Erroll, E.

Seccombe, B.

Faithfull, B.

Simon of Glaisdale, L.

Fraser of Carmyllie, L.

Skelmersdale, L.

Gardner of Parkes, B.

Soulsby of Swaffham Prior, L.

Gibson-Watt, L.

Strathcarron, L.

Haig, E.

Strathclyde, L.

Halsbury, E.

Strathcona and Mount Royal,

Henley, L.

L.

Hesketh, L. [Teller.]

Strathmore and Kinghorne, E.

Hives, L.

[Teller.]

Hooper, B.

Sudeley, L.

Howe, E.

Thomas of Gwydir, L.

Hylton-Foster, B.

Trumpington, B.

Jeffreys, L.

Ullswater, V.

Kimball, L.

Waddington, L.

Kimberley, E.

Walton of Detchant, L.

Knutsford, V.

Warnock, B.

Lane of Horsell, L.

Wharton, B.

Lauderdale, E.

Wigram, L.

Lindsey and Abingdon, E.

Windlesham, L.

Lucas of Chilworth, L.

Wise, L.

McColl of Dulwich, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.52 p.m.
Clause 19 [Supplementary powers of a further education corporation]:
Lord Pestonmoved Amendment No. 91ZA:
Page 16, leave out lines 30 to 34.
The noble Lord said: My Lords, I shall try to deal with this amendment as quickly as I can. It was suggested to me that I had the line numbers wrong, but I believe that I have them right.
I move this amendment because I am slightly puzzled as to why subsection (5) is there. I understand that in the FE sector the Government are trying to make the new corporations more independent than they are now or were hitherto.
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Secondly, the funding councils are meant to be, in modern jargon, "facilitators" and not controllers. If one looks at Clause 19(4) (c), which defines the borrowing powers of a corporation, it states that the corporation can:
"borrow such sums as the corporation think fit",
and I underline the words "think fit". It states also:
"for the purposes of carrying on any activities they have power to carry on".
In other words, the subsection states that the corporations can borrow only in appropriate circumstances for appropriate ends.
I assume that "borrow" means to borrow on the open market. In other words, the corporations will go out and borrow. If they do that on the open market then the open market will act as an appropriate constraint. It will ensure that they are unable to borrow unless the market believes that they can service the loan in the normal way. Therefore, given the Government's wish that the corporations should have independence and should not be controlled but facilitated by the council, I cannot understand why subsection (5) exists. I shall not divide the House on such a technical matter but I should like an explanation as subsection (5) seems to contradict the whole purpose of the Bill. Why is it there? Why cannot it be taken away?
Lord Belstead: My Lords, it is a normal part of the arrangements for centrally funded bodies that any powers to borrow are prescribed in the financial memoranda covering their funding. In the case of the further education corporations, subsection (5) sets the statutory basis for the borrowing arrangements for the new sector. We believe that the inclusion of that subsection is a prudent step which ensures by statute that any borrowing by the colleges does not take place without the consent of the further education funding councils, which are responsible for the overall funding of the colleges. That reflects the fact that the colleges are substantially funded from public funds. The payments for borrowing which they incur would have to be met from those funds. That is a fairly major part of the reply which I shall give to the noble Lord on this matter.
Subject to any guidance from the Secretary of State the councils will be free to give consent for particular borrowing or a particular class of borrowing. As the noble Lord said as part of his question, the powers in subsection 4(c) are quite wide.
I should add that the inclusion of this subsection does not imply a lack of confidence in the ability of the institutions coming into the new sector. There is more than enough evidence of our confidence. We are giving them freedom from local authority control and in Clauses 18 and 19, we are giving them wide powers to manage their own affairs. However, the sector will be made up of institutions of varying maturity and experience of managing budgets. The Government consider that in the case of that particular new sector, a statement of this nature is a necessary framework for prudent financial management. It is really a long-stop power to allow the councils to ensure that borrowing which may be to the detriment of the students in colleges does not take place.

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I hope that that covers the ground which the noble Lord expected or half expected me to cover.
Lord Renfrew of Kaimsthorn: My Lords, I was rather surprised to hear the confidence of the noble Lord, Lord Peston, in the universal prudence of the open market in this sphere. In recent months and years we have had experience of perfectly respectable financial institutions sometimes making imprudent loans.
I do not wish to suggest that a further education institution would be an inappropriate recipient of a loan. However, one suspects that if a bank were making such a loan, part of its notional confidence in the probity of the institution would be, at the last resort, that the funding council would be expected to bail it out. For that reason there is certain logic in the proposition that the funding council should be consulted before considerable loans are drawn upon.
Lord Peston: My Lords, I probably have more faith in the market than many noble Lords opposite. If they have heard me speak on such matters, they may have heard me say such things. I add that I have had some experience of governments lending money in a profligate way, so I am not quite as starry-eyed about governments as are my colleagues on this side of the House. I tend to be fairly objective about both those matters.
I am not surprised by the noble Lord's answer in the sense that it was the answer that I expected him to give. However, he did not convince me. One matter which puzzles me is whether or not a subsection of this kind is normal. I do not believe that it is normal. One reason for raising this matter was to find out why the back-up power is necessary. It may be that the noble Lord will wish to write to me on this matter giving me other examples of such clauses.
The funding councils do not underwrite borrowing under this Bill. It would be a mistake if that were understood to be the case. Unless I have misunderstood the Bill, even if this subsection applied, it does not mean that because the funding councils have granted permission for the borrowing, they will then will bail out the corporations.
It is in a genuine spirit of inquiry that I ask whether subsection (5) is normal or whether, as the Minister rather implied, because this is such a new departure it is included as a fail-safe provision, but it is abnormal. I do not press the noble Lord to reply to me now, but when he has time perhaps he will enlighten me about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Clause 20 [Constitution of corporation and conduct of the institution]:
Lord Addingtonmoved Amendment No. 91A:
Page 16, line 42, after ("Act") insert ("subject to the inclusion of at least one student nominee on the governing body of the corporation where 'student nominee' means a student at the institution, nominated by the students of the institution.").
The noble Lord said: My Lords, we are once again addressing the issue of student representation, this
392
time in the colleges of further education. I shall try to be comparatively brief when introducing the issue, because it is one that is reasonably straightforward.
Amendment No. 91A proposes that at least one student nominee shall be appointed to the corporation and that he or she shall be nominated by his or her fellow students. The last time the matter was debated we heard a great deal of praise for most student bodies involved in councils and the running of their institutions. Indeed, the overwhelming body of opinion was in favour of them, saying that those who take on the option do a good job and contribute in a positive manner to the running of such institutions.
I can see no reason for not including students on the councils. The point that there should be at least one means that if there are two or more students on the councils they can cover for each other. Should one be ill or have an examination, the other will be able to attend the meeting. I suggest that the Government will be losing nothing by accepting the amendment or bringing another forward to meet its aims. I beg to move.
Lord Morris of Castle Morris: My Lords, I support the amendment for three reasons. The amendment involves one of the most basic principles within the entire Bill. It goes to the heart of what both further and higher education are about.
First, it seems to me to be no more than simple natural justice that any governing body—except perhaps for a Benedictine monastery or a battalion of the Coldstream Guards—should include at least one representative of the constituency for whose benefit the entire institution exists. Colleges and universities are democratic bodies; they are not administered in an authoritarian way. Democratic procedures surely require the basic concession on the part of the Government that the student body—the customers, the consumers, whose money pays the bills at the end of the month—should at least have some representation at the highest level. It is no more than common sense.
Secondly, such representation is education in the broadest sense. It is part of the educational procedure which these people attend colleges to receive. Education is not confined to the lecture room, the seminar room or the laboratory. It is a total experience of living in a community and taking part in it. That is what colleges and universities have been ever since Paris and Bologna.
Thirdly, it is surely in the interests of good management to have open lines of communication and a kind of lightning conductor through a student presence on the highest councils of a university or college. Over the past 20 years it has been a means of establishing and maintaining good relationships. The proof of that particular pudding has surely been in the eating; since we have had extended student representation there has been far less student activity pulling down gates or occupying halls of residence or vice-chancellors' rooms. That has become self-evident to those of us working in any way in universities or colleges of further education.
I am slightly worried by the Government's present position, which appears to have undergone a complete

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turnaround over a period of 12 months. I have in mind a statutory instrument issued as recently as 1st April 1990 called, Education (Governing Bodies of Institutions of Higher and Further Education) Regulations 1990, which appears to take for granted that there shall be student governors in colleges of further education. It talks quite openly of students being governors and members of the institution concerned. It defines a student governor as,
"a person elected by, or chosen to represent, students of a relevant institution of which he is a student as a member of the governing body thereof".
I should like to know when, if, how and why the Government have suddenly turned their back on what appeared to be their unquestioned stance on the matter as recently as a year ago. Many of us are concerned that unless the amendment is accepted students may no longer be able to play a full role on the governing bodies of further and higher education institutions. Current custom and practice reinforced by legislation and guidance from the Department of Education and Science ensures at present that legitimate student nominees are involved in discussions at all relevant levels of college administration. To remove them from the highest level is to risk—nay, I would say to invite—suspicion and unrest. Any college which voluntarily did so would surely be unwise. The Government could at least advise the colleges not to act unwisely in that way.
When we last debated this matter the noble Baroness, Lady Park, said,
"I have sat on the hebdomadal council in Oxford for six years with them [students] and in that time they never put a foot wrong".—[Official Report, 16/12/91, col. 1129.]
I can go one better. I have sat with students on university committees in several universities at all levels for more than 20 years. In my experience they have often put a foot wrong, every bit as often as the professors, the lecturers and the vice-chancellors. But students have also frequently made useful, helpful and sometimes brilliantly creative contributions. The point is this. They have a unique contribution to make at the highest level of colleges of further education. It is as true in further education as it is in higher education and I hope that the Government will be able to accept the amendment.
Lord Adrian: My Lords, I cannot hope to support the amendment with the eloquence of the noble Lord, Lord Morris. Nonetheless I support it very warmly indeed. Everything in my experience too indicates that students make an important contribution to committees and universities at the highest level, and not only at the highest level. It is extremely important that they should be there.
Lord Renfrew of Kaimsthorn: My Lords, there may be some confusion in some of the discussion. Many of the remarks of the noble Lord, Lord Morris of Castle Morris, referred to university students. Separate amendments come later—Amendment No. 158, to be moved by the noble Lord, Lord Addington, and supported by the noble Lord, Lord Morris—to deal with university students. It is helpful that the two issues are divided so that we can focus on them with some clarity. I am not sure that all the arguments we
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have heard this evening are entirely relevant, if I may say so with respect. Certainly the noble Lord, Lord Addington, did not relate the two issues and was speaking of the further education sector, which is the issue before us.
I have considerable sympathy with the amendment. It is also convenient that on this occasion it is not grouped with amendments which are to follow, for which the arguments are perhaps different. However, I have two reservations. The first is that the amendment refers to more than one student without any restriction. It may be appropriate to set an upper as well as a lower limit. There is no reason to imagine that those who draw up the appropriate statutes will pack the appropriate body with students but it might have been a more persuasive amendment for those on this side of the House who are a little cautious on the matter had an upper limit been stipulated.
My other reservation is that this is in the further education sector and therefore many of the students will be in the younger age range; that is, they may be in the 16 to 18 age range. Many of us on this side of the House have been emphasising that we see a clear distinction between school and sixth form college, which is now in the further education sector. If we insist that sixth form colleges are in the further education sector—I have been warmly supporting the Government in this matter—there is a distinction between sixth forms in schools in the schools section and sixth form colleges in the further education sector. Perhaps the logic then is that we see the force of their being in the further education sector and therefore that there should be such representation on these bodies. Ultimately, this argument leads me to believe that the amendment has a great deal of logic in it. I wish to hear what my noble friend the Minister has to say before deciding my position. I believe that the case put forward by the noble Lord, Lord Addington, is an effective one.
Lord Redesdale: My Lords, perhaps I may say to the noble Lord, Lord Renfrew, that as regards the 18 year-olds, at that age one is allowed to vote and take part in the democratic process. Therefore, I do not see why one should not be able to be part of the governing body of the institution of which you are a member. The point I wish to bring out about the amendment is that it puts on the face of the Bill that a student nominee should be a part of the main governing body. I recall that when we were debating higher education and university students and whether they should be on the governing body, the argument was that they can be but that there was no need to put that on the face of the Bill.
I argue the other way round. At times of trouble within these institutions when there is difficulty between the students and the governing body, as there can be in many instances such as with rent increases, it is precisely at those times that the students' voice must be heard on the governing body. It is precisely at those times that it would be easiest to neglect the students. It would be easy to say, "As you do not have a right to be on the body we can easily neglect your point of view. We are sorry, but you are not on the

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governing body and therefore you cannot deal with these matters". That is why this amendment is so important.
I do not see that an upper limit is applicable because the amendment mentions a "student nominee". The minimum would be one. There does not need to be many more than one student nominee, but that nominee could be vital in the smooth running of the institution of which he is a member.
Baroness Seear: My Lords, I do not wish to disagree with my noble friend, who is much nearer to student politics than I am these days, but I disagree that there need not be more than one nominee. It is very important that there should be more than one. We have argued this matter before. The problems are very real and there will not be very effective representation if membership is limited to one. One does not need a horde of representatives, but more than one is needed.
The Lord Bishop of Guildford: My Lords, from these Benches I support the amendment. I am glad that it has been tabled without, as the noble Lord, Lord Renfrew, said, a string of following issues saying that everyone else should be represented. It needs to be clear that the students are the college. There is no entity without students. Therefore, in that respect, they are not to be considered alongside the administrative and all the other staff who may or may not be represented on the governing body. Therefore, the fundamental principle that students should be represented on the governing body of an institution in the further education sector should be accepted and it should be on the face of the Bill.
6.15 p.m.
Baroness Carnegy of Lour: My Lords, usually we discuss this issue on the basis that if it is not on the face of the Bill then Parliament is against students being on the governing body. I shall listen very carefully to what my noble friend Lord Cavendish has to say because the amendment is suggesting that there should be,
"at least one student nominee on the governing body … nominated by the students of the institution".
Presumably, that means that it will be the president of the students' union or an office bearer of the union. If the Bill is worded like that then I believe that is what will happen. I hope that the governing body of a new college—
Lord Addington: My Lords, I am grateful to the noble Baroness for giving way. Surely it would be possible to arrange an election of some kind or some other form of nomination. The president of the students' union would probably have more than enough to do without being on the governing body.
Baroness Carnegy of Lour: My Lords, I do not know whether the noble Lord has ever been president of a students' union, in which case he will know more about the matter than I do. But my perception of the value of college governing bodies on which I have sat is that the president of the union valued greatly being
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on the body. Incidentally, it was done very well. It will be very difficult to carry out the function in another way under the terms of the amendment. If the governing body itself decided on how the students should be elected or left it to the students to decide, then in many ways that would be a better approach.
I want to hear what my noble friend has to say. I feel that students must be there. I cannot conceive of a college where it would be a good thing to have a governing body with no student representation. It is a question of how one arrives at that representation. If this amendment were accepted it would automatically result in the president, or whatever office bearer of the union, being on the body. Student unions are not always totally satisfactory in arriving at who their representative should be.
Lord Henderson of Brompton: My Lords, perhaps I may add a word of support to the amendment. Like the noble Lord, Lord Renfrew, I am very glad that this amendment has not been tabled with Amendments Nos. 158 and 158A. We must stick to further education at this stage of the Bill. I cannot see any logic in separating colleges of further education from colleges of higher education. I should like to apply the principle that students should be represented on the boards of governors and corporations across the board.
Perhaps I may ask for clarification, although I believe that I know the answer. As the Bill is drafted, can the Minister say whether it is possible for students to be elected to boards and that there is no bar to the election of students? I feel that it would be possible, if that is so, for the Government to issue some kind of circular or directive saying that it is desirable that students should be elected to the body. However, that is only a second best course to an effective amendment to the Bill which empowers the body to have at least one student member.
I am quite satisfied that there should be at least one student member. I would not like to specify a greater number and neither do I believe that there is any necessity to put a limit on the number of students. It is a general principle as to whether or not it is desirable. We have heard what I believe to be the unanimous voice of those in this Chamber who have knowledge, both as recent students and as dons. I believe that the authoritative opinion is on the side of this amendment, which I am very happy to support.
Lord Cavendish of Furness: My Lords, this amendment would require the Bill to specify that the instrument of government for each further education corporation shall provide for the corporation's membership to include at least one student nominee. Your Lordships will recall that we had a very full debate in Committee on the desirability of prescribing in the Bill the membership of FE corporations. The Government remain of the view that it would not be appropriate to do so.
As regards the question of students, I made our view clear then about students on governing bodies. There is no hostility by the Government towards students in those positions.

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In responding to the noble Lord, Lord Henderson, I can confirm that there is no bar in the Bill to students being elected to these bodies. Model instruments of government will be set out in regulations to be made under this Bill, and we shall be consulting on the draft regulations. Under the regulations, it will still be open to corporations to propose changes to the composition of their membership to suit their individual needs. We believe that it is important to give corporations some flexibility in their membership.
We also debated the desirability of including certain representatives in the membership of the corporations. So far as concerns student representation, it is our intention that the model instruments of government for further education corporations will provide for the membership of the corporation to include a student representative to be elected by the students at the institution. The position in relation to student representatives on the membership of FE corporations will therefore mirror the current position with regard to student representation on FE college governing bodies. Guidance issued to LEAs in connection with the reconstitution of FE college governing bodies under the Education Reform Act 1988 stated that:
"Should an authority decide not to allocate places to representatives of the students the Secretary of State would expect the colleges' articles of government to provide for the students to make representations to the governing body on matters of proper concern to them".
We propose to issue similar guidance to further education corporations.
I hope I have conveyed to your Lordships that this Bill does not propose any change to the current position of student representation on further education college governing bodies. I hope that it can be agreed that there is no need for this amendment and in consequence that the noble Lord will feel able to withdraw it.
Lord Peston: My Lords, perhaps I may interrupt the noble Lord before he sits down. I thought that what he was saying sounded rather important. Did he say that Schedule E will be introduced by a statutory instrument, and that within that statutory instrument the model regulations would be specified, and that they would contain in them the statement that the model would include at least one student representative? In other words, do I understand that the model regulations—which will of course only be dealt with by a negative instrument —will include what is already incorporated in this amendment, or did he not say that?
Lord Cavendish of Furness: My Lords, I said just that.
Lord Addington: My Lords, we have had a full debate on this subject, and the noble Lord has gone asme way towards meeting the anxieties. But it is a case of: "we expect"; "normally there should be"; "probably"; "under most circumstances". I thought for a minute that the Minister would have met all the points here, but I am afraid that we are returning to the very fundamental point that students are these institutions. They are what goes on inside them; they
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are what makes them work. Everything else is a periphery round it. If you do not have students, it is a bit like having a body without blood in it—it just will not work. Surely, we should be saying that they are entitled to representation on the governing body. We have a very wide-ranging sector. It has been my experience in further education that you will have a better cross-section of ages.
I listened to the intervention of the noble Lord, Lord Peston. Is the Minister effectively saying that there will be an almost guarantee of representation here? That is the only thing that is good enough. Unless we get that sort of guarantee, we are denying representation to a group of which the majority will be adults. It must be remembered that part-time students will be brought in as well, and the vast majority of those part-time students will be over 18. Unless we have a rock solid guarantee, I cannot withdraw this amendment.
Lord Cavendish of Furness: My Lords, let us be absolutely clear. I am not giving a rock solid guarantee, as the noble Lord would like. We have gone as far as we can. I hope that the noble Lord understands that there is no hostility, as I have said. In fact it is very much the reverse. However, I do not want to pretend there is any guarantee offered here.
Lord Addington: My Lords, I thank the noble Lord for that intervention. It has cleared things up. I appreciate that he has gone some way towards meeting us, but I am afraid that there is still a gap between us which is a very important one. Much as I dislike doing so, especially when the Government and the noble Lord have made some movement towards us, I am afraid that I have no real option but to seek the opinion of the House as this is such an important principle.
6.25 p.m.
On Question, Whether the said amendment (No. 91A) shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 78.

Division No. 3

CONTENTS

Addington, L. [Teller.]

Howie of Troon, L.

Adrian, L.

Hughes, L.

Allenby of Megiddo, V.

Jeger, B.

Ardwick, L.

Jenkins of Hillhead, L.

Beaumont of Whitley, L.

Jenkins of Putney, L.

Birk, B.

Kilmarnock, L.

Blackstone, B.

Lawrence, L.

Carter, L.

Longford, E.

Cledwyn of Penrhos, L.

Lovell-Davis, L.

Clinton-Davis, L.

McNair, L.

Combermere, V.

Mallalieu, B.

Darcy (de Knayth), B.

Morris of Castle Morris, L.

David, B.

Nicol, B.

Dean of Beswick, L.

Pennock, L.

Desai, L.

Peston, L.

Falkender, B.

Prys-Davies, L.

Gallacher, L.

Rea, L.

Galpern, L.

Redesdale, L.

Gladwyn, L.

Rochester, L.

Graham of Edmonton, L.

Russell, E.

[Teller.]

Seear, B.

Grey, E.

Serota, B.

Guildford, Bp.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Thurlow, L.

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Tordoff, L.

Wharton, B.

Turner of Camden, B.

White, B.

Underhill, L.

Williams of Elvel, L.

Warnock, B.

NOT-CONTENTS

Arran, E.

Macleod of Borve, B.

Astor, V.

Mancroft, L.

Balfour, E.

Marlesford, L.

Barber, L.

Merrivale, L.

Bauer, L.

Mersey, V.

Belhaven and Stenton, L.

Milverton, L.

Belstead, L.

Morris, L.

Boardman, L.

Mottistone, L.

Boyd-Carpenter, L.

Mountevans,L.

Brabazon of Tara, L.

Mowbray and Stourton, L.

Carnock, L.

Munster, E.

Cavendish of Furness, L.

Napier and Ettrick, L.

Cochrane of Cults, L.

Nelson, E.

Coleraine, L.

Norrie, L.

Constantine of Stanmore, L.

Orkney, E.

Cork and Orrery, E.

Pearson of Rannoch, L.

Denham, L.

Peyton of Yeovil, L.

Elliot of Harwood, B.

Platt of Writtle, B.

Elliott of Morpeth, L.

Reay, L.

Elton, L.

Rees, L.

Ferrers, E.

Renton, L.

