§ 3.13 p.m.
§ The Minister of State, Department for Education (Baroness Blatch)
My Lords, I beg to move that the Commons amendments to Lords amendments and Commons amendments in lieu be now considered.
Moved, That the Commons amendments to Lords amendments and Commons amendments in lieu be now considered.—(Baroness Blatch.)
On Question, Motion agreed to.
§ MOTIONS AND AMENDMENTS TO BE MOVED ON CONSIDERATION OF COMMONS AMENDMENTS TO CERTAIN OF THE LORDS AMENDMENTS, AND COMMONS AMENDMENTS IN LIEU OF CERTAIN OTHER LORDS AMENDMENTS
§ [The page and line refer to Bill (72) as first printed by the Lords]
§ LORDS AMENDMENT
§ 1 Before Clause 145, insert the following new clause:
§ Economy and efficiency of grant-maintained schools
§ (". The Secretary of State shall make regulations for the purpose of securing that an examination of economy, efficiency and effectiveness at grant-maintained schools shall be held on a regular basis.")
§ The Commons disagreed to this amendment but proposed the following amendment in lieu—
§ 1A Before Clause 145, insert the following new clause: Value-for-money studies of grant-maintained schools
§ '—(1) Each funding authority shall make arrangements for carrying out such value-for-money studies of grant-maintained schools in England or, as the case may be, Wales as in their opinion are required or as the Secretary of State may direct.
- (a) in forming an opinion as to whether any value-for-money study is required to he carried out in pursuance of this section, have regard to the desirability of value-for-money studies being carried out at regular intervals, and
- (b) in determining the scope of any value-formoney study to be carried out in pursuance of this section otherwise than on the direction of the Secretary of State, have regard to the scope of any value-for-money study which is being or has recently been carried out.
§ (3) In this section "value-for-money study", in relation to any grant-maintained school, means—
- (a) any examination into the economy, efficiency and effectiveness with which the governing body of the school have, in discharging their functions, used grant made by the authority, and
- (b) any study designed to improve economy, efficiency and effectiveness in the management or operations of the school.'
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed, and do agree with the Commons in Amendment No. 1A in lieu thereof.
Although they have not been scheduled together, I should like to speak at the same time to Amendments Nos. 11, 12, 12A, 16 and 16A. That does not preclude, when we reach those amendments, other Members of the House speaking to them.
Amendment No. 1, noble Lords will recall, was introduced by the noble and learned Lord, Lord Brightman, at Third Reading. I am sorry that he is not able to be with us today, but I am pleased to hear that he is recuperating apace. I am sure that we all wish him well.
§ Baroness Blatch
My Lords, in his absence I should like to put on record my thanks for his perspicacity on this issue of value-for-money studies, and indeed that of my noble friend Lord Peyton, who is also not in his seat, and for the effectiveness with which they have pressed their points.
When we discussed this matter at Third Reading, I promised to draw my right honourable friend's attention to the desirability of including in the Bill an explicit requirement for value-for-money studies of grant-maintained schools to be undertaken on a regular basis. In the meantime I accepted Amendment No. 1, though I made clear that I had been advised that its regulation-making power would cause difficulties.
The effect of Amendment No. 1 A would be to substitute a requirement on the new Funding Agency for Schools, and on its Welsh counterpart, to undertake value-for-money studies of grant-maintained schools, and to do so such that there are regular studies. It was the regular studies which I know was of concern to both my noble friend and the noble and learned Lord, Lord Brightman. The Government put forward this alternative approach for several reasons. First, as I indicated previously, there is a very real difficulty about a requirement to make regulations which could be regarded as biting on the independent role of the Comptroller and Auditor General.
962 Secondly, in keeping with other aspects of the Bill, it seems appropriate for the balance of operational responsibility to rest with the Funding Agency for Schools rather than the Secretary of State— though with a backstop power of direction for the latter. Thirdly, there would have been a procedural difficulty in introducing a new duty on the Secretary of State as that would have required a further money resolution in the other place, which was impracticable at this stage of the Bill's progress.
Amendment No. 1A would of course be in addition to the extra clause on the role of the Comptroller and Auditor General which is shown as Amendment No. II on today's Marshalled List. When I introduced that at Third Reading I made clear that I believed it inconceivable that that clause would not lead to a significant and regular programme of value-formoney studies at grant-maintained schools. In combination with the new clause proposed in Amendment No. 1A there can be no doubt that the economy, efficiency and effectiveness of the rapidly growing number of self-governing schools will be scrutinised both thoroughly and regularly.
I am pleased to report that the noble and learned Lord, Lord Brightman, agrees with this view. He has written thanking me for taking his amendment on board, saying that the Government have dealt with it appropriately and apologising that he is riot able to be here today to say so. I trust that other noble Lords will take a similar view.
The other amendments I mentioned—Amendments Nos. 12A and 16A—are minor definitional provisions: they insert the full title of the Audit Commission into Amendments Nos. 11 and 16, and thereby remove the need for Amendment No. 12.
Moved, That the House do not insist on their Amendment No. 1 to which the Cornmons have disagreed, and do agree with the Commons in their Amendment No. 1A in lieu thereof.—(Baroness Blatch.)
§ Lord Simon of Glaisdale
My Lords, my only demur is as to subsections (2) and (3) of the Commons amendment in lieu. Subsection (3) defines "value-formoney". I should not have thought that anyone would have the smallest difficulty in knowing what value-for-money means or imagine that it would mean anything other than as defined. As to subsection (2), what it does is to particularise something that is in subsection (1) already and therefore does not need particularisation. But the matter goes further because your Lordships will see at the end of subsection (1) that,the Secretary of State may direct",various matters to be considered. So there would be no difficulty in his directing that attention should be given to the matters in subsection (2) without cluttering up the statute book with unnecessary matter.
In 1975 the Renton Committee on the preparation of legislation remarked on the prolixity and unnecessary verbosity and volume of the statute book . At that time it consisted of three volumes annually on public and general Acts and Church measures. Ten years later, in 1985, the statute book consisted of five volumes. Not only did it consist of that number of 963 volumes, but those five volumes contained fewer statutes than the three volumes of 1975. In other words, the inflation of verbosity had continued unchecked and undisturbed by what the Renton Committee had said. I do not move formally to leave out the two subsections because a difference of opinion between the Houses at this stage would mean the loss of the Bill.
I believe that your Lordships would wish to mark the increasing volume of the statute book. We are considering a massive statute of itself. It does not stand alone because as the scrutiny committee pointed out, it gives rise to over 100 delegated legislation-making powers. So even this vast statutory mass that one sees is only a small part of the legislation which would ensue.
§ Earl Russell
My Lords, as always, I listened with great interest to the noble and learned Lord, Lord Simon of Glaisdale. I am in entire agreement with everything he said about prolixity. But subsection (3) of Amendment No. 1A actually introduces a significant change of policy. We are used to value-for-money clauses. For example, we had a long debate on one in the Education Reform Act 1988 which demanded efficiency and economy. I then tabled an amendment to draw attention to the fact that it said nothing about the quality of education. As regards the Water Bill, there was a clause about efficiency and economy. My noble friends tabled an amendment to draw attention to the fact that it said nothing about the quality of water. We have here a third word added. The reference is to, "Economy, efficiency and effectiveness". To me that is a very welcome change and shows an acceptance of the points which have been made many times in this Chamber. I would like to thank the Minister for it.
§ Baroness Blatch
My Lords, I hope that the House will forgive me for finding it a little difficult to respond to the noble and learned Lord, Lord Simon of Glaisdale, without sounding ungenerous to the House. Our attention has been drawn to the point about which I believe the noble and learned Lord is right—that is to say, the superfluous words on the face of the Bill. They are there to satisfy this House. At Second Reading, Committee, Report stages and at Third Reading, it was clear that this House was not satisfied unless it were made explicit on the face of the Bill that there would not only be value-for-money studies (which were implicit anyway in the Bill originally) but that they should be concerned with economy, effectiveness and efficiency. It was also necessary that those studies should take place regularly.
It is because of that that I kept bringing forward forms of words—as did my colleagues in another place —to have these extra words on the face of the Bill. I take the point which the noble and learned Lord is making, but I believe that it is in response to the will of this House that it should be absolutely beyond doubt that regular audit will be made in the grant-maintained sector and that it will be concerned with effectiveness as well as efficiency and economy.
964 On Question, Motion agreed to.
§ LORDS AMENDMENTS
§ 2 Clause 146, page 88, line 38, at end insert:
§ ("() in relation to the planning of special educational provision as provided in section 151 or")
§ 3 Clause 151, page 91, line 21, after ("shall") insert ("plan and")
§ 3ZA Page 91, line 22 leave out ("by them").
§ 4 Page 91, line 22, at end insert ("and the arrangements made for school premises to be made accessible to children requiring special educational provision within the area of the local education authority.")
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendments Nos. 2 to 4, to which the Commons have disagreed. I shall also be speaking to Lords Amendments Nos. 5 to 10 and the Commons amendments in lieu; namely, Amendments Nos. 10A and 10B.
Special education has always been a matter of particular concern to this House. For over a year now it has been a major focus of public and parliamentary debate. The process began last summer with the Private Peer's Bill introduced by my noble friend Lord Campbell of Alloway; the publication of the work of the Audit Commission and HMI; and the production of the government's proposals for change in the consultation paper, Access to the System, and the White Paper, Choice and Diversity. That debate has continued with undiminished vigour since the introduction of the Bill which we are considering today.
Throughout the debate, which has been conducted very constructively on all sides, the Government have been listening carefully to the views of all concerned. We received and analysed over 300 responses to Access to the System. My honourable friend the Parliamentary Under-Secretary and I have held many meetings with voluntary bodies and others. In particular, we have given close consideration to the many issues raised by the Special Educational Consortium. I should take this opportunity to pay tribute to the work of the consortium. It has been most helpful and very constructive throughout the process. Led by its able chairman, Paul Ennals, it has conducted an effective campaign, presenting a reasoned case and practical propositions.
The outcome of that long process of deliberation and debate has been the Bill as it is before us today. It is now clear, and I hope beyond all doubt, that the Government are concerned with all children with special educational needs, both those with statements and those without. The amendments we introduced to ensure that the code of practice applied to schools and to ensure that all schools reported on their special educational needs policies are testimony to that commitment. The Bill also ensures that LEAs will be fully able to monitor the provision specified in statements through regular annual reviews conducted in concert with schools and through access to schools at reasonable times. Moreover, the Bill directly promotes co-operation between all agencies concerned with children with special educational needs 965 —that is to say, the district health authorities, social services departments and local education authorities. When these developments are seen alongside the original provisions of the legislation—the creation of the code of practice, the extension of parental rights and the establishment of the SEN tribunal—it is clear that this Bill represents a significant advance for special education. This House has played a major part in securing that result.
We listened too when many Members of this House expressed concern about the planning and coordination of special educational provision. That concern was embodied in a substantial group of amendments carried at Report stage. The Government took the view that many of those amendments went far too far, while others were unnecessary. Those amendments which dealt with planning gave a continuing strategic role to the local education authority. That role was inconsistent with the new regime embodied in the Bill as a whole and inconsistent in particular with the autonomy of schools, especially those which have opted to leave their LEAs and become self-governing. The amendments have been considered, by another place, together with two amendments tabled by the Government. The other place accepted these government amendments in lieu of those passed by your Lordships.
However, in tabling the amendments in lieu, the Government recognised the strength of feeling expressed in this House and in another place. The amendments accepted by the other place, before us as Amendments Nos. 10A and 10B, are designed to address those concerns. The first, Amendment No. 10A, would require the local education authority to consult the funding agency and the governing bodies of any maintained schools—LEA or GM; mainstream or special—for the purpose of co-ordinating special educational provision. That duty would be part of the LEA's duty to keep the arrangements they make under review.
The second, Amendment No. 10B, puts a similar duty on governors of maintained schools. They would be required to consult other governors, the LEA and the funding agency for the purpose of co-ordinating special educational provision for their pupils. The LEA would have a similar duty in respect of nursery schools.
The amendments therefore directly address the question of co-ordination. Local education authorities' reviews of the arrangements they make would be informed by the views of the funding agency and schools in the area. At the same time, all schools would discuss with each other and the appropriate authorities the steps they take to meet pupils' special educational needs. In each case, the explicit aim is to promote full consultation and co-ordination.
These amendments embody the Government's determination to listen to the views of all concerned and to react positively and constructively. Our commitment to consultation will not end with the passage of this Bill. In the autumn we shall begin the process of implementing Part III. We aim to do so in partnership with the special education world. We shall 966 issue a draft code of practice and draft regulations for consultation. That consultation will be full and thorough. We aim to talk, in detail, to local education authorities, other agencies, schools and the full range of voluntary bodies. We shall consider very carefully what they have to say. In due course, we shall lay regulations and a draft code before Parliament. Both during the consultation process and through the parliamentary procedure your Lordships will, therefore, have every opportunity to contribute to these important changes. We all, on all sides of this House, attach the utmost importance to the task before us. We must work in partnership to ensure its success. It is worth reminding the House at this stage that the code of practice will come forward under the affirmative procedure not only for its introduction, but also for any amendments that are made to it subsequently, however minor.
These issues have been well debated here and in another place. I therefore ask the House not to insist on Amendments Nos. 2, 3 and 4.
Moved, that the House do not insist on their Amendments Nos. 2 to 4 to which the Commons have disagreed.—(Baroness Blatch.)
§ 3.30 p.m.
§ Lord Judd
My Lords, before we go too far into our deliberations this afternoon, I hope that it will be in order if I take this opportunity, on behalf of all of us on this side of the House, to wish the Minister well with her considerable responsibilities in temporarily taking over the Department for Education as a whole during the indisposition of the Secretary of State. It has been a long and exacting summer and, if I may dare to say so, even the noble Baroness is human. I hope that she will still be able to have the holiday that she certainly needs. Perhaps I may ask her to convey to the Secretary of State our deep concern about his illness together with our very best good wishes for a speedy recovery. We hope that he, too, will have a well-earned holiday.
We are disappointed that the Government have sought to overturn the amendments that were made to Clause 151 on Report. It is important that local education authorities have the lead role in keeping under review all special educational needs provision within their areas. We remain keen to strengthen the review function of the local education authorities. However, we acknowledge that there has been at least some movement in that direction from the Government. It seems that our amendments on the review provisions of Clause 151 led to the Government making some improvements on their original wording. We still believe that a review of access arrangements should have been put on the face of the Bill. Ministerial comments have not fully addressed the issue.
I am aware that the Minister has received representations on access audits from the National Union of Teachers and the Spastics Society on the basis of the Coopers & Lybrand study, Within Reach—The School Survey. I should like to quote briefly from what Anthony Hewson, the chairman of the Spastics Society, said about that report. He said: 967"Within Reach—The School Survey has highlighted some alarming statistics about the lack of access to mainstream education especially for library, playground and toilet facilities.
According to the survey in primary schools, 22 per cent. of libraries had no access: 65 per cent. had no suitably adapted toilet facilities at all.
The findings for secondary schools have important implications for disabled pupils' access to the National Curriculum:
41 per cent. of libraries were totally inaccessible;
30 per cent of science, art and music rooms were inaccessible;
55 per cent. had no suitable toilet facilities". The Minister's colleague, Eric Forth, has written separately to a Back-Bench colleague giving a broad welcome to the two Within Reach reports. Indeed, he spoke favourably of the work at a reception held last week to promote the findings of Within Reach. As I understand it, Ministers have feared that a specific requirement for access audits will provide what they have described as,a raft of bureaucratic legislation",and would become a "bureaucratic exercise" for local authorities. Instead, the Government are relying on new measures to encourage grant-maintained schools to apply for capital grants to facilitate access for the disabled. As far as they go, such measures are certainly to be welcomed. However, a full review of access arrangements would lead to an increased awareness of access problems and a clearer idea of the action that might be taken to remedy those problems.
Under the terms of Clause 151, the local education authority is to keep under review special educational provision in consultation with the funding authority and grant-maintained schools. In his letter of 16th July, Eric Forth said:the Funding Agency for Schools will, when established, be able increasingly to take a strategic overview of where provision for the disabled is most needed".In that context, access audits do not themselves force the local education authority or the funding agency to spend money on making schools more accessible. Access audits paint the local and national picture for a value assessment to be made on access to schools. Such a value assessment would enable the LEA, the funding agency and the schools themselves to take the "strategic overview" and allocate the funds to improve access accordingly.
Furthermore, Eric Forth has said that Clause 18 provides sufficient powers for an access audit, allowing the Secretary of State to require information and research specifically on special educational needs. Perhaps I may put a specific question to the Minister: will the Government use those provisions in Clause 18 and review the functions under Clause 151 to undertake a review of access? That would be a logical step for the Government.
Without the full information, it is impossible to know how much it would cost to make our schools physically suitable for disabled pupils. A requirement by the Secretary of State for access audits would provide that information to enable LEAs, the funding agency and schools to improve access with the most efficient use of limited resources.
§ Lord Addington
My Lords, I rise to speak only briefly. As the Minister may be in charge of the Department for Education for the foreseeable future, I take this opportunity of saying that I feel rather like somebody who is in the back of a taxi which is taking the long route to one's destination: one may not approve, but at least one knows that the driver is competent.
I cannot help feeling that if we had had these government amendments earlier, we might have been able to avoid discussing such provisions late at night because, although they are nowhere near as strong or as direct as we should have liked or as the amendments that we passed, they go at least some way towards addressing some of the problems of the overall view. Therefore, I thank the Government for moving at least some way towards our conclusions. The House can congratulate itself a little on having nudged the Government in that direction.
