Further and Higher Education Bill [H.L.]

HL Deb 16 January 1992 vol 534 cc358-407

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 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. 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 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 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 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 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 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 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 David

moved 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 Guildford

moved 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. 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 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. 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.

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 David

moved 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 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, 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 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 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 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.

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 Russell

moved 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 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 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 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 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 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 Blackstone

moved 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.

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 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; 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. 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 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.

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 Peston

moved 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.

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. 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 Addington

moved 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 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 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 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 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 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. 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 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.

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 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", 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 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 Peston

moved 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 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 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 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 Furness

moved Amendment No. 96: Page 19, line 15, at end insert: ("(8) On the operative date—

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

moved 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—

1. (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
2. (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 Furness

moved 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"). 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 Guildford

moved 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 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 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.