Fraser of Carmyllie, L.

St. Davids, V.

Gainsborough, E.

Seccombe, B.

Haig, E.

Skelmersdale, L.

Henley, L.

Soulsby of Swaffham Prior, L.

Hesketh, L. [Teller.]

Stockton, E.

Hives, L.

Strathclyde, L.

Hooper, B.

Strathcona and Mount Royal,

Howe, E.

L.

Huntly, M.

Strathmore and Kinghorne, E.

Hylton-Foster, B.

[Teller.]

Jeffreys, L.

Sudeley, L.

Kimball, L.

Thomas of Gwydir, L.

Lane of Horsell, L.

Trumpington, B.

Lauderdale, E.

Tryon, L.

Lindsey and Abingdon, E.

Ullswater, V.

Liverpool, E.

Waddington, L.

Lyell, L.

Wigram, L.

Mackay of Ardbrecknish, L.

Windlesham, L.

Mackay of Clashfern, L.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.33 p.m.
Schedule 4 [Instruments and articles of government for further education corporations]:
Lord Peston Lord Peston moved Amendment No. 92:
Page 71, line 8, at end insert ("and such membership shall include a person with expertise in or experience of a Training and Enterprise Council").
The noble Lord said: My Lords, noble Lords will notice that I am dealing under Schedule 4 rather than in the main body of the Bill with the membership of governing bodies of further education corporations. It may well be that the Minister will be able to reply in terms similar to those of his earlier reply on student membership. When we discussed the membership of funding councils the Government were reluctant to include the words,
"with expertise in or experience of a Training and Enterprise Council".
However, they made it clear that they assumed that the rubric to the Bill would in practice always mean that such people were included. Although I argued at the time that I would rather have the words,
"membership or connected with a training and enterprise council",
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I fully understood the Government's position. We agreed to differ.
We ought to be talking about the model instruments and articles and what will be contained in them. What I am trying to get over to the Government is the thought that what is contained in my amendment should appear in the model instruments and articles. Alternatively, although I would prefer my version, there should at least be something corresponding to "membership of a funding council", which the Government have already put into the Bill. That would then encourage corporations to have this kind of membership. I am looking for some clarification or reassurance along those lines.
I take it for granted that there is nothing between us on the desirability—whether explicitly or just taking it for granted—that more than one person with expertise in or experience of a training and enterprise council should be on governing bodies. I assume that there is nothing between us and that it is purely a question of method.
Perhaps I may draw one other matter to the attention of the House. In the detailed notes on Clause 21, which covers how initial instruments and articles will be dealt with, we are told that such orders and regulations will be made by statutory instrument subject to the negative resolution procedure, which is dealt with in Clause 85. That means that noble Lords have been right to emphasise these matters while we are dealing with the Bill as we shall not have any other opportunity to voice our opinions on them. Normally we do not debate matters to do with the negative resolution procedure. Therefore I have taken a few minutes of your Lordships' time because this is my last chance to emphasise before the House that aspect of the matter. I beg to move.
Lord Cavendish of Furness: My Lords, I hope that I have the right amendment. I do not think that there is anything in Amendment No. 92 specifically about TECs.
Lord Peston: My Lords, Amendment No. 92 states:
"and such membership shall include a person with expertise in or experience of a Training and Enterprise Council".
Does the noble Lord have that version of my amendment? I am reading only what I have in front of me and what I have prepared for. That may be completely irrelevant, but it is my amendment.
Lord Cavendish of Furness: My Lords, the confusion arose because at one stage it was intended to take several amendments together. I apologise to the noble Lord.
The amendment would require the Bill to specify that the instrument of government for each further education corporation shall provide for the corporation's membership to include,
"a person with expertise in or experience of a Training and Enterprise Council".
We debated in Committee the desirability of including certain representatives in the membership of the corporations. As announced in the White Paper, Education and Training for the 21st Century, all FE corporations will include at least one representative of the local training and enterprise council. That is in

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recognition of the close relationship between the colleges and the training and enterprise councils through the core funding which the TECs will continue to provide for work-related further education.
The model instruments of government for FE corporations will specify that the membership must include at least one representative of the local training and enterprise council. That is one aspect of the membership which colleges will not be able to apply to change. In nearly every respect—the noble Lord is right—it follows the same formula as before. I hope therefore he will feel able to withdraw the amendment.
Lord Peston: My Lords, I thank the noble Lord. I was hoping to get an answer of that kind. It will be included in the model instruments and articles and there will be no deviation from what the Government announced earlier. Subject to what I think was a fully reassuring answer which covers the point, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Pestonmoved Amendment No. 93:
Page 71, line 8, at end insert ("and such membership shall include a person with expertise in or experience of a local education authority").
The noble Lord said: My Lords, in moving Amendment No. 93, I am not certain, given the Government's previous position, whether I shall receive quite as positive an answer. I do not need to repeat what I have said. If I apply to Amendment No. 93 everything I said to Amendment No. 92 and substitute the words "a local education authority" for "a Training and Enterprise Council" my argument will hold yet again. I am asking whether the model instruments and articles of government will include this point as well. Again, I raise it now and in this form because I do not believe I will have a chance to discuss the statutory instrument regarding model instruments and articles when it comes forward. Therefore, I do not apologise for raising the matter again. I can assure the Minister, and noble Lords generally, that this is my last throw on the subject. I look forward to hearing the response. I beg to move.
Lord Cavendish of Furness: My Lords, the amendment would require the Bill to specify that the instrument of government for each further education corporation should provide for the corporation's membership to include a person with expertise in, or experience of, a local education authority. I am sure that the membership of FE corporations will include such a person. It is not unusual for college principals to have worked in LEAs. I think that most principals could claim to have expertise in, or experience of, a local education authority by virtue of their regular dealings with the authorities.
Of course, the governing bodies will be able to co-opt two LEA people in a personal capacity. That was an undertaking given in the Government's White Paper, Education and Training for the 21st Century. I repeat that undertaking this evening.
Lord Peston: My Lords, I thank the Minister. I think that that was a helpful reply, although I am not
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sure that it was quite as positive as that given in respect of the training and enterprise councils; but at least it was something. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
6.45 p.m.
Baroness David Baroness David moved Amendment No. 95:
Page 71, line 11, at end insert:
("( ) An instrument shall provide for the members of the further education corporation to include a person who is elected as a member of the further education corporation by teachers at the institution and who is himself a teacher at the time when he is elected.").
The noble Baroness said: My Lords, in my view this is an important amendment. It asks that the members of the further education corporation should include,
"a person who is elected as a member of the further education corporation by teachers at the institution and who is himself [or herself] a teacher at the time when he [she] is elected".
It is extremely important that the governing body should have the benefit of having a teacher at the institution definitely included in the body. It is no use just having the principal; the principal may not always know the views of the whole teaching body and in fact may have a different view. For the benefit of the institution as a whole, it is extremely important that a teacher should automatically be there and be elected by the teachers at the institution.
I hope that we receive a more positive answer at this stage. The amendment reflects the provision made in the Education (No. 2) Act 1986 for school governing bodies. Therefore, there is a precedent. As I said, I hope that we receive a positive response from the Minister. I beg to move.
Baroness Seear: My Lords, I strongly support the aim of the amendment that there should be a teacher on the body. We should not rely solely upon the principal. As the Minister said in reply to the last amendment, some principals have worked in local education authorities; but they may not necessarily have been teaching people. It is most important that there should be someone on the body who is a professional practising teacher and who is involved in the profession.
Earl Russell: My Lords, if the Government were to resist the amendment they would remind me of the college secretary at the first college in which I served. He said that the academic staff were employees just like the garden staff, although probably not such useful ones. It was a view which did not commend itself to the teaching staff of the college. Communication between teachers and governing bodies is not always of the best. It is worth improving. I hope that the Government will seriously consider the amendment.
Lord Cavendish of Furness: My Lords, the amendment would require the Bill to specify that the instrument of government for every FE corporation should provide for the membership to include a person who is elected as a member of the further education corporation by teachers of the institution and who is himself a teacher at the time of election. It

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is our intention that the model instrument of government will provide for the membership of the corporation to include up to two members representing the staff of the college. Those members would be elected by the staff of the colleges and will have to be on the college staff.
As with preceding amendments, we take the view that it would not be appropriate to prescribe in the Bill that certain categories should be included in the membership of FE corporations. I hope that the noble Baroness will find that to be a positive response and that she will feel able to withdraw the amendment.
Baroness David: My Lords, before the Minister sits down, I should like to ask a question. Does what he said mean that the model instrument of government has definitely to be followed by the new set-up?
Lord Cavendish of Furness: My Lords, I do not think that the model has to be followed. However, I understand that the institution can apply to vary the model instrument.
Baroness David: My Lords, that was not a totally satisfactory answer. However, I am glad to hear that the model will include a teacher, or perhaps two teachers, elected by the teaching staff. I do not intend to divide the House at this time of night, but I believe this to be a most important matter and I hope that the model will be referred to so far as is possible. In my view it would be absolutely disastrous if it were not. I say that because, as the noble Baroness, Lady Seear, said—and I am grateful for her support and that of the noble Earl—the principal may not be a practising teacher and may not previously have been one. Indeed, such people are often brought in from outside. Therefore, the views of the actual teaching staff are especially important. In view of the comforting remarks that have been made, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Transfer of property, etc.: institutions maintained by local education authorities]:
Lord Cavendish of Furnessmoved Amendment No. 96:
Page 19, line 15, at end insert:
("(8) On the operative date—

(a) all land and other property which, immediately before that date, was property of the former governing body, and

(b) all rights and liabilities of that body subsisting immediately before that date,

shall be transferred to and, by virtue of this Act, vest in the corporation.
(9) In subsection (8) above "former governing body" in relation to an institution means the governing body of the institution immediately before the operative date.").
The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Belstead. It would require that all property, rights and liabilities acquired by governing bodies of institutions prior to incorporation would transfer to the corporations.
It is the Government's understanding that, in the vast majority of cases, the governing bodies of institutions (which will in the new FE sector be
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conducted by FE corporations) will not have acquired or incurred any rights or liabilities of their own. However, it has come to the Government's notice that, in certain circumstances, some governing bodies may have acquired rights or incurred liabilities, in particular regarding the use of property. The governing body may have entered into an agreement regarding the use of premises by others outside school hours. We are particularly anxious that any such liabilities should not remain with the old governing bodies, but should transfer to the new corporations. We are concerned not least because these liabilities will have been assumed in a personal capacity.
I am sure your Lordships agree that it is unacceptable that individuals who served on the old governing bodies should have liabilities resting with them when they no longer have any control over the institutions to which the liabilities relate. I commend the amendment to the House.
On Question, amendment agreed to.
Clause 24 [Provisions supplementary to section 23]:
Lord Cavendish of Furnessmoved Amendment No. 97:
Page 19, line 42, leave out from beginning to first ("the ") in line 43 and insert:
("(3A) Where such arrangements are for the supply to others as well as to the institution—

(a) those arrangements shall have effect as mentioned in subsection (3) above only to the extent that they relate to the institution in question, and

(b)").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 107. These are technical amendments. As it stands, Clause 24 provides that contracts made by means of the competitive tendering process shall have effect from the operative date as if they were made between the local authority and the further education corporation.
The purpose of the proposed amendment is to make provision for handling potential disputes between local authorities and the corporations. The schedules to compulsory competitive tendering contracts do not always put costs against particular institutions to which the goods and services supplied relate. In such circumstances, it is possible that disputes may arise in the search for an acceptable apportionment of charges for the new corporations.
The proposed government amendment to Clause 24(3) would provide for local authorities and the education assets board to have a duty to identify and agree what rights and liabilities should transfer. In that way, the interests of the colleges transferring to the new sector are protected. I commend the amendment to the House.
On Question, amendment agreed to.
Clause 26 [Transfer of staff to further education corporations]:
Lord Cavendish of Furnessmoved Amendment No. 98:
Page 20, line 45, after second ("authority") insert:
("( ) in relation to a corporation established to conduct an institution which, on that date, was a voluntary aided or special agreement school, the governing body of the school").

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The noble Lord said: My Lords, the amendment provides for the transfer from the governing body to a further education corporation of contracts of employment of staff in any voluntary aided or special agreement school which might enter the new further education sector after April 1993 as an institution conducted by a corporation.
Although existing voluntary aided sixth form colleges will enter the new sector in April 1993 as institutions designated as eligible to receive funds from the further education funding councils, we expect voluntary aided schools which in the future meet the conditions for transfer to the sector to do so as institutions conducted by further education corporations. Any special agreement schools which might also meet the necessary conditions will be required to do so. That as we said in earlier discussions about voluntary schools, is to preserve so far as is possible the coherence of institutional status in the new sector.
Clause 26 as it stands does not provide for the necessary transfer of contracts of employment of staff in voluntary aided and special agreement schools to the further education corporation. The amendment is intended to remedy the deficiency. I beg to move.
On Question, amendment agreed to.
Clause 28 [Designation of institutions]:
[Amendment No. 99 had been withdrawn from the Marshalled List.]
[Amendments Nos. 100 to 102 not moved.]
[Amendment No. 103 had been withdrawn from the Marshalled List.]
Clause 30 [Special provision for voluntary aided sixth form colleges]:
The Lord Bishop of Guildfordmoved Amendment No. 104:
Page 23, line 37, leave out ("aided school") and insert ("school or a grant-maintained school which was a voluntary school before it became grant-maintained").
The right reverend Prelate said: My Lords, the amendment relates to Clause 30 and the governing bodies of voluntary aided sixth form colleges. The Minister will be aware, because I have had discussions with him, that in our view the provision of a majority of foundation governors should apply not just to aided schools but to all voluntary schools or former voluntary schools.
The arguments are well known to the Minister. In an earlier exchange on another amendment, he said that he would be able to give some assurances in that connection which might enable me to withdraw the amendment. I move it at this stage to give the Minister the opportunity to make that statement so that we can be clear as to what is the position. I need not therefore detain the House longer at this stage. I look forward to what the Minister has to say about the amendment. I beg to move.
Lord Belstead: My Lords, at present of course the instruments of government for voluntary aided sixth form colleges provide for the foundation governors to be in the majority. The Bill proposes to preserve that position. However, the right reverend Prelate is putting forward a different point; namely, that a
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majority of foundation governors for former voluntary controlled sixth form colleges should prevail. I believe I am right in saying that currently foundation governors comprise some 25 per cent. of the governing body of voluntary controlled sixth form colleges. The position of foundation governors of former voluntary controlled sixth form colleges will not be affected adversely when they become FE corporations. Those colleges will continue to be conducted in accordance with any trust deed, and their religious ethos and their character will be reflected in the articles of government where no trust deed exists.
Model instruments of government for the former voluntary controlled sixth form colleges, like those for all institutions which are to become FE corporations, will be prescribed in regulations to be made under the Bill. There will be a separate model for former voluntary controlled colleges. All further education corporations will be able to apply to my right honourable friend to amend their instruments of government to suit their particular circumstances. I repeat the assurance that I gave earlier this afternoon, that any request from the voluntary controlled sixth form colleges to amend their instruments to provide for a majority of foundation governors will be considered sympathetically.
I believe that I owe the right reverend Prelate an explanation of why I seek to give an assurance and am not offering to put something on the face of the Bill. There is a problem here in that there are, as the right reverend Prelate would be the first to tell me, non-denominational voluntary controlled colleges. I can only hazard the thought that they might not necessarily want a majority of foundation governors squeezing out other interests. I do not say that pejoratively. I am not in any way being critical. I repeat the assurance that I have just given. If the denominational sixth form colleges or the non-denominational sixth form colleges feel that, come what may, they want a majority of foundation governors, any request from the voluntary controlled sixth form colleges, be they denominational or non-denominational, to amend their instruments to provide for a majority of foundation governors will be considered sympathetically.
The amendment refers also to a grant-maintained school which was a voluntary school before it became grant maintained. There are no existing grant-maintained sixth form colleges. If in the future the balance of work at a grant-maintained school that was a former voluntary school were to change and it became eligible to join the new FE sector, such an institution would be able to keep a majority of its foundation governors. I hope that the right reverend Prelate will feel that the assurance I have given him is of some value and that it will not be necessary to pursue the amendment.
The Lord Bishop of Guildford: My Lords, I am grateful to the Minister for that response and assurance. The amendment relates also, in some measure, to the other amendments to Clauses 15 and 28 which I withdrew earlier; and therefore is a part, so

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to speak, of some unfinished business. In the light of the Minister's assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Transfer of property, etc., to designated institutions]:
[Amendments Nos. 105 and 106 not moved.]
Clause 36 [General provisions about transfers under Chapter II]:
The Principal Deputy Chairman of Committees (Baroness Serota): My Lords, I call Amendment No. 107.
Lord Cavendish of Furness: My Lords, in view of the fact that the discussion on the following amendments will be of some length, I move that further consideration on Report be adjourned until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Coal Industry Bill
Brought from the Commons; read a first time, and to be printed.

Mental Health Act 1983: Code of Practice
6.58 p.m.
Lord Mottistonerose to move to resolve, That the amendment to the code of practice under the Mental Health Act 1983 laid before this House on 29th November be withdrawn.
The noble Lord said: My Lords, this story of the English and Welsh code of practice is a sorry one. It needs some explanation, but I shall try to be brief. As I explained when moving a Motion to withdraw that code of practice nearly two years ago on 29th January 1990 (Hansard col. 68) the code had two false starts in 1985 and 1987. The final version, against which my earlier Motion was directed, was nothing like so good at meeting the requirements of Section 118 of the 1983 Act as was the Scottish code of practice produced at the same time.
The main failings of the English and Welsh code were in its relative verbosity and its departure from the text of the Act about which it was intended to provide guidance. That is still the case. The sooner the authors of the English and Welsh code swallow their pride and adopt the wording of the Scottish code, the better.
I turn now to the amendment to the code of practice, which is the subject of the Motion. In January 1990, I pointed out that in paragraphs 2.6 and 2.7 of the code it is not made clear that a person can be admitted to hospital in the interests of his own health as well as his safety and the protection of others, as is provided in Section 2(2)(b)of the Act and in the Scottish code.
The experience of members of the National Schizophrenia Fellowship is that even though the 1983 Act has now been in force for over seven years, some
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doctors and social workers do not know what it says about the admission criteria. I gave examples of this confusion in the debate on 29th January 1990. Since then, the last president of the Royal College of Psychiatrists has confirmed that it still exists. The mistake was to say that compulsory admission is only possible if a person is a danger to himself or to others.
The need to overcome this misunderstanding is thus still very important. The amendment which we are debating technically does this by sending the reader back to the Act to discover the statutory criteria. One might say that because it says nothing different, it might be necessary to go back to other Acts as well, but it just says "statutory criteria" without giving a reference.
The whole point of the code is to provide guidance on interpreting the Act, so the proposed amendment not only does not achieve the aims of Section 118 of the Act but makes matters worse because busy people will not wish to hunt for the Act or go anywhere else to see what are the statutory criteria. A simple repetition of Section 2(2) (b) of the Act, as in the Scottish code, as an introduction to paragraph 2.6 would have been much better. I hope that the Government will take notice of the urgent need to provide a useful amendment to this part of the code.
I was also disappointed that the Government, having at last decided to make an amendment to the code of practice, failed to do the job properly. During the 1990 debate on the subject, my noble friend Lady Blatch—then speaking for the Government—agreed that the wording in paragraphs 2.27 and 2.30, was "very definitely ambiguous"; that appears in col. 85 of Hansard for 29th January 1990. As a result, when the code was issued, in a covering circular carefully marked,
"This circular is not part of the Code of Practice",
a reference was made to the remarks of my noble friend Lady Blatch together with an interpretation of them. There is, however, no cross-reference to the covering circular in paragraphs 2.27 and 2.28, so that busy medical practitioners and social workers are most unlikely ever to learn of the wise words of my noble friend who is now the Minister for Heritage Matters. Surely, when the Government decided to issue an order amending the code of practice, the sensible action would have been to include an amendment incorporating what had already been agreed as necessary, to correct paragraphs 2.27 and 2.30.
However, that amendment is not the only one to be overlooked by the Government. On 27th March 1990, my honourable friend Mr. Roger Freeman—then the Minister with responsibility for mental illness—saw a delegation from the National Schizophrenia Fellowship led by myself and my honourable friend Mr. David Atkinson, MP. While agreeing to the amendments which I have already mentioned, he encouraged the fellowship to put forward any other amendments to the code which it felt would be helpful. These were sent to him on 29th May 1990. In July 1990, the present Minister responsible, my honourable friend Mr. Stephen Dorrell, informed the NSF that

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the suggested further amendments had been forwarded to the Mental Health Commission. The commission had been asked to comment by the end of 1990. Nothing was heard from them from July 1990 until well into 1991, although in the meantime I tried to persuade my honourable friend Mr. Dorrell that they should get a move on.
In March 1991, the NSF heard that the Mental Health Commission supported my proposals about paragraphs 2.6, 2.27 and 2.30 and that the Minister proposed to put them to Parliament. That was nine months ago. I have already told your Lordships what a mess he made of that, and it was eight months before the amendment which we are now discussing.
What I find disgracefully cavalier, in addition, is that in all the time since July 1990 nothing has been done about the further NSF amendments then sent to the Mental Health Commission which now seem to have disappeared without trace. It is a sorry story and I hope that it is only incompetence that caused it. I beg to move.
Moved, To resolve, That the amendment to the code of practice under the Mental Health Act 1983 laid before this House on 29th November be withdrawn.—(Lord Mottistone.)
7.8 p.m.
Lord Thurlow: My Lords, before coming to the code of practice, I wish briefly to put on record that many of us on these Benches warmly welcome some of the improvements that have been made with a view to the better implementation of the Mental Health Act, particularly recently. It is reassuring that the Centre for Mental Health Services Development has been set up to help to plan and implement a comprehensive range of services for care in the community, keeping in close touch with the Department of Health. We wish the centre well.
Further, we warmly welcome the degree of monitoring that we understand is at last being arranged through the Social Services Inspectorate as a result of or in response to the representations of the Select Committee on Social Services in another place of October 1990. Those representations are helpful and we welcome them.
In spite of the sorry story of the code of practice, perhaps we may at least congratulate the Government that most of the code of practice is extremely helpful and clear. However, it does not in any way diminish our surprise, indeed dismay, at the failure of the department to bring forward amendments which are brief, clear and to the point, to cover the representations that have been clearly made over a long time. The noble Lord, Lord Mottistone, has categorised these and I have no desire to go over the same ground.
However, to anyone like myself who has been a civil servant, it is peculiar that, against the background of all our uneasiness about the way in which the code of practice has come into being, more trouble has not been taken to get it right at last. How much longer are we to go on in this way? The department seems to be disregarding and flouting Parliament, paying little attention to the injunctions of its Ministers. We hope
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that now at last the opportunity will be taken to correct the failures of the past. We hope that the present amendment will be withdrawn and that fully satisfactory amendments will be introduced to cover the question of health.
The amendments should make it absolutely clear that patients may be formally admitted on the grounds of their own health alone. Further, the amendments should seek to add to the code directions concerning the rights of nearest relatives. There is nothing difficult about that. Like others, I am confused as to why your Lordships' House has to devote its time and energy to going over this ground. To put the most charitable interpretation one can on the matter, one must conclude that the present position has arisen simply because of incompetence.
I wish to go beyond the question of the code of practice and refer to the uneasiness which so many of us continue to feel in relation to the implementation of the Mental Health Act. That uneasiness stems from the fact that the Government are not prepared to give Parliament a complete picture of what is happening, and what has happened, as a result of the closure of hospitals. There has been what can be regarded as an abdication of responsibility to Parliament by taking refuge in statements such as, "This is a matter for district health authorities and local authorities".
We have been told time and time again that the statistics are not centrally available. We all know that these kinds of statistics must be recorded on computers all over the country. It cannot be a difficult administrative operation for the Department of Health to keep up-to-date on what is happening. That department retains its overriding responsibility for this important area of the nation's health. To ask the Department of Health to keep up-to-date on this issue does not seem to me to be a matter that is beyond the department's reasonable administrative capacity.
It would be uncharitable to infer that the Government take cover behind the responsibilities of district health authorities and local authorities for fear that exposing the facts would be likely to trigger widespread public demands for greater resources. I dare say that would be the result, but let us not have a cover up. I urge the Government to do all that they can to speed up the monitoring which we are glad to hear is being arranged through the social services department. I urge the Government to make it possible for Parliament to obtain a full and comprehensive picture so far as that is reasonably possible.
7.14 p.m.
Earl Haig: My Lords, my noble friend Lord Mottistone proposes an alteration to the code of practice of the 1983 Mental Health Act. From what my noble friend and the noble Lord, Lord Thurlow, have said, it appears that these grave matters have not so far been well handled. My noble friend believes that the wording of the present amendment is unclear and that it causes frequent misinterpretation. That is of particular concern where patients who need hospitalisation are allowed to escape treatment and medication.