§ Baroness Blatch
My Lords, I should like to respond to the only issue which has been raised in relation to this raft of amendments. I refer to the question of access. Before doing so, however, I should like to thank the noble Lords, Lord Judd and Lord Addington, for their kind remarks. I shall convey their generous comments to my right honourable friend the Secretary of State who is recuperating from his illness. Perhaps I should advise the noble Lord, Lord Addington, not to have too much confidence in the driver of that taxi. My navigation skills are not all that they might be.
I should like to stress the Government's policies that are already in place in relation to ensuring access to buildings for disabled pupils.. They are aimed at securing what is, I believe, a completely uncontroversial objective: that for every area, but not necessarily the area of an LEA, there should be a mainstream school which is readily accessible and suitable for the needs of disabled pupils. It is obvious that such facilities not only promote integration, which is important, but also lead to greater parental choice.
We have done a great deal to encourage that general objective. Despite the tight constraints on public expenditure in recent years, capital spending per pupil in maintained schools increased by 19 per cent. in real terms.
We know that local authorities are considering seriously, as part of their bidding for capital projects, access to their buildings for the disabled. We have taken an important step forward within the past week. That was referred to by the noble Lord, Lord Judd. Self-governing schools have just received a letter strongly encouraging them to apply for capital grants to improve access for the disabled. I understand that that move has already been welcomed by the special needs organisations. I am sure that we shall receive an encouraging response from the ever-growing self-governing sector to ensure that, whatever it does, access for the disabled will be improved. Such schools have already demonstrated a strong commitment to special education provision. I am confident that that will continue.
The important point for the purpose of today's debate is whether the Secretary of State has powers, 969 contained within primary legislation, to require an audit of access for the disabled to be carried out. The answer is, as my honourable friend Mr. Forth said in another place, that Clause 18 provides that power. I cannot state specifically that my right honourable friend will require it. What I can say is that we shall do a great deal to encourage access for the disabled in all government buildings. The noble Lord, Lord Judd, mentioned some buildings which are not directly the responsibility of education departments. We shall work with local government to ensure that the matter is taken seriously. We have had some constructive discussions about this issue with the teacher unions.
On Question, Motion agreed to.
§ LORDS AMENDMENT
§ 5 After Clause 151, insert the following new clause:
§ Strategic plan by local education authority
§ (".—(1) A local education authority shall submit to the Secretary of State for approval a strategic plan for the purposes of section 151 above and of the progressive development of educational provision including special needs within their areas.
§ (2) A local education authority, and the governing body of any school with duties under this Part, including a grant-maintained school, shall implement the terms of any plan approved by the Secretary of State under this section and shall bring forward as appropriate relevant proposals for this purpose.
§ (3) A strategic plan compiled under this section shall have effect for such period of not less than four years as the Secretary of State shall specify.
§ (4) The Secretary of State may approve any plan submitted to him under this section with such modifications as he considers appropriate having regard to the interests of pupils.
§ (5) Any proposals contained in any plan submitted under this section shall have regard to the need to promote the interests of children with special educational needs.
§ (6) A plan compiled under this section shall contain proposals on the following matters—
- (a) a broad direction and development of nursery, primary and secondary education respectively within the authority concerned, having regard to the requirements of section 152 below;
- (b) the number and size of mixed and single sex schools in the authority concerned;
- (c) the number and size of comprehensive or, as the case may be, selective schools in the area, taking account of the requirements of section 152 below;
- (d) the number of places available in all maintained and grant-maintained schools, and City Technology Colleges, together with targets for numbers of entry from their catchment areas;
- (e) the range of goods and services to be provided by the authority under sections 154 and (where applicable) 265 below; and
- (f) any other matter which the authority may consider appropriate or the Secretary of State may specify.
§ (7) Any local education authority shall consult any neighbouring local education authority, and such representatives of parents, headteachers, teaching and non-teaching staff and other community organisations as appear to it to be concerned before submitting any plan under this section.")
§ 5A After Clause 151, insert the following new clause:
§ Local education authority guidance
§ (".—(1) A local education authority, after consultation with—
- (a) the relevant funding authority,
- (b) the governing bodies of all maintained schools in its area,
- (c) any neighbouring local education authority, and
- (d) such representatives of parents, headteachers, teaching and non-teaching staff and other community organisations as appear to it to be concerned,
§ (2) Guidance compiled under this section may contain proposals on the development of nursery, primary and secondary education within the authority, the types and sizes of schools provided by the authority and any other matter the authority considers to be relevant.
§ (3) Any proposed guidance compiled under this section shall have regard to the need to promote the interests of children with special educational needs.
§ (4) The Secretary of State may approve, with or without modifications, any guidance submitted to him under subsection (1) above.
§ (5) Guidance approved by the Secretary of State under this section shall have effect for such period as the Secretary of State may specify.
§ (6) The governing body of any maintained school shall have regard to the terms of any guidance approved by the Secretary of State under this section in carrying out its duties under the Education Acts.")
§ Lord Judd
My Lords, I beg to move that this House do not insist on their Amendment No. 5 to which the Commons have disagreed, but propose Amendment No. 5A in lieu thereof.
I must say that I have in this past week almost reached the point of despair. Even at the 11th hour-plus, the Government seem to have learnt very little. The cavalier, insensitive and arrogant way in which they have, from the time of the publication of their White Paper, dealt with all views or concerns other than their own, has yet again been crudely emphasised in the way that your Lordships' amendments to the Bill have been considered, or, to be more accurate, not considered.
This House, somewhat unhappily, sent a document containing over 580 amendments—no fewer—and mostly government amendments, to the other place. There the debate was limited to just one day, with the guillotine allowing an average of only 53 seconds per amendment. The Government's response to the groups of your Lordships' amendments now before us, as made during our Report stage more than a full four weeks previously on 14th June, was only published for the other place on Friday 16th July, the last working day before consideration took place. They were all unceremoniously rejected by the Government with, by my calculation, barely an hour and a half of debate, which was, even by the Government's lamentable standards, an amazingly dismissive approach to three such fundamental issues as nursery education, special needs, and the proper planning of our children's education—issues which had been repeatedly stressed as being of the greatest importance in all our deliberations from Second Reading though Committee stage to Report stage, and issues which had indeed received support from all quarters in this House.
971 But, of course, that has been the whole story of this sorry legislation, well evidenced at the beginning in the way the consultation period on the White Paper last year coincided with the school holidays. As the right reverend Prelate said on Third Reading:The Bill will have been put through within 12 months from White Paper to Royal Assent. There was no prior consultation."—[Official Report; 6/7/93; col. 1377.]What a deplorable contrast to all the statesmanship of 1944, despite the immense pressures of the Second World War. Where is there any evidence whatever of any concession to the principle of consensus which the noble Viscount, Lord Eccles, so firmly reminded us is essential to sound, sustainable education policy? Making education legislation on the hoof is a shameful way to treat our children.
The Bill has been drafted so hastily that there can be no shadow of doubt that the Government will be compelled to return to the House again in the near future with yet another piece of legislation intended to deal with the mess generated by this one. Even at their sixteenth attempt the Government have still failed to get right their legislation on education.
That said, we have to face the realities of the situation in which we now find ourselves. The amendments we now put forward concentrate on two key issues which have received most consistent attention in the deliberations of this House. It is our fervent hope that even now the Government may feel able to accept them in their modified form. To do so would provide some basis for beginning to rebuild essential good will, confidence and consensus.
In Amendment No. 5A we find one of the issues which has most seriously concerned your Lordships' House: the danger of damaging muddle and confusion in the planning of local educational provision. Amendment No. 207B put that right by envisaging a clear lead planning role for LEAs across the public education system, including grant-maintained schools and city technology colleges. That amendment was agreed on the second day of Lords' Report stage, without the Government's endorsement, but not resisted by them. It would have provided the framework that the original Bill lacked and given a clear future role for LEAs.
According to the Parliamentary Under-Secretary of State for Education, Mr. Eric Forth, it was subsequently rejected by the Government because its effect would have been:to impose a duty on LEAs to plan all arrangements for special educational needs. That would severely erode the right of schools that have opted to leave their LEAs to run their own affairs. The Government cannot accept that; it cuts across the whole philosophy of GM schools".—[Official Report, Commons, 19/7/93; col. 95.]The amendment was nevertheless supported by a Conservative Member, Mr. Tim Rathbone, who said that he believed that giving the responsibility for strategic planning of education to local elected education authorities wouldhelp to plot the future for LEAs as enablers rather than providers".—[Official Report, Commons, 19/7/93; col. 101.]The purpose of our new amendment would be to give the LEA an overall responsibility for overseeing education in its area, but rather than doing that 972 through a plan, which if approved by the Secretary of State would need to be enforced, the LEA would prepare guidance for the progressive development of educational provision, including special educational provision, within its area. That guidance would be submitted to the Secretary of State for approval, if necessary with modification. If the guidance were approved by the Secretary of State, then maintained schools, including grant-maintained schools, would have to have regard to that guidance. Clearly that arrangement is less prescriptive than the plan of Amendment No. 207B, but the approval of the Secretary of State would give the guidance of LEAs an important status. In fact, much of education legislation is put into practice through circulars of guidance; and, for example, the Education (Schools) Act 1992 included giving guidance to registered inspectors among the duties of the Chief Inspector for England.
The amendment would create the enabling authority of the future, recognising that local education authorities will continue to have a critical role in the schools system into the 21st century, with LEAs supporting all schools which do not opt out. It thus produces a workable framework within which the "mixed economy", run by the LEAs and the Funding Agency for Schools respectively, can operate. By giving LEAs the oversight of strategic planning for their areas, information can be gathered at one time and in one place which would have the useful by-product of enabling the FAS to start its work with a full information base. There would be orderly development of the system, and I suggest that it is one of the strengths of the amendment that the interest of the Secretary of State in securing such development across the system as a whole is recognised. There really is a need to ensure effective, well-informed overall local planning in the interests of our children. The amendment would help to secure it. I beg to move.
Moved, That this House do not insist on their Amendment No. 5 to which the Commons have disagreed, but propose Amendment No. 5A in lieu thereof.—(Lord Judd.)
§ Earl Russell
My Lords, we on these Benches are grateful to the noble Lord, Lord Judd, for tabling this amendment, which we support. I sympathise with the noble Lord in his comments about the Commons rejecting all our amendments. When that happens the words which come into my mind are those of Macduff on realising that Macbeth had killed all his children. But since not even Shakespeare would make those words in order, I shall not repeat them.
The noble Baroness, Lady David, in introducing this group of amendments on Report, said that they were designed to cobble together a provision against the intestacies of individual school policies. Those are crucial words because we are concerned with the danger of the fragmentation of a public service. That has been one of our crucial concerns throughout the debates on the Bill and it has been one of the hardest issues on which to achieve any meeting of minds.
While I sympathises what was said by the noble Lord, Lord Judd, about the time allotted to consideration of these amendments, in another place 973 this group was the only one which received an interesting debate. I am glad that I stayed up late last night to read it because a number of important points were made. In referring to them I shall be paraphrasing. Attention was drawn by Mr. Spearing to the danger of schools in a competitive environment letting their special needs provisions sink. That was one of the issues which made him believe that there was a need for some co-ordination. Having read those words, I was immediately reminded of what happens to local authority housing when only the most disadvantaged are unable to buy; that what remains in local authority ownership becomes a kind of sink. I do not believe that it is any part of the Government's purpose to let that happen to the schools which are run by local authorities. If the Bill inadvertently creates that danger. I hope that the Government will think about it.
From the Conservative Benches Sir John Hannam drew attention to the danger of a school which wants to improve its examination results perhaps running down its special needs provisions. An important brief from the Cheshire Dyslexia Association was discussed. It made a point which is of general implication. In Cheshire the local authority runs a general service across the county to teach the county's teachers how to handle dyslexia. As one with dyslexic pupils I should have been most grateful for that kind of service. But if the LEA's role as a co-ordinator is destroyed, who will perform such a service? If such a service is not performed, is it not likely that the overall standard of education will fall?
Last night I was thinking of why we do not get across to each other on the theme of fragmentation. I believe that we—and I mean the whole crescent of the House which stretches from the Benches on which the noble Earl, Lord Baldwin of Bewdley, sits to these Benches—think of a public service as something like a train. There must be a coupling between the carriages and they must move in a roughly co-ordinated way. The Government think much more in terms of a series of cars which may move in different directions, at different speeds and in different places. In that we have a major difference in philosophy and since for the time being the Government are still in power, one may see that they might insist on their view prevailing.
But there is a middle ground which was suggested in the interesting speech of Mr. Rathbone from the Conservative Benches on the role of the LEA as an enabling authority. If we accept the Government's view that they are all like cars, we do not necessarily have to say that they are all like dodgems. If we think that the authorities are like cars, we can have a system of rule of the road, of roundabouts, of traffic lights and of the Highway Code. Mr. Rathbone's arguments in favour of the enabling power of the LEA seemed to be very much in that line.
Whenever we ask another place to think for a second time, the question of legitimacy is always raised. I believe that the answer to that question is very simple. In the two Parliament Acts certain powers were taken away from us by another place and it left us with certain others which are explicitly spelt out. We enjoy those powers by grant of another place and, 974 therefore, have every right to exercise the powers that we have been given as long as it pleases another place not to take them away. The question is of the expediency of exercising those powers. It does not seem to me to be expedient to send to another place a signal that we shall always accept what it sends back to us. That would be an invitation to ignore whatever we say knowing that it could do so without further political penalty. We do not exercise the power very often but it is important that we should not allow it to atrophy.
There are certain conditions, at least one of which must be satisfied before we exercise the power. One is that the Bill be not workable if it is not changed. I fear that in relation to this Bill that may be the case. I am afraid of fragmentation and lack of co-ordination leading to a collapse of the whole service. A significant issue of principle should be another ground. I understand that one does not have to satisfy all the grounds but I think that that also exists in this case. Furthermore, it would be a sufficient ground to ask another place to think for a second time if what is being asked for is not simply a partisan matter. The most interesting speech of Mr. Rathbone encourages me to think that that is the case. For those reasons we on these Benches are happy to support the amendment.
§ Lord Elton
My Lords, perhaps I may make a small point because my noble friend the Minister will feel constrained to do so and it may interfere with the flow of her argument. I would have made it earlier as an interruption to the noble Lord, Lord Judd, had I found the relevant paragraph in the Companion to the Standing Orders. Page 42 states:The content of a speech made in the House of Commons or a committee of that House in the current session may be summarised, but it is out of order to quote from such a speech unless it be the speech of a Minister in relation to Government policy".The noble Lord did not commit a heinous offence but if it went unnoted it might become a precedent. The noble Earl, Lord Russell, was plainly aware of that because he prefaced his remarks by stating that he would be paraphrasing.
§ Lord Campbell of Alloway
My Lords, Amendment No. 5A, in common with Amendments Nos. 6A and 14B, as the noble Lord, Lord Judd, said, raises a problem which could transcend the intrinsic merits of any of these amendments In one way or another they are all concerned with children with special educational needs. That is because none of the amendments can receive the consideration of another place until the spillover period.
The noble Lord, Lord Judd, dealt with the timetable as between 15th June and 22nd July, and that requires no repetition. On 22nd July I was informed that there would be a delay before consideration could be given by another place to an amendment of which I had given notice as long ago as 7th July that I would move if no accommodation could be made. I make no personal complaint at all. I have no personal grouse or grievance. But what has happened is that the pressure of business has pre-empted a constitutional entitlement of this House. 975 The train which carries our procedures to and fro between the two Houses has simply run into the buffers and cannot raise steam until October.
If any of the amendments are acceptable on their merits, the question arises whether a delayed Royal Assent would be so prejudicial as to induce your Lordships to refrain from the exercise of a constitutional entitlement. The way in which the noble Earl, Lord Russell, has put the matter may well commend itself to your Lordships.
As to the merits of the amendment, with the greatest respect to the noble Lord, Lord Judd, it could appear that such further guidance to the LEAs as is proposed by Amendment No. 5A really should not appear on the face of the Bill. It tends to overload the Bill in a manner to which the noble and learned Lord, Lord Simon of Glaisdale, takes traditional and right exception, relying on the Renton Report.
It overloads it with a somewhat complex statutory duty as regards matters of guidance which, if your Lordships look at subsection (4), lie within the absolute discretion of the Secretary of State. Therefore, that is a curious substance to seek to incorporate in primary legislation. With respect to the noble Lord, Lord Judd, Amendment No. 10A does not go so far as some of us would wish but it seems to take on board in another form the concept of strategic planning. As at present advised, on its merits, I am not able to support Amendment No. 5A.
§ 4 p.m.
§ Baroness David
My Lords, I am sorry that the noble Lord, Lord Campbell, has taken the line that he has. It seems to me that we have a right to ask the other House to think again when that is possible and it has the time to listen. As the noble Lord says, we have been rushed into this because the other House did not look at our amendments as soon as they could have done. There was a delay between 6th July and 19th July, which is nearly a fortnight, and again, we have waited for a week to look at what the other place thinks on these amendments which were hastily and inadequately considered. Therefore, it seems to me that there is the spillover in which the other place can think again about anything that we send back and in those circumstances we are totally within our rights to ask it to look again at the amendment.