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During a previous debate on this matter I joined other noble Lords in expressing my anxiety over the matter of compulsory admission. At that time the main requirement to compel admission was that the patient should be found to be a danger either to himself or to others. Our view was that wider and clearer powers were needed. However, several of your Lordships were anxious to avoid a situation where there might be questionable intrusion into the liberty of the individual. Therefore the opportunity to come to a general agreement about clearer wording which would be more in line with the law in Scotland was not taken.
Since then there have been increasing complaints. Even in Scotland, where the code of practice is more clearly phrased, there has been a lack of awareness on the part of doctors about the admission criteria. What is needed is a document which sets out to give clear guidance to doctors, to approved social workers and to relatives about the criteria concerning compulsory hospital admission.
Tonight I am able to identify with far greater compassion with the complaints about the vagueness of the criteria. That vagueness often contributes to slowness in deciding whether or not to compel admission. Since our previous debate a member of my family who was in need of hospital treatment had rehospitalisation delayed for a long period. The main reason for that was because his doctor took the view that the patient's condition was not bad enough. This was in spite of urgent appeals for hospitalisation both from members of his own family and from the police. The doctor misunderstood both the criteria and the nature of the illness. I blame myself for not bypassing him earlier. It was only when the situation developed to an alarming extent that it became obvious that steps had to be taken to compel admission. There had been a delay of some nine months.
I find it appalling that such a delay could have happened when there was obvious need for hospitalisation and when there was clear evidence that compulsory admission was needed. In my view this delay was detrimental to the patient's welfare and caused him unnecessary extra suffering. The longer the delay the harder it is for any patient to climb back towards recovery. The decision to compel admission is painful for everyone concerned. However, as the saying goes, "It is right to be cruel in order to be kind".
We no longer live in an age where conditions in mental hospitals are horrific. Humane and skilled treatment is available and early release is encouraged. The rights of the patient and of the relatives are written into our laws. What is needed is greater clarity in the wording of the code of practice and for the code of practice to be widely circulated among the medical profession. Schizophrenia—the illness to which I refer —requires medication to remedy inactivity in the brain. Before medication can be given, an assessment must be made. That assessment is in the hands of the psychiatrists. The quicker general practitioners refer their patients to psychiatrists the better. Too often there are delays. Even then, psychiatrists can be slow to hospitalise. That happened recently with tragic
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results at Tweedbank. Too many patients are falling through the gap between psychiatrists and general practitioners. By some means the division between the general practitioners and the psychiatrists must be diminished. I hope that my noble friend the Minister will respond to the Prayer of my noble friend Lord Mottistone with some urgency. I strongly support my noble friend Lord Mottistone in his anxiety to get things moving.
7.20 p.m.
Lord Rea: My Lords, some noble Lords may feel that the noble Lord, Lord Mottistone, doth protest too much as, underlying his Motion, is the one word "and", which he wishes to change to "or". That is apparently a small change, but we are a revising Chamber and, speaking as a practising doctor who from time to time finds himself in the difficult position of having to decide on the compulsory admission of a patient, that one word can make a very great difference.
Having re-read the code of practice just before the debate, I was struck by its clarity and humanity as a whole. The Mental Health Act of 1983 was an important improvement on previous law and is very much a patient-centred Act. The wording of the 1990 code of practice in paragraph 2.6 which we are discussing—I refer to the phrase,
"the health and safety of the patient"—
has resulted in some reluctance among professionals to invoke—
Lord Mottistone: My Lords, I do not understand why the noble Lord, Lord Rea, is referring to the words "and" and "or". I am not saying anything about those words. I am saying that the amendment before us is not what was needed in order to meet what was proposed in 1990, but there is no question of "and" and "or". It is question of other words altogether.
Lord Rea: My Lords, if the noble Lord will listen to me, I shall explain what I am driving at. The word in the original Act is "or". The word in the code of practice is "and". The provision for compulsory admission in the 1983 Act refers to,
"the health or safety of the patient".
Lord Mottistone: My Lords, I am sorry to press the matter, but we must get it clear. If the code of practice is amended by the amendment against which I am praying, the question of "and" and "or" does not come into the matter because the amendment deletes the first three lines of paragraph 2.6 and inserts another version. The "and" and "or" argument does not apply once the code of practice has been amended. That is what I am arguing against. If you ignore the amendment that I am praying against and compare what I was asking for in January 1990 with what is in the code of practice, the noble Lord is talking sense, but we are not arguing about that.
Lord Rea: My Lords, I must continue with this argument because the amendment which was put before the House on 29th November refers the reader of the code of practice back to the original Act when

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deciding whether a compulsory admission should be made. The noble Lord said that the busy practitioner will not have the original Act at his disposal. I contend that the amendment is inappropriate in the same way that the noble Lord says that it is inappropriate; although it uses the "or" version, it does so in a devious way. I was eventually coming round to support him on that.
Perhaps I may ask noble Lords to consider the situation in which one makes a decision about a compulsory admission. The health professional is often uncertain whether he should invoke the Act if the health of the patient alone is the reason for the admission and where the safety of the patient or of other people is not an issue. When the health of the patient alone is at issue much effort is often taken to persuade the patient to go in informally. I can say from my own experience that the great majority of patients agree to go in informally, but, in some cases even if they are admitted informally, if they do not agree to take treatment a compulsory order must be invoked once they are in hospital. That is occasionally difficult to arrange and sometimes it would have been better if the person had been admitted compulsorily under the Act in the first place. If the word "or" had been clearly included in the code of practice as the noble Lord suggests, it might have brought about earlier compulsory admission.
The amendment laid on 29th November is unhelpful because, although it changes "and" to "or", it does so in an obscure way. Surely the purpose of a code of practice is to explain the operation of a law or regulation in more easily understood language than the language of the Act itself. The amendment throws responsible professionals back to the original Act. I should like to know whether we could not have a summarised version of the Act's intention in the clear language that characterises the code as a whole; in other words, could we not call an "or" an "or"?
One suspects that there may be a gremlin at work here; in other words, though this be madness, there is method in it. I should be grateful if the noble Baroness would explain why the amendment is worded as it is. If professional pressure or pressure from any other quarter is the explanation, I hope that she will take the House into her confidence and tell us about it.
7.27 p.m.
Lord Ennals: My Lords, it is rare that I come to the assistance of an embattled Baroness when she sits on the Front Bench and I am sure that she will say that she does not need me to protect her. So far all those noble Lords who have spoken would have the provision changed. I do not feel the same. I have tried to refresh my mind as to the debate that was initiated by the noble Lord, Lord Mottistone, in this House on 29th January 1990. Certainly, none of those noble Lords who took part in the debate then had any doubt that this was an important document. I recall that I warmly commended the document to the House when the noble Lord, Lord Mottistone, wished it to be withdrawn. I acted on the basis of my own experience, just as he acts on the basis of his experience. I acted on my experience in government and my experience on
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the Standing Committee on the 1983 Bill, knowing what I thought Parliament intended when it prepared the Bill, and subsequently with my work in MIND.
In the previous debate the noble Lord, Lord Mottistone, and other noble Lords criticised paragraph 2.6 of the code because it did not exactly follow the language of the Act. That is fair enough. Until I heard my noble friend, it seemed to me that the amendment put that right and referred specifically to what was said in the Act. The idea that one can somehow or other have a little summary of an Act is not a very good one. There is a suggestion that there may be particular references upon which we can draw in the code of practice, but I do not think that it would be a good idea either to withdraw it or to have a summary of the Act as suggested by my noble friend.
The Mental Health Act makes it clear that an application for admission for assessment may be made in respect of a patient:
"in the interests of his own health or safety or with a view to the protection of other persons".
Paragraph 2.6 of the code of practice did not make it clear that health or safety should be considered. I agree that the "or" is an important part of it. Instead, it states that:
"In judging whether compulsory admission is appropriate, those concerned should consider not only the health and safety of the patient".
That is fair enough, too.
Since the adoption of the code of practice, I am informed that the officers of MIND have travelled up and down the country advising social workers, doctors and nurses on the terms of the code of practice. MIND is firmly of the view that the proper implementation of the code by local and health authorities across England and Wales can only assist patients to receive the care and treatment that they require.
There is always a difficult balance to be held between the rights of an individual suffering from mental illness and the need to protect that person from the consequences of the illness. Certainly MIND believes that the code of practice and indeed the Mental Health Act 1983 maintain that difficult balance.
The noble Lord, Lord Mottistone, particularly in the previous debate, was concerned about the position of patients' families and urged that the interests of families should be respected. Paragraph 2.6 does that very fully. It refers to the patient's family circumstances and what may be known about the patient by his nearest relative or any other relatives or friends; it deals with the needs of the patient's family or others with whom the patient lives and the need for others to be protected from the patient. It seems to me that paragraph 2.6 has the balance right in considering both the needs of the patient and the patient's family.
I understand that there has been a good deal of discussion within other organisations about the code of practice. The Royal College of Psychiatrists has comments that it wishes to make. Certainly MIND has comments to make and we know from the debate this evening that the National Schizophrenia Fellowship has proposals to make. I understand that the Mental Health Act Commission has taken all

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those bodies into account. It will shortly be coming forward—perhaps the Minister will tell us a little more about this—with proposed amendments and there may be several of them. They may form the basis of an interesting debate in this House.
I am sure that once those amendments have come forward from the Mental Health Act Commission there will be a period of consultation. I hope that we can have a very comprehensive debate in this House. However, at this stage, I believe that it would be irresponsible of this House to seek to remove an amendment which has been honestly brought forward and which in my view does what some critics wanted it to do; namely, to make quite specific in the very first sentence of paragraph 2.6 that it was all done within the terms of the provisions of the Act.
I hope that my support of the noble Baroness's case does not embarrass her. Perhaps she will find another way to present her case so that that support will not embarrass her.
7.32 p.m.
Lord Elton: My Lords, I apologise to the House because my name did not appear on the list of speakers. Foolishly I thought that this matter was to be dealt with under the procedures for statutory instruments, since it addresses a statutory instrument, and that there would not be a list on which to put my name. I am reassured in my approach by the fact that the noble Lord. Lord Ennals, supports the Minister because it is my reluctant duty to add a featherweight to the difficulties of my noble friend on the Front Bench. I felt that I had to speak because of my interest as the Minister who put through the Mental Health (Amendment) Act 1982 in its first House of consideration and that legislation was absorbed into this Act—the principal part of it—on consolidation.
It is only necessary to endorse the importance of this issue in the briefest of words after the speech of my noble friend Lord Haig. Many noble Lords will have heard and seen in the media painful instances which show how important it is that the correct criteria should be observed when patients are considered for admission under Section 2 of the Act. It seems to me that the rights and wrongs of the issue are clear and my interest is principally in the mechanics of what we are doing and how it ought to work.
The statutory instrument at which we are now looking takes its authority from Section 118(1) of the 1983 Act which states that:
"The Secretary of State shall prepare, and from time to time revise, a code of practice—

(a) for the guidance of registered medical practitioners [and others] in relation to the admission of patients … and

(b) for the guidance of registered medical practitioners [and others] in relation to the medical treatment of patients".

The important words are "for the guidance".
Following the chain of authority into the code of practice itself we come first to the preface which says:
"This Code of Practice offers much detailed guidance on how the Mental Health Act 1983 should be implemented".
In the body of the code, at paragraph 1.2 one finds:
"The code imposes no additional duties on statutory authorities. Rather it provides guidance to statutory
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authorities, Managers … and professional staff working in health …and social services on how they should proceed when undertaking duties under the Act".
That is the purpose of the document at which we are looking.
We know that the provision in the principal Act that we are now addressing is Section 2(2), in which we read:
"An application for admission for assessment may be made in respect of a patient on grounds that … (b) he ought to be so detained in the interests of his own health or safety".
The code mentions "health and safety" and there is a difference in law which would be recognised by the courts.
Reading the report of the debate which my noble friend Lord Campbell of Alloway instituted on 15th January 1986 with regard to codes of practice and their status, and looking at the words of the Lord Advocate in reply to that debate, we find that indeed in cases in which Parliament has a statutory right to look at and oversee codes of practice, as is now the case, they may be taken into consideration in courts of law. So this matter is important both in law and in practice and the code is different from the Act. That has been generally accepted and my noble friend has been instrumental in bringing it to the public gaze and should be congratulated on that.
Looking at paragraph 2.6 and what the Government have done in order to clarify this point and put it right, we see that in effect they have removed the words "the health and safety" and replaced them with the words "statutory requirements". In other words this is a document which everybody must have to tell them what the Act means and when one comes to the difficult bit it says "Read the Act for yourself".
The department—rather I should say the Government—has described that as clarification in the Explanatory Note, which states:
"This amendment is to clarify the information in paragraph 2.6 (page 4) of the Code of Practice".
It does no such thing; it removes the information and tells the reader to look instead at the Act of Parliament for himself. I am sure that my noble friend is well aware of these difficulties. I do not want to make her burdens heavier. I am encouraged to see on page vii of the code of practice (which comes between the preface and the text but which has no name except "Department of Health" and "Welsh Office") in paragraph 2:
"All those using the Code of Practice should be aware of the statement made by Baroness Blatch on behalf of the Government during the debate on the Code in the House of Lords on 29 January".
The Government listen to what this House says. While the court cannot take it into account, the department can do so.
I hope that we have all said enough to ensure that the department will not throw up its hands and say, "It is too difficult. You must read the Act for yourself", but that it will put in this simple and easy to understand amendment which has been referred to but is not included in the Motion before us. All that is asked is that the language of the Act can be used in a context which is understood by laymen. I hope that my noble friend will undertake to do that.
7.40 p.m.
Lord Carter: My Lords, the House will be very grateful to the noble Lord, Lord Mottistone, for introducing this Motion. It is a difficult and sensitive subject because it involves agonising decisions by doctors, relatives, social workers and patients.
There is no need for me to rehearse the arguments at length. They have already been well explained by previous speakers. I shall be brief and restrict my remarks almost entirely to the specific Motion on the Order Paper. The code of practice is a useful document and expresses the intention of the Act with some clarity except in respect of the subject which we are discussing today.
The argument seems to turn on the exact meaning and value of the new wording of the amendment in the code of practice as judged against the original wording. I shall return to the point. However, before doing so, I shall ask the Minister —as did other noble Lords—why the opportunity was not taken, when paragraph 2.6 of the code of practice was being amended, to deal with the ambiguity regarding the rights of relatives. As has already been pointed out, the ambiguity is specifically mentioned in paragraph 2 of the circular, but that is not a part of the code of practice. The Government admitted to the House in January 1990 that there was ambiguity, and took the trouble to put it in the circular at the beginning of the code of practice. If they intended to introduce an amendment to the code of practice it would be interesting to know why the opportunity was not taken to remove that ambiguity.
There has been, and still is, considerable misunderstanding about the matter. Mental health professionals, text books and other documents tend to misinterpret the Act as a result of the original misinterpretation in the code of practice. That misinterpretation has now been put right, but I would say in a rather obscure way, by the amendment to the code of practice. I am sorry to labour the point but the "and/or" distinction is extremely important. It is the central point. The Act refers clearly in Clause 2(2)(b) to the interests of a patient,
"of his own health or safety or with a view to protection of other persons".
In the normal meaning of the English language that means that any one of the three criteria—health, safety or protection—can be a sufficient condition on its own to compel admission. The code of practice unamended stated that the health and safety of the patient are to be considered, thus conjoining the two criteria and relegating the protection of other persons —as set out in the Act as having equal importance with the other two criteria—to one of 11 other subsidiary factors to be considered. Paragraph 2.7 of the code—which is still unamended—refers to the health and/or safety. That is even more confusing.
Since the wording in the Mental Health Act seems to be accepted and understood and not capable of misinterpretation, why was that actual wording not used in the amendment to the code of practice instead of the rather obscure reference back to the statutory criteria?
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The original wording in the code picked up the wording of the Act but then mis-stated it. Why not correct the original mis-statement in the code by correcting the wording in plain language? Let us put it another way. Why not amend the code of practice, picking up the words of the Act and thereby clarifying it? In amending the code, why was there no attempt to deal with the vexed question of the rights of relatives in the matter?
The House debated the code of practice at length some two years ago. There is therefore no need to go over that background again. We are concerned today with the effect of the specific amendment to paragraph 2.6 of the code of practice and the proposal before us to withdraw the amendment. I have already said that the wording of the amendment seems to be unnecessarily opaque, referring back, as it does, to the statutory criteria without spelling out those criteria. Surely the purpose of the code of practice is to explain and amplify rather than to obscure.
Having said that, we must ask whether the code of practice would be improved if we remove the amendment. Surely not. We would be back in the situation where the words in the code unamended would be ambiguous and would be seen to be contradicting the statutory criteria, not allowing the health of the patient as a criterion on its own, but requiring the health and safety of the patient to be considered. I am not entirely sure why the noble Lord has not proposed an amendment to the amendment rather than seeking its removal. If the amendment is removed we return to the position where the code of practice is wrong when compared with the principal Act.
The noble Lord, Lord Mottistone, raised a point regarding obscurity, a point made by a number of speakers. However, that obscurity will not be resolved by withdrawing the amendment and thereby returning to the original wording which I believe is wrong. Will the point about obscurity be taken into account?
A number of points have been made about the code of practice and referred to by my noble friend Lord Ennals. If the amendment is withdrawn we shall be back where we started with a misleading statement in the code of practice. Obscure as the amendment is, it at least directs the user of the code of practice back to the statutory criteria which express the will of Parliament. The House will appreciate the Minister's assurance that the extremely important points that have been made in the debate will be taken fully into account when the code of practice is next reviewed.
7.45 p.m.
Baroness Hooper: My Lords, I too welcome the opportunity to respond on behalf of the Government to my noble friend's anxiety about our proposed amendment to paragraph 2.6 of the Mental Health Act 1983 code of practice. In doing so, I wish to acknowledge the importance of the close interest and knowledge of the subject that is consistently shown by my noble friend and indeed has been shown by everyone who has contributed to the debate. I of course fully subscribe to the apology which has been given by my honourable friend in another place to my

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noble friend for our failure to let him know in advance about the terms of the amendment. My noble friend has been good enough to write to us explaining the grounds of his concern as well as expressing himself clearly on the subject today. However, I hope that I shall be able to persuade him and others who have participated that the amendment fulfils the purpose that he seeks. At the same time I hope to respond to other issues raised in the debate as appropriate.
We are dealing here with an important issue of some complexity and much sensitivity; namely, the circumstances under which it is proper for someone to be admitted compulsorily to hospital. Depriving someone of his or her freedom is a very serious thing to do. The Mental Health Act reflects Parliament's considered view of the criteria to be satisfied and the procedures to be followed before such a step is taken.
Despite the fact that the code is the product of extensive consultation—two formal rounds and subsequent informal soundings over four years, and careful deliberation by people with direct, practical experience of working within the Act—Ministers quite understand that there are aspects of it that some would wish to see amended. My noble friend has referred to some points that are of concern to the National Schizophrenia Fellowship. We know that other bodies would also prefer that some sections had been drafted in different terms.
Perhaps I may first refer to the background of the amendment although it has already been dealt with fairly extensively. Paragraph 2.6 of the code deals with the factors to be taken into account at assessment—that is for the compulsory admission to hospital. It was one of three issues which my noble friend Lord Mottistone raised in the House just under two years ago in the debate on his own Motion to have the code which was then before Parliament withdrawn. The Government undertook to seek the advice of the Mental Health Act Commission on those three specific criticisms and on the operation of the code as a whole. That undertaking is recorded in the circular covering the code by the Department of Health and the Welsh Office which is printed in the booklet.
The three specific criticisms were duly considered by the commission and my honourable friend the Parliamentary Secretary in the other place wrote to my noble friend last March about the outcome. He reported that the commission had accepted two of the criticisms but not the third. The points which were accepted were those on paragraph 2.6 of the code—with which we are concerned today—and paragraphs 2.27 to 2.30 which deal with the obligations of professional staff to the patient's nearest relative. The third point was not accepted.
My honourable friend said that he accepted the commission's advice. But he added that he would refrain from asking Parliament to consider any amendments to the code until the commission's final report was received.
However, my noble friend departed from that course because the National Schizophrenia Fellowship has represented to us strongly—and my noble friend has given us evidence of that tonight—
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that amendment of this particular paragraph was especially urgent because it was leading to the Act being wrongly applied by GPs, psychiatrists and social workers. Without necessarily accepting that there is widespread misunderstanding, we have accepted that this particular paragraph could be misleading. That is why we have brought forward the amendment ahead of the more general revision of the code. The answer to the criticism that we have not addressed the issue of the nearest relative is that this is covered in a different part of the code and will be embraced in the amendments resulting from the more general review.
Lord Ennals: My Lords, I thank the Minister for giving way. If the amendment was brought forward specifically to meet the concerns of the National Schizophrenia Fellowship I am surprised that the department did not ask the fellowship whether it was satisfied with the amendment being put forward on its behalf.
Baroness Hooper: My Lords, yes, and it is for that omission that I have offered an apology, as has my right honourable friend in another place. Those apologies are most sincere. We hope that such an omission will not occur again, but I hesitate to guarantee that.
I turn to the wording of the amendment. A great deal has been said about the question of whether it is "health and safety" or "health or safety". The problem with the existing wording is not only the use of "and" instead of "or", which has been referred to fully, but the fact that the Act to which the amendment refers the practitioner reads:
"health or safety or with a view to the protection of other persons".
The present code omits that provision completely. Separate criteria must be satisfied as regards the health of the patient. They are in Sections 2(2) (a) and 3(2) (a). Therefore, we do not believe that it is realistic to try to gloss all the relevant sections of the Act. As my noble friend Lord Mottistone has pointed out, the wording of the amendment refers simply to:
"the statutory criteria for admission under the Mental Health Act".
There is no attempting to paraphrase them. I certainly have some sympathy with the view that all essential information should be put together in a handy form.
Ours is the approach that was recommended by the Mental Health Act Commission and we believe that it is the right way of dealing with the matter. I must stress here that the code is directed primarily at the mental health professionals who have to operate the Act. Social workers who are approved under the Act have to undergo 60 days of special training in its application. This is the only area in which special additional training is laid down for social workers beyond their qualifying training. Against that background we do not believe that it is an unreasonable assumption that professional staff will have a working knowledge of the key provisions of the Act.
Lord Carter: My Lords, we accept the point that the statutory criteria are scattered throughout the Act. Why not put in the glossary to the code the sections of the Act in which the statutory criteria are contained?
Baroness Hooper: My Lords, I was about to deal with that matter. While bearing in mind the ever-present danger of misrepresenting a statute in attempting to paraphrase it, the reference to the statute could be more specific and refer to the relevant sections of the Act as appropriate to paragraphs of the memorandum which appear in other parts of the code. Having referred to the professional use of the code I accept that it needs to be reasonably accessible to patients and families. However, even in that case I do not believe that the answer is to reproduce sections of the Act or to paraphrase them. That would add considerably to the length of the document and we want a document that is handy, usable and clear. Most noble Lords who have spoken believe that in general the code is clear.
In short, we believe that the amendment that we are proposing is the right way to meet the concerns that were expressed to us. I repeat that I accept that we were at fault in not letting my noble friend and the fellowship know how we proposed to deal with the matter. I repeat my apology to him for that.
Perhaps I may also make it clear that we are not just making the amendment and leaving it at that. We shall be sending it to health and local authorities with a covering circular. That will explain the background to the change and in particular will correct the alleged misunderstanding about the words "health and safety". I will be happy to let my noble friend and the fellowship see a copy of our letter before it is circulated.
Finally, I have referred to the wider review of the code by the Mental Health Act Commission. We have just received from the commission its first report on this which includes proposals for amending a number of chapters. We shall be consulting widely about these proposals and considering carefully all the views we receive on them before bringing forward any proposals of our own for further amending the code. As part of that consultation process we shall look again at any views that are put to us on the wording of the paragraph that we are discussing this evening. We shall also look again at the other amendments proposed by the National Schizophrenia Fellowship to which my noble friend referred. The comments that your Lordships have made this evening will also inform the decision making.
Perhaps I may refer briefly to a point made by the noble Lord, Lord Thurlow, about monitoring. The SSI is monitoring comprehensively the implementation of care programmes by health and local authorities. The results of that process will be made public.
8 p.m.
Lord Elton: My Lords, before my noble friend sits down, perhaps she will answer two questions. First, in their consultation with the Mental Health Act Commission, was the advice of the commission that
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the Government should use the language of the statute, or that they should refer to it? In fact, they have "referred" and my noble friend and everybody else asks that they should "use". If the words in Section 2(2) (b) were incorporated in an easily understandable context, the problem would disappear.
Secondly, is it intended to honour the undertaking given at paragraph 3 on page viii of the introduction, which states:
"If Parliament agree to make amendments, the Code of Practice will be reprinted in full and will be available through HMSO"?
Would it not be very expensive to do that if, as we all hope, another larger and better amendment is to follow close behind?
Baroness Hooper: My Lords, I understand that the commission has advised us to "refer". I have mentioned already in my remarks that the present amendment before your Lordships had the approval of the commission. That covers also the references to the statute in other parts of the code.
However, as regards reprinting, that is why we felt that on the whole any amendments should be taken together. That will take place after the consultation process to which I have referred, at which time all amendments proposed by the Mental Health Act Commission as a result of its review will be taken into account.
Although the present amendment may be deficient, it is nevertheless an improvement on the wording of the code which is being amended. With the assurances that I have been able to give, I hope that my noble friend will withdraw his Motion.
Lord Mottistone: My Lords, before my noble friend sits down, I believe that she has not mentioned any forecast of when the amended amendments are likely to be brought before Parliament. It would be extremely helpful to have some idea about that.
Baroness Hooper: My Lords, I understand that that should take place before the end of this year.
Lord Mottistone: My Lords, does that mean before the end of the calendar year or before the end of July?
Baroness Hooper: My Lords, before the end of the calendar year.
Lord Mottistone: My Lords, that is disgraceful. There was a failed code of practice in 1985, a failed code of practice in 1987, an unsatisfactory code of practice in 1990, amendments which were promised in 1991 but which did not come into being until 1992 and now we are told that it will be 1993 before something is brought before Parliament. That is 10 years after the Act became law. That is disgraceful.
However, I am grateful to my noble friend for what she has done and said even if I am not at all happy about the almost unbelievable incompetence of her department.
I am grateful to noble Lords who have joined in the debate. I am sorry that I did not allow the noble Lord, Lord Rea, to complete what he was saying before I questioned him. However, I believe that our argument

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pointed to the fact that it is difficult to escape confusion in interpreting what is in the code of practice. That is what this debate is all about. The fact that two quite intelligent people, one of whom is a general practitioner, were at cross purposes demonstrates that that could happen elsewhere.
My noble friend gave us examples of the training of social workers which would make them competent to understand the Act, the code of practice and everything which goes with that. However, general practitioners do not have that training and they are an important element in the whole picture. They need to have matters made easier for them.
As regards cross references, at page 113 of the code of practice one cannot find paragraph 2.6 at all. It does not have a cross reference into Section 2. That is completely inadequate. There is much more room for improvement. I could go on and on.
The noble Lord, Lord Carter, asked why I did not table an amendment to the amendment. One cannot amend a statutory instrument, so I have taken the only course open to me. Even if I do not agree with the present wording, I believe it is better than saying something like, "Look at the Act of Parliament". Very reluctantly, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Further and Higher Education Bill [H.L.]
8.6 p.m.
Further consideration of amendments on Report resumed.
Clause 36 [General provisions about transfers under Chapter II]:
Lord Cavendish of Furnessmoved Amendment No. 107:
Page 28, line 10, at end insert:
("( ) Where arrangements for the supply by a local authority of goods or services for the purposes of an institution to be conducted by a further education corporation are to have effect as from the operative date in accordance with section 24(3A) of this Act as if contained in an agreement made before that date between the local authority and the corporation, paragraphs 2 to 5 of Schedule 5 to this Act shall have effect as if the rights and liabilities of the corporation under the agreement were rights and liabilities of the local authority transferred to the corporation under a transfer to which this section applies.").
On Question, amendment agreed to.
Clause 43 [Remuneration of employees]:
[Amendment No. 108 not moved.]
The Lord Bishop of Guildfordmoved Amendment No. 109:
Before Clause 44, insert the following new clause:
("Denominational institutions
.—(1) In this section "denominational institution" means a further education institution which, when it became a further education institution, was a voluntary school or a grant-maintained school which was a voluntary school before it became grant-maintained
(2) The governing body of every further education institution except an institution which on the appointed day was a college of further education shall ensure that at an appropriate time on at least one day in each week during
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which the institution is open an act of collective worship is held at the institution which persons receiving education at the institution may attend—

(a) in a denominational institution such act of collective worship shall be in such form as to comply with the provisions of any trust deed affecting the institution and shall, in particular, he conducted in accordance with the practices and reflect the tenets of the denomination or denominations concerned:

(b) in all other further education institutions such act of collective worship shall be wholly or mainly of a broadly Christian character in that it shall reflect the broad traditions of Christian belief but need not be distinctive of any particular Christian denomination.

(3) If the governing body of a further education institution considers it appropriate to do so it may in addition to the act of collective worship referred to in subsection (2) of this section provide for acts of worship which reflect the practices of some or all of the other religious traditions represented in Great Britain
(4) In this section "the appointed day" means the day appointed under section 90 of this Act for the commencement of subsection (4) of section 15 of this Act.").
The right reverend Prelate said: My Lords, in moving this amendment, I shall speak also to Amendment No. 110. They deal with rather different matters but I recognise their interconnection.
Before I begin I should point out that I am not responsible for the marginal headnote which in this and the following amendments seem to be wildly misleading. Since the amendment was tabled it has been pointed out to me that there is a technical defect in the opening subsections of both amendments. I recognise that now that it has been pointed out to me but here we are debating the principle rather than the technical details of the amendments.
In 1988 an agreement was hammered out about the place of RE and worship in education. The noise of that hammering echoed well beyond the walls of this House. The proposals of this Bill require us to look again at that agreement, although I hope it will not be necessary to cover the same ground again.
At present the provisions of the 1988 Act apply to sixth form colleges; namely, that RE, as part of the basic but not national curriculum, and a daily act of collective worship must both be provided. By transferring the sixth form colleges from the school to the FE sector, the Government remove the requirement for religious education and worship in those colleges. In Committee I sought to maintain the status quo in that respect but the Minister was not content and other noble Lords expressed reservations. The noble Lord, Lord Renfrew, suggested a compromise and my amendments follow that suggestion.
I now propose that the educational institutions concerned should provide religious education and worship but attendance should not be compulsory. Under the 1988 Act parents can withdraw their children from religious education and worship. Under these amendments the students will make that decision.
Thus the amendments would make clear on the face of the Bill the importance of that dimension in education while at the same time recognising the more mature ethos of the sixth form colleges. The 1988 Act refers in its opening section to the:
"spiritual, moral, cultural, mental and physical development of pupils at the school and of society".

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At all times we must keep that broad aim in focus. Young people are more than empty vessels waiting to be packed with information and discipline which will make them useful for the labour market. People have rich and diverse gifts and qualities and we should ensure that they have space in which their potential can mature. The spiritual aspect of humanity is an enrichment giving sense and purpose to life. I suggest that we should not lightly abandon now what was recognised as valuable in 1988.
The amendment on worship, like the one that follows, is modest in its requirements. Some may say that it is too modest. First, the act of worship has to be provided but attendance is not required. Secondly, it is not a daily act of collective worship but at least once a week. Thirdly, it recognises that in some institutions there may be people of non-Christian faiths and their needs also should be respected.
I recognise that logic and consistency argue that if what I say is true for sixth form colleges, then it applies equally to further education colleges. My preference would be that the requirements of the amendments should apply across the whole sector. But idealism and logic must be tempered by reality. I anticipate that it would not be acceptable at this time to pull the existing further education colleges into the provision. The amendment therefore indicates that it should apply to sixth form colleges where school regulations are at present in force anyway and to any new institutions which may in due time come into the sector.
In preparing Amendments Nos. 109 and 110 I wish to assure the House that I have been in touch with representatives of other Churches. Had there been more time I would have wished those consultations to be more thorough. As the Minister is aware, he was not able to give me the Government's view till 8th January and that left little time for serious planned discussion. Even so, I assure him and the House that I did what I could within the time available to ensure that what I say represents a fairly wide Christian consensus.
Perhaps I may turn for a few moments to the matter of religious education, which is the subject of Amendment No. 110. Because of the interrelationship of the two it may be helpful to speak to that also. First, I do not conceive that religious education is just straight instruction in the Christian religion. I view it as being part of promoting the,
"spiritual, moral, cultural, mental and physical development of pupils at the school",
and preparing them, as the Act says,
"for the opportunities, responsibilities and experiences of adult life".
In the sixth form context religious education should reach out towards what many secondary schools do under the heading of personal and social education. I still believe that there are four reasons why religious education, broadly understood, should feature in our education system. First, we want to avoid over much narrowness and specialism in the young. The students need to see their academic work in a setting which enables them to evaluate that work in the context of the moral, cultural and spiritual dimensions of life. Under the curriculum guidance for 16 to 19 year-olds,
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they are currently entitled to relevance, depth and balance. To meet that colleges in my area provide courses under the heading of "complementary studies". It is in that context that they can pursue moral and spiritual values. Religious education is clearly related to that and in my view should not be edged out.
Secondly, supernatural and spiritual experience is widespread. Research has been done on it in Cambridge. It is not an aspect of life which can be disregarded as quaint or eccentric. More obviously, the power of religious conviction is a force to be reckoned with. In recent years we have seen a revival of that power not only in Iran and Algeria but also in this country among people of many different religions. That power of religious conviction needs recognition, analysis, understanding and, if necessary, redirection.
Thirdly, Christianity is a core element in our history, tradition and culture. We may accept or reject the Christian faith; what is undeniable is that it has been formative in our national history. If we want educated people to be aware of who and how we are they need that understanding. Fourthly, there is a case for securing religious education as an academic and examinable subject, among other things in order to acquire qualified RE teachers. Taking RE seriously as an academic subject is linked with how it is viewed in the context of the curriculum.
Amendment No. 110, like Amendment No. 109, requires the colleges to provide religious education but does not compel attendance. The sixth form colleges with which I have been in touch are already doing valuable work in that direction but it is not always secure. To require that RE should be provided ensures that the matter is not overlooked or ignored; it strengthens the hands of those who see the value of this element in education, although it may not be universally acknowledged. I underline that the amendment to do with religious education, like the one providing for worship, applies only to sixth form colleges and to new institutions because that is what realism dictates.
These are modest amendments and I suggest that if what we hammered out in 1988 was right, then they are the least that we should accept in 1992. There are many of us who want to secure the spiritual dimension in education. I beg to move.
8.15 p.m.
Baroness Perry of Southwark: My Lords, I should like to support the right reverend Prelate most particularly in Amendment No. 109 which asks that those colleges moving into the sector shall be required to offer, on a voluntary basis, an act of worship. The right reverend Prelate spoke also to the wish that they should continue to provide religious education.
The amendment asks that we should focus our attention for a little while on what the Bill is doing almost accidentally to the status of colleges which, when coming under the schools regulations and curriculum requirements, were maintaining the Christian presence and making provision for

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academic religious education. It seems wholly wrong that almost by accident that kind of provision should be removed.
I am pleased that the right reverend Prelate tabled his amendment in a way that requires the provision without requiring the attendance or take-up of that provision. During the Committee stage of the Bill many telling remarks were made in regard to the unfortunate effect on young people of requiring them to do something that they may be disinclined to do. The amendment is well worded and I support it.
Lord Renton: My Lords, I speak first to Amendment No. 109. I too have a great deal of sympathy with the aims expressed by the right reverend Prelate. I too feel that the reform introduced in 1988, which I strongly supported, could and should naturally be carried forward into further and higher education, especially into further education.
Having said that, I wish the amendment were acceptable in its present form. I am sorry to say that as I find for two reasons it is not. The first was referred to broadly by the right reverend Prelate and arises from the definition of "denominational institution" in Clause 9(1). It makes it exceedingly wide. The amendment refers to any,
"voluntary school or a grant-maintained school which was a voluntary school before it became grant-maintained".
The difficulty is that not all voluntary or grant-maintained schools are denominational or were so; there were a great many which were not. Therefore, that definition would have to be considered further with a view to making it more specific and narrower.
There is a further drafting difficulty. I invite the attention of noble Lords to subsection (2) (a), which states:
"collective worship shall be in such form as to comply with the provisions of any trust deed".
The trouble is that there are quite a number of old schools and institutions which may have no trust deed at all, but which have just grown up through the years. That could include some of the Jewish schools that we have in this country. It would also cover various non-denominational schools. Subsection 2(b) goes on to say,
"in all other further education institutions"—
that is to say, those without a trust deed—the form of worship shall be "broadly Christian". Therefore we have reached the stage at which any institution which has not got a trust deed shall be assumed to be Christian. Alas, I do not believe that that will do.
Although I am fully in favour of the spirit of this amendment, I do not see how we can add it to the Bill. Nevertheless, I hope that the Government will consider that the case which the right reverend Prelate has made out is one which is worthy of support in principle.
I now turn to Amendment No. 110, about which there is a further difficulty. The same difficulty of definition arises, but the other problem concerning a trust deed does not arise. Subsection (2) of this amendment states that:
"religious education is provided at the institution for all persons attending the institution who wish to receive it".
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It will surely be the case that many people will attend institutions of further education on either a whole- or a part-time basis, with a view to receiving specialised training, and sometimes that will include vocational training. For it to be insisted that religious education should be provided for such people may lead to a problem for the governing body. I put it no more strongly than that. It is a point which raises some difficulty. Although I am sympathetic I have less enthusiasm for Amendment No. 110.
Lord Belstead: My Lords, these amendments refer to the governing bodies of every sixth form college as regards offering collective worship and religious education for the future, but on a voluntary basis, for the student population. I believe that I am right in saying that the amendment would also apply to any newly established institution in the former sixth form college sector.
I recognise that these are very sensitive issues. Following our discussion in Committee, I offered to take them away and give them further thought. I have looked at them with great care and I have had further discussions with the right reverend Prelate. We have corresponded and I must apologise to him that the final correspondence from myself had to be at a late stage.
Although, hitherto, sixth form colleges have been treated as part of the school sector, in many ways they are closer to the college sector, where the curriculum is a matter for decision by institutions in the light of local demand. This Bill will clarify their position by bringing them into an integrated new FE sector with the responsibilities and flexibility that go with that status. The Government believe it right that curriculum decisions in all FE colleges should be for their governing bodies, and should not be dictated by parliament. There will be nothing to stop a former sixth form college from continuing to provide religious education and collective worship.
In former voluntary aided colleges, foundation governors will continue to be in a majority on the governing body. All further education corporations will be able to apply to the Secretary of State to amend their instruments of government; for example, to increase the proportion of foundation governors. I repeat the assurance I have given on two occasions today that any such request from former voluntary controlled colleges will be considered sympathetically. Any provisions relating to religious education in the articles of government for voluntary aided colleges will be retained. Provision will be built into the articles of government for voluntary controlled colleges to ensure that religious instruction is given in accordance with the trust deed. Where the trust deed is silent on religious instruction it will be our intention that the articles will provide that it must be given in accordance with the practice observed by the college before incorporation. I do hope that the assurances will, in the right reverend Prelate's view, safeguard the religious nature of the voluntary institutions.
I appreciate the concern expressed not only by the right reverend Prelate but by my noble friend about the future of religious education in former sixth form colleges. For the reasons I have given we do not feel

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that it would be appropriate for these colleges to be subject to statutory requirements relating to worship or the curriculum once they become part of the new sector. For the same reasons neither do we believe that it would be right to apply these requirements to new colleges, which is the effect of the amendment. In the light of the assurances that I have given, I hope that the right reverend Prelate will feel it right not to press this amendment.
Lord Renton: My Lords, can my noble friend clarify one point? He said that he did not believe that the question of religious education needs to be written into statute. Can he confirm that there would be nothing to prevent the governing body from introducing voluntary religious education if it wished to do so?
Lord Belstead: My Lords, there is absolutely nothing to prevent the governing body of a former maintained sixth form college—quite apart from the former aided and controlled sixth form colleges—not only from providing religious education but also from arranging that every day there was a collective act of worship which was available for those students who wished to avail themselves of it.
The Lord Bishop of Guildford: My Lords, I take the technical points that the noble Lord, Lord Renton, made about the way in which certain phrases in the amendments would probably need further adjustment. However, both these amendments refer to an important aspect of our educational system and I cannot give up on the issue. I do not think that it would be welcome to the House to divide at this stage of the evening. Because of the technical difficulties, I propose, with your Lordships' leave, to withdraw the amendments, but I believe that I shall want to bring them back at Third Reading. If they are not to be included in the Bill, I shall want to be quite sure that that was being done at the wish of the whole House rather than on the basis of one or two or only a few speeches. The speeches from the noble Baroness, Lady Perry, and the noble Lord, Lord Renton, were very welcome. With the expectation that I shall bring back an improved version at Third Reading, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment No. 110 not moved.]
8.30 p.m.
Clause 44 [Variation of trust deeds]:
The Lord Bishop of Guildfordmoved Amendment No. 111:
Page 35, line 24, at end insert ("and (c) the trustees.").
The right reverend Prelate said: My Lords, in moving this amendment I shall speak also to Amendment No. 112. Amendment No. 111 deals with the Secretary of State having power to vary a trust deed. There are two points here. The first is that if the Secretary of State is to vary the trust deed, it should be a requirement on him that he should consult the trustees who may not be necessarily the same group of people as are referred to in the earlier part of this
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clause. It is the trustees who have the responsibility. There is also some sensitivity about what the Secretary of State may do when he modifies a trust deed.
We have already heard of the anxieties about the Secretary of State's powers in relation to Clause 64 and Clause 77, but there are other places where he seems to be taking fairly considerable powers. I shall therefore move Amendment No. 112 where it restricts the powers of the Secretary of State to interfere (if I may use such a word) in the religious aspect of the trust deed. I beg to move.
Lord Belstead: My Lords, Clause 44 empowers the Secretary of State to modify by order the trust deeds relating to or regulating an institution in the further education sector or relating to the land and other property held for the purposes of the institution. Before making such an order, the Secretary of State is required to consult the governing body of the institution and the persons empowered to replace the trust deed. Amendment No. 111 proposes the addition of "the trustees" in subsection (2) to the description of people to be consulted by the Secretary of State before he makes an order under this clause. Amendment No. 112 would prevent the Secretary of State, as the right reverend Prelate has said, from making an order to amend a trust deed that would affect the denominational character of an institution. I think it is fair to say that there is an equivalent provision in the Education Reform Act 1988. But may I first say a few more words about these amendments.
With respect to the right reverend Prelate, Amendment No. 111 is unnecessary. The description in subsection (2) of persons to be consulted by the Secretary of State is based, as I said, on section 157 of the Education Reform Act 1988. This relates to the variation of trust deeds of institutions with the polytechnics and colleges funding sector. It does not refer specifically to trustees. I have to say that I am not aware of any complaints from trustees about the way in which this is operated.
I can appreciate the wish of the right reverend Prelate that the Secretary of State should not interfere with the religious provisions of trust deeds. However, a requirement that the denominational character of the institution should not be affected is very wide indeed. This could create problems in moving the sixth form colleges into the new sector. I can give an absolute assurance that it is not the Secretary of State's intention to interfere with the fundamental religious character of an institution in using powers under Clause 44. It is difficult to go further than that. I put that to the right reverend Prelate and hope that it may meet with his approbation.
Earl Russell: My Lords, before the noble Lord sits down, can he tell me any circumstances in which the Secretary of State could wish to take powers to change the denominational character of an institution? If there are no such circumstances, why does he need the power?
Lord Belstead: My Lords, the power is needed for the similar reason that it is needed in the Education Reform Act 1988. There is perceived to be a necessity