The noble Earl, Lord Russell, has said everything that I would wish to say on the merits of the amendments and I shall not bore the House by repeating that. I believe that it is not out of order for me to quote the Minister, Mr. Eric Forth, when he said of the original amendment:That would severely erode the right of schools that have opted to leave their LEAs to run their own affairs".—[Official Report, Commons, 19/7/93; col. 95.]I do not believe that the amendment would have done that. Those schools could perfectly well run their own affairs. The point that we were trying to make—and this applies also to Amendments Nos. 3 and 3ZA—was that the planning ability should be given to the LEA. It seems to me that one authority should have an overall strategic view. Amendment No. 5A does not go so far as it did originally but it gives LEAs that 976 right, with the Secretary of State having the overall power. Therefore, I hope that this House will support Amendment No. 5A.
§ Lord Campbell of Alloway
My Lords, before the noble Baroness sits down, I believe that she has misunderstood me and it is important that I should correct her. I did not say that we should not ask another place to think again—I accepted much of what was said by the noble Earl, Lord Russell, and the noble Lord, Lord Judd—but I said that I could not accept the amendment on its merits. That is all.
§ Baroness Young
My Lords, perhaps I may intervene to make two points. Of course the House is entitled to ask another place to think again. There is no point in having a long argument about that. The question at issue is not whether or not we should ask it to do so but whether, on the merits of the case, we should do so.
I believe that the Government have listened to a great deal of what has been said in this House and in another place and have attempted to meet our anxieties. The Minister has moved a long way in attempting to satisfy the House on this issue which is concerned with co-ordination and full consultation. It seems to me that Amendment No. 10A achieves that and for that reason I shall support it.
§ Baroness Blatch
My Lords, this is an important debate. I remind the House that we have had extensive debates on the sensible planning for children with special educational needs and I welcome this opportunity to continue the debate on that important issue. I do not say as regards any of the amendments to be discussed today that there should be no delay, because this is an opportunity for the House to give proper consideration to what the other place has said to us and to take a view about that. I accept that that view should be either registered in another place or for that to be the end of the matter. I wish to discuss the amendments on their merits.
I welcome, and indeed endorse, such an approach as that which lies behind Amendment No. 5A. It recognises the new organisational arrangements for schools under the Bill. It further recognises both the autonomy of schools within the system as a whole and the need for making arrangements for proper consultation and co-operation between the parties in order to ensure sensible co-ordination when making provision for children with special educational needs in an area.
It is just that kind of approach that the Government have envisaged and which we have reflected in our own proposals in the Bill: both those that have been there from the outset and the amendments which were passed by those in another place in lieu of the relevant amendments agreed to by your Lordships at Report stage.
I have in previous debates explained in some detail the system which the Bill would establish. That system 977 starts with the school. It is at the school where children with special needs and their parents have the first and the most direct contact with those who can help them.
Perhaps I may address the point made by the noble Earl, Lord Russell, about dyslexia. We have discussed that before. I was asked who would perform that service. The Bill is quite clear on the way in which the system will work, whether it is at the early stage of identifying the problem or at the stage of recognising problems of co-ordination and reading and writing. There are five stages in the process, but three stages are all within the school. If the problems become so acute and in need of other agency involvement, the school moves to stages four and five which involve the local education authority; and the statementing in process is triggered.
§ Earl Russell
My Lords, I am grateful to the noble Baroness for allowing me to intervene. However, the question was about who trains the teachers to deal with the dyslexia.
§ Baroness Blatch
My Lords, that has absolutely nothing to do with the amendments. Training for teachers dealing with children with special educational needs is very much on the agenda. The reason that we provide grants for educational support and training is to allow teachers to be trained in different specialisms which include working with children with special educational needs. However, that is not part of the amendments today.
I have explained in some detail the system which the Bill establishes. It starts with the school; and I have explained the five-stage process. I believe that that is a very systematic way of early identification and ensuring that young people's needs are addressed as early as possible and, we hope, more effectively than they have been hitherto. That is why we have made the code of practice applicable to all schools and will stress the school's role in early identification and assessment of pupils who have special educational needs but who do not need statements.
That is why we have amended the Bill so that regulations governing annual reviews of statements may encompass the school's role. That is why we have proposed to put a requirement on schools to produce policies for educating all their pupils with special educational needs. Indeed, those policies would involve the expertise, or lack of expertise, of teachers who have to deal with children with special educational needs.
That is also why we have ensured that LEAs can continue to offer special educational needs support services to governors of all maintained schools within and outside their areas to enable them better to carry out those policies. That is why I have given commitments on the guidance to be issued by my right honourable friend the Secretary of State over proposals for the establishment or change of character of grant-maintained schools; namely, that consultation must take place with the local authority over special educational provision locally before those proposals are put forward.
That is why a government amendment was tabled in another place in lieu of the amendments passed by 978 your Lordships to require governors to consult the local education authority, the funding agency and other governing bodies where necessary for coordinating provision for children with special educational needs, and for governors to be similarly consulted by the LEA when it reviews its own arrangements.
The noble Lord, Lord Judd referred yet again to the 580 amendments which went from this House to another place. I remind the House that more than half of those amendments were technical. Many of the remainder were introduced in response to points raised from all parts of this House. I do not pretend that there was wholehearted agreement on every occasion. However, there was full discussion on most of those amendments and the House determined in favour of the amendments. On a smaller number of amendments, the House took a contrary view. Members in another place considered those amendments, and while not agreeing with all of them, nevertheless displayed an understanding for the underlying anxiety by producing amendments in lieu of those amendments.
I have referred to that formidable array of measures to ensure that schools can and will make proper provision for pupils with special educational needs. I have referred to the support services which they can draw on in order to do so. Schools will, of course, be reassured by the code of practice which will give guidance as to when the LEA should intervene in the case of an individual child.
For all of the reasons that I have given, I cannot agree to the amendment in the name of the noble Lord, Lord Judd, and I must ask the House to reject. Amendment No. 5A. In doing so, I assure your Lordships that I believe that the arrangement which we have proposed in the Bill, including the amendments passed in another place, provide for measures which directly address the proper and sensible planning of SEN provision in an area in keeping with the general thrust of co-operation and guidance underlying the amendment tabled by the noble Lord, Lord Judd.
Perhaps I may say this to the noble Earl, Lord Russell. Those train carriages are properly coupled. We may agree to differ about the effectiveness of the coupling. But I believe that co-operation, consultation and effective working together is ensured within the Bill. I ask the House to reject the amendment.
§ 4.15 p.m.
§ Lord Judd
My Lords, I am naturally grateful to the Minister for her reply. Perhaps I may comment briefly on the remarks of the noble Lord, Lord Campbell of Alloway. I believe that he was right to emphasise the seriousness of the situation brought about by the shortage of time for proper consideration. There are many differing views. The role of this House within the total political life of the country is a big constitutional issue. However, we have a responsibility to consider legislation and to put the results of our consideration before another place so that it can take them fully into account. It is not satisfactory that only on the last working day before the other place convenes to 979 consider what we have said the Government should make available their observations. How can Members of the other place consult properly and fully in the country as a whole on their response to the Government's comments or observations?
We all know that it is not a satisfactory situation. We know that it has been all too characteristic of the work of this Government in many spheres but—I do not like having to say it—most especially of the Department for Education.
Perhaps I may turn briefly to the substance of the observations of the noble Lord, Lord Campbell of Alloway. He suggested that the point could perhaps be met without actually putting it on the face of the Bill. That suggestion has to be taken seriously. I should be a good deal happier if in our prolonged deliberations together, with all her ability and articulate argument, the Minister had suggested that she sought a dynamic partnership with local authorities. I do not believe that anyone who had even casually attended most of our proceedings could have gone away with that interpretation. The position is quite the reverse. I believe that everyone who has been present, and many outside, have realised that there is a determination —I have said it on past occasions and I do not mind saying it again—by the Minister to ensure that local authorities do not have a key role to play in the planning of educational provision locally. Therefore there really are no grounds for accepting that even if the measure is not on the face of the Bill there will somehow be a commitment by the Government by other means to make it succeed.
That brings me to the last point. Obviously we cannot go over all the arguments again. I believe that we are all profoundly concerned—there was no time to debate it properly in the other place—about the misguided and dangerous over-centralisation of education in this country. The strategy spelt out in 1944 was of a dispersed system of education: a shared responsibility between the centre and local democracy.
We can argue about local democracy. I would be the last to suggest that everything is perfect in the condition of local democracy in this country. That is a different argument. The principal issue with which we are concerned is that the local community should have a key leading part to play in planning the provision of educational facilities for the children who are part of that community. However dedicated and committed public servants and Ministers may be at the centre, how can they possibly understand in detail the nuances and needs up and down the country, from the North West to the South West, or from the North East to the South East?
§ Baroness Blatch
My Lords, I am most grateful to the noble Lord for allowing me to intervene. Perhaps the noble Lord will respond to this point. The greatest act of devolution of power to schools has been the grant-maintained movement. We have before us amendments in the House today which give operational autonomy to the unit of management, which is the school itself. The amendments were about 980 centralising that power and taking it back into the centre of local authorities. The noble Lord almost puts the argument on its head.
§ Lord Judd
My Lords, it is a very late hour to say this in our deliberations, but I enjoy debating with the Minister because I realise that I am debating with someone who holds genuine convictions. I have said before that I admire her strength of character and her conviction. However, I am terrified that she gets the situation so wrong. That is the issue at stake. I profoundly disagree with her. I put this point to her. Where will all those little schools with their overworked management committees find themselves in five or 10 years' time when seeking to grapple with the central administration? Indeed where were we on the preparation of budgets this year for all those individual schools?
We know that we are piling up trouble for the future with this degree of over-centralisation and that is why I am convinced that the Government will be back here in no time at all with still further legislation to try to sort it all out. This country needs a partnership. If there is to be successful education, we need education to be central to the community. Because that is so important and because there was by no stretch of the imagination any opportunity for Members of the other place to consider fully what we had said and its implications, I have no option but to ask the House to agree with us in our Amendment No. 5A.
§ 4.20 p.m.
§ On Question, That this House do not insist on their Amendment No. 5 to which the Commons have disagreed, but propose Amendment No. 5A in lieu thereof?
§ Their Lordships divided: Contents, 100; Not-Contents, 146.981
|Division No. 1|
|Addington, L. [Teller.]||Dormand of Easington, L.|
|Allen of Abbeydale, L.||Ennals, L.|
|Archer of Sandwell, L.||Falkland, V.|
|Ardwick, L.||Fisher of Rednal, B.|
|Banks, L.||Fitt, L.|
|Barnett, L.||Galpern, L.|
|Beaumont of Whitley, L.||Gladwyn, L.|
|Blackstone, B.||Graham of Edmonton, L. [Teller.]|
|Bonham-Carter, L.||Greene of Harrow Weald, L.|
|Boston of Faversham, L.||Gregson, L.|
|Bottomley, L.||Harris of Greenwich, L.|
|Brain, L.||Hayter, L.|
|Brimelow, L.||Henderson of Brompton, L.|
|Broadbridge, L.||Hilton of Eggardon, B.|
|Brooks of Tremorfa, L.||Hollis of Heigham, B.|
|Bruce of Donington, L.||Holme of Cheltenham, L.|
|Carmichael of Kelvingrove, L.||Houghton of Sowerby, L.|
|Carter, L.||Howell, L.|
|Castle of Blackburn, B.||Hughes, L.|
|Cledwyn of Penrhos, L.||Hunt, L.|
|Clinton-Davis, L.||Jay, L.|
|Cocks of Hartcliffe, L.||Jay of Paddington, B.|
|Darcy (de Knayth), B.||Jeger, B.|
|David, B.||Jenkins of Putney, L.|
|Dean of Beswick, L.||John-Mackie, L.|
|Desai, L.||Judd, L.|
|Diamond, L.||Kirkhill, L.|
|Donoughue, L.||Listowel, E.|
|Llewelyn-Davies of Hastoe, B.||Richard, L.|
|Lockwood, B.||Rix, L.|
|Longford, E.||Rochester, L.|
|Macaulay of Bragar, L.||Russell, E.|
|McIntosh of Haringey, L.||Sainsbury, L.|
|Mackie of Benshie, L.||Sefton of Garston, L.|
|McNair, L.||Serota, B.|
|Mason of Barnsley, L.||Shannon, E.|
|Mayhew, L.||Shepherd, L.|
|Merlyn-Rees, L.||Stallard, L.|
|Mishcon, L.||Stedman, B.|
|Molloy, L.||Stoddart of Swindon, L.|
|Monson, L.||Strabolgi, L.|
|Morris of Castle Morris, L.||Taylor of Blackburn, L.|
|Mulley, L.||Thurlow, L.|
|Nathan, L.||Tordoff, L.|
|Nicol, B.||Turner of Camden, B.|
|Ogmore, L.||Warnock, B.|
|Peston, L.||Wigoder, L.|
|Plant of Highfield, L.||Williams of Elvel, L.|
|Ponsonby of Shulbrede, L.||Williams of Mostyn, L.|
|Aberdare, L.||Glenarthur, L.|
|Allenby of Megiddo, V.||Goold, L.|
|Arran, E.||Goschen, V.|
|Astor, V.||Gray of Contin, L.|
|Auckland, L.||Gridley, L.|
|Beloff, L.||Hailsham of Saint Marylebone, L.|
|Blatch, B.||Harding of Petherton, L.|
|Blyth, L.||Harmar-Nicholls, L.|
|Borthwick, L.||Harmsworth, L.|
|Boyd-Carpenter, L.||Hayhoe, L.|
|Brabazon of Tara, L.||Henley, L.|
|Brentford, V.||Hesketh, L. [Teller.]|
|Brigstocke, B.||Holderness, L.|
|Brougham and Vaux, L.||HolmPatrick, L.|
|Bruntisfield, L.||Hood, V.|
|Butterworth, L.||Howe, E.|
|Cadman, L.||Hylton-Foster, B.|
|Caithness, E.||Ilchester, E.|
|Campbell of Alloway, L.||Jellicoe, E.|
|Campbell of Croy, L.||Jenkin of Roding, L.|
|Carnegy of Lour, B.||Johnston of Rockport, L.|
|Carnock, L.||Killearn, L.|
|Chalker of Wallasey, B.||Kimball, L.|
|Chelmsford, V.||Lauderdale, E.|
|Chiver, L.||Leigh, L.|
|Clark of Kempston, L||Long, V.|
|Coleraine, L.||Lucas of Chilworth, L.|
|Colnbrook, L.||Mackay of Ardbrecknish, L.|
|Constantine of Stanmore, L.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Cranborne, V.||Macleod of Borve, B.|
|Cross, V.||Mancroft, L.|
|Cullen of Ash bourne, L.||Marlesford, L.|
|Cumberlege, B.||Merrivale, L.|
|Dacre of Glanton, L.||Milverton, L.|
|Davidson, V.||Morris, L.|
|Denham, L.||Mountevans, L.|
|Denton of Wakefield, B.||Mowbray and Stourton, L.|
|Downshire, M.||Munster, E.|
|Eden of Winton, L.||Murton of Lindisfarne, L.|
|Elibank, L.||Nelson, E.|
|Eller, B.||Norrie, L.|
|Elliot of Harwood, B.||O'Cathain, B.|
|Elliott of Morpeth, L.||Orr-Ewing, L.|
|Elphinstone, L.||Oxfuird, V.|
|Elton, L.||Park of Monmouth, B.|
|Ferrers, E.||Pearson of Rannoch, L.|
|Finsberg, L.||Pender, L.|
|Flather, B.||Perry of Southwark, B.|
|Fraser of Carmyllie, L.||Peyton of Yeovil, L.|
|Fraser of Kilmorack, L.||Pike, B.|
|Gainford, L.||Polwarth, L.|
|Geddes, L.||Porritt, L.|
|Gilmour of Craigmillar, L.||Quinton, L.|
|Gisborough, L.||Rankeillour, L.|
|Reay, L.||Sudeley, L.|
|Rennell, L.||Swinfen, L.|
|Renton, L.||Terrington, L.|
|Renwick, L.||Teviot, L.|
|Romney, E.||Thomas of Gwydir, L.|
|St. Davids, V.||Trumpington. B.|
|St. John of Fawsley, L.||Ullswater, V.|
|Saltoun of Abernethy, Ly.||Vivian, L.|
|Sanderson of Bowden, L.||Wakeham, L. [Lord Privy Seal.]|
|Simon of Glaisdale, L.||Waverley, V.|
|Skelmersdale, L.||Westbury, L.|
|Soulsby of Swaffham Prior, L.||Wharton, B.|
|Stanley of Alderley, L.||Whitelaw, V.|
|Sterling of Plaistow, L.||Windlesham, L.|
|Strange, B.||Wise, L.|
|Strathclyde, L.||Wolfson, L.|
|Strathmore and Kinghorne, E. [Teller.]||Wynford, L.|
§ Resolved in the negative, and Motion disagreed to accordingly.
§ Baroness Blatch
My Lords, I beg to move that this House do not insist on their Amendment No. 5 to which the Commons have disagreed.
Moved, That the House do not insist on their Amendment No. 5 to which the Commons have disagreed.—(Baroness Blatch.)
On Question, Motion agreed to.
§ 4.29 p.m.
§ LORDS AMENDMENT
§ 6 After Clause 151, insert the following new clause:
§ Planning of nursery provision for pupils with special needs
§ (".—(1) Without prejudice to the provisions of section 165 below, a local education authority shall plan and keep under review, and secure the provision of, nursery education in respect of any child to whom subsection (2) below applies.
§ (2) A child to whom this section applies is a child who is aged not less than three nor more than five years and who has a learning difficulty which calls for special educational provision to be made for him.
§ (3) The Secretary of State shall within three years of the date of Royal Assent to this Act review and publish his conclusions on the quality, effectiveness and efficiency of provision under this section (including its impact on the education of pupils with special educational needs in schools which are not special schools) and the desirability or otherwise of the extension of the duty referred to in subsection (1) above to include the planning and review of, and the securing of the provision of, nursery education in respect of all pupils aged not less than three nor more than five years whose parents wish it.")
§ Lord Judd to move, That this House do not insist on their Amendment No. 6 to which the Commons have disagreed, but propose the following amendment in lieu thereof.
§ 6A After Clause 151, insert the following new clause:
§ Nursery education
§ (".—(1) Within three years of the date of Royal Assent to this Act, a local education authority shall, secure the provision of nursery education in respect of any child to whom subsection (2) below applies.
§ (2) A child to whom this subsection applies is a child who is aged not less than three nor more than five years, who has a learning difficulty which calls for special educational provision to be made for him, and whose parents wish that provision to be made through nursery education.983
§ (3) The Secretary of State shall within five years of the date of Royal Assent to this Act review and publish his conclusions on the quality, effectiveness and efficiency of provision under this section (including its impact on the education of pupils with special needs in schools which are not special schools) and the desirability or otherwise of the extension of the duty referred to in subsection (1) above to include the planning and review of, and the securing of the provision of nursery education in respect, of all pupils aged not less than three nor more than five years whose parents wish it.")
§ Lord Judd
My Lords, I beg to move that the House do not insist on their Amendment No. 6, to which the Commons have disagreed, but do propose Amendment No. 6A in lieu thereof.
In the other place the Government rejected Amendment No. 207C which would have given LEAs the duty to ensure that nursery education was available for all children with special educational needs, not just those with statements, and would have required that within three years the Secretary of State should consider whether nursery education ought to be extended to all children whose parents wished it.
In rejecting the amendment the Parliamentary Under-Secretary for Education, Mr. Forth, made no reference to nursery education. However, the amendment was supported from the Conservative Benches, with the entreaty that the Government should adopt a more generous attitude towards the provision of nursery schooling and with the strongly expressed conviction that there are few measures which the Government could adopt which would have a greater effect on a child's attitude to schooling and which would influence better the effect of that schooling on the rest of each child's life than the funding of nursery schooling.
One of the main arguments used by the Government in this House against the amendment was that it would be too expensive. As I read it, the Conservative Members in the other place who disagreed took the view that most LEAs prioritise nursery places to children with special educational needs. Therefore, for most LEAs the new duty would involve no increase in provision. It would make explicit what most LEAs already provide, and the few LEAs which do not follow that course would be directed to make such provision. Those observations came from the Conservative Benches in the other place.
While the Association of Metropolitan Authorities has calculated that universal provision of nursery education for those children whose parents wish it would cost some £470 million, the provision of nursery education for children with special educational needs whose parents wish it would increase the spending on nursery education by a relatively small amount since, as was pointed out from the Conservative Benches in the other place, many of those children are already receiving nursery education in any case.
The revised amendment takes into account the Government's anxiety about increased cost by allowing a period of three years for the introduction of nursery education for this group. It would then be for the Secretary of State to decide whether nursery 984 education should be extended to cover all children and, rather than a period of three years from the date of Royal Assent for consideration of such an extension, the new amendment would allow the Secretary of State up to five years in which to consider it.
The new amendment makes it absolutely clear that the initial requirement would be that, of the children covered, only those whose parents wish it would be given nursery education. That would help to resolve the issue which has been raised of identifying children with special educational needs. It would in effect be up to parents to propose to their LEA that their child has special educational needs. The LEA would then have the responsibility of assessing whether that were true.
There is widespread agreement that nursery education is highly beneficial. Even the Government, in opposing the amendment in the House of Lords, did not suggest that nursery education was not valuable, only that it was expensive. The amendment gives the Government an opportunity to introduce nursery education gradually and at relatively low cost.
However, in moving the amendment I must underline, as we underlined in our previous deliberations, that in our judgment, which was widely shared by noble Lords in many parts of this House, all the available evidence demonstrates that universal nursery education for all children whose parents want it would be both an excellent investment in enabling children to make the best use of subsequent educational opportunities and also at the same time a sound economic investment in that the benefits and consequences would pay for the costs in a very short period of time. There would be a more successful economy, more social and family stability and far less social delinquency. In our view, universal provision must therefore remain the ultimate objective. We suggest that to resist it is painfully to penalise the nation, both economically and socially.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed, but do propose Amendment No. 6A in lieu thereof.—(Lord Judd.)
§ Earl Russell
My Lords, we on these Benches warmly support the noble Lord's amendment. Two points arise here. One is the demand for nursery education. Any of us who have looked at our postbags during the course of the Bill will know that that demand is widespread, strong and deeply felt. We hear a great deal from this Government about parental choice. There is widespread parental choice in favour of nursery education. We are asking the Government whether they will do a little more—and only a little more—to make it easier for that choice to be met.
Of course, the Government will make the point about expense, which must be considered. We have heard a great deal from the Government in recent times about the cost of single parents to the Department of Social Security. The vast majority of single parents would like to work. Because of the difficulties of childcare they find it extremely difficult to do so. Were more nursery education provided many of them would find it much easier to do so, at least part time. That would not only ease the budget of the 985 Department of Social Security but also bring some of them into the income tax bracket and reduce the public sector borrowing requirement by increasing revenue. Those, set together with parental choice, are not negligible points. I hope that they will carry weight.
The other point, which we have already touched on, is the planning role of the LEAs. The amendment addresses nursery provision for those with special educational needs, for whom it may often be particularly important, both for social integration and for overcoming learning difficulties. To foresee demand for nursery education for those with special educational needs one has to know the local community. It is no good being a funding authority in York. One does not know that five years ago in a particular village in Cornwall there was an outbreak of one particular birth defect. Such things happen in small waves in particular communities. Cases have been publicised recently in the newspapers. To deal with them one needs specialist medical knowledge. That is the sort of information which is likely to be accessible to a local education authority representing its community. I do not see how it would be accessible to the funding authority.
The noble Baroness said that she did not understand our arguments about centralisation. She said that this Bill was the greatest measure of devolution.
§ Baroness Blatch
My Lords, I am sorry to interrupt, but I meant the 1988 Bill. I meant that the establishment of grant-maintained schools provided autonomy at a level which was as close as possible to parents, teachers and children.
§ Earl Russell
My Lords, I thank the noble Baroness for that correction. I apologise for misleading the House. However, it is still the same policy of the move towards grant-maintained schools, which she hails as a measure of devolution.
When devolution is imposed by the centre there is a paradox. It is the same paradox as was invoked by Rousseau who spoke of forcing people to be free. One might even mention what he said about freedom in England. He said that the country is free only on election day, and the use it then makes of it well justifies that it should be deprived of it.
There are certain paradoxes in the implication of freedom here. The enforcement of freedom in a form in which people do not want it may be taken as the imposition of excessive central authority. It is also the essence of our case that a great many of those functions simply cannot be devolved on to every individual school. No doubt the noble Baroness remembers the arguments about the adult education service of ILEA. We believe that some of those functions cannot be devolved all the way down and, therefore, if the local education authority does not do them, the centre must. That, we think, is excessive centralisation.
§ Lord Campbell of Alloway
My Lords, I take on board everything that was said by the noble Lord, Lord Judd, about the importance of nursery 986 education, as I am sure do all noble Lords. However, I find it difficult to accept the imposition of what appears to me to be a novel type of mandatory duty which involves substantial expenditure, so to speak, in escrow, even as regards children with learning difficulties who call for special educational provisions. I believe that it is a novel type of provision, but I may be wrong and am open to correction.
However, in view of what has been said in 'your Lordships' House in the course of the debate, there is no doubt that insufficient attention has been given to the importance of nursery schools. It is now equally apparent that in subsection (b) of Amendment No, 10B, the Government have gone some way towards making reasonable provision. For my part, I should prefer to see how that develops and, if necessary, introduce legislation if the situation is not satisfactory in three years' time. There is something about the delayed action provision, as drafted, which I find unacceptable. For that reason, I shall not support the amendment.
§ Baroness Faithfull
My Lords, I am in a great dilemma over the amendment. I profoundly believe in nursery education, particularly for children with special educational needs. I also believe in the, pre-school playgroup movement but parents should have the choice between the pre-school playgroup and nursery school.
I believe in nursery school education for all the reasons given at other times during the passage of the Bill. What worries me is the practicality of the situation. The noble Baroness, Lady Warnock, and my noble friend have talked about the cost. I was a local government officer and chief officer and I am fearful that if we insist on nursery schools being introduced within the next three years there will be difficulty over the training of nursery school teachers. I am sure that other noble Lords must have received as many letters as I have from teachers all over the country complaining that there is a movement for people who are not fully trained to work in nursery schools. I believe that if teachers are to do good work in nursery schools which meets the needs of the children and the parents, they must be trained.
I know that one must look at the priorities, but, as the noble Baroness, Lady Warnock, asked, must money really come into the matter? Of course, one would like to say no, but I cannot see that local authorities will be able to obtain good trained staff and run nursery schools within three years. I should have preferred a permissive power to be given to local authorities to run nursery schools with trained teachers and for the situation to be reviewed in three years' time, with a view then to making it obligatory.
I am in difficulty because I do not wish a law to be passed which cannot be implemented for lack of money and good, trained staff. My strongest point is the trained staff. If we implement the recommendation, staff who are not trained will be taken on and, once taken on, they will be there for good. That will be worrying, so I am in the great difficulty of wanting to support the amendment but, from a practical point 987 of view on trained staff, I prefer there to be a permissive power with a review taking place in three years' time.
§ 4.45 p.m.
§ Lord Rix
My Lords, the noble Lord, Lord Judd, has done us all a favour by returning to the fray on nursery education with a more modest bid for support for this particularly important early intervention in the interests of children with special educational needs. A partnership between parents and professionals is important during the early years, for discovering and addressing the problems of disability. I am sad that we have to debate again what I had hoped would be obvious.
I should mention that I have been in correspondence with the Minister and I am grateful to her and her colleagues for the distance which we have been able to move together. I am disappointed, however, that the Government have not been able to go the whole way to complete the journey.
The noble Lord's amendment targets specifically children identified as having a particular category of special needs and, within that group, those children whose parents want their special needs tackled through nursery education rather than through other approaches, which may be equally valid. Education in the early years offers much, not least to those with profound and multiple disabilities and complex needs. I am happy to speak up for them, even within a nursery education system which might initially be heavily geared to those with special needs and not others. It is difficult to make up in later years for the opportunities lost in early years, as thousands of parents—members of MENCAP—can vouchsafe. I very much hope that today the Minister will not slam the door shut which the noble Lord, Lord Judd, seeks to reopen wide enough to let in special children, in the interests of the future of the children, the parents and us.
§ Lord Finsberg
My Lords, I found the argument of the noble Lord, Lord Judd, flawed in two respects. First, he quoted a figure for nursery education given to him by, I think, the AMA of over £400 million. He then said that if one confined it to a particular group of parents it was much less. It was significant that he did not give the figure and it is important that we should know what is the difference.
Secondly, in the present climate which has existed since the late Anthony Crosland was Secretary of State for Local Government, it is now necessary for this House and Parliament as a whole to think carefully before they commit extra public finance which will fall upon a local authority. It behoves the noble Lord, Lord Judd, and this Chamber, if it is to consider the matter, to say what would be cut in order to implement the proposal. It is clear that no extra finance can be available, so what would the noble Lord, Lord Judd, sacrifice in order to fit that in?
§ Baroness Blackstone
My Lords, perhaps I may make one or two comments on what was said about my noble friend's amendment. I begin with 988 expenditure. Of course, I accept, as the noble Lord, Lord Finsberg, said, that in making proposals for change we must be careful to consider the expenditure involved. Perhaps I may say to both him and the noble Lord, Lord Campbell, that we are talking merely about a relatively small number of additional nursery places. As the noble Baroness, Lady Faithfull, and the noble Lord, Lord Campbell, said, there are already many children with special needs in nursery education.
This amendment is about ensuring that all such children aged three and four, if their parents so wish (and not all parents will) should have access to the special care and education that a good nursery class or nursery school can provide. The additional expenditure that is involved is small. We are not talking about huge numbers of children; nor, I would have thought, a large amount of capital. It will be possible to accommodate many of those children within existing schools and classes.
There may have to be some capital expenditure, but the important point is that by making this provision available, we may well save on later spending in order to help those children catch up. We may make it less necessary to spend a great deal on one-to-one teaching, remedial classes, remedial groups, and so on. Some of their needs will have been identified early; they will have been given support early; and some of the problems that they have, while they may not necessarily be removed, will at least be limited by the very good provision that could be made available if this amendment were accepted.
I should also like to say to the noble Baroness, Lady Faithfull, that I too am a former local education authority chief officer. I share some of her concerns. But she was a little inconsistent in what she said. On the one hand, she suggested that the pre-school play group movement is important in this area; on the other, she suggested that it is extremely important that the teachers of those young children should be trained. Many of the people who work in the pre-school play group movement are not trained. They can do an excellent job in many respects, but are not necessarily the right people to deal with children with special needs. I accept what the noble Baroness says about the need for training.
I was also very interested that the noble Baroness obviously disagrees with the Government's latest proposals for training teachers of young children in only one year. She is absolutely right to disagree with that. These proposals are scandalous. They are based on an assumption that young children need less highly trained people. The Minister shakes her head, and she may want to respond to the point afterwards. Like the noble Baroness, Lady Faithfull, I have received many letters from head teachers and from many others in the education world arguing that this will be a very retrograde step. I accept that it will be.
I come back to the point that the noble Baroness made about how it would be better to leave the local authorities with permissive powers. Here I part company with her in that I believe that unless we put this on the statute book, local authorities, because they are so constrained in terms of the demands that 989 are made upon them in a variety of ways, will (at least, some of them) find it difficult to provide these additional places.
If we were to accept the amendment it would be necessary for the Government to provide a little additional funding. That follows from the legislation. But that is what we ought to be doing. We have all said that this is a highly desirable priority. I do not want at this particular moment to respond to the point made by the noble Lord. Lord Finsberg, about the savings that could be made in other areas, but I would be happy to provide the noble Lord with a list. There are plenty of areas where, for the relatively small sums that we are talking about, we could find some savings. I very much hope that the House will not reject this amendment on the grounds that we are talking about huge additional sums of money. We are not. We are talking about only a fairly small number of children who have very great needs and whom we ought to be helping. We certainly ought to be supporting their parents, as has already been said.
§ Baroness Faithfull
My Lords, before the noble Baroness sits down, with the leave of the House, I should like to make two points. One is that in the pre-school play group movement the mothers themselves look after the children and they choose to do so. But in regard to the nursery schools, I profoundly believe that nursery school teachers should be trained. It takes at least three years to get courses up and going so that one has the trained staff to take over. I believe so strongly in trained staff looking after nursery school children that I feel that, were we to defer that with a permissive power, with a view to coming back to Parliament in three years' time, we would be able to train the necessary teachers.
§ Baroness Blackstone
My Lords, with the leave of the House, I accept that the teachers have to be trained. But again, we are not talking about huge numbers of additional teachers. It ought to be possible, over a period of three years, to start a process of recruiting a small number of additional students of nursery and infant education who can and will be trained and who will start coming on stream as soon as that period is over.
§ Baroness Blatch
My Lords, the noble Baroness, Lady Blackstone, has not read the amendment; or if she has read it, she has not understood it. The provision within the amendment is for a place in nursery education to be provided on demand for all children from three to five. It is divided into two phases. It starts after three years with children with special educational needs, and after five years, all children. There is no definition of a child with special educational needs. In order to know whether a three year-old has special learning difficulties, which lies behind this provision, there would have to be nationwide screening of all three year-olds to determine whether or not they had learning difficulties. It is not every parent who knows at that stage whether the child has learning difficulties. There is no definition of learning difficulties.
990 We are talking about children with special learning difficulties; namely, children whose parents believe that there is a problem and where social services and the local education authority believe that there is a problem. They come under the umbrella of the provisions of the Bill, and indeed of the 1981 Act, in that they are children who are able to be statemented from the age of two. If they are statemented there is an obligation to provide for their educational needs. So first, the children who are candidates for statements are cared for, catered for and provided for. For all other children with special educational needs, unless there is a screening process, it is not possible. This amendment goes on, two years later, to provide for all children, irrespective of special educational needs. That is not what the noble Baroness was talking about.
To reinforce the point made by my noble friend Lady Faithfull about the Pre-school Playgroups Association, the noble Baroness, Lady Blackstone, is wrong about that too. I had quite close associations within my authority with the Pre-school Playgroups Association both nationally and locally, and indeed at a very parochial level when I was chairman of my own local play group. Working in conjunction with social services, they frequently provide a very good educational service for children with special educational needs. Sometimes a. special educational need results because of a child's problem of socialising with other children. Special educational needs can sometimes be met in conjunction with pre-school play groups. My own department, together with the health department, is very concerned that the pre-school play groups (as indeed they already do) take training seriously, together with involving parents. It is my view that they do a very good job.
The noble Lord, Lord Rix, and the noble Baroness, Lady Blackstone, suggested that this amendment could affect only a few children, which is simply not true. The point was made that it would involve just modest expenditure because we are talking about only a few children. That also is not true. I shall return to the costs in a moment.
I acknowledge, as I did when we recently spent some time debating these same issues, this House's real concern about provision for young children. The Government certainly agree that children under five can derive real benefits from the kind of experiences that such provision can give.