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to change the trust deeds when a denominational college is moving from one sector to another. The reverend Prelate has every right to move the amendment; but it comes as some surprise to me from what I have heard about the negotiations and the exchanges of views so far as concerns the Church of England, that this should be causing trouble. The Education Reform Act is there as a precursor. It is necessary to make certain that the religious ethos or religious character of the college concerned is not changed under the power in Clause 44. I have given an absolute assurance about that this evening.
The Lord Bishop of Guildford: My Lords, I am grateful to the Minister for his response. In relation to Amendment No. 111, I am advised that there is some anxiety on the part of my Roman Catholic colleagues in particular, because in those cases the governing body and the trustees are not always coterminous. It seems improper for the Secretary of State to have power to alter a trust deed without consulting the trustees. I find it astonishing that the Government hesitate about such a provision.
I hope that the Minister will at least be prepared to consider further discussions on this matter and to review the position. If in Amendment No. 112 the position is as absolute as the Minister was prepared to give in his undertaking, I am not quite clear why it cannot be written into the Bill. There seems to be a slight inconsistency in the Minister's response. I am anxious that we should not be at variance on this matter. Before he sits down, I ask the Minister if he will give me an assurance that we can continue discussions on this matter rather than foreclose the issue here and now.
Lord Belstead: My Lords, perhaps the House will give me leave to speak briefly once again. So far as concerns the necessity—and this arises from the point made by the noble Earl, Lord Russell, also—one needs to look at Section 157 of the Education Reform Act 1988 to see why the variation of trust deeds was thought to be necessary in 1988. There are a whole series of reasons relating to land and one thing and another which are set out in what is in fact quite a long section of the 1988 Act. Therefore I think there is a legislative reason why there is a need for Clause 44 in this Bill. It is because I was convinced of that that I felt it was necessary to give a very firm undertaking, which I have given this evening, about not affecting the fundamental religious character of the colleges concerned.
I understand why the right reverend Prelate puts the point to me about the trustees and the governors. I do not question the right reverend Prelate's information about their responsibilities not necessarily being coterminous. I take that as being a fact, coming from the right reverend Prelate. Without actually accepting it here and now, I should like to look as carefully as I can at the point that the right reverend Prelate is making in Amendment No. 111. This is no more than a consultation point but it is an important one to see whether I can meet it.
The Lord Bishop of Guildford: My Lords, I am grateful to the Minister. On the strength of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 112 not moved.]
Clause 46 [Statutory conditions of employment]:
Lord Pestonmoved Amendment No. 113:
Page 36, line 14, leave out subsection (3) and insert:
("(3) Nothing in this section shall authorise the variation of the terms of any contract of employment otherwise than in accordance with arrangements established by the representatives of the relevant parties to such contracts for the negotiation of their terms and conditions of employment.").
The noble Lord said: My Lords, I shall speak briefly to this amendment. I have no difficulty, broadly, with Clause 46. I interpret it to mean that the statutory conditions of employment and all related matters of staff in an institution which then changes from being an educational institution whose staff are employed by a local authority to an institution in the further education sector shall carry over. I have no difficulty with the clause as it stands. However, we have tabled the amendment because we do not understand subsection (3):
"Nothing in this section affects any right to vary the terms of any contract of employment".
The whole point of Clause 46 is that there should be no change in any contract of employment: so what is the purpose of subsection (3)? What does "any right" mean? What right are we talking about? It may be one of those technical points that lawyers always throw in which turn out to have no meaning whatsoever.
Clause 46 seeks to ensure that if a member of staff was employed in the institution as it was before the passing of the Act, he ought to be employed in the institution in exactly the same way after the passing of the Act. That is the purpose of the clause. I merely require some reassurance that subsection (3) is not a covert way of changing that position. I do not believe that it is meant to be a covert way of changing the position, but I should like an explanation of what subsection (3) is supposed to mean.
Perhaps I should rabbit on for a moment or two longer in order to enable a possible answer to appear. The amendment is important to those working in one of these institutions who want their conditions of employment to be unchanged. I beg to move.
Baroness Perry of Southwark: My Lords, I am not qualified to answer the technical questions posed by the noble Lord. However, I understand why the clause is written as it is and I understand the purpose of the amendment. The clause as drafted protects continuity of service and remuneration, which are important factors, but also protects the right of management in institutions to be able to make variations to some other terms and conditions when an institution becomes a different kind of institution, as may well happen under this transfer.
Certain conditions of service are inappropriate to the kinds of work towards which an institution may wish to move. There are restrictions in some of the existing contracts which may make it difficult for an institution to cope with its independent status. It may well wish to change the contracts of employment of

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some of its staff. That freedom is an absolute right of management. To require, as the amendment does, that no one's contract can be changed in any detail without full negotiation with representatives would be a dreadful inhibition on an institution wishing to move into its new character. I would therefore resist the amendment.
Lord Campbell of Alloway: My Lords, I hope that my noble friend the Minister will not accept the amendment. First, it appears to inhibit and put a fetter on the right of the employer to contract as he wills. Secondly, it ties into agreements established by trade unions. That is really going a little far in a statute to do with higher education. I hope that my noble friend will not accept the amendment.
8.45 p.m.
Lord Belstead: My Lords, this amendment would be in substitution for subsection (3) of the clause. The noble Lord, Lord Peston, asked about the effect of subsection (3). It safeguards the right of both staff and employer to vary the terms of any contract of employment. Put more colloquially, subsection (3) ensures that contracts are not set in stone and can be varied subsequently. The amendment would tie the hands of both parties through binding them to arrangements entered into by their predecessors for varying contracts of employment; for instance, in requiring them to negotiate with particular trade unions ("arrangements established by the representatives").
We are seeking to establish an efficient and flourishing new further education sector. There is no reason to suppose that the new managements would put at risk a good relationship with employee representatives through adopting inappropriate arrangements on the shape of future negotiations. I agree with what has been said from this side of the House that their staff must be free to decide for themselves and not be constrained by what has happened in the past. For that reason, I resist the amendment.
Lord Peston: My Lords, I thank the noble Lord for that reply. I am astonished that the noble Lord, Lord Campbell of Alloway, who takes an interest in employment matters, should support the Government on this issue. A contract is a contract. Contracts should not be varied just like that. I entirely accept what was said by the noble Baroness, Lady Perry, that if we move into a new era we have to reconsider matters. There is nothing in the amendment to say that one cannot reconsider matters. It does not say that everything is set in stone. One can always say that one would like to renegotiate. I had assumed that subsection (3) had a specific meaning. In fact, without subsection (3) it is still, to my certain knowledge of the law of these matters, up to both parties to renegotiate if the original contracts are inappropriate for the new purposes.
I am concerned both by what has been said and by the Minister's reply. There is nothing in the amendment about trade unions. I have looked at it several times and I cannot see the words "trade
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unions". If one is a member of staff, prima facie when one moves into a new institution one's first job is to guarantee that one's original position is maintained. The Government categorically maintain that it is. The Government are quite right on subsections (1) and (2) but they have added this rather strange subsection (3). I ask the Minister to think again. There is nothing to stop both sides discussing matters again. If that is all it means, there is no problem. However, it does not have to be there if that is all it means. I assume that it means something in addition—I cannot see what it means.
Perhaps the Minister will reflect on the matter. I feel that I ought to write to him on a matter of this kind. I am not seeking to get involved in trade union affairs. I am simply saying that there are some teachers who would like to feel that their position is as reasonably protected as it can be in the world in which we live. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 [Information with respect to institutions within the further education sector]:
Lord Cavendish of Furnessmoved Amendment No. 114:
Page 36, line 44, leave out from ("achievements") to ("and") in line 46 and insert ("qualifying their students for entry to the institution and the educational achievements of their students while at the institution (including in each case the results of examinations, tests and other assessments),
( ) the financial and other resources of the institution and the effectiveness of the use made of such resources").
The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Belstead. We had a useful debate in Committee on Clause 48, which gives the Secretary of State power to make regulations to require governing bodies to publish certain information. The noble Lord, Lord Peston, and the noble Earl, Lord Russell, brought forward amendments to extend that information to include information about the educational achievements of students prior to their enrolment at an institution and information relating to the effective use of financial and other resources. As I said in Committee, the Government accept the principle underlying their proposals.
Following that debate the Government have given very careful consideration to the suggestions made. The amendment which I am pleased to bring forward today is indeed based on those proposals. I should like, however, to make a couple of points. The first part of the amendment concerns the publication of information about the educational provision made by the institution and the achievements of students. The Government's objective is to require the publication of information which will be useful to young people, parents and employers. There is a great deal to be said for keeping that information as simple as possible, to allow the users to form their own judgments.
The purpose of the amendment is to give the Secretary of State the power to require the publication of information showing the value added—in terms of student qualifications—by the institution. I do not, however, want to give any commitments today as to when we might bring this requirement into effect. I

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think that noble Lords opposite will accept that we need to look very carefully at how that might be done. We need to ensure that the information can be presented in a coherent and reasonably straightforward way. I would stress, therefore, that by introducing the amendment, the Government are not committed to requiring the publication of such information.
In particular, we want to reflect a little further on whether the power proposed in the amendment is sufficiently wide in scope for the purpose. We have been anxious to avoid going too wide. However, there is some doubt as to whether this amendment is sufficient. I should like to propose that the House approves the amendment now; if we conclude that we can improve the drafting, I suggest that we return on Third Reading with a further amendment.
The second part of the amendment concerns the publication of other information which might be used as performance indicators. The Government have already called upon colleges to produce some of the information proposed by the amendment for colleges' own management purposes. As we said in Committee, many colleges will want such information to be published to enable them to evaluate their own performance in relation to that of similar institutions.
Having said that, we are also concerned about the consequences for colleges of any immediate call for the publication of the full range of such information. Before making appropriate regulations, we shall have to be sure that colleges have systems in place—and preferably computerised systems at that—which are capable of generating the information required in a cost-effective manner. I hope that your Lordships will welcome the amendment. I beg to move.
Lord Peston: My Lords, perhaps I may briefly thank the noble Lord, Lord Cavendish, for responding to our pleas in this direction. I should also like to say that I entirely agree with him that we must proceed rather cautiously. We need to accept—and I believe that we do—the value-added concept as our method of measuring efficiency. Those of us who have had any experience in such matters, know full well that that is not at all easy to do in practice.
I am delighted to discover that the Government realise that this is the correct way forward; that is, if we can only move forward. I am also delighted to hear that they will, for their part, look again at the matter to see whether the drafting can be improved in time for Third Reading. I can only say that we on this side of the House will also look at it again in a most careful way to see whether we can make any helpful suggestions.
Taking the longer view, I think that those of us on this side of the House would be committed to publishing such information at such time as we are convinced that it is the right information. I doubt whether the Government would disagree with that position. But my broad point in this respect is to be supportive.
On Question, amendment agreed to.
Lord Morris of Castle Morrismoved Amendment No. 114A:
Page 37, line 1, leave out ("after") and insert ("immediately upon").
The noble Lord said: My Lords, in moving the amendment, I am asking for clarification, pacification and reassurance. As it stands, Clause 48(1) (c) could be read as entitling the Secretary of State to ask for, and requiring the governing body to provide, information about the careers of any student from graduation to the grave; from his degree to his demise.
Every responsible education institution takes an interest in the careers of its students after they leave. But it is unrealistic and unreasonable to expect institutions to collect and provide for the publication of information about the eternal ongoing careers of their former students. While it is sometimes possible for institutions to have records of the immediate destinations of their students, it would be an absolute bureaucratic nightmare if they were expected to record details of the careers of students after that immediate period. The amendment seeks to define that the careers information which institutions are required to provide can only extend to such information as immediate destination or first employment where known. I beg to move.
Earl Russell: My Lords, I imagine that the amendment before the House enjoys the support of every departmental secretary in the country; it certainly enjoys mine.
Lord Renfrew of Kaimsthorn: My Lords, I should like to speak to the sense of the amendment. In Committee, I felt able to oppose an amendment put forward by the other side of the House which seemed to give rise to a number of bureaucratic requirements and necessitate far more paperwork than was productive. I am sure that it is the Government's intention in this context —that is, in such reports—that sufficient information should be conveyed and not a great deal more. I imagine that what is required is essentially "leaving" information, as the noble Lord, Lord Morris of Castle Morris, suggested.
The wording of the Bill may be open to various interpretations. But when it refers to,
"the careers of their students after completing any course or leaving the institution",
certainly the notion of the word "career" by any dictionary definition implies trajectory. It has a point of beginning that may be birth or, in this case, it is after completing any course or leaving an institution. But what is the terminus? The noble Lord, Lord Morris of Castle Morris, said that it may indeed be the demise or the decease of the student. Clearly some earlier terminus is intended here, but it is not defined in the Bill. It could be six months or one year. Indeed, someone may change their employment very rapidly. It may be interesting to know that.
It is possible that the precise wording in the proposed amendment is not the only wording which could be followed. But I am confident that the Government do not require institutions to keep and publish an elaborate record of the entire career of each

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of its graduating pupils. I am also confident that my noble friend will be able to give us that assurance and perhaps set our minds at rest.
Lord Cavendish of Furness: My Lords, the amendment would have the effect of limiting the information which the Secretary of State may require the governing body of an institution to publish about the subsequent careers of students. The Secretary of State's power would only extend to information about careers immediately upon completing a course or leaving the institution.
I understand, and sympathise with, the concerns which have been expressed by the noble Lord, Lord Morris of Castle Morris, and other noble Lords that we should avoid putting an excessive burden on further education institutions. I hope that I will be able to give some reassurance on the matter. I ask the noble Lord, Lord Morris of Castle Morris, to recognise the fact that there will inevitably be a significant number of students who, immediately on leaving the institution, will not have taken up employment; indeed, some will have gone on holiday. The limitation imposed by the amendment would therefore make it more difficult to produce information about the next steps in the careers of students which is of use to other students, parents, employers and the wider community.
We would wish to leave open the possibility of a requirement to provide information about careers which reflects the decisions students have made once they have been away from the college for a period. Clearly, the regulations to be made under this clause will need to strike a careful and sensible balance between the need to obtain useful information on the one hand, and the need to ensure that the exercise is manageable for colleges on the other. It is certainly not our intention that colleges should be required to keep track of students over a long period of time.
I am grateful for the contributions that have been made. I hope that the reassurance I have given covers the points which were raised, otherwise I should feel inclined perhaps to look again at the matter and write to noble Lords. However, I hope that the noble Lord, Lord Morris of Castle Morris, is satisfied with my response and that he will feel able to withdraw the amendment.
Lord Morris of Castle Morris: My Lords, 1 am grateful to the Minister for that reply. Indeed, I am reassured; I am pacified; and my mind is clear and serene. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Clause 49 [Publication of proposals]:
Baroness Blackstonemoved Amendment No. 115:
Page 37, line 28, leave out ("and").
The noble Baroness said: My Lords, I shall speak also to Amendment No. 116. The purpose of the amendments is to place on the funding councils a duty to consult LEAs before going ahead with a proposal to open or close a college. A similar amendment was considered in Committee. Decisions to establish or
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dissolve an FE funding corporation will have a major impact on local authority provision in the area where a corporation is to be closed or established. That will apply to the authorities' schools and to the further and adult education activities that remain within their responsibility.
The amendment was resisted by the Government on the basis that many institutions and organisations would have an interest in the effects of such proposals and all would have an equal opportunity to be aware of them and make comment as a result of the general duty to publish proposals. The Minister did not consider a special statutory procedure should be accorded to LEAs. While of course it is true that a number of other bodies could be affected in any particular case where it is proposed to set up or close a corporation, the LEA is the only one of those bodies that will be inevitably affected. Local authorities seem to me to be different from all other bodies that might have an interest in so far as they have a broadly defined statutory responsibility that exists side by side with that given to the funding councils.
Clause 11 makes it clear that those duties wrap around the responsibilities of the funding councils. The Bill thus gives LEAs a certain statutory prestige. It is therefore right and proper that the Bill should be consistent in providing for proper consultation between funding councils and local authorities on matters that touch upon them both in the exercise of their respective duties.
In addition, another point puzzles us on this side of the House. Clause 5 of the equivalent Bill for Scotland includes a requirement to consult the education authority in the event of the Secretary of State proposing to open, close or merge colleges. It is unclear to us why Scotland should be treated differently from England and Wales. Perhaps the Minister will explain why there is a difference between the two Bills in that respect. I beg to move.
Lord Belstead: My Lords, I do not dissent in any way from the principle of consultation which underlies the amendments. I fully accept the need for local consultation on proposals to open or close local colleges. For the reasons I gave in Committee, however, in responding to almost identical amendments moved by the noble Baroness, Lady David, the Government believe that the clause as drafted already provides adequately for consultation to take place, not just with LEAs but with other local interests as well.
Clause 49(2) (a) provides that their proposals must be published and Clause 49(2) (b) provides that the funding council must consider any representations. I take the point, although with respect I do not wholly agree with it, that the LEA is primarily interested in these matters. If the noble Baroness had said that the LEA was vitally interested in these matters, I would agree, because the opening or closure of a college, as of any other educational institution, is a matter of vital interest to the LEA; but, my goodness me, it is also of vital interest to wide sectors of the population.
I am not saying this merely as a matter of rote, but I believe that the provisions which are to be found in Clause 49(2) (a) and (b) for publication and

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representation are as clear as could possibly be wanted and are the same as found in other education legislation. I hope that the noble Baroness will therefore forgive me if I resist the amendment.
Baroness Blackstone: My Lords, before the Minister sits down, will he answer my point on the difference between this Bill, which relates to England and Wales, and the Scottish Bill?
Lord Belstead: My Lords, I am sorry, I am afraid that I do not know the answer to that question. Perhaps it is the exception which proves the invariable rule.
Baroness Blackstone: My Lords, I should be grateful to have an answer to that question at some point.
Lord Belstead: My Lords, if the House will allow me, I shall write to the noble Baroness and place a copy of the letter in the Library so that other noble Lords can see the answer.
Baroness Blackstone: My Lords, I am grateful to the Minister for his reply. I thank him very much. I am afraid that I do not feel altogether satisfied with what he said about local authorities. Of course it is correct that many other parties will have an interest in a college being opened or closed, but the LEAs, as I have said, have a statutory responsibility for providing education for the same age group, albeit in a different form in schools, and their position is somewhat different. However, at this time of night I do not intend to divide the House on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 116 not moved.]
Clause 52 [Duty to give information to the funding councils]:
Baroness Blackstonemoved Amendment No. 117:
Page 38, line 30, at beginning insert ("(1) As specified in subsections (2) and (3) below").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 118, 119 and 121. The purpose of the amendments is to create a duty for the further education funding councils and their institutions and committees to provide information to LEAs in parallel to their duty to acquire information. Again, the amendment was discussed in Committee. The basic arguments in its favour are straightforward and need to be repeated.
Since LEAs will continue to be involved in the provision of some further education, it is surely important that they should have the same statutory rights to receive information as the funding councils and their institutions. The amendment was resisted by the Government on the grounds that it was not needed, but I believe that the Minister conceded that local authorities have an equal need for the information. However, I think that he felt that they would be able to obtain it because of their "well-established working networks", whereas the
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funding councils needed the legislative power to ensure that they were able to obtain the information quickly.
That reply seems to be somewhat disingenuous: local authorities can currently obtain the information that they need because the institutions that provide further education are at the moment almost exclusively under their direct control. They are the funding bodies and the Education Reform Act gives them the exclusive power to require governing bodies to provide such information.
The removal of the further education colleges from the control of local education authorities and the repeal of those sections of the 1988 Act will fundamentally alter that relationship. Without some additional statutory powers which are put forward in the amendment, local authorities will not be guaranteed the information they require to carry out their statutory duties. Once again this Bill will be inconsistent if the powers given to local authorities are not consistent with the duties imposed upon them. I beg to move.
Lord Cavendish of Furness: My Lords, in replying to this group of amendments perhaps it would help your Lordships and especially the noble Baroness, Lady David, who is not in her place, and the right reverend Prelate, if I say that if and when Amendment No. 123 is discussed, I shall be giving an identical answer and deploying identical arguments. I shall leave it at that for the moment and see whether the matter needs to be addressed later.
Clause 52 imposes a requirement on the bodies listed to give the further education funding councils such information as they may need for the purposes of the exercise of their functions under Part I of the Bill. This amendment would impose a requirement on the councils and on certain other bodies to provide local education authorities with such information as they may need to exercise their functions under this part of the Bill.
Despite what the noble Baroness said about the need for a parallel duty, we do not believe that this is necessary. Local education authorities, colleges and many other further education organisations have been working closely together in a spirit of co-operation for many years now and they have established their information networks.
Further education funding councils, however, will be new bodies on the further education scene, and will not have had time to build up the contacts they need to obtain information in order to carry out their functions as effectively as possible. The councils will have to get to grips with their new duties very quickly, and that is why we are introducing a legal requirement that certain bodies supply them with the information they need to carry out their functions.
We recognise that there will need to be a particularly close relationship between the councils and LEAs where colleges in the new sector make provision for the further education of adults which falls to the duty of the local education authority. However, we would expect LEAs and colleges to have been involved in contracting for this provision, and