Over 90 per cent. of three and four year-olds now attend some form of group education or day care. Neither now nor in the foreseeable future would it make sense to discount nearly half of this provision —to suggest that just because it does not conform to a narrow definition of nursery education it should be scrapped and replaced with something that does. Surely the sensible course is to do what the Government have done: to see this high level of participation as an opportunity, not an obstacle, and to make the most of what exists by helping all those who work with the under-fives to provide as stimulating and enriching an environment as possible for them all.
991 At this point let me turn to the issue of under-fives with special educational needs. The Bill re-enacts the duty which local authorities have to identify and assess children with special needs from the age of two, and the power, given parental consent, to provide for children with recognised disabilities from birth.
We have always supported and encouraged early intervention by authorities. Prompt and early identification of special needs can be crucial for the child with disabilities or delayed development. But we have not gone so far as to prescribe the form of provision, and nursery provision may not always be absolutely essential. For example, Portage—the early intervention scheme whereby a specially trained worker makes weekly home visits to the child—may be a particularly useful alternative in co-ordinating the work of local education authorities, social services and health authorities in identifying the needs of the child. I have seen that scheme work at first hand. It is a very effective scheme too.
Furthermore, the code of practice will give criteria and guidance specifically on the form of assessment of children under five. It will recognise that special arrangements will need to be in place, bearing in mind that the home environment is of particular importance to young children, and the involvement of parents is especially vital. The code will cover the role of teachers, nursery schools, play groups or voluntary agencies that may be involved with the child. It will also give guidance for the child health services, including child development centres or teams which can provide a multi-professional view at a very early stage.
The code will stress that early intervention is particularly important in young children. It will address the difficulties that may occur in assessing children under five, where age and ability may limit the amount of educational information that can easily be provided, saying that evidence from other sources, such as the Portage checklist, should also be used in the assessment processes. The code will also address the content of statements for under-fives, and specific issues relating to children under two.
One of the great strengths of our provision for the under-fives is its diversity. The discretion given to local authorities in this field has enabled them to make provision in nursery schools and nursery classes for those children who stand to gain the greatest benefit while exploring the most efficient ways to allow all children access to a worthwhile group experience before they embark on their compulsory schooling. To substitute at immense cost to the public purse—not a minor cost, as suggested by the noble Baroness, Lady Blackstone—a uniform, state-provided structure would bring about the loss of a great deal of sound and effective play group provision, which has the added merit of helping to bring about the involvement of parents in their children's educational progress.
It is not good enough for the House to pretend that the expenditure issue is irrelevant. It is relevant now and will be just as relevant five years from now. Providing free education for all three and four year-olds would need an increase in annual spending 992 of more than half a billion pounds; and there would also be very substantial capital costs. Those hard facts have been all too readily ignored in today's debate. If the cake is not to be made larger, that half a billion pounds and the additional capital costs would have to come from existing expenditure.
I believe that we have spent far too much time criticising what we have got and far too little time celebrating it. In this country we have the lowest starting age for compulsory education in Europe. Fifty-three per cent. of our three and four year-olds are in school, which is a 33 per cent. increase on the figure for 1979. We have a flourishing play group movement which provides 680,000 places for the under-fives—again, I agree with my noble friend about that. My department is working with the Pre-School Playgroups Association to improve the training of play group leaders so as to make the most of the immense opportunities offered by the groups. Ninety per cent. of our three and four year-olds, as I said, attend some form of provision. Let us by all means build on these achievements. I would not wish to claim that there is no scope for further improvement in both quantity and quality. But let us not undervalue what we have and let us not ignore its worth.
Invidious comparisons are frequently made between the provision in this country and the provision of other countries in Europe. I have already said that we have the lowest statutory entry age into school in Europe. But also, the greater provision in France and Germany (with which we are constantly being compared) is by and large funded by a mix of private and state provision. We are asked today to consider, as a burden on the state and on the taxpayer, provision for all three and four year-olds within five years.
We continue to believe that the best way to ensure that as many young children as possible receive the benefits that early years' experience can provide within what the country can afford is to encourage continuing steady improvement, in both quantity and quality, within all types of provision for the under-fives. That is what we intend to do.
§ Lord Judd
My Lords, I am grateful to the Minister for the fullness of her reply at this stage. But there are several points which have to be probed. Perhaps she will forgive my saying that she leaves me somewhat confused. The thrust of her argument is that the necessary provision is being made largely for those who in fact should have it. We suggest that there is a marginal addition which should be provided and that the cost of doing so would be a marginal additional cost.
I believe that the answer to the point raised by the noble Lord, Lord Finsberg, is that the Government already have to give the details of what it costs to provide all that they claim to be providing. We can settle down and give a marginal figure for how much more it will cost—we genuinely believe that it will be marginal—to meet the comprehensive coverage for those parents who wish such education to be provided.
But another issue has been raised which we have to consider. Again, I hope that the Minister will forgive 993 me if my strictures are a little firm. I suggest that the difficulty is that sometimes in the strength of her convictions she does not hear what is said by others. What is important about our amendment is that we do not say that after five years there will have to be universal provision. We do not say that at all. We say that at the end of five years the Secretary of State must have addressed himself (or indeed herself) to the issue with sufficient seriousness to be able to give a comprehensive, convincing and authoritative commentary on the nature of the provision and how best that can in future be met. That is what the amendment proposes. It has gone a long way to meeting the anxieties expressed on the other side, not least by the Minister. We have done that despite our own conviction that we should move to universal nursery education straightaway. That brings me again to the point raised by the noble Lord, Lord Finsberg. He is absolutely right to say that if we will the ends, we must will the means and ask where the means are to come from.
I ask the noble Baroness to consider this point: at the moment all the research which has been conducted in this country under the leadership of the Home Office and the research conducted in the United States and elsewhere indicates that with universal or wider, more substantial provision of nursery education the savings become very rapid in other spheres of public expenditure because of a demonstrable fall in delinquency, because children make more of their education and go on to fend for themselves better in society, becoming less dependent upon the state, and because the economy is strengthened as a result of children having made better use of their educational opportunities. Savings automatically follow, and more so, because the research being done in the States —which we quoted at some length in our deliberations —demonstrates that the savings are considerably greater, several times over, than the expenditure invested in the universal or wider provision of nursery education.
Our contention is that, by a failure to move on this matter, as a nation we are cutting off our nose to spite our face. Yet we are accepting that the issue is so important that some movement is necessary. We have therefore gone a long way in our amendments to meet the anxieties as they were expressed, by talking about educational provision for children with special needs where their parents wish it and the responsibility of the Secretary of State to make a strategic contribution to the discussion on the future of nursery education within five years.
As the matter was not dealt with at all by Ministers in the other place when our amendments were being considered and, as we heard this afternoon, the case that we put forward, even in the wording of the amendment, has not been understood by the Minister —or the Minister chose not to understand it—I have no alternative but to press the amendment to a Division and ask the House to join with me on Amendment No. 6A.
§ 5.12 p.m.
§ On Question, That this House do not insist on their Amendment No. 6 to which the Commons have disagreed, but propose Amendment No. 6A in lieu thereof.
§ Their Lordships divided: Contents, 102; Not-Contents, 140.995
|Division No. 2|
|Addington, L.||Judd, L.|
|Airedale, L.||Kennet, L.|
|Allen of Abbeydale, L.||Kinloss, Ly.|
|Archer of Sandwell, L.||Kirkhill, L.|
|Ardwick, L.||Listowel, E.|
|Beaumont of Whitley, L.||Llewelyn-Davies of Hastoe, B.|
|Blackstone, B.||Lockwood, B.|
|Blease, L.||Longford, E.|
|Bonham-Carter, L.||Lovell-Davis, L.|
|Boston of Faversham, L.||Macaulay of Bragar, L.|
|Bottomley, L.||McIntosh of Haringey, L.|
|Brimelow, L.||Mackie of Benshie, L.|
|Brooks of Tremorfa, L.||McNair, L.|
|Bruce of Donington, L.||Mason of Barnsley, L.|
|Carmichael of Kelvingrove, L.||Mayhew, L.|
|Carter, L.||Mishcon, L.|
|Castle of Blackburn, B.||Molloy, L.|
|Cledwyn of Penrhos, L.||Morris of Castle Morris, L.|
|Clinton-Davis, L.||Mulley, L.|
|Cocks of Hartcliffe, L.||Nathan, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Ogmore, L.|
|Desai, L.||Peston, L.|
|Diamond, L.||Plant of Highfield, L.|
|Dormand of Easington, L.||Ponsonby of Shulbrede, L.|
|Ennals, L.||Prys-Davies, L.|
|Falkender, B.||Richard, L.|
|Falkland, V.||Rix, L.|
|Fisher of Rednal, B.||Rochester, L.|
|Galpern, L.||Russell, E. [Teller.]|
|Geraint, L.||Sefton of Garston, L.|
|Gladwyn, L.||Serota, B.|
|Graham of Edmonton, L. [Teller.]||Shackleton, L.|
|Greene of Harrow Weald, L.||Stedman, B.|
|Grey, E.||Stoddart of Swindon, L.|
|Harris of Greenwich, L.||Strabolgi, L.|
|Hayter, L.||Taylor of Blackburn, L.|
|Henderson of Brompton, L.||Thomson of Monifieth, L.|
|Hilton of Eggardon, B.||Thurlow, L.|
|Hollis of Heigham, B.||Tordoff, L.|
|Holme of Cheltenham, L.||Turner of Camden, B.|
|Houghton of Sowerby, L.||Varley, L.|
|Howell, L.||Warnock, B.|
|Hughes, L.||Weatherill, L.|
|Hunt, L.||White, B.|
|Irvine of Lairg, L.||Wigoder, L.|
|Jay, L.||Williams of Elvel, L.|
|Jay of Paddington, B.||Williams of Mostyn, L.|
|Jeger, B.||Wilson of Rievaulx, L.|
|Jenkins of Putney, L.||Winchilsea and Nottingham, E.|
|Abercorn, D.||Borthwick, L.|
|Aberdare, L.||Boyd-Carpenter, L.|
|Ailesbury, M.||Braine of Wheatley, L.|
|Allenby of Megiddo, V.||Brougham and Vaux, L.|
|Arran, E.||Butterworth, L.|
|Ashbourne, L.||Cadman, L.|
|Astor, V.||Caithness, E.|
|Astor of Hever, L.||Campbell of Alloway, L.|
|Auckland, L.||Campbell of Croy, L.|
|Belhaven and Stenton, L.||Carnegy of Lour, B.|
|Beloff, L.||Carnock, L.|
|Bessborough, E.||Chelmsford, V.|
|Blatch, B.||Chilver, L.|
|Blyth, L.||Clark of Kempston, L|
|Colwyn, L.||Mersey, V.|
|Constantine of Stanmore, L.||Milverton, L.|
|Cranborne, V.||Monson, L.|
|Cross, V.||Mountevans, L.|
|Cumberlege, B.||Mowbray and Stourton, L.|
|Dacre of Glanton, L.||Munster, E.|
|Davidson, V.||Murton of Lindisfarne, L.|
|Denham, L.||Nelson, E.|
|Denton of Wakefield, B.||Norrie, L.|
|Downshire, M.||O'Cathain, B.|
|Eden of Winton, L.||Orr-Ewing, L.|
|Elibank, L.||Oxfuird, V.|
|Elliot of Harwood, B.||Pearson of Rannoch, L.|
|Elliott of Morpeth, L.||Pender, L.|
|Elphinstone, L.||Perry of Southwark, B.|
|Elton, L.||Peyton of Yeovil, L.|
|Ferrers, E.||Pike, B.|
|Finsberg, L.||Polwarth, L.|
|Flather, B.||Quinton, L.|
|Fraser of Carmyllie, L.||Rankeillour, L.|
|Fraser of Kilmorack, L.||Reay, L.|
|Geddes, L.||Rennell, L.|
|Gilmour of Craigmillar, L.||Renton, L.|
|Gisborough, L.||Renwick, L.|
|Goold, L.||Rippon of Hexham, L.|
|Goschen, V.||Romney, E.|
|Grantchester, L.||St. Davids, V.|
|Gray of Contin, L.||Saltoun of Abernethy, Ly.|
|Gridley, L.||Sanderson of Bowden, L.|
|Hailsham of Saint Marylebone, L.||Seccombe, B.|
|Sharp of Grimsdyke, L.|
|Harmsworth, L.||Sharples, B.|
|Harrowby, E.||Sherfield, L.|
|Hayhoe, L.||Simon of Glaisdale, L.|
|Henley, L.||Skelmersdale, L.|
|Hesketh, L. [Teller.]||Soulsby of Swaffham Prior, L.|
|Hives, L.||Stanley of Alderley, L.|
|Holderness, L.||Sterling of Plaistow, L.|
|Hood, V.||Strange, B.|
|Hooper, B.||Strathclyde, L.|
|Howe, E.||Strathmore and Kinghorne, E. [Teller.]|
|Jellicoe, E.||Sudeley, L.|
|Jenkin of Roding, L.||Swansea, L.|
|Killearn, L.||Swinfen, L.|
|Kimball, L.||Teviot, L.|
|Lane of Horsell, L.||Thomas of Gwydir, L.|
|Lauderdale, E.||Trumpington, B.|
|Layton, L.||Ullswater, V.|
|Leigh, L.||Vivian, L.|
|Long, V.||Wakeham, L. [Lord Privy Seal.]|
|McAlpine of West Green, L.|
|Mackay of Ardbrecknish, L.||Waverley, V.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Westbury, L.|
|Macleod of Borve, B.||Windlesham, L.|
|Marlesford, L.||Wolfson, L.|
|Merrivale, L.||Wynford, L.|
§ Resolved in the negative, and Motion disagreed to accordingly.
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendment No. 6 to which the Commons have disagreed.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed.—(Baroness Blatch.)
On Question, Motion agreed to.
§ 5.20 p.m.
§ LORDS AMENDMENTS
§ 7 Clause 153, page 91, line 46, after ("him") insert:996
§ ("() secure that, where a registered pupil with special educational needs is not the subject of a Statement of Special Educational Needs maintained by an education authority, there shall be a review of the provision made for the child within the period of twelve months beginning with the making of the provision, or as the case may be, with the previous review,")
§ 8 Clause 154, page 92, line 35, at end insert:
§ ("() The local education authority shall ensure the availability of goods and services to assist governing bodies in their duties under section 153(1) (a) of this Act.")
§ 9 After Clause 156, insert the following new clause:.
§ Relationship of local education authority and grant-maintained special school
§ (".—(1) The funding authority shall consult any local education authority which has in the previous three years named in a statement a school which is or has become a grant-maintained special school.
§ (2) A grant-maintained special school shall assist the authority in any inspection and review carried out under section (Duty to direct governing body to make special educational provision) below.
§ (3) The funding authority and governing body of a grant-maintained special school shall consult any local education authority to which subsection (1) above applies on the range and type of provision at the school and of any proposals for a change of character.")
§ 10 After Clause 162, insert the following new clause:
§ Duty to direct Governing Body to make special educational provision
§ (" .—(1) Where it has come to the attention of the local education authority that the governing body of a county, voluntary or grant-maintained school is not fulfilling its duties under section 153 of this Act in respect of a pupil for whom a statement of special educational needs is maintained under section 159 of this Act then the local education authority shall direct that the governing body make the special educational provision specified in the statement.
§ (2) In order to carry out its duty under this section, the local education authority shall have the power to inspect the special educational provision and require the governing body to supply such reports as the local education authority may require.
§ (3) After a period of two months after the making of a direction under subsection (1) above, the local education authority shall review the special educational provision made for the pupil for whom the direction was made and, where it appears that the provision has not been made, the Ideal education authority shall review the educational needs of the pupil under section 162 of this Act.
§ The Commons disagreed to Amendments Nos. 7 to 10 hut proposed the following amendments in lieu—
§ 10A After Clause 162, page 91, line 22, at end insert 'and, in doing so, shall, to the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with speial educational needs, consult the funding authority and the governing bodies of county, voluntary, maintained special and grant-maintained schools in their area'.
§ 10B After Clause 162, page 92, line 10, at end insert:
- (a) the governing bodies of county, voluntary and grant-maintained schools shall, in exercising functions relating to the provision for such children, consult the local education authority, the funding authority and the governing bodies of other such schools, and
- (b) in relation to maintained nursery schools, the local education authority shall, in exercising those functions, consult the funding authority and the governing bodies of county, voluntary and grant-maintained schools.'
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendments Nos. 7 to 10, to which the Commons have disagreed, but do agree with the Commons in their Amendments Nos. 10A and 10B in lieu thereof.
Moved, That the House do not insist on their Amendments Nos. 7 to 10, to which the Commons have disagreed, arid do agree with the Commons in their Amendments Nos. 10A and 10B in lieu thereof. —(Buroness Blatch.)
On Question, Motion agreed to.
§ LORDS AMENDMENTS
§ 11 After Clause 146, insert the following new clause:
§ Inspection of accounts and reports to Parliament
§ (".—(1) The accounts of the governing body of any grant-maintained school shall be open to the inspection of the Comptroller and Auditor General.
§ (2) The Comptroller and Auditor General shall, in each session of Parliament, report to the House of Commons—
- (a) whether he has carried out under section 6 of the National Audit Act 1983 any examinations in respect of grant-maintained schools, and if he has,
- (b) the results of such examinations.
§ (3) The first report under subsection (2) above shall cover a period beginning with the commencement of this section and each subsequent report shall cover a period beginning at the end of the period covered by the preceding report.
§ (4) In determining whether to carry out any examination under that section in respect of grant-maintained schools and, if he determines to do so, the nature of the examination, the Comptroller and Auditor General shall have regard to any relevant published report of any study promoted or undertaken by the Audit Commission under section 220 of the Education Reform Act 1988.")
§ 12 Clause 147 page 88, line 43, at end insert:
§ The Commons disagreed to Amendment No. 12 but proposed the following amendment to Amendment No. 11 in lieu thereof—
§ 12A Clause 147, line 19, after 'Commission' insert 'for Local Authorities and the National Health Service in England and Wales'.
§ Baroness Blatch
My Lords, I beg to move that this House do not insist on their Amendment No. 12, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 12A to Lords Amendment No. 11 in lieu thereof.
I spoke about value-for-money studies of grant-maintained schools when moving Amendment No. 1A. Amendment No. 12A is a minor technical provision. It puts the full title of the Audit Commission into Amendment No. 11 and thereby removes the need for Amendment No. 12. I beg to move.
998 Moved, That the House do not insist on their Amendment No. 12, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 12A to Lords Amendment No. 11 in lieu thereof.—(Baroness Blatch.)
On Question, Motion agreed to.
§ LORDS AMENDMENT
§ 13 Clause 149, Page 90, line 42, leave out from ("of") to end of line 43 and insert:
§ ("() local education authorities, and such governing bodies, exercising functions under this Part of this Act,
§ () any other person exercising any function for the purpose of the discharge by local education authorities, and such governing bodies, of functions under this Part of this Act, and
§ () the Special Educational Needs Tribunal")
§ The Commons agreed to this amendment with the following amendments—
§ 13A Clause 149, line 3, at end add 'and'.
§ 13B Clause 149, line 6, leave out from 'Act' to end of line 7.
§ Baroness Blatch
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13A and 13B to Lords Amendment No. 13.
Amendment No. 13 extends the code of practice to governing bodies of schools and to the tribunal. Amendment No. 13A is a technical consequential amendment. Amendment No. 13B is a technical consequential amendment on Amendment No. 14A. They are all technical paving amendments to Commons Amendment No. 14A, which we shall be debating shortly. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 13A and 13B to Lords Amendment No. 13.—(Baroness Blatch.)
On Question, Motion agreed to.
§ LORDS AMENDMENT
§ 14 Clause 149, page 90, line 44, at end insert:
§ ("() In any proceedings before the Tribunal in which the due discharge of the functions referred to in subsection (2) above is challenged, departure from the provisions of the code may only be justified if it is established that the result of the actions taken was at least as beneficial as if action had been taken in accordance with the provisions of the code.")
§ The Commons disagreed to this amendment but proposed the following amendment in lieu—
§ 14A Clause 149, page 90, line 44, at end insert:
§ "() On any appeal, the Tribunal shall have regard to any provision of the code which appears to the Tribunal to be relevant to any question arising on the appeal'.
§ Baroness Blatch
My Lords, I beg to move that the House do not insist on their Amendment No. 14, to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 14A in lieu thereof.
I hope noble Lords will be content if I also speak now to Amendment No. 14B in the names of my noble friend Lord Campbell of Alloway, the noble and learned Lord, Lord Simon of Glaisdale, the noble Lord, Lord Henderson of Brompton, and the noble Baroness, Lady Warnock. All these amendments are 999 concerned with the code of practice to be issued under the Bill. My noble friend will no doubt present the amendment to the House in due course.
During the passage of the Bill your Lordships have been properly concerned that the code of practice should be a clear, thorough and helpful document. We have discussed that code in some detail. Your Lordships have recognised that the code, taken together with the primary provisions of the Bill itself and the regulations we shall make thereunder, will form the framework for special education in the future.
At Committee stage we amended the Bill to secure that the code would offer practical guidance to schools as well as to local education authorities in respect of their functions under Part III. At the same time we amended the Bill to make it clear that local education authorities, schools, other bodies assisting LEAs and schools in carrying out their functions and the special educational needs tribunal would be under a duty to have regard to the code. This House has therefore ensured that the code can address the identification and assessment of all children with special educational needs and can embody, as we intend it should, the staged assessment model originally envisaged by the noble Baroness, Lady Warnock. In short, the code will promote the continuum of special educational needs, to which the noble Baroness first drew our attention some 15 years ago. I hope and believe that the principles underlying the code and the full draft code we eventually produce will command the support of all sides of your Lordships' House.
Some concern has been expressed, notably by my noble friend Lord Campbell of Alloway and others, as to the legal status of the code. My noble friend and others have been keen to ensure that the code should have the greatest possible practical effect. I wholly share that concern. Nonetheless, at Report stage in this House, my noble friend persuaded your Lordships to carry an amendment—before us now as Amendment No. 14—which sought to give the code a degree of legal efficacy. It did so by creating a test against which the new special educational needs tribunal should judge local education authorities' actions in the light of the code.
The other place did not accept that amendment. Instead, it proposed the amendment in lieu, which is now before us as Amendment No. 14A. That amendment in lieu is designed to recognise your Lordships' concern by highlighting the fact that the tribunal will have regard to the code, where relevant, when considering appeals. It goes no further. In particular, it does not set out the test embodied in Amendment No. 14 and substantially repeated in Amendment No. 14B.
I have discussed these issues very fully with my noble friend Lord Campbell of Alloway and others on more than one occasion. I thank them for their courtesy and for their doggedness in pursuing what I know is a real concern to them. My officials and their legal advisers have also held meetings with my noble friend. I hope he will agree that we have approached those meetings in a constructive spirit. I readily 1000 recognise that he has adopted the same approach. I pay tribute now to the tenacity and eloquence with which he has presented his case. We have found much common ground. The Government have concluded, however, with the greatest reluctance, that, while the difference between us is narrow, the point at issue is of the greatest importance. I wish to explain, therefore, as clearly as I can, why the Government can go no further.
First, let me emphasise the common ground. The Government wholly understand and share my noble friend's concerns that the code of practice should have a demonstrable impact on the quality of special educational provision across the country. We understand also, as Amendment No. 14A shows, my noble friend's concern that the tribunal should have regard to the code when considering appeals.
It is our intention, and has been our intention all along, that the code should offer practical guidance to schools, local education authorities and others. It has never been our intention, as I believe my noble friend now accepts, that the code should impose duties or obligations. Such duties will be imposed through the primary legislation, which we have now debated fully, and through regulations, on which we shall consult fully. The code will range widely, offering guidance on matters which are the subject of legislation and covering other matters where no legislation applies. To be useful, the code must be crisp, clear and unambiguous, offering precise and thorough guidance to all concerned. The code is being drafted with those objectives in mind.
It is also our intention, and again has always been our intention, that the special educational needs tribunal should be a parent-friendly, informal forum. It will consider appeals on specific grounds set out on the face of the Bill. It has never been our intention that the tribunal should police the code of practice. The objective of the tribunal will always be to establish whether the decision taken by a local education authority on which the appeal rests was appropriate for the child concerned.
For the sake of complete clarity, let me repeat: the code will offer guidance which is clear and thorough. The tribunal will be an open, informal forum. I am deeply concerned that Amendment No. 14 would, wholly unintentionally, subvert those objectives. Instead of helping the tribunal and thus helping parents, it would severely complicate the tribunal's proceedings. Instead of delivering an effective code, it would lead to the production of a document which skirted round the vital issues.
I should enlarge on those concerns. The adoption of this amendment would mean that the attention of the tribunal would be focused on the code. The proceedings would focus on difficult, hypothetical questions. The objective of a parent-friendly forum would be lost. And lost too might be the consideration of the most important question, whether at the end of the day the decision taken by an LEA had been appropriate for the child concerned.
Similarly, the adoption of Amendment No. 14B would, I fear, result in a far less positive and effective code than many in this House hope and expect to see. 1001 In drafting the code we must consult and take account of the views of all those who will be most directly affected, including local education authorities. If LEAs understand that they will have to justify their actions before the tribunal so far as each and every sentence and each and every clause of the code is concerned, they will insist upon words which allow them escape routes at every turn. The straightforward language we want will become vague; the precise advice we want will become woolly and opaque. Throughout the passage of this Bill in this House and another place great importance has been attached to the code. Many hopes rest on that code. I fear that if today, at the very close of our proceedings, we accept this amendment, those hopes will be severely disappointed.
Part III of the Bill will be implemented through its primary provisions, through regulations and the code. Taken together—it is important to accept that they will be taken together—those elements must be effective. We are wholly at one with my noble friend and his colleagues in that respect. We shall consult fully in the autumn on the draft regulations and on the draft code. We shall lay both before the Houses of Parliament and, as noble Lords know, it will be under the affirmative resolution procedure. We recognise that it will be essential that their impact is evaluated.
I therefore wish to assure the House that your Lordships will have a continuing contribution to make to this work. Noble Lords will be able to contribute to the consultation process and scrutinise the drafts when they are laid before Parliament. Beyond that, my department will monitor the impact of the code. We shall do so through consultations with those most directly affected. At the same time, we shall analyse the impact of the regulations and the work of the tribunal. Where necessary, we shall propose changes to the regulations and the code in the light of that evaluation. Those changes will be, of course, subject to your Lordships' approval.
I hope that what I have said today will demonstrate our commitment to the effective implementation of the Bill. I hope too that what I have said will convince your Lordships that, while the very best of intentions lie behind Amendment No. 14B, that amendment would not assist the implementation of this legislation. It would complicate and thus jeopardise the work of the tribunal and the drafting of the code of practice. I must, very reluctantly, say to my noble friend that I ask your Lordships not to insist on Amendment No. 14 and to agree with Commons Amendment No. 14A. My Lords, I beg to move.
Moved, That the House do not insist on their Amendment No. 14 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 14A in lieu thereof.—(Baroness Blatch.)
§ AMENDMENT TO COMMONS AMENDMENT 14A IN LIEU OF LORDS AMENDMENT 14
§ 14B Clause 149, as an amendment to Commons amendment 14A in lieu of Lords amendment 14 at end insert:1002
§ ("() If in the opinion of the Tribunal substantial compliance with such provisions of the Code as may be adjudged to be relevant was reasonably practical in the circumstances departure from such provisions may be justified only if in the opinion of the Tribunal the action taken was at least as beneficial in the interest of the child as if there had been substantial compliance with such provision.")
§ 5.30 p.m.
§ Lord Campbell of Alloway
My Lords, I beg to move Amendment No. 14B as an amendment to Amendment No. 14A.
At the outset perhaps I may introduce a personal note and return the expressions of courtesy given by my noble friend the Minister. I should like to say that it was a privilege and a pleasure to attend on her and her department to discuss these matters in amity and that, irrespective of the result of this debate, I shall continue so to do. I accept that up to a very large point those discussions were very constructive. The only point on which we stuck was Amendment No. 14. We saved hours and hours of debate in your Lordships' House by those discussions which we had at the department on an all-party basis. To be fair to the Government, they produced Amendment No. 14A which goes some way to meet one of the concerns of your Lordships.
I now turn to this amendment. On its merits it is supported by so many noble Lords, irrespective of where they sit in this House. It is not a political issue. My noble friend the Minister took over the Private Member's Bill and I continue to acknowledge the sincere debt of gratitude which I owe her. She and I both accept that the difference between us is narrow but of substance. She is not in a position to offer any accommodation. We must agree to differ, but we differ in amity, with respect for each other's integrity and purpose, knowing that this difference may be resolved only by your Lordships' House. Therefore, is it not reasonable to ask noble Lords who have received exhortation to vote one way or the other, if they might listen to both sides of the argument?
This amendment is concerned with the status of the code of practice before this new statutory tribunal is set up, which was suggested by me about two-and-a-half years ago in the Cavendish Papers, long before the Private Member's Bill, now subsumed by Part III of this Bill. That code of practice should serve as an important and essential factor in the implementing machinery of Part III of the Bill—together with the regulations and the primary provisions of the Bill —in enforcement proceedings before the tribunal.
On Report in your Lordships' House, Amendment No. 14 on the Marshalled List was carried in a Division. It is now qualified by Amendment No. 14B. It is offered in the light of Amendment No. 14A which is in lieu of Amendment No. 14.
Perhaps I may come at once and in plain English to the object of this amendment which is quite simple. It seeks to restore the special status of the code of practice, as acknowledged by my noble friend the Minister in Committee, but rejected by the Government on Report.
1003 It has an essential minimum safeguard for the interests and welfare of these disadvantaged children in proceedings before the tribunal. As your Lordships know, that has to be done in primary legislation. There is no way in which that object may be achieved by the regulations or the code of practice, which in any event will not be available until about Easter.
So much for the object. As to the essence of the argument, the Commons amendment which is offered in lieu—namely, Amendment No. 14A—is welcome as far as it goes as rendering relevant provisions of the code of practice admissible in appellate proceedings before the tribunal. But that amendment fails to implement the stated government intention at Committee stage in two respects. The first is that it fails to accord to the code,its own special legal status".Secondly, it fails to ensure that,any departure from the code will, if challenged, require justification".—[Official Report, 29/4/93; col. 487.]I must immediately refer your Lordships to the verbatim account of what was said about this because those 10 lines are crucial to this debate. Having dealt with the aims of the code at col. 486, which I shall summarise in due course, my noble friend the Minister referred to the status of the code, which is the substance of this amendment, saying:That said, the code will have its own special legal status. It will he laid before Parliament and carry parliamentary approval. Moreover and most importantly, those to whom it applies will have a duty to have regard to it. That is no light duty. By law, those who must have regard to the code cannot ignore it. If they do so, they will be in breach of a duty. They do not, however, have to follow the code to the letter and in every particular. But any departure from the code will, if challenged, require justification—to parents in the first instance and then, depending on the circumstances, to the Secretary of State if the matter at issue is the subject matter of a statutory complaint, or to the new special needs tribunal if the matter at issue is the subject of an appeal. In justifying their actions, those to whom the code applies will have to show that the alternative action they took produced results which were at least as beneficial as those which would have resulted from their following the code".—[Official Report, 29/4/93; col. 487.]As your Lordships will see, it is that which is mirrored in the amendment to which I speak. It is the Government's own concept of the code's "own special legal status".
Before I turn to Report stage, perhaps I should say that the aims, which were dealt with by my noble friend the Minister immediately before the words that I have just quoted, are wholly implemented in this amendment which imposes no duties and no hard and fast rules, and which makes every reasonable allowance for the due exercise of judgment in the action taken for each child. However, the problem is that the Government changed their mind on Report. I refer to col. 1376, which reads:Guidance to those involved with the policy and drafting of statutory provisions relating to codes of practice … Ad hoc statutory provision as to the effect of failure is therefore neither necessary nor desirable".—[Official Report, 14/6/93; col. 1376.]I shall not quote the whole passage because it is there on the record for anyone to see, but the effect of the advice in the department, which had clearly and apparently changed between Committee stage and 1004 Report, was, to put it in plain terms, that the code of practice was not to have its "own special legal status" as regards departures, as proposed in Committee or at all.
One of the problems about this is that, irrespective of whether the case that I was advocating was right or wrong, your Lordships acted on the Government's words in Committee which suggested that there should be a concept of justification and that the code should have its "own special legal status". Those are the Government's words, not mine. Amendments were either not moved or were withdrawn on that basis under what appears to have been an inevitable miasma of confusion. Other noble Lords may wish to speak to that point.
It is not proposed to lengthen this debate and to rehearse the "shall have regard to" argument, save to mention that the noble and learned Lord, Lord Simon of Glaisdale, who is in his place; the noble and learned Lord, Lord Ackner, who has given his mind to this matter and may be prepared to address your Lordships upon it; the noble Earl, Lord Russell, and other noble Lords have dealt with this each in their own way—and none of us considered that "shall have regard to" afforded any sufficient or valuable safeguard for the interests of these children under general administrative law as regards departures from the code. Other noble Lords, whom I see in their places, particularly the noble and learned Lords, may wish to return to this point.
Your Lordships may well think that Amendment No. 14B which, together with Amendment No. 14A, is offered in lieu, will serve as an incentive for observance at the first level and that it is only right and reasonable that the respondent before the tribunal should have to justify departures from the code as proposed by this amendment to show that, put simply, such a departure did not adversely affect the interests of the child. The drafting of the amendment is the mirror of what my noble friend the Minister said in terms at Committee stage. It is exactly the same concept. I have qualified it to some degree by referring to whether the action,was reasonably practical in the circumstances".Essentially, however, it is the same concept as that which was advocated by my noble friend.
I turn now to some of the criticisms which my noble friend raised when dealing with Amendment No. 14 a moment ago. That amendment assuredly is not technical. It is in no way legalistic. It is in no way inconsistent with the proposed user-friendly atmosphere of proceedings before the tribunal. I wonder whether my noble friend the Minister could concentrate on what I am saying. I was about to suggest that on this aspect my noble friend the Minister knows perfectly well that I fully support the user-friendly atmosphere. We have had consultations about this in the department on which we were in total agreement. The amendment will not in any way affect the user-friendly atmosphere because the concept of justification is of evidential consequence and a matter for the tribunal. The anxiety which is expressed, that this amendment will introduce a legalistic element which could detract from the informal conduct of those proceedings, is wholly misconceived. As your 1005 Lordships can see, the provisions will affect only the approach of the chairman to the evidence for the purpose of making his formal decision after all the evidence has been given.
There can be no question, as has been suggested, of the chairman focusing upon adherence to the code to the detriment of the child, as Section 1 of the Children Act enjoins that such interests shall have paramount importance. There is no question, as I understand it, that the amendment would render the provisions of the code less effective. I believe that my noble friend the Minister described it as woolly and opaque. It is just not understood.