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therefore to be able to obtain information about it without the need for a statutory requirement on the councils to provide it.
I am conscious that these are the same arguments as have been rehearsed before, but that is the Government's view. On that basis, I hope that the noble Baroness will withdraw her amendment.
Baroness Blackstone: My Lords, I regret that I seem unable to persuade the Government that this is a helpful amendment, designed to increase co-operation between funding councils and local authorities. It seems to us on this side of the House that we should be even-handed on the exchange of information. I fear that one of the Government's problems is their deep-seated prejudice against local authorities and their unwillingness to legislate in a way that will help the authorities to carry out their statutory duties. However, again I have no intention of dividing the House on the matter and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 and 119 not moved.]
Lord Cavendish of Furnessmoved Amendment No. 120:
Page 38, line 34, after ("any") insert ("institution maintained by a local education authority").
The noble Lord said: My Lords, on behalf of my noble friend I beg to move Amendment No. 120. Clause 52 lays a requirement on a number of bodies to give the further education funding councils such information as they may need for the exercise of their duties. This amendment includes among the listed bodies the governing body of any institution maintained by a local education authority. It will clearly be necessary for the councils to have the power to obtain information from such institutions to enable them to carry out their duties. I commend the amendment to the House.
Baroness Blackstone: My Lords, I am a little concerned about this amendment. As I understand it, it gives the funding councils the right to demand information directly from local authority maintained schools and for that matter from adult education institutions, rather than via the local authority.
The amendment does not specify the type of information that can be demanded, nor is there any limitation on the demands that could be made under the provision. The problem about the amendment is that it could impose quite unnecessary burdens on the schools to provide directly to the funding councils information which they have already submitted to their maintaining local authority. As well as imposing an unnecessary burden of work on schools and their governing bodies, it could possibly also undermine the relationship between the authority and the institutions it maintains and make it rather more difficult for the local authority to negotiate sensibly with the funding council over the exercise of their respective powers and duties under this legislation. I hope the Minister can respond to those difficulties.
Lord Cavendish of Furness: My Lords, the noble Baroness has advanced two or three objections to this
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amendment. 1 hope may reconsider this matter and write to the noble Baroness. To save the time of the House, perhaps the best way forward is to accept the amendment on the understanding that I shall be pleased to give full consideration to the points raised.
9.15 p.m.
Baroness Blackstone: My Lords, with the leave of the House, I am grateful for that reply. I look forward to hearing further details of what is intended on this issue and whether there are somewhat better ways of achieving the aims and objectives of the amendment.
On Question, amendment agreed to.
[Amendment No. 121 not moved.]
Lord Belsteadmoved Amendment No. 122:
After Clause 52, insert the following new clause:
Inspection etc. of local education authority institutions, other than schools, and advice to Secretary of State
(".—(1) The chief inspector shall have the general duty of keeping the Secretary of State informed about—

(a) the quality of education provided in local education authority institutions,

(b) the educational standards achieved in such institutions, and

(c) whether the financial resources made available to such institutions are managed efficiently.

(2) When asked to do so by the Secretary of State, the chief inspector shall—

(a) give advice to the Secretary of State on such matters relating to local education authority institutions, and on such other matters relating to further education, as may be specified in the Secretary of State's request, and

(b) inspect and report on any such local education authority institution, or any such class of local education authority institution, as may be so specified.

(3) In connection with the duties imposed on the chief inspector under this section, his powers, and those of his inspectors, in relation to the inspection of schools under any enactment shall extend to the inspection of institutions under this section.
(4) In relation to any local education authority institution maintained or assisted by them, a local education authority—

(a) shall keep under review the quality of education provided, the educational standards achieved and whether the financial resources made available are managed efficiently, and

(b) may cause an inspection to be made by persons authorised by them.

(5) A local education authority shall not authorise any person to inspect any institution under this section unless they are satisfied that he is suitably qualified to do so.
(6) A person who wilfully obstructs any person authorised to inspect an institution under or by virtue of this section in the exercise of his functions shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.—
(7) In this section—

(a) in relation to institutions in England, "chief inspector" means Her Majesty's Chief Inspector of Schools in England and "his inspectors" means Her Majesty's Inspectors of Schools in England,

(b) in relation to institutions in Wales, "chief inspector" means Her Majesty's Chief Inspector of Schools in Wales and "his inspectors" means Her Majesty's Inspectors of Schools in Wales, and

(c) "local education authority institution" means an educational institution, other than a school, maintained or assisted by a local education authority.").

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The noble Lord said: My Lords, we have already discussed quality assessment arrangements to be made by the new further education funding councils. The clause completes the picture on quality assessment in further education. It could not be brought forward earlier because it necessarily follows closely the terminology of the Education (Schools) Bill, which is currently under consideration in another place.
Further education institutions within the new further education sector will be assessed under arrangements made by the further education funding councils under Clause 9. Further education provided in schools will be inspected under the Education (Schools) Bill. This leaves educational institutions maintained or assisted by local education authorities, other than schools, which are the subject of this new clause. They include, in particular, adult education institutes.
This clause gives the new office of Her Majesty's Chief Inspector the same powers of inspection in relation to these institutions as he will have, under the Education (Schools) Bill, in relation to schools. It also gives him, in respect of such institutions, the general duty set out in the parallel provision of the schools Bill; namely, a duty to keep the Secretary of State informed about the quality of education provided, the educational standards achieved and whether the financial resources made available to these institutions are managed efficiently.
The clause also enables the Secretary of State to seek advice from Her Majesty's Chief Inspector on any other matters relating to further education. This would enable the Secretary of State to seek advice in the event of a complaint, for example, about the adequacy of the provision made or proposed to be made by the funding council for a student with learning difficulties.
Finally, the clause deals with local education authorities' continuing powers of inspection of these institutions; namely, educational institutions other than schools which they maintain or assist. The Government do not propose to set up a system of registration of inspectors for the purpose on the lines of that proposed in the schools Bill. Nonetheless, in recognition of the importance of ensuring that inspectors are qualified for the purpose, the clause provides that inspection is to be carried out by persons appointed by the LEAs who are suitably qualified. It only remains for me to apologise, for the reasons I have given, that this clause could not be included in the original Bill. I beg to move.
Baroness Blackstone: My Lords, the new clause is helpful in that it makes clear the duties of Her Majesty's Inspectorate and local authorities with regard to quality in LEA institutions. Those duties are expressly set out and provided for. I thank the Government for introducing this new clause. There are, however, a couple of points I wish to raise.
First, the funding councils have wide powers to fund activities outside their own sector, but the activities of their quality assessment committee are to be restricted to the further education sector. While the amendment deals with local education authority
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provision, there is potential for much activity to go uninspected that is neither under the remit of LEAs or the new further education sector. I refer, for example, to the work of the further education staff college. I presume that will be funded by the further education funding councils. That work is currently supervised by the local authority associations. However, they will probably cease to be the main funding agency under the new arrangements.
The second issue I wish to raise relates to the schools Bill, which is currently in Committee in another place. That Bill expressly repeals Section 77 of the 1944 Education Act and removes the powers of LEAs to inspect schools. Local authority associations are currently in correspondence with Ministers over the implications of that repeal. I believe Ministers are saying local authorities will retain sufficient general powers to fulfil their overall duty to secure the national curriculum and the quality of education within maintained institutions.
However, I must inform the House that the view of the local authority associations and their professional advisers is that the repeal of Section 77 would severely undermine the local authorities' ability to fulfil their statutory duties. The inclusion of the new clause in the Bill tends to reinforce the argument that general powers will not be adequate. Again, perhaps the Minister would care to comment.
Lord Belstead: My Lords, I am grateful to the noble Baroness for her general welcome to the new clause. First, the powers that I described in my opening remarks do not extend beyond the boundaries that I outlined. Secondly, no decision has yet been taken on future arrangements for the further education staff college. As the noble Baroness correctly said, that is currently funded by the local education authorities. Thirdly, I shall have to write to the noble Baroness on the point that she made about the schools Bill removing the powers of local education authorities as regards inspection of schools. Perhaps I may be forgiven for that as it is in a different piece of legislation, but I undertake to write to the noble Baroness.
On Question, amendment agreed to.
[Amendment No. 123 not moved.]
Clause 53 [Directions]:
Lord Kilmarnockmoved Amendment No. 123A:
Page 38, line 40, at beginning insert ("Subject to subsection (3) below").
The noble Lord said: My Lords, as has been said on a number of occasions, Clauses 7 and 53 are the counterparts in Part I of the Bill of Clauses 64 and 77 in Part II. I would have tabled an amendment to Clause 7, but unfortunately I was abroad and did not return in time to table anything for the first day of Report stage. However, these amendments to Clause 53 only will serve me just as well for my main purpose, which is to probe the Government on the degree of intervention that they plan to exercise in the FE and sixth form college sector.
As a result of the debate in Committee—I believe that it was the last day of the Committee stage—on Clauses 64 and 77, the noble Lord, Lord Belstead,

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offered to come forward with government amendments in an attempt to satisfy his university critics. He has done that in the shape of Amendments Nos. 145, 170 and 171, which will be debated although not this evening. When I asked whether he would bring forward similar amendments for the further education part of the Bill, he told me on 16th December that he would discuss the matter with his right honourable friend. As I am sure he must have fulfilled that undertaking, the result can only have been negative as no such amendments to Part I have appeared. I have accordingly taken the liberty of applying the Government's own formula for Clause 77, slightly modified, to Clause 53 as a means of returning to this matter.
On Second Reading I pointed out that the White Paper, Education and Training for the 21st Century, endorses what one might almost call a Robbins-type approach to further education, saying that:
"The council's main responsibilities will lie in securing enough provision for further education, ensuring that suitable full-time courses are available for all young people who want them."
That suggested, I think correctly, that further education would be demand led. In post-compulsory education the applicants, armed with careers guidance and market information, must be the people best qualified to decide which courses they want to follow.
However, the Bill follows a rather different course. In apparent contradiction to the White Paper, the Secretary of State arms himself with what are in effect extensive manpower planning powers. Those are strongly entrenched in Clause 7, to which I have referred, and in Clause 53. In Clause 53, he has a power of direction,
"in respect of activities carried on by any particular institution."
Presumably that means that he can instruct the council to withhold funds from courses of which the Government do not approve or to steer them toward those which, in their wisdom, they believe to be more useful. That does not seem to me to be sensible. As I said before we are in a post-compulsory market in which students should make up their own minds about their careers. Those institutions will flourish which meet their demands and not the Government's directions. As the Government have not come up with any amendment to limit their present unnecessary powers in the Bill, I have taken the liberty of doing it for them.
There is another aspect to this matter on which I should be grateful for clarification. It relates to training credits. They are mentioned in the White Paper, on page 26 at paragraph 6.2 as one of the sources of income of the further education sector. I understand that they are to be awarded through the TECs. A House of Commons research note states:
"Some will offer credits to all 16 and 17 year old school leavers in the area. Others will offer them on a selective basis (e.g. for apprentice or technician level training only).
If that is correct, it appears to me that funds provided by training credits to FE colleges will be subject to local agreements between the TECs and the FE colleges. Can the Government say what proportion of the income of the further education sector is expected to come from that source? If the plan is to respond to
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local labour market needs, is it not even more inappropriate for the Secretary of State to reserve to himself a power of direction where local signals are much more appropriate? I go even further and suggest that students themselves should be given the benefit of the labour market information in their careers advice, enabling them to make up their own minds rather than have the choice of courses dictated by either the TECs or the Government.
However that may be, I am clear that the whole point of transferring power to independent corporations fuelled by a funding council would be lost if the Government were constantly to be sticking in their oar in the interests of notional manpower planning objectives. I am aware that there is some difference between the higher education sector with its academic and research requirements and the further education sector with its more directly vocational orientation. Even so, I do not believe that the latter will flourish if constantly prodded and harried to produce this that or other skills which will probably be outmoded by the time they come on stream.
On those grounds I believe that the principle of non-interference, except in the case of gross mismanagement or abuse of the system—for which the Government already have powers under Clause 7 as it stands—should apply just as much to further education as to higher education. I beg to move.
Lord Campbell of Alloway: My Lords, I oppose these amendments. Amendments Nos. 123A and 123B are in identical terms to the amendments to Clause 77, Amendments Nos. 170 and 171, tabled in the name of my noble friend Lord Belstead.
I oppose Amendments Nos. 123A and 123B and in principle support Amendment No. 124 in the name of the noble Baroness, Lady Blackstone, which proposes to leave out Clause 53. Unless Clause 53 were substantially amended along the lines of Amendment No. 169B, standing in the names of the noble Lord, Lord Renfrew of Kaimsthorn, the noble Baroness, Lady Young, and myself, there would be no way that it would be appropriate for Clause 53 to stand at all.
It will be seen that Clause 53 as amended by Amendments Nos. 123A and 123B and Clause 77 as amended by Amendments Nos. 170 and 171 would not be acceptable. Such clauses, as amended, confer far greater powers on the Secretary of State than have ever been conferred previously. Apart from there being no precedent in the statute book for any such grant of power, there is the matter of whether it is necessary. The first question that arises—it will arise also when I seek to support the amendment in the name of the noble Baroness, Lady Blackstone, as I have said I shall do—is whether there is any need for Clause 53 having regard to the provisions of Section 219(2) and (3) of the 1988 Act which extends the provisions of Sections 68 and 99 of the 1944 Act to institutions maintained by an LEA which provides higher or further education or both. If one adds Amendment No. 169C and transposes it to Clause 53, and if it were accepted, could there be any need for Clause 53?
We shall not know the position until Monday. In my submission there would and could be no such need

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if Amendment No. 169C were accepted by your Lordships either in respect of Clause 53 or Clause 77. The Motion that Clause 53 do not stand part was not moved. The Motion that Clause 77 do not stand part was withdrawn at Committee stage at the suggestion of the Minister so that he could consider his position. Amendments Nos. 170 and 171 to Clause 77 proposed by the Minister to meet the argument adduced at Committee stage, although tabled in good faith, assuredly do not meet the full thrust of the argument and are therefore, with respect to my noble friend, entirely unacceptable.
The next question that arises is whether Clause 53 and its sister clause, Clause 77, as implemented by Clause 64—again for which there is no precedent—could be acceptable to your Lordships' House as an absolute unfettered derogation of power to the Executive, so to speak, to rule by decree. The answer again is assuredly, no. No amendment has been tabled to Clause 53 which will be acceptable. It has certainly not been tabled by the Government.
One moves then to the third question which is whether Clause 53 should stand, albeit substantially amended along the lines of Amendment No. 169C, and albeit perhaps with modifications to suit Clause 53. However, until the position as regards Clause 77 has been considered and one hopes resolved by your Lordships on Monday, it is not easy to resolve the issue as to whether Amendments Nos. 123A and 123B should be taken to amend the clause or whether Amendment No. 124 to Clause 53 should be considered today (in the sense of being divided upon) or whether Clause 53 should be left out. In a sense the two clauses are sister clauses. The same basic considerations, albeit with modifications, apply to both.
The position on Clause 77 will not be known until after the debate on Monday. If that is right, a consistent alignment may well have to await Third Reading and could not be resolved by a Division on Clause 53 today. That is a matter for your Lordships' House.
It is absolutely plain from Amendments Nos. 169A to 169C that it was impossible to accept that Clauses 53 or 77 should form part of this Bill. Indeed, I said in Committee that the powers of direction sought under the conglomerate powers—that is, Clauses 53, 64 and 77—were far more extensive than those conferred by the 1988 Act. They were in effect an overkill and never ought to appear in any statute.
The final point of considerable importance is that the position under the 1988 Act to which the noble and learned Lord the Lord Chancellor then referred is not the same as would obtain under Clauses 53, 64 and 77 of this Bill. In particular, the essential safeguard of Clause 124(7) of the Act has been removed from this Bill. Clause 64(2) (a) of the Bill also constitutes a substantial departure. Therefore, as I pointed out in Committee, it cannot be said, as my noble friend Lord Belstead said on two occasions, that Clauses 53 and 77 merely restate the law as accepted by Parliament in the passage of the 1988 Act. Assuredly they do not.
Earl Russell: My Lords, I agree entirely with the general statement of the position put forward by the noble Lord, Lord Campbell of Alloway. I have read carefully the debates that we had in Committee, in particular the contribution made by the Minister. The noble Lord, Lord Kilmarnock, tabled an amendment in Committee to make any special directions under Clause 53 subject to affirmative resolution. The Minister replied that that would have the effect of making the resulting instrument hybrid, and that would give rise to a long and complicated technical procedure involving the right to be heard by counsel and a great deal more. That would of course be inconvenient from the Executive's point of view.
I am also well aware that, being a sovereign body, Parliament possesses the power to waive the hybridity provisions on any particular occasion. I recall an occasion at the very fag end of the Committee stage of the Local Government Finance Bill when we passed such a provision for the assessment of railway signal boxes. I remember then asking the noble Lord, Lord Hesketh, who was in charge of the Bill, for a promise not to make a habit of that, which he freely gave.
That power exists but I am a little doubtful about whether it should be used. I believe that the restrictions on the hybrid Bill exist for a very good reason. They have existed since 1626 and probably longer. The point of the restrictions on hybrid Bills is that it should not be possible, as it used to be in the traditional bills of attainder in the old days, to use the whole power of the legislative juggernaut to crush a single individual. One person or institution facing the panoply of an Act of Parliament arrayed against him ought to have the right to be heard by his counsel. That is one of our liberties and it is an important one. Therefore, I should view with a great deal of misgiving any restriction of the procedure on hybrid Bills. Of course that procedure on hybridity and the great care with which it has been built up and the thought which has gone into constructing it illustrates clearly why some of us believe that the powers which the Government are claiming in Clauses 53, 64 and 77 to give directives to an individual institution are an abuse of executive power and the legislative process.
The power which the Government are claiming is very much the same as the kind of power which Parliament in its wisdom has always wished to restrict and fetter by the use of the hybrid procedure. An institution subject to a ministerial directive with the force of law behind it stands in need of exactly the same protection for its legal rights as an institution subject to an affirmative instrument directed to an individual institution. The legal needs of the institution in one case are the same as in the other. Therefore, morally the right to legal protection should be the same in one case as it is in the other.
In fact, by saying that an affirmative instrument under this clause would be hybrid, the Minister was confessing that whatever is the legal position—and although I have been taking advice on that, so far I have not yet received a resolution on it—this clause, even if it is not legally hybrid, is morally hybrid. That is why it should not remain in the Bill.

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I ask the Minister whether the Government have taken advice before introducing this Bill on whether the power to give special directives renders it hybrid, in which case we shall be with it for a very long time.
Lord Belstead: My Lords, the amendments in the name of the noble Lord, Lord Kilmarnock, are identical to the amendments which the Government have tabled to the parallel clause in Part II of the Bill, Clause 77. I can well understand noble Lords wondering why the Government have not tabled the same amendments to Clause 53.
I emphasise that the Government greatly respect the achievements of many of the colleges which will transfer to the new further education sector. Indeed, the fact that we are giving the colleges independence is evidence of our confidence in their ability to manage their own affairs.
However, it is quite a big step from there for the Government to say that we have the confidence to limit our long stop powers to intervene in the event of something going very wrong with one of the colleges and the funding council accounting officer failing to fulfil his responsibilities. For that would be the effect of these amendments. They would impose very important constraints. They provide that the Secretary of State may not frame directions by reference to particular courses of study. That includes an institution's ability to offer particular courses or programmes. It applies to their content and it covers the way in which they are taught, supervised and assessed. Those are all objectives which I undertook to bring to the House as regards Clauses 64 and 77 but not as regards this clause. In the case of higher education, where most of the institutions are of long standing, the Government feel confident in limiting their power to give directions in the way I have just described.
In further education, however, it is a fact that, successful as they have been, many of the colleges are not long-standing and do not have a track record which can compare with that of our historic universities. The Government do not feel, therefore, that they should limit their power in the way proposed by these amendments.
That is not to say that the Government expect to have to intervene in these areas, except as a last resort in the event of things going badly wrong. The main purpose of Clause 53 is to provide a long stop power to protect the taxpayers' interests in the sum of some £2 billion that is spent on further education every year. The power of direction-making is needed to protect against the remote possibility of what I have described on a previous occasion as a nightmare scenario where the funding council has not taken the necessary action and the Secretary of State needs to give a direction. It is most likely that what I have in mind would involve an institution getting into financial difficulties. However there may be other problems as well.
It is for those reasons that I urge the noble Lord, Lord Kilmarnock, to withdraw the amendment. But first perhaps I may make two points. The noble Earl, Lord Russell, asked the direct question of whether legal advice was given by the department that Clauses 53 and 77 render the Bill hybrid. It will not entirely
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surprise the noble Earl when I answer that question by saying that we have not received any advice that there is any hybridity rendered to the Bill by those clauses.
9.45 p.m.
Earl Russell: My Lords, perhaps I may ask the Minister to elaborate on that a little further. I appreciate that he has not received advice that the Bill is hybrid. Has he received advice that it is not?
Lord Belstead: My Lords, if the noble Earl will forgive me, I do not wish to add to what I have said. The other point I wish to make is that in reply to the speech of my noble friend Lord Campbell of Alloway, I followed carefully what he said. I agree, with regard to the mechanisms of his speech, with what he said. I hope that he will forgive me when I say that I did not agree with his evaluation of the merits of the amendments to Clause 77. However, my noble friend staked out a position of the way in which he felt the House should proceed. If the House proceeds like that by not reaching a decision on Clause 53 this evening and seeing what we do on Clause 77, I shall certainly not cavil.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, perhaps I can ask him a straight question. Has he any knowledge of any precedent of what he calls a "long-stop provision", which is in this form and which is wholly unspecific as to the type of situation in which it will be used? Has he any knowledge that that has ever been asked of any Act of Parliament even in emergency or war time?
Lord Belstead: My Lords, my answer is that I have not. However, I remind my noble friend that when introducing the Bill on Second Reading, I reminded the House in the context of Clause 77 that no less a Member of your Lordships' House than the noble and learned Lord the Lord Chancellor made the point that under Clause 77 we were talking about an extreme situation—I realise that we are now on Clause 53. It was a situation where directions would only be given in an extreme situation. For instance, in the way I put it under Clause 53, where the funding council has not taken the necessary action and the Secretary of State feels that there is need for direction. I could have been more downright than that and said that there may be a situation where relations between the funding council and the Secretary of State may break down in the context of a serious situation occurring with a specific college. We are talking of an extreme long-stop power. But the answer to my noble friend is no.
Perhaps before I sit down I can apologise to the noble Lord, Lord Kilmarnock. With regard to training credits I cannot give a precise sum but it will cover part-time students only. The income will account for a relatively small proportion of a college's overall income compared to the college's core funding.
Lord Tordoff: My Lords, before the noble Lord sits down, I wonder whether he will undertake to examine the hybridity case put forward by my noble friend and perhaps agree to write to him about it.
Lord Belstead: My Lords, I do not wish to be unreasonable or unhelpful. I do not think that I can help. I shall look to see whether I can be more helpful than I have been. But my answer is as clear as it can possibly be. The legal advice that I received is that Clauses 53 and 77 do not render the Bill hybrid.
Lord Kilmarnock: My Lords, I am grateful to those noble Lords who have spoken on this matter. I agreed with a good deal of what the noble Lord, Lord Campbell of Alloway, said, especially when he said that Clauses 53, 64 and 77 are overkill. He went on to say that we shall not know the position until Monday, when the result of the debates on the Government amendments to Clauses 64 and 77 are declared.
The noble Lord, Lord Belstead, has indicated that the Government do not intend to treat the two sectors on all fours or on a level basis. In his reply the noble Lord said that the Government needed this power in case something went very wrong—the accounting procedures got out of hand or something of that nature. However, as I understand it, that is not what this clause addresses. I believe that the Government already have that power in Clause 7. We are talking here about directions on matters of an educational and not a managerial nature.
The noble Lord also said that the Government felt more inclined to trust the higher education institutions because of their long-standing track record and that some of the colleges would have a very small or no track record. That is questionable. Further education in this country has a proud record. There are some institutions which have been in existence for a very long time. Therefore, I am not sure that the noble Lord's point entirely holds water.
On many occasions during debates on this Bill he has said that the Government do not expect to have to intervene; they simply regard these clauses as an extreme longstop power which they require in order to protect the expenditure of £2 billion of public money. I am grateful to the noble Lord for his reply which was as courteous and as well phrased as we always expect from him. However, he took no account of my points on the desirability of local judgment being best on what courses should be offered. Neither did the noble Lord deny my suggestion that the Government wanted manpower planning powers up their sleeve, which is in effect what these measures are. That does not provide a route to healthy pluralism in this sector which is what I am sure we want. It is a very exciting sector and it can be developed very well indeed. It does not need the Government's long arm to plunge into the academic or training pot.
I am not entirely satisfied with what the noble Lord has said. The noble Lord, Lord Campbell of Alloway, is right. We shall have further debates on a closely related topic on Monday and we shall see how we come out of that. Depending on the results of the debates on Monday, it will be my duty to return with these matters at Third Reading. I shall seek some kind of diminution of the Government's power in the further education sector, but possibly not as extensive as that in the higher education sector. That is a necessity.
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On those grounds I shall not press the amendment this evening. I am pleased in that I believe I have succeeded in my objective, which was to get a debate going and to find out the Government's view. I shall await events and reserve the right, which I believe I still have, to return to the matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 123B not moved.]
Baroness Blackstonemoved Amendment No. 124:
Leave out Clause 53.
The noble Baroness said: My Lords, we have had something of a rehearsal of the merits and demerits of this clause in the debate which we have just had concerning the amendments of the noble Lord, Lord Kilmarnock. I wish to oppose the inclusion of this clause in the Bill. It is an unnecessary power which allows the Secretary of State to interfere in an unprecedented way in the work of the funding councils and in the activities of individual educational institutions. Under the democratic traditions of this country we have in the past favoured pluralism. We have favoured giving as much autonomy as possible to public bodies consistent with proper accountability as regards public funds. We have opposed Government by diktat from the centre, and we have always worked hard to constrain the powers of Ministers in the interests of devolving responsibility to those directly concerned with the running of public institutions.
We had a long debate in Committee on Clauses 64 and 67 of the Bill. Clause 53, as the noble Lord, Lord Campbell of Alloway, has already said, has exactly the same effect with respect to the further education funding councils and the institutions for which they are responsible, as Clause 77 has with respect to the higher education funding councils and the universities. There was anxiety on all sides of the House about the undesirability of Clause 77. I believe there were no speakers, apart from the Minister, who felt able to defend the inclusion of that clause in the Bill.
One of the important purposes of establishing funding councils is to establish an arm's length relationship between the Government and the education institutions responsible for providing tuition for students at various levels. Clause 53 destroys that arm's length principle and allows for a Secretary of State with malign intentions—I am not saying that the present Secretary of State has such intentions but there may be one who has such intentions in the future—to interfere in the content of courses and how they are taught.
There are Government amendments to Clause 77 which we shall debate on Monday, but unfortunately I do not believe that they meet the many anxieties that have been expressed. There are no such amendments with respect to Clause 53, yet the same problems arise.
Some members of your Lordships' House may wish to argue that the same issues in relation to academic freedom do not apply to further education. I beg to differ. There are many courses in further education of a quite advanced nature. Freedom of ideas is as essential in the teaching of such courses as it is in the universities. Further education colleges should be

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providing a broad and varied curriculum. In a free society the principle of academic freedom is indivisible. There is in any case no need for draconian powers of this kind.
In attempting to justify the inclusion of Clause 77, in Committee the Minister argued that the Secretary of State needed a power of last resort, or what he called a longstop power. In particular, he argued that the Secretary of State needed such a power if relations with the funding council were to break down and to provide protection for the tax payers' interests with respect to considerable sums of public money. He went on to refer to the possibility that either an institution or the funding council might go completely off the rails—a nightmare scenario, was the term he used.
Nightmares very occasionally actually happen, but not very often. The gothic quality of the Minister's imagination in conjuring up this nightmare suggests to me that he has slightly lost touch with reality. He has now just repeated this nonsense. Can we imagine a situation in which a publicly-appointed body of people, people of considerable knowledge and experience—I assume with an eminent and experienced chairman, and no doubt with a chief executive of considerable expertise—will go off the rails and do so at the same time as one or more institutions? I am sorry that the Minister has seen fit to repeat these far-fetched arguments with respect to Clause 53.
Since the chief executives of the funding councils are the accounting officers, they are under an obligation to ensure that public money is properly spent. The Secretary of State therefore has no need to have a last resort power to intervene in this way. Moreover, if the funding councils were to fail to carry out their responsibilities properly, the chairman and the members can be dismissed on the grounds of being unfit, and replaced by the Secretary of State with a new chairman and new members.
Clause 53 is not just unnecessary, it is also dangerous. It should be dropped from the Bill. I beg to move.
10 p.m.
Lord Campbell of Alloway: My Lords, I support the noble Baroness, Lady Blackstone, as I indicated a moment ago that I would do and as I stated in Committee that I should do. Although we are at completely disparate ends of the political spectrum I agree with every word she said and the way that she put it. It is interesting that that measure of agreement could come in your Lordships' House.
What on earth got into the Government to make them produce these so-called draconian powers? Why did they do it? I made some inquiries. I do not know whether what I have been told is right or wrong but they must have some reasons for doing it. It is unprecedented. It has never happened before either in peacetime or in wartime. What on earth is going on?
I am advised that the proposed conglomerate powers—in Clauses 53, 64 and 77—came about in this way. There was a decision of Mr. Justice Simon Brown on judicial review in which he made certain observations in his judgment. They were not part of
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the essential reasoning in the case. They were what we call obiter dicta, which as such do not stand as authority. They were to the effect that the way in which the Secretary of State understood the exercise of his powers under the 1988 Act in this context was erroneous. There was no appeal by the Secretary of State against the decision of Mr. Justice Simon Brown for the simple reason that the Secretary of State won. Noble Lords are laughing. This is no laughing matter. It is a most astonishing affair. I am advised that Clauses 53, 64 and 77 were drafted so as to seek to ensure that the way in which the Secretary of State understood he could exercise his powers was in fact rubber-stamped in this Bill by Parliament. If that analysis and advice are correct, it is astonishing.
I am also advised that the Secretary of State received legal advice to the effect that the 1988 Act was not drafted in such a way as to enable him to exercise the degree of power of control which he wished to exercise. It comes to much the same thing. There it is. I cannot say whether it is right; I cannot say whether it is wrong. I was not there. Perhaps that is just as well anyway. But there must be some reason. What is the reason? I support the noble Baroness.
Earl Russell: My Lords, I have listened carefully to what the Minister has said in justification of these powers. I take the Minister's point that he is talking about what he calls a nightmare scenario. But these are subjective phrases. One man's nightmare is another man's waking.
The phrase used was "if the funding council should go completely off the rails". In Committee, I said that the phrase, "completely off the rails" was not statutory language. Since that time, I have discovered that the phrase originates with Mr. Kenneth Baker. Whether that commends it to your Lordships is a question that I shall not pursue further. During the Recess, I was asked by the noble and learned Lord, Lord Simon of Glaisdale, to translate the phrase, "go completely off the rails" into statutory language. I came back with the reply, "failed to discharge his duties to the satisfaction of the Secretary of State".
I think that we have here the real trouble with the clause; namely, the purely subjective sense in which these powers will be used. They will be used to stop things which appear unreasonable to the Secretary of State. No doubt some things which appear unreasonable to the Secretary of State are unreasonable. Similarly, there is no doubting the fact that some things which appear perfectly reasonable to other people are in fact unreasonable. However, I do not think that a Parliament which is still told that it is its duty to control the Executive can assume a priori that the Secretary of State's judgment of what is reasonable should be taken entirely at face value and indeed should have the force of law.
In Committee, the Minister referred to institutions getting into financial difficulties. He said that there were three instances among universities. One which I will concede to the Minister was happenstance; the second was coincidence; and there might be those who think that the third was enemy action. We have here an issue where there are two strongly held views. I express no opinion and I think that the House should

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express no opinion on this occasion about which of them is right. But what I cannot see that the House can do is to endow one of these views with the force of law before it is even formed, and indeed before the issue upon which it is to be formed has even arisen. That seems to me to be an abuse of power.
It is my understanding that it is difficult to delete a clause from a Bill on Third Reading. If I am right, then this is in fact the last occasion upon which we can move to delete the clause from the legislation and ask the House to vote on it. However, if that is not the case, I am hugely relieved.
Lord Campbell of Alloway: My Lords, with the leave of the House and with respect as I see that the noble and learned Lord the Lord Chancellor is present in the Chamber, I question whether that is right.
Earl Russell: My Lords, if that is not right, I am glad to hear it. I do not wish to mislead the House. But at some stage or other before this clause leaves the House, I believe that we shall need to vote on it.
Lord Kilmarnock: My Lords, before the Minister replies, I should like to associate myself most strongly with the remark made by the noble Baroness, Lady Blackstone, that academic freedom is indivisible. She put it in a nutshell. Whatever is agreed on what I shall call in shorthand "the university end of the Bill", I can assure the noble Lord that it will not be acceptable if the further education sector is simply left out in the cold. I am relieved to hear from more expert opinion that this is not in fact the last occasion upon which we can consider the matter. We shall certainly do so when we reach the next stage of the Bill's proceedings.
Lord Renfrew of Kaimsthorn: My Lords, I shall certainly be happy if the noble Baroness is content to withdraw the amendment at this stage. Indeed, I hope that my noble friend the Minister will be able to give her some encouragement to do so. If we are talking about nightmare scenarios, it seems to me that it would behove the Secretary of State to be more specific about his nightmares. It is my appreciation of the matter that most of the Secretary of State's nightmares in the field of education are financial: his concerns are primarily that something may go wrong with the finances and he requires the power to intervene when something is clearly going wrong in that respect. In that case, it seems to me to be appropriate that he, or his advisers, should have drafted a clause which gives him the power to intervene when he has good reason for thinking that something is going wrong with the finances. If he or his advisers had framed a clause in that form, we should have had no difficulty in accepting it. It is the untrammelled licence of the Secretary of State's potential nightmares that gives us such anxiety.
Lord Peston: My Lords, before the Minister replies, there is a logical point missing: it is not merely that the nightmare has to include the failure of the individual institution plus the council; we must also assume the correctness of the Secretary of State. Given that choice, I see no reason to believe that the Secretary of
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State who claims to have the nightmare is, as it were, totally compos mentis. In other words, there is no reason to believe, given the choice—it is a logical problem here—that the DES, of which I had the great honour to be the main adviser for some time, would be right in such circumstances; and so I do not believe we can accept logically the nightmare argument.
Lord Belstead: My Lords, the noble Earl, Lord Russell, made some fairly harsh comments about the powers contained in the clause and referred to them as an abuse. He said that they are purely subjective. The first point that I should like to make is that the Secretary of State is ultimately responsible to Parliament and to the taxpayer for the Government's further education policy and the funds provided by Parliament which for the further education sector amount to some £2 billion a year. I say on behalf of the Government that it is inconceivable that my right honourable friend should not have available to him a long stop power of intervention to protect the taxpayer's interests in this considerable sum of money. With great respect, I have not this evening heard a considered view put forward as to whether my assertion on that point is right or wrong.
In debate in Committee it was argued that for the Secretary of State to hear about a situation in which a direction-making power was needed he would have to have been advised by the funding council. It was also suggested that it was unimaginable that relations between the Secretary of State and the funding council would have deteriorated to such a point that a direction-making power would be needed. Perhaps I may say a word about those two points.
First, perhaps I may stress that, as I explained in Committee, the power of direction-making is needed against the remote possibility of what I have, indeed, described as a nightmare scenario. If the power were to be needed, it would be in a situation in which normal relations had broken down.
How would the Secretary of State have come to hear of such a situation? His main source of advice would be his assessor on the funding council. I remind your Lordships that the value of the Secretary of State having an assessor on the council was recognised by your Lordships in discussion in Committee. It would in any case be likely that if, say, an institution were in such financial difficulties that the nightmare scenario was indeed in view, the news would have found its way into the press. Even if it had not, my right honourable friend might well have been informed by other institutions within the sector.
The noble Lord, Lord Peston, queried whether the Secretary of State might have summed up correctly as to whether a situation had reached a dangerous and difficult moment. My answer to the noble Lord is that through his assessor at any rate my right honourable friend would rightly have first-hand information.
In moving that the clause should not stand part of the Bill, the noble Baroness, Lady Blackstone, in effect asked how relations between the Secretary of State and the funding council could have reached such a low point. She said that it was virtually inconceivable that matters could reach that stage. We are talking about a situation in which the funding council accounting

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officer is, in the Secretary of State's judgment, failing to fulfil his responsibilities. That could be the result of all sorts of circumstances or differences of approach; but it would add up to a position where necessary action is not being taken by the funding council in an especially severe and difficult situation and where the Secretary of State's responsibility for huge sums of money in the further education sector comes into play.
My noble friend Lord Renfrew intervened in the debate at this point to say, "Ah, if that is the case, then why haven't the Government put down an amendment?" Modestly, my noble friend did not suggest an amendment of the kind to which he put his name, but I shall identify it as being one such as my noble friends Lord Renfrew, Lord Campbell of Alloway and the noble Baroness, Lady Young, put down which addresses the point. The answer is, as I revealed on the previous amendment, that we believe that the direction-making power should be unfettered so far as concerns the further education sector.
The question has been raised by a number of noble Lords as to why the Government have not tabled the same amendment to this clause as we tabled to Clause 77. I have not been inactive in the matter and, as your Lordships know perfectly well, I put down an amendment to Clause 77 on the Government's behalf which preserves academic freedom in relation to the direction-making power. I know that I am going over familiar ground, but I do so for completeness. The answer is that much as we respect the achievements of many of the colleges in this sector, some are not long-standing and do not have a track record which can compare with that of some historic universities and which can give us the necessary confidence to limit our power. That is not supposed in the least to be a snide remark. I have in mind the ultimate power of the Secretary of State in respect of literally huge sums of money.
Finally, the Secretary of State must act reasonably in the exercise of the direction-giving power under the clause. I recognise and respect the strongly held views which have been expressed on this clause, but I have to say that for the Government it is an important clause, providing a long-stop power in the new further education sector.
10.15 p.m.
Baroness Blackstone: My Lords, I do not intend to make a long speech at this time of night in response to the Minister. He said that it was inconceivable that the Government or the Secretary of State should not have long-stop powers, but he was unable to give a single example of where he has previously needed such powers. Nor was he able to demonstrate why he suddenly needs them with respect to this Bill and these institutions. In any case, he already has a long-stop power: he can replace a funding council which turns out to be unfit.
The Minister also said that the Secretary of State would have first-hand information about things that were going wrong. I am not quite clear from where this first-hand information would come. The Secretary of
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State has many duties, responsibilities and obligations. He cannot have eyes in the back as well as in the front of his head. Presumably he must rely on a single assessor who is appointed to the funding council.
Again, it seems to me far-fetched to assume that the funding council itself would not be able to have the kind of information that is necessary and would not take the action that is needed, were something to go badly wrong with respect to the financial accountability of particular institutions.
The more the Government try to defend the clause, the less convinced I become. The remarks made as to why the same amendment on Clause 77 was not tabled to this clause were, if I may say so, a little insulting to the further education colleges. The fact is that many have a long track record. Even if their track record is short, that does not in any sense imply or mean that they will be irresponsible in the way in which they spend the money allocated to them or the way in which they run their courses.
Yet again, I return to the point that has been made on a number of occasions. I reiterate what I said: it is the funding council's responsibility to ensure that the track record is adequate.
I have no intention of dividing the House on this clause at this time of night. However, I wish to retain the opportunity to return to the matter on Third Reading. I hope the Minister will accept that that course is necessary on this occasion although normally one would not necessarily return to issues of this kind on Third Reading. We need to hear, however, how the Government will respond to amendments that have been tabled to the identical Clause 77 with respect to higher education and then make up our minds about what we should do with respect to this clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 [Reorganisations of schools involving establishment of further education corporation]:
Lord Cavendish of Furnessmoved Amendment No. 125:
Page 39, line 35, leave out ("Subsections (2) and (3) below apply") and insert ("Subsection (2) below applies").
The noble Lord said: My Lords, on behalf of my noble friend I wish in moving this amendment to speak also to Amendment No. 126. This amendment removes subsection (3) from Clause 55. Clause 55 makes provision regarding the site of a school which is closed as part of a reorganisation scheme where that site is to be used by a further education college established in connection with the scheme. Subsection (3) provides that where the land in question is held on trust for the purposes of the school being closed it will henceforth be held on trust for the purposes of the new further education college.
It has been pointed out to us that there are circumstances in which the provisions of subsection (3) could result in the appropriation of Church property for use by a secular institution in the new sector. This would occur if a secular college were to be established on land used by a voluntary school which was closed as part of a reorganisation scheme associated with the setting up of the college. That was certainly not our intention. Removal of subsection (3)

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ensures that where a voluntary school is closed as part of such a scheme, the land will continue to be held on the existing denominational trusts. I beg to move.
The Lord Bishop of Guildford: My Lords, I wish to express my gratitude to the Government for meeting the point that has been put to them. These amendments are most welcome. I support the amendments.
On Question, amendment agreed to.
Lord Cavendish of Furnessmoved Amendment No. 126:
Page 40, line 6, leave out subsection (3).
On Question, amendment agreed to.
Lord Belsteadmoved Amendment No. 127:
After Clause 56, insert the following new clause:
Saving as to persons detained by order of a court
(" . No function conferred or imposed by this Act on a further education funding council shall be construed as relating to any person who is detained, otherwise than at a school, in pursuance of an order made by a court or of an order of recall made by the Secretary of State.").
The noble Lord said: My Lords, this amendment provides that no function conferred or imposed on a further education funding council by the Bill should relate to any person detained in pursuance of an order made by a court or of an order of recall made by the Secretary of State. That would mean, in particular, that the funding councils' duties to secure the provision of facilities for further education under Clauses 2 and 3 would not apply to prisoners. The existing statutory position in relation to the education of prisoners would be preserved. The issue of prison education was first drawn to the attention of the House by the noble Lord, Lord Donaldson of Kingsbridge, in Committee. I am most grateful to the noble Lord for spotting the deficiency which this amendment is intended to remedy. I beg to move.
Baroness Seear: My Lords, the noble Lord, Lord Donaldson, has asked me to say that he is extremely glad that the Government have been able to table this amendment. I join in those sentiments.
Baroness Blackstone: My Lords, I, too, welcome the amendment. I am extremely glad that the Government have been able to table it.
On Question, amendment agreed to.
Clause 58 [The Higher Education Funding Councils]:
Lord Belsteadmoved Amendments Nos. 128 and 129:
Page 42, line 17, leave out from ("State") to ("persons") in line 19 and insert:
("(a) shall have regard to the desirability of including").
Page 42, line 22, after ("education") insert ("and, in appointing such persons, he shall have regard to the
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desirability of their being currently engaged in the provision of higher education or in carrying responsibility for such provision").
The noble Lord said: My Lords, in moving Amendments Nos. 128 and 129 I wish to speak also to Amendment No. 131. During the debate in Committee on 12th December a number of noble Lords spoke in favour of amending Clause 58 to require the Secretary of State to take account of the desirability of including current practitioners in the membership of a higher education funding council. In responding to these comments and in particular to amendments moved by the noble Lords, Lord Dainton and Lord Flowers, I said that I believed that there was some cogency in the arguments put forward. I undertook to consult the Secretary of State and to report back to the House at the next stage of the Bill.
Following such consultation I move these amendments which would preserve necessary flexibility in appointments by not fixing quotas for particular categories of member or requiring all members from higher education backgrounds to be currently engaged in the provision of higher education. But they would require the Secretary of State in appointing members from higher education backgrounds to a higher education funding council to have regard to the desirability of their being currently engaged in the provision of higher education or in carrying responsibility for such provision.
In practice, I have not the slightest doubt that, even without these amendments, the new higher education funding councils would include a substantial number of members from higher education backgrounds who were current practitioners. I believe these amendments provide the statutory underpinning that noble Lords were looking for. I beg to move.
Lord Dainton: My Lords, I should like to give my support to Amendments Nos. 128, 129 and 131. If, as I hope, they are agreed by your Lordships, I am sure that we can be clear that any discussions that take place within the council will never be deprived of that most vital and essential component; namely, members who have up-to-date, practical experience of the key processes of teaching and research in the universities and, equally important, the administrative infrastructures which are necessary to support them. It is no exaggeration to say that, without that component, the council would be bound to fail in the proper discharge of the duties laid upon it in the Bill and would have no credibility with the universities. I sense from the debates that your Lordships would wish to agree if only because of the nature of the debates on similar amendments in Committee.
In conclusion, I should like to express my personal gratitude to the Minister and, through him, to the Government for this concession. I am sure that it will never be a cause for regret.
On Question, amendments agreed to.
[Amendments Nos. 130 and 131 not moved].
Schedule 1 [The Further and Higher Education Funding Councils]:
Lord Belsteadmoved Amendment No. 132:
Page 66, line 6, leave out from ("shall") to ("as") in line 7 and insert ("as regards any member in whose case the Secretary of State may so determine, pay or make provision for the payment of such sums by way of pension, allowances and gratuities to or in respect of him").
The noble Lord said: My Lords, this is a technical amendment which would bring the provisions concerned into line with previous legislation. Its effect would be to remove an ambiguity in the present text. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 133 and 134 not moved.]
Lord Belsteadmoved Amendment Nos. 135 and 136:
Page 68, line 18, leave out from ("accounts") to ("and") in line 19.
Page 68, line 23, at end insert:
("( ) The statement of accounts shall comply with any directions given by the Secretary of State with the approval of the Treasury as to—