For the reasons given, the amendment does no more than afford the minimum measure of safeguard, in the interests of each child, if the code is to serve any worthwhile purpose. What it comes to is simply this: those advising my noble friend the Minister as to the status of the code have changed their mind and their advice between Committee stage and Report. As has been said before, our legitimate constitutional expectations have been pre-empted by the pressure of business. It is in those most unfortunate and unusual circumstances, in which your Lordships have acted under a plain misconception, that I beg to move.
§ Baroness Warnock
My Lords, I support the amendment which appears in my name as well as those of other noble Lords. I am no lawyer, but I know that there is an enormous difference as to where the burden of proof lies in a hearing where someone is appealing against a decision. I understand that the amendment will plainly put the burden on the chairman of the tribunal to try to find out the reasons for any departure from the code and to demand that the departure he justified. That is a simple point. We cannot talk in any detail about the code, because we do not know what will be in it. One of the most important aspects of the code will be to provide a set of criteria by which a child's needs will be assessed. It will not necessarily be the case that a statement of a child's needs will be issued by the local authority, but that his needs will be discovered and assessed, according to the criteria laid down, I hope and believe, clearly, in the code.
The code of practice is therefore a matter of immense importance. It is the only safeguard to ensure that children's needs are assessed to a clear and consistent standard. The purpose of the code is to lay down those standards. That affects children who have statements taken out for them and, in particular, those children who have no statements and who, perhaps, have parents who believe that their child's needs are not being met properly. Some of those parents will want to appeal against the non-issue of a statement, as it is now within their rights to do. They may, on the other hand, wish to appeal against the non-provision of what was promised them when the assessment was made.
The amendment goes to the heart of the matter of meeting special educational needs, in particular, those which are supposed to be met in ordinary schools and not special schools. It is therefore important that when an appeal is made before one of the tribunals, any departure from the criteria and standards which a 1006 code of practice will have set out is justified. The wording of the amendment is careful. First, it has to be shown that in the case coming before the tribunal the code of practice is relevant. If the code of practice is seen not to be relevant, the whole question of departing from it will not be raised. Secondly, as the noble Lord, Lord Campbell of Alloway, said, a proviso has been included: that adherence to the code is reasonably practical. That means that if adherence to the code will cost vast sums of money each year and that some good provision may be made which would not cost so much, a requirement to adhere: to the code would be ruled out. That is a safeguard.
I cannot understand the reasons for the Government not accepting that in an appeal the parents should have the assurance that the code will be adhered to unless the suggested provision for the child is as good as if the code had been adhered to. I cannot understand the Government's reasons for not accepting that proposal. As for suggesting that the amendment will somehow alter the nature of the code, that is fantastic. The code will not be set out with a view to determining how it will be implemented in any appeal that goes to a tribunal. Presumably the code will be set out in the best interests of children and in the interests of establishing standards and providing regular criteria for judging a child's needs.
I do not believe that the acceptance of the amendment would alter the details of the code or the purpose for which it will be introduced. We rely enormously upon the code of practice. We have to take it on trust because we cannot see it. We have been told, and we believe, that it will set out the standards and the criteria. In that belief, it is essential that we go as far as we can to ensure that the code has the special status that we were promised that it would have. I strongly support the amendment.
§ Lord Simon of Glaisdale
My Lords, I too, strongly support the amendment to which my name is attached. It is deplorable that the Government should now be seeking to reinstate the provisions which your Lordships, after hearing argument, voted down on Report. The arguments prevailed completely. Your Lordships will not find that difficult to believe after hearing the noble Lord, Lord Campbell of Alloway, and my noble friend Lady Warnock. They, after all, irrespective of this issue, are the principal agents behind Part III of the Bill.
No one denies the importance of Part III in providing for singularly vulnerable persons in the community. No one denies the importance of the code of practice. It is hardly deniable that the code of practice is the trigger which sets off the provisions of Part III. Without the code of practice, there is nothing to activate Part III. In that respect, the words. "have regard to", however appropriate in other codes of practice, are inadequate here. On Report the noble Earl, Lord Russell, gave an example which was not controverted, in which the words "having regard to" were in fact disregarded.
One reaches this curious position. In Committee I was left with the duty of moving the amendment tabled by the noble Lord, Lord Campbell of Alloway. In support I quoted from a letter written by the 1007 Minister, in which she stated that departure from the code must be justified. Notwithstanding her own words she would not accept the amendment. The matter then progressed to the Report stage. The noble Lord, Lord Campbell, took the words which the Minister had used in Committee as the text for his amendment on Report. That was, however, controverted from the Treasury Bench.
The matter went to a Division. The noble Lord, Lord Campbell, said that obviously the Government were incapable of understanding the argument—that was also my impression —and that he would test the opinion of the House. The opinion of the House was specific; 68 Members voted for his amendment and 42 voted against it. Of those 42 Members, 22 were what is opprobriously called "the payroll vote". Of the Ministers who voted, only the noble Baroness and the Whip on the Treasury Bench had heard the argument. All but one of the Cross-Bench Peers who voted did so in favour of the amendment. Two Conservative Peers voted for it, as did the right reverend Prelate the Bishop of Guildford, the only bishop present. Oscar Wilde described the fury of Caliban at seeing his own face in the glass. The noble Baroness seemed to have a fury being faced with her own words in an amendment. That really will not do.
As regards the parliamentary aspects, I fully endorse what was said by the noble Lord, Lord Judd. It is absolutely deplorable to have a wholesale turning down of the amendments which your Lordships have made. That used to happen on occasions when a socialist government was in power. That was rightly resented and it is equally to be resented now that we have a Conservative government. Secondly, I wish to comment on the Minister's position. She has done valiantly as regards academic freedom. She took her department by the scruff of the neck and we obtained a reasonable solution which protected academic freedom.
The Minister also took on her department when we discussed whether there should be an affirmative resolution to Schedule 3, paragraph 1(4), relating to notices given before grant-aided status. We know what advice the noble Baroness had because she inadvertently read out, "I am not impressed by the arguments in favour of the affirmative resolution". But we had not reached discussions on that clause and no argument had been advanced. However, we must pay a tribute to the Minister because once again she persuaded her department to change its mind. Evidently between the Committee and Report stages the department changed its mind on this issue. We hope that the Minister will get it to change its mind yet again. I put it that way but, in fact, the Minister is in charge of the Bill and at present in charge of the department. I hope that she will accept the amendment of the noble Lord, Lord Campbell of Alloway.
§ 6 p.m.
Baroness Darcy (de Knayth)
My Lords, I wish to add my full support for the amendment; indeed, I regret our need to return to it. I shall not repeat what 1008 was said by the noble Lord, Lord Campbell of Alloway, but there appears to have been a volte-face on the part of the Government in relation to the legal status of the code. I echo what was said by my noble and learned friend Lord Simon of Glaisdale in hoping that the Minister will reinstate that status.
As the Minister said today, many hopes rest on the code. Many amendments were withdrawn following assurance that they would be incorporated in the code. In Committee I spoke to a five-pronged amendment aimed at the code of practice. It was originally intended as five separate amendments to the Bill. On Report I withdrew what were to me very important amendments on assessment, statementing and placements following firm and detailed assurances that they would be covered by the code. I too thank the Minister for making herself and her officials readily available on numerous occasions. We had very useful discussions. It is vital that the code has strength.
On Report the Minister said:The code of practice will be instrumental in achieving our aim; namely, that all children with special educational needs should receive the appropriate special educational provision to meet those needs".—[Official Report, 14/6/93; col. 1376.]We are all agreed on that aim; the difference relates to how we achieve it. The intended code of practice will have many excellent attributes. As the Minister said today, it will be a clear, thorough and helpful document. There will be wide consultations on it beforehand; it will be widely circulated; it will be easily accessible and understandable; and it will be user friendly. But when it comes to a dispute, the code needs to be strong, and I too fail to see how the amendment will alter the nature of the code, as my noble friend Lady Warnock clearly stated.
While I welcome the fact that the other place has given us Amendment No. 14A, having disagreed to Amendment No. 14, Amendment No. 14B stands in the name of two noble Lords and one noble and learned Lord, who are expert in codes of practice and the law, and in the name of my noble friend Lady Warnock, who knows more about special educational needs than any other Member of this House. If, when they have heard more from the Minister, their combined wisdom says that Amendment No. 14B is necessary to ensure that the code of practice achieves our common aim, I shall certainly follow them into the Division Lobby without hesitation.
§ Baroness Carnegy of Lour
My Lords, I regret that I was not in the House at one o'clock in the morning on 15th June when my noble friend Lord Campbell of Alloway divided the House and the House agreed with him. I should have been here. Apparently many other noble Lords were not present but should have been. I for one apologise to the House.
Since then my noble friend Lady Blatch has met with my noble friend Lord Campbell—and he has acknowledged that—to discuss fully the problems which the amendment poses. Indeed, as with so many other aspects of the Bill, my noble friend Lady Blatch has come a long way to meet the express wish of the House on this matter. The Government have tabled a replacement amendment in another place which has been accepted and which is before us. I am sorry that 1009 my noble friend has nevertheless virtually retabled his original amendment. My noble friend Lady Young is also very sorry about that. She has had to leave the House due to an unavoidable engagement outside but she has told me her views and they accord with my own.
I read with great care the discussions on my noble friend's amendment on Report. The arguments were fully and clearly deployed. I know that my noble friend Lord Campbell has much legal experience and current knowledge of that particular area of the law. But as a lay person who, some time ago admittedly, had a lot of experience of actual decision-making in that area of activity in local government, I must say that I believe that vulnerable children with special needs will be better served by the Bill as amended in the Commons rather than by the Bill with this amendment.
I expect the noble Lord, Lord Ponsonby, who is to speak from the Opposition Front Bench, to elaborate on that because I believe that the local government decision-making point of view is more important in this case than the lawyer's point of view. The noble Lord is a current councillor and I hope that he will enlarge upon that point. He is much more up to date than I am.
Decisions within local government about such a child's education must be, above all, informed constantly by what is best for the child. The necessity to have regard to a code of practice will be helpful on that. As the Minister said on Report, the code of practice will be a tool. It will be very helpful to have the existence of a tribunal to which parents can appeal as regards the appropriateness of a decision concerning their child. Reference to the code of practice can be made in the course of a tribunal hearing. It is quite normal to refer to a code of practice in that way and we all know that it works.
If officials and councillors have to make their decisions with one eye on legal requirements involving concepts such as "substantial compliance" with provisions of the code, with an eye on what is relevant and practical and what would be equivalent to "substantial compliance", the freedom to make sensitive, human judgments is likely to be, in my view, greatly diminished. The Minister made a related point, but not quite the same point.
The role of the tribunal is to consider whether the local authority has made the best decision for the child, having regard to the code. The noble Baroness, Lady Warnock, said that it was very important to know where the burden of proof lies in a tribunal. I accept that. But in local government to give to a tribunal of appeal the unusual role of enforcing substantial compliance with the code, even with the provisos in the amendment, would greatly limit the ability of officials and councillors to do the right thing for the child, or so it seems to me. Local government people—and this is extremely important—must be and are very cautious and careful about keeping within the law. They almost always allow themselves a considerable margin of safety.
My noble friend Lord Campbell is second to none in his concern for children with special needs. I 1010 understand his aspiration and his desire to further the method which he used in his Private Member's Bill which was so useful to Parliament as a stepping stone towards the Bill which we are now discussing.
I believe my noble friend when he tells us that the, amendment is not legalistic. I should not have known it on the surface but I believe that. However, I am not sure that the gap between my noble friend Lord Campbell and the House of Commons is narrow. I beg my noble friend to accept that the amendment would in practice have a quite different effect on local. government decisions from that which he suggests. From the point of view of children and their parents —and they are the people for whom the clause exists —it would in my opinion be counter-productive Therefore, despite all the work that my noble friend has done on this, I hope that he will decide to withdraw the amendment. If he does not, I hope that the House will not accept it.
§ Lord Campbell of Alloway
My Lords, perhaps I may be allowed to correct one matter. The Minister, my noble friend Lady Blatch, wrote to me on 16th July and I quote from memory the letter which said, "The gap between us is narrow but of substance. We must agree to differ". My noble friend is entitled to her own opinion but that is the position as between the Minister and myself.
§ Baroness Carnegy of Lour
My Lords, with the leave of the House, I am glad that my noble friend says that I am entitled to my opinion because that is my opinion. The Minister is extremely courteous and never expresses anything roughly. I do not doubt what she really thinks about the amendment, but it seems to me that the gap is important.
§ 6.15 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, t had not intended to speak on the amendment but if have had rather a curious experience about which should like to tell the House. When I saw the most distinguished list of names in support of the amendment, I started with a perfectly open mind but I expected to be persuaded by their arguments.
The awful effect of the experience that I have had is that having heard my noble friend Lord Campbell of Alloway, my noble and learned friend Lord Simon of Glaisdale and the other speakers who have spoken in support of the amendment, they have convinced me that it is wrong. It is only a provisional opinion but I must give the House the benefit of my experience and the reason which I have had for it.
The expression "to have regard to", which is in the text of the Commons amendment which is being challenged and which was included, I assume, on the advice of the Government and their advisers, is very well known in statute law. It is rather difficult to interpret it because it is couched in ordinary language which is not in terms of art; that is, it is very difficult, indeed almost impossible, for either a lawyer or anybody else to predict exactly what the result of it will be in any given case.
But my noble friend's argument was based ultimately on a challenge which he put to the Minister 1011 to the effect that she had changed her mind between Committee and Report. My noble friend Lord Campbell quoted—I have no doubt with complete accuracy—the phrases upon which he depended to arrive at that conclusion. I do not believe that he has made out his case. The reason is that while it is extremely difficult to say what is meant in the statutes, of which there are a great number, when it says that in reaching a conclusion an appellate tribunal or a Minister "must have regard to" something, it is in general perfectly accurate to say that there is a burden of justification to be placed on the Minister or the tribunal if they wish to depart from the code of practice or whatever else it is to which they are supposed to have regard. I believe that is what the Minister was saying and I believe that to be right.
I had the greatest difficulty as a Minister in having "to have regard to" considerations which ultimately I departed from but I always regarded that as a matter which would require justification either in an appellate tribunal or, if the matter were raised in another forum, by way of judicial review. However, of one thing I am certain. If one has regard to something, there must be circumstances in which one is not only entitled but bound in conscience to depart from the issues to which one would have regard, always subject to the fact that one has to justify what one is doing.
As it seems to me, what is wrong with the amendment in the name of my noble friend is that it states in terms that departure from the provisions of the code may be justified only if, in the opinion of the tribunal, the action taken was at least as beneficial to the interests of the child, as if there had been substantial compliance with the provisions of the code. That sounds at first sight absolutely reasonable and indeed incontrovertible.
However, let me just put an imaginary case. The situation which is postulated by the amendment implies an appeal by, let us say, the parents of the child with special educational needs against the decision of the tribunal proposing to depart from the code of practice. Let us suppose that it was established beyond a scintilla of doubt that, although the code would not be as beneficial to the interests of the particular child with special educational needs who is the subject of the proposed appeal, a number of other children would be far more adversely affected than the particular child would he advantaged if the code were closely adhered to. In other words, in any appeal there are other people to be considered with regard to the background of a departure from the code. The principle is inclusio unius est exclusio alterius. That is the case in point. There are other factors; and it may be the interests of the other children who would be affected by a departure from the code of practice to which the tribunal must have regard. Although the argument does not alter the burden of proof—that is a term of art and I should not have used it to justify a departure from the code of practice—it effectively indicates that the interest of the specific child is only one of the factors that the tribunal must take into account before justifying a departure from the code of practice.
1012 It is no good saying that the position is not legalistic; of course it is legalistic. One cannot pass laws which are not legalistic. If one did, they would be bad laws. I am saying that on the sheer merits of the case my noble and learned friend and my noble friend who sits behind me have so far persuaded me that they are wrong.
§ Lord Ackner
My Lords, it is not my intention to add to the conviction of my noble and learned friend Lord Hailsham, although I expect the result will be that I shall. The noble Lord, Lord Campbell of Alloway, invited my attention to the subject in the Bishop's Bar and, as there was no escape, I learned from him the Hansards that I should consider and the issue. The point that he had in mind was that the Government stated at Committee stage that they were going to give special legal status to the code. That was to be done by the use of the words "have regard to".
One of the first occasions I sought to address the House was when the new legal aid legislation was before the House. The firm obligation, which previously rested upon my noble and learned friend Lord Hailsham, to pay fair remuneration for work actually and reasonably done was to be replaced by the then Lord Chancellor (my noble and learned friend Lord Mackay) merely being obliged to have regard to a series of factors. It was generally accepted that that obligation was nothing like the obligation which rested upon my noble and learned friend Lord Hailsham. That was precisely why it was sought to get rid of that obligation.
The words "have regard to" must be considered in their context. However, there is a context which I believe is helpful. It is in the Housing (Homeless Persons) Act 1977, now the 1985 Act. Section 12 provides that,In relation to homeless persons and persons threatened with homelessness a relevant authority shall have regard in the exercise of their functions to such guidance as may from time to time be given by the Secretary of State".There was alleged to be a failure to have regard to that guidance, and judicial review proceedings took place in the case of De Falco v. Crawley Council. That was in 1980, and reported in the Queen's Bench Reports.