(a) the information to be contained in it,

(b) the manner in which the information contained in it is to be presented, or

(c) the methods and principles according to which the statement is to be prepared,

and shall contain such additional information as the Secretary of State may with the approval of the Treasury require to be provided for the information of Parliament.").
The noble Lord said: My Lords, these are technical amendments which will bring the provisions concerned into line with previous legislation. Their effect is to remove small ambiguities which exist in the present text. I beg to move.
Lord Morris: My Lords, I rise to seek clarification on one point. Amendment No. 136 clearly states that:
"The statement of accounts shall comply with any directions given by the Secretary of State"—
in practice, that would be the Secretary of State for Education and Science—
"with the approval of the Treasury".
Does that mean the permanent officials at the Treasury or that it will be within the political control of the First Lord of the Treasury? That latter phrase is also repeated later in the amendment. Perhaps my noble friend can explain that to me.
Lord Belstead: My Lords, it is not an unusual reference and ultimately it means the First Lord of the Treasury.
On Question, amendments agreed to.
Clause 61 [Administration of funds by councils]:
[Amendments Nos. 137 to 138A not moved.]
Lord Addingtonmoved Amendment No. 139:
Page 45, line 8, at end insert:
("(c) make grants, loans or other payments to the governing body of any Higher Education Corporation in respect of specific expenditure to ensure that the standard of student support services is adequate and comparable to those of universities.").
The noble Lord said: My Lords, this is an important amendment and it is rather unfortunate that it happens to have come up for consideration at
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this time of night. When we discussed a similar amendment on the same issues in Committee, we faced the same dilemma regarding the clock.
The basic thrust is that the new universities should have their support facilities for students brought up to a standard that is regarded as adequate in the university sector at present. The main impetus behind this amendment is the fact that universities are traditionally thought of in England and Wales as having more to do with the experience of total education than with simply passing examinations. Moreover, as a result of the pressures placed upon them for such things as student accommodation, universities generally find themselves bearing a far higher proportion than other institutions of the costs of keeping their students. Accommodation provided by the universities is cheaper and generally better organised than other accommodation.
I should like to explain further the logic of the amendment. Going to university is generally regarded as a fun experience. That is often why people go there. At this time of night it may seem a little out of place to bring forward such an argument in view of the entrenched arguments that we have heard, but the fun element of going to university is a very important factor.
If we bring the facilities of the new universities up to the standards of the old universities, we shall be removing one of the aspects of the old binary divide. A very real factor to be taken into account when going to a university was that one generally had better student union facilities, better sports facilities and accommodation where one's money went further. I defy anyone to have a good time on an empty pocket.
All that forms an important part of the process of learning from student activities outside the lecture room. I believe that it is very obvious. That is why it should be considered. It is one of the last aspects of the binary divide to remain. It has nothing to do with academic standards. Certainly the polytechnics have won the argument on that score one hundred times over. Not for one minute would I suggest that their academic standards are not up to the level of the universities.
Unless we deal properly with the problem, we shall retain a part of the binary divide. I therefore suggest that this amendment should be considered very carefully. I hope that the Government will have something sympathetic to say on the matter. I beg to move.
10.30 p.m.
Baroness Perry of Southwark: My Lords, I do not in any sense wish to turn down an offer of increased funds which the noble Lord seems to be making in respect of the polytechnics. But I am not at all sure that that is what the amendment will produce. First, the wording is rather strange, in that it suggests that the council should:
"make grants, loans or other payments to the governing body of any Higher Education Corporation … to ensure that the standard of student support services is adequate and comparable to those of universities".
My understanding is that the new higher education funding council will make grants to the universities

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—new ones and old ones—and to some higher education corporations, which will be smaller colleges that are neither universities nor former polytechnics. I have difficulty in understanding exactly what the noble Lord intends. If he argues that the polytechnics should be brought up to university standard in respect of their student support, it seems to me that that is not exactly what the amendment says.
As it stands, the amendment would seem to recommend that every small college, including former colleges of education and other small specialist colleges, should have student support that is considered adequate in comparison with that of any university. That would be a utopian recommendation which it would be very difficult to accept. It would be ideal, but extremely expensive.
In relation to the comparison between the student services of polytechnics and those of universities, I can only repeat what I said at Committee stage; namely, that I do not believe that there is that uniform difference on both sides of the binary divide. Some polytechnics have better examples of student support than some universities.
The wording of the amendment is very efficient if it wishes to ensure that all higher education institutions have equally good facilities and are brought up to the standard of the best. We should all say amen if the money were available. I cannot support the amendment in its current form, although I support entirely the spirit in which it is tabled.
Lord Morris of Castle Morris: My Lords, the amendment deals specifically with the issue of student support services. I would not be able to agree completely with all that the noble Baroness, Lady Perry, said. Although I believe it indisputable that some polytechnics have excellent student support services which are better than those of some universities, if we were to compare all with all we would find that universities do rather better financially than polytechnics.
Two years ago the university college which I had the privilege to command decided to revise and re-issue its undergraduate prospectus. We had no funds to research that project, not even enough for a quick and dirty consultancy by Touche Ross. We had to make our own inquiries and put out our own questionnaires. What emerged first-hand from that was that our student services were manifestly superior to those of many polytechnics which we took the care to consult at some depth and to visit.
Students choose institutions at which to study for a wide variety of reasons. But it emerged from our research that they tend to evaluate carefully the quality of student support services when they make their choice of where to spend three years. That is not surprising. Student unions, which offer a wide variety of good quality services such as counselling and financial advice—we are not talking about sporting facilities and games of chance and so on; we refer to serious issues and serious services—find that they are a good selling point and that they are a means of attracting students in a competitive situation.
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Polytechnics have been with us for several decades. Their academic activities have blossomed and prospered. On the other hand, their plant has grown old and decayed. Much of it was put up rather quickly in the fifties and sixties at a time when flat roofs were much in evidence. Many of those have leaked—and how we know it! A great deal of the resources of polytechnics have necessarily had to go to keeping the water out and the roof up; and student services have not been among the highest priority in all of the polytechnics. Many of the polytechnics have inherited buildings and facilities that are too old, too small, too worn out or simply not designed for the various new activities that are being carried out in them. The ending of the binary divide is not simply a matter of changing names. It must bring about a proper levelling up between institutions.
The noble Baroness, Lady Perry, stated during Committee stage that she did not believe that there was necessarily an uneven distribution of facilities. There is some evidence about student support services which does not appear to support her contention. Work carried out by the professional association of managers of student unions for 42 universities and 40 polytechnics for the 1991 finance survey found that there was an uneven distribution of funding between polytechnics and universities. The ratio of student union block grant received per student clearly seems to favour the universities. Although some universities have a lower ratio than some polytechnics, broadly speaking, across the band the trend is for universities to obtain the better deal.
With a future which includes reduced grants, student loans, bank overdrafts, escalating rents and reduced facilities in, for example, libraries—which some of us believe to be fairly close to the centre of what higher education is about —students need all the help that their support services can provide. The amendment—perhaps in certain respects infelicitously worded—seeks to ensure a fair and just distribution of what will inevitably be increasingly scarce resources. I hope that the Government will look kindly on it.
Earl Russell: My Lords, I wish to ask the noble Baroness, Lady Perry, to take this amendment a little more seriously and bring a little more imagination to bear in considering the fears behind it. In any merger there are inevitably fears. If those fears are not understood on either side they tend to fester. They were not in 1707 and we are still paying for it.
Inevitably there is inside universities a certain fear that what we may be seeing is not the abolition of the binary line, which we should welcome, but the shifting of it a little higher up so that rather more institutions come below it. Therefore, there is no Tyrolean anxiety coming to the merger from the university side that it should not be used to devalue the standards, facilities and qualities associated with the name of "university". I am sure that there are equivalent fears on the part of the former polytechnics. I shall not put words into the mouth of the noble Baroness and I shall not try to say what they are. I am prepared to listen when told about them and I am sure that I shall need to do a great deal of listening.

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The student support facilities are one area where this type of fear may exist. They easily come under pressure when rapid expansion is going ahead. Who stops to say, "We cannot take in another thousand students because there is not room in the refectory"? But often there is not room in the refectory. Therefore, where will they get their lunch? They are left with the alternative either of going out and paying a great deal more and finding that their money runs out well before the end of term or of going without lunch, in which case their afternoon's work is greatly impaired. That is only one example among many.
There are many places in polytechnics and in universities where student support facilities are strained to the limit. Unless we have some way of spelling out that some protection is needed they will be forgotten. If they are forgotten I am afraid that we might have to pay for it. I would much rather foresee the danger and do something about it now.
Lord Belstead: My Lords, whatever sympathy there may be for the amendment from different parts of the House views have been put forward that it will not do. It will not do from the Government's point of view because it would be invidious to single out one specific purpose for funding on the face of the Bill.
If the funding councils come to the view that there is any need to improve student support facilities in certain institutions they could do so by, for example, making available specific funding and invite institutions to bid for resources on the basis of need. However, my right honourable friend the Secretary of State would not see this as a priority for the councils. That is because the amendment appears to be based on the assumption that student support facilities in higher education corporations (by which I take it the noble Lord, Lord Addington, means polytechnics and colleges generally) are inferior to those in universities. In principle there are no differences between universities and other institutions of higher education in the arrangements concerning student support services. In both cases it is for the individual institutions to make provision from within the resources available to them according to their own needs and priorities. A certain amount of evidence has been called to aid this evening. Recent HMI evidence on polytechnics and colleges of higher education shows that the standard of student support services is generally satisfactory.
If that view sounds complacent I turn to my noble friend Lady Perry, who made a wise remark. She said that in some cases the support services would be better and in other cases they would not be as good as the university sector. I should have thought that the probability is that there lies the truth and not the special case put forward by the noble Lord this evening. Even if there is a special case, I do not believe that it is possible to put a particular funding objective on the face of the Bill. On that basis, I resist the amendment.
10.45 p.m.
Lord Addington: My Lords, listening to the Minister's reply, I regret that we are discussing this amendment at such a late hour because it did not address the real issue.
The amendment seeks to bring all student support services up to the standards which are found in universities. It is worth remembering that the English model is that university students do not live at home. That is probably a historical accident for which Oxford and Cambridge are responsible. University students live away from home and therefore they place an extremely high emphasis on student support facilities. Where students do not have those support facilities and the back-up of their homes, they find that they are not so well off. That is why the older and better endowed universities have such a big advantage and such a major drawing point.
My intention was to improve the support services of some of the universities which are less well off in that regard. As a rule of thumb, the polytechnics are not so well endowed. They were originally created as establishments for more locally based students. They have now drawn in students from other areas because of the increase in the academic courses which they offer. Unfortunately, they only get the second bite of the cherry as regards students with good examination results. We are trying to get rid of that binary divide.
I must read the noble Lord's reply on this matter. However, I give no guarantee that I shall not return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renfrew of Kaimsthornmoved Amendment No. 139A:
Page 45, line 18, leave out ("subject to that").
The noble Lord said: My Lords, in my view this is not merely a drafting amendment. If I am assured that it is, that will be fine. However, I should like to try to explain why I do not believe that that is so.
I moved an amendment in Committee which I withdrew when the Minister gave a reply which I did not fully understand. I have read the reply several times and I still do not fully understand it. I have reached the conclusion that perhaps the noble Lord did not understand the point which I was making, although that was no doubt my fault.
This is not a trivial matter. The three words "subject to that" are not in the equivalent section of the Education Reform Act 1988 nor—it is interesting to observe—are they in the equivalent position in the Further and Higher Education (Scotland) Bill, which is at present under discussion in another place.
The only way in which I can try to make myself more clearly understood than I was able to do in Committee is to try to sketch out a scenario. I hope it will not be a nightmare scenario, but that remains to be seen.
First, let us imagine that a funding council makes a grant to a department of medicine in a university for certain defined research purposes. Secondly, let us suppose that a philanthropist millionaire has made a munificent benefaction to that same department for

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the purposes of cancer research —a well defined purpose. Thirdly, let us suppose that the department of medicine does not carry out the research in a manner which is to the satisfaction of the funding council or the Secretary of State so that a question arises as to repayment being made, in whole or in part, of the sums paid by the council because the terms and conditions under which the sums were paid are not, in the council's view, complied with.
What does the department do in those circumstances? It may try to make economies from further grants derived from the funding council; it may borrow; or it may seek to raise other resources in order to make the appropriate repayment. However, it is conceivable that it could in fact lay hands on the benefaction of the philanthropist millionaire. What is disquieting is that it might be required by the council to lay hands on the benefaction—the golden egg—of the philanthropist millionaire. That would be highly undesirable. First, it would be wrong in itself; secondly, it would be counterproductive.
All of us in the university sector at the moment are anxious to raise money from independent sources for research and other purposes, and of course we have the warm encouragement of the Government for doing so, which is quite proper. It would therefore be most unfortunate if money with a specific benefactory purpose were used in this way. It would certainly be counterproductive in securing further benefactions. I would find it difficult to continue raising money for my department and my university if I could not look a benefactor in the eye and assure him or her that the money would be used for the purposes for which it had been given to the department.
The 1988 Act gave an unqualified restriction which would prevent such an eventuality. Here the restriction is qualified by the words, "subject to that", which, on my readings is a subordinating phrase. I shall be happy to be corrected by legal opinion; there are noble and learned Lords present who may be able to do that, but I have not so far been authoritatively corrected on that. The phrase "subject to that" suggests—if I may use that verb—beta to alpha, so that beta is no longer an absolute obstacle. The phrase "subject to that", as I read the clause, empowers the funding council to lay its hands on the benefaction or direct that the benefaction be used for this purpose.
I hope that the Minister can assure me that I am wrong, but I hope that he will do so perhaps more analytically than he was able to do last time. If the phrase "subject to that" has no such purpose, why is it inserted in the Bill when it was not in its predecessor Bill? Why was it not inserted in the Further and Higher Education (Scotland) Bill? If the Minister can persuade us that these words are completely immaterial and unnecessary, well and good. But if he does so persuade us, then surely the omission of those words would scarcely be deleterious. Either way, they could safely be omitted. I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendment. It surely cannot be the intention of the Government to kill or discourage the benefactory
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goose. Perhaps one can proceed on common ground that that cannot be the intention. If that is so, what is the meaning of "subject to that"? It imports a qualification; it imports a priority. What is it?
If it imports a priority, as has been pointed out, it discourages the benefactory goose. We therefore need an assurance also that it is not intended to create a priority. But we do not know what it is intended to create. If it were deleted, it would make sense according to what I believe is the Government's intention. We require a measure of assurance on the matter. We wish to know why it was introduced into this Bill, not existing in other Bills, and exactly what it is supposed to mean.
Lord Dainton: My Lords, I support the noble Lords, Lord Renfrew and Lord Campbell, though I regret I do not possess their analytical powers. I am trying hard to follow subsection (4) but I find it difficult. I fear that it establishes the right of the council to recover payment, in whole or in part as the noble Lord, Lord Renfrew said, if any terms or conditions which the council attached to a grant which it had made are infringed by the recipient. Then the subsection goes on to state that the terms and conditions cannot relate to grants received from other sources.
All that is splendid until one comes to those three little words "subject to that" which, as the noble Lord, Lord Renfrew, has pointed out, are not in the equivalent Scottish Bill and neither are they contained in the FE part of the Bill before us. I would like to be reassured that it is a wrong interpretation to say that those words open the door to the council being able to claim back some money unless the university used its money from other sources in some particular way laid down by the council.
The noble Lord, Lord Renfrew, gave a vivid illustration. He has drawn our attention to the fact that this provision was not in the 1988 Act. Like the other two noble Lords, I cannot really believe, if my interpretation and theirs is correct, that that is intended by the Government. Therefore I hope that the noble Lord, Lord Belstead, in replying can agree to some wording which will place moneys which a university receives from non-council sources completely beyond the grasp of a council. If that can be done beyond peradventure, I shall be quite content.
Lord Adrian: My Lords, perhaps I may join the company of those noble Lords who have been profoundly puzzled by the meaning and intention of this particular clause and for the same reason. The words "subject to that" seem to be otiose if one assumes that the Government's intention is what it has been assumed to be by various noble Lords who have spoken. If they are not otiose, then the intention seems to be, as stated, to subject the last part of subsection (4) to paragraphs (a) and (b). That does seem to be acceptable. I very much hope that the Minister will be prepared to let the three words "subject to that"

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disappear. I do not believe that they make the slightest difference to what was intended in that clause. I hope that they do not.
Lord Belstead: My Lords, in responding to a similar amendment moved by my noble friend Lord Renfrew in Committee, I assured him that these words do not represent any change of policy. In passing I thank my noble friend who, in what I believe to be the politest way I have ever heard, told me quietly that my answer was incomprehensible on that occasion. I repeat the assurance that I then attempted to give my noble friend.
These words are certainly not intended to enable the new funding councils to interfere with institutions' private income. Their sole purpose is to acknowledge the possibility that where an institution has to repay grant or pay interest on such repayment, it may be that it resorts to funds that the council has not provided. Where a council requires repayment of grant or the payment of interest, an institution has a number of options. It may be able to use funds provided by the council for other purposes provided that the council agrees. It may be that the institution will borrow. Both of those are examples given by my noble friend Lord Renfrew.
It may be that the institution will resort to some form of reserve fund of its own. None of those options is closed off by the words in the subsection. However, the institution may choose to use income from private sources provided—and I emphasise the proviso—that to do so would not be inconsistent with any conditions subject to which that income was received. As regards the example given by my noble friend, the funding council could not require the department of medicine to repay funds from a particular source. If the money from the benefactor had been given on trust for a particular purpose it would not be available for any other purpose. In practice the department of medicine would be part of a larger institution from whose general funds the repayment could be made.
In those circumstances the conditions under which a repayment is made could be said to relate to income derived from sources other than from the council. It is surely not unreasonable to require an institution which has received public money for a particular purpose and which has not used it for that purpose to repay it and, where it has delayed repayment, to pay interest. It would be unreasonable for that institution to claim that it should not repay because it had exhausted the funds provided by the council and in consequence would have to resort to funds from some other sources.
These are the circumstances against which the words "subject to that" are designed to guard. Those words are not designed to block off finding repayment from various sources of funding, which my noble friend Lord Renfrew suggested in his words and which I have repeated.
I hope that this explanation has satisfied my noble friend of the very limited but, as the Government believe, necessary purpose served by these words. I have today looked carefully into this once again and I hope that I may have satisfied your Lordships.
11 p.m.
Lord Renfrew of Kaimsthorn: My Lords, I am grateful to my noble friend. He has given a much fuller explanation on this occasion than he was able to give on a previous occasion. I am grateful to my noble friend Lord Campbell of Alloway for his support. I am very much aware that in matters of definition and of reading legal documents, he is a person of vast experience. I am grateful to noble Lords opposite.
I am not a lawyer and so I do not feel that it is appropriate for me to try to make coherent off-the-cuff remarks. However, I should like to make this point. The Minister said that an institution or the department in question may choose to repay funds from one source or another. I am sure that it would be entirely acceptable if, for instance, the benefaction was not one with narrow terms, and if the department genuinely chose to repay sums owing to the funding council from the benefaction. If that was the choice of the department, I could see merits in it. However, I would draw the attention of my noble friend to the verbs in the clause. The clause states:
"The terms and conditions on which a council may make any grants, loans or other payments … may in particular—

(a) enable the council to require the repayment … and

(b) require the payment of interest in respect".

There is no element of choice there. "Require" may well include choice, but the power is one which requires. I am afraid that I remain unable to follow the full logic of the explanation which my noble friend purports to have given.
It would be inappropriate to divide the House at this hour of the night. However, what I should like to do—I hope my noble friend will find this reasonable—is to ask some noble and learned colleagues, including the noble Lord, Lord Campbell of Alloway, to be so kind, if they would, as to give this clause further attention. It would be helpful if my noble friend would do so. I certainly do not want to set my readings against those of himself or of the Government; but I do not believe that the matter has been entirely clarified. Therefore, in withdrawing the amendment, I must give notice that I think it likely that it will have to come back at Third Reading.
Amendment, by leave, withdrawn.
Clause 62 [Administration of funds: supplementary]:
Lord Belsteadmoved Amendment No. 140:
Page 46, line 6, leave out ("particular") and insert ("religion or").
On Question, amendment agreed to.
[Amendment No. 141 not moved.]
Lord Belsteadmoved Amendment No. 142:
Page 46, line 11, leave out ("particular") and insert ("religion or").
On Question, amendment agreed to.
[Amendments Nos. 143 and 144 not moved.]
Lord Cavendish of Furness: My Lords, I beg to move that further consideration on Report be now adjourned.
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Moved accordingly, and, on Question, Motion agreed to.
House adjourned at five minutes past eleven o'clock.