In a judgment concurred with by his brothers, the noble and learned Lord, Lord Denning, said:I am quite clear that the code should not be regarded as a binding statute. The council, of course, had to have regard to the code: see section 12 of the statute: but, having done so, they could depart from it if they thought fit".In giving his judgment, the noble and learned Lord, Lord Justice Bridge, (as he then was) put it perhaps a little more firmly. He stated:Although the authority must 'have regard' to the guidance given under section 12, that guidance is of no direct statutory force or effect and the local authority are not bound to follow it in any particular case".As a result of refreshing my memory on the subject, and as a result of the insistence of my noble friend Lord Campbell, I then considered the second day of the Report stage on 15th June—reported at col. 1376 of Hansard—to see where that special legal status had been achieved. In the penultimate paragraph of the reply of the noble Baroness, Lady Blatch, to the noble Lord, Lord Campbell, there is this phrase. It is not 1013 drafted with the clarity that I would have expected, but I do not attribute the drafting to the noble Baroness. She stated:Guidance available to those involved with the policy and drafting of statutory provisions relating to codes of practice advises"—that means that guidance advises—that if the provisions of a code are intended to be included among the relevant factors to be taken into account in the exercise of specific functions, this can be achieved by requiring the relevant authorities to have regard to the code".That is exactly the position in the Housing (Homeless Persons) legislation. The noble Baroness continues:The consequences of failure to do so are governed by general administrative law. Ad hoc statutory provision as to the effect of failure is therefore neither necessary nor desirable".Frankly, I do not understand this. If it is meant to indicate that by the use of the words "have regard to" there is placed upon an authority the obligation actually to implement the factors that have to be considered, that just is not the law. One may consider and disregard them. The phrase "have regard to" imposes no kind of statutory obligation and that is why I have had difficulty in understanding how this special statutory status is to be achieved.
There has clearly been a change of heart in regard to this and I do not for myself, from a legal point of view, see that the change of heart has been in any way explained so far on any legal basis. The obligation to "have regard to" does not put the code in a special protected legal status. Those words on their own are clearly not sufficient. It seems to me that to improve the situation the amendment has sought to spell out what is the special status to be provided to those words, and if there is to be a special status for the code, this is so far the only method which has been validly suggested. I support the amendment.
§ 6.30 p.m.
§ Lord Henderson of Brompton
My Lords, before the noble Lord from I he Opposition Front Bench speaks, I hope I may say a few brief words as my name is attached to this amendment. I wish strongly to support the amendment. I agree with the words of the first four speakers who spoke to it. I have considered all these proceedings again and I wish only to bring to the attention of the House some words of the noble and learned Lord, Lord Simon of Glaisdale, and to ask a question of the Minister.
When the noble and learned Lord, Lord Simon of Glaisdale, spoke in Committee on 29th April he said:Even the awkward squad is entitled to a clear word of command".—[Official Report, 29/4/93; col. 480.]That is good common sense which all of us can understand even if we are not learned, as are so many noble Lords who have spoken today and who have blinded us with legal science. That is a good, clear, crisp statement of what this amendment seeks to do. For that reason I strongly support it.
The question I wish to ask the noble Baroness is this: if this measure is not put into the Bill by amendment this evening—and if it prospers in another place—would it be possible for the tribunal to develop its own code of practice, if I may put it like that, which 1014 could include the words of this amendment? If it were able to do that, there would be less pressing need for this amendment to be included in the Bill in this House and that would influence my decision. If it is not possible for the tribunal to develop its own code of practice in this way, I would most certainly support this amendment in a Division.
§ Lord Renton
My Lords, perhaps the noble Lord, Lord Henderson of Brompton, might be reassured if he referred to the clause in the Bill—in fact there are several clauses—which establishes the tribunal. The composition, powers and procedure of the tribunal are set out in a considerable amount of detail.
First, I would like to acknowledge the help which for a very long time my noble friend Lord Campbell of Alloway has tried to give in legal matters to MENCAP and to the mentally handicapped. I should like to acknowledge that. As my noble friend Lady Carnegy of Lour said, he introduced a Private Member's Bill which covered a considerable part of Part III of the Bill. However, I must confess that I could not agree with him when he said, in referring to the provisions of the Bill which overlap with his own Bill, that it was the code of practice that was necessary to implement it. The noble and learned. Lord, Lord Simon of Glaisdale, said the same. That, with great respect, is not so. Part III of the Bill contains 33 clauses of detailed legal requirements which your Lordships and another place have said must be in the Bill. Local education authorities will have a lot of decisions to make and it will be for the tribunal to have the last word on appeal. There will, of course, be certain very limited circumstances when a matter can be taken to the High Court following the decisions of the tribunal. If I thought that the amendment of my noble friend Lord Campbell of Alloway would help children with special educational needs, especially those who are mentally handicapped, I would be voting for and supporting his amendment. But, alas, I cannot support it as I shall explain. I cannot do so mainly because I do not think it achieves its purpose, as my noble and learned friend Lord Hailsham of Saint Marylebone pointed out.
But before I get on to that—I will be very brief—I remind your Lordships that in our law we have three kinds of legal process. We have Acts of Parliament. We have statutory instruments and we have case law based on the decisions of the courts.
Broadly speaking—there have been exceptions—codes of practice have not fallen within those three areas. They are for the guidance of various people. I suppose the most familiar type of code of practice—it has been subject to rather more stringent statutory provisions in recent years —is the Highway Code. That is still the case. The Highway Code gives guidance to motorists but no motorist can be charged for an offence against the Highway Code. If there has been a breach of the Highway Code, that is a matter for the court to take into consideration where, for example, there is a charge of dangerous driving. The Highway Code was for guidance and there have been many other codes for guidance. The real question that we have to decide—if you like it is the technical, legal question—with regard to this amendment is whether, 1015 on the one hand, we wish the code of practice in this case to be for guidance and that the tribunal shall have regard to it or whether, on the other hand, we should have this rather complicated obligation placed upon the tribunal, which in any event will have to consider a great many clauses of the Bill to see whether those have been complied with.
I mention in passing that we do not yet know what will be in the code of practice. It will not necessarily have to be approved by Parliament because Clause 150(2) says that the Secretary of State shall have a code of practice, shall consult people and may lay a draft copy of that code before Parliament, and Parliament can then resolve whether or not to have it. But there is no obligation to turn it into a statutory instrument. I say that it is better to keep this thing in the broad and to do what the Commons Amendment No. 14A does; which means that the tribunal has to consider the whole of the code of practice as well as all the provisions of the Bill that are relevant.
I agree with my noble and learned friend Lord Hailsham that there will be problems if this rather complicated obligation is to be placed upon the tribunal. In summary, its effect will be this. The tribunal will have to make a hypothetical comparison. The words:If in the opinion of the Tribunal substantial compliance",will lead to arguments as to whether or not compliance was substantial. As regards the words:such provisions of the Code as may be adjudged to be relevant",there will be arguments as to relevancy.
The amendment also includes the words "reasonably practical". Those of us with experience in the law know that whenever the word "reasonable" is used there is frequent discussion in the courts or before a tribunal as to whether, in the circumstances, an action was reasonable.
The amendment continues:departure from such provision may be justified only if".Those words "only if" are words of limitation. They limit the obligation of the tribunal. I should have thought that it would be far better if we did not include such words of limitation and we kept the matter in the broad.
I could go on about the wrangles that there will be in court as to whether or not the provision which my noble friend Lord Campbell of Alloway has proposed, supported by distinguished noble Lords, shall prevail. I believe that this is self-defeating and that we would be making a mistake if we ask another place to reconsider the matter.
§ Lord Ponsonby of Shulbrede
My Lords, I believe that we can all agree that compliance with the code of practice will itself be a sensitive issue. Indeed, one of the criticisms of the 1981 Act is that no such code existed so that local education authorities did not have clear guidance as to how they should operate its provisions. I believe that it is felt that the code can now be used as a vehicle to force local education authorities and schools to implement the Bill and find sufficient resources and give an excellent education to many children with special educational needs.
1016 We have heard from many noble and learned Lords and noble Lords about the problems with the phrase "have regard to" used in Amendment No. 14A. That is seen as being a let out for the amendment in the name of the noble Lord, Lord Campbell of Alloway. That raises a serious point which has been given considerable attention by many noble Lords.
In favour of the amendment is the ability that it will give the appeal tribunal—much stronger than would be possible under the Commons amendment, Amendment No. 14A—to investigate actions which have not been in accordance with the code of practice. The Minister raised reservations about making the tribunal less accommodating and friendly to people taking part. However, I question whether that point could not be accommodated in regulations covering tribunal procedures.
Perhaps I may comment briefly on the question addressed to me as a local councillor by the noble Baroness, Lady Carnegy. I am perfectly happy for lawyers to play their proper part in tribunals, as they do every day. In my view, as a local councillor, a lawyer's place is in touch and not on top.
As someone who is not a lawyer I listened with interest to the criticisms made by the noble and learned Lord, Lord Hailsham, of Amendment No. 14B, which relates to the interests of the child under consideration. He said that there may be other children whose interests should be considered but, under the amendment, would not be considered. I question whether that is not a common expression and whether it would be in the interests of the child itself that it should not be allowed to disrupt or harm the education of other children.
In conclusion, it is my understanding that a code of practice is never a master; it is only a guide. It is up to Parliament and this House to give the code of practice whatever status it wishes. It is my understanding from the debate so far that it is the need to justify departure from that code which will give the code itself greater force. I would argue that it will lead to a better quality of decision making if the tribunal is asked to justify its departure from that code.
For those reasons we support the amendment.
§ 6.45 p.m.
§ Lord Rix
My Lords, being only too aware of the slight difference of opinion between the noble Lord, Lord Renton, and the noble Lord, Lord Campbell of Alloway, I had a wretched weekend worrying about whether I should intervene today. However, as chairman of MENCAP I felt that I must do so, especially if I can persuade the noble and learned Lord, Lord Hailsham, to change his mind, which is wishful thinking indeed.
Like many before me, I turned to the Good Book to guide me —an unusual version, the Good News Bible—and found that the Book of Proverbs had a splendid code of practice concerning my position in this short debate. Chapter 18, verse 17, notes that:The first man to speak in court always seems right until his opponent begins to question him".Chapter 26, verse 17, says, ominously: 1017Getting involved in an argument that is none of your business is like going down the street and grabbing a dog by the ears".As a non-lawyer sandwiched uncomfortably in terms of loyalties between several eminent lawyers, I am painfully conscious of the risk of verbal, though not of course physical, mauling.
Having listened to all the learned arguments with care I am inclined to favour the amendment, for one very simple reason. It seems to me to strengthen and in no way diminish the requirement that we all seek through the Bill, the regulations and the code of practice; namely, that the interests of the child are identified and given absolute priority. If the guidance in the code is, as we must all hope, good and useful guidance, there must be good reasons for any departure from it. The amendment in the names of the noble Lord, Lord Campbell, and others puts additional weight behind the code while recognising that there will be cases in which results as good or better can be secured by other means. However, I note the argument of the noble and learned Lord, Lord Hailsham, that the amendment as tabled could disadvantage children and families by not allowing sufficient flexibility to take account of special circumstances. I know that I must take that suggestion on board.
Therefore, noble and learned Lords who argue that we do not need this extra safeguard have my earnest attention. Noble Lords, whether learned or like myself unlearned, who argue for belt and braces (and I am learned on that subject) have my conditional support. I am hoping that the last words spoken on the amendment will clarify for me whether the amendment is indeed all gain but legally controversial or embodies disadvantages. If the former, that is all gain and I shall support the amendment.
§ Lord Addington
My Lords, I rise briefly to say that I support the amendment. I should also like to point out an aspect which has been missed in the discussion on the amendment. In my opinion, one of the great selling points of the code of practice was that it would have legal clarity and it was supposed to be user friendly. Indeed, I can remember a discussion between the noble Lord, Lord Campbell of Alloway, and the noble Baroness during which the ways in which we could make the code user friendly were debated. The idea behind the code was that people would know exactly what they could expect.
The amendment suggests that if there is any deviation from the code the reasons will be known. One of the problems for those involved in special educational needs—and I speak with personal knowledge of dyslexia and the problems associated with it—is that people are not sure what they need. Once we deal with that we shall have effectively dealt with many of the problems attached to special educational needs. Intransigent local authorities, of all shapes and sizes, all colours and creeds, with which we have been dealing, have not given the correct provision. Indeed, they have often gone out of their way to give the incorrect provision. Giving the code 1018 legal teeth means we know where we stand and unless one knows where one stands to start with one cannot correct a situation.
§ Baroness Blatch
My Lords, perhaps I may at the outset reject the charge that the Government, or indeed I as Minister at the Dispatch Box, have been inconsistent in our approach to the code. Since its introduction the Bill has stated in terms that the code will offer practical guidance.
I do not apologise for saying at the Committee stage that:the code will have its own special legal status".—[Official Report, 29/4/93; col. 487.]By the provisions of the Bill, the Secretary of State will be obliged to issue a code of practical guidance. He will be obliged to lay a draft of the code before Parliament. Parliamentary approval of that draft will be subject to the affirmative procedure. All those to whom the code applies will be obliged in law to have regard to its provisions. Nonetheless, the code remains a code of guidance. These factors are, to my eyes, as a layman I admit, sufficient to give the code a distinct legal status. I therefore stand by my words.
Nor do I disown my words at col. 487, which my noble friend has sought to incorporate in his amendment. Those words were a wholly reasonable general explanation of the status of the code. I was not seeking to create, as my noble friend now seeks to create, a justiciable issue but seeking to explain how the tribunal chairman might deal with the evidence before him. It is indeed probable that, if a local education authority departs significantly from the code of practice, its action might, not be beneficial to the child and would, therefore, not be appropriate. I stress again that the tribunal will be considering whether the LEA's actions were appropriate for the child. In doing so, where relevant, as Amendment No. 14A emphasises, the tribunal will have regard to the code. But for the reasons I have given, especially our concern that the proceedings of the tribunal should be as straightforward as possible, it would not be appropriate to translate my words of general explanation to the face of this Bill, as my noble friend Lord Campbell seeks to do.
Let me briefly restate the Government's position. The code of practice will be a code of practical guidance. If Amendment No. 14B were adopted the tribunal would take on the role of policing the code. It would be side-tracked from its paramount task of considering appeals on the specific grounds set out on the face of the Bill and considering whether LEAs' decisions were appropriate for the needs of the child concerned. It would become the site of complex legal dispute. It could not be the open, parent-friendly, informal forum we intend to create.
Perhaps I may say to the noble Lord, Lord Addington, that the code of practice will have clout and will be user-friendly, if the House rejects the amendment. The noble and learned Lord, Lord Simon, was concerned that another place had overturned the amendment. He did not go on to say that it had proposed an amendment in lieu which, I 1019 believe, understood the anxieties underlying my noble friend's amendment. However, that is all part of the democratic process.
The point is that we considered it in this place, this place made a determination, it went to another place for consideration and in another place they took a different view. Nevertheless, they understood the underlying anxieties of my noble friend and proposed an amendment in lieu which is now before this House for consideration. My noble friend feels sufficiently strongly to return to the fray with his amendment and I believe that, rather than a criticism of the way the Bill has been handled, this is all part of the democratic process. In a moment of two we shall take a view about the amendment in lieu and my noble friend's amendment.
My noble and learned friend Lord Hailsham made a further point, one which I had not made and for which I am grateful to him. It is the exclusive reference to the child in Amendment No. 14B. I must say in defence of local authorities that I am sorry that the noble Lord, Lord Ponsonby, has taken the view that he did. When local authorities make their decision about a placement, having had regard to the code and perhaps having even departed from it, and also having had regard to the effective use of resources, they may in addition pray in aid of their case the impact of a placement on other children. That is wholly ignored in the amendment and I believe that the point was well made by my noble and learned friend. The tribunal is charged with making a judgment as to whether the provision made by a local authority is appropriate. It is my view that nothing should detract from what I believe is the prime activity of the tribunal.
The noble Lord, Lord Henderson of Brompton, asked a straight question: if the amendment is not agreed upon today and is not put into the Bill, could the tribunal develop its own code of practice. First, the tribunal will have its own rules and procedures, but it will not develop a code of practice. The code of practice will come before the House for approval. It will again come before the House if we wish to alter it, but the tribunal will have to have regard, where relevant, to the code issued under this Bill. As it does so, case law may develop which may refer to the role of the code. It is always possible that a decision taken by a local education authority may be inappropriate and not consistent with the needs of the child. It may be that a contributory factor to the authority's coming to a poor decision is that it departed from the code. That would be taken into account by the tribunal and would be judged accordingly.
It is equally possible that the tribunal, charged with the prime duty of considering the needs of the child, might come to the view that the provision made by the local authority was entirely consistent with the needs of the child, but that it had had regard to the code of practice and had departed from it. The adherence to the code of practice should not become a preoccupation of the tribunal in any sense other than helping it to come to a view on whether the provision for the child was correct.
1020 We have debated the matter at length and I want my noble friend to understand what I put to him in writing. I believe that there is enormous common ground between us on all sides of the House. It is a narrow point that divides us, but a point of substance. What unites the House is that all children with special educational needs shall be properly provided for. That is the mission of the tribunal. I believe that the amendment in lieu supports that, but Amendment No. 14B flies in the face of that. I ask the House to reject the amendment.
§ Lord Campbell of Alloway
My Lords, I wish to thank all noble Lords who have spoken in the debate, as well as the Minister. First, I wish to deal with the rather mischievous demolition job undertaken by my noble and learned friend Lord Hailsham. With the utmost respect to him, I know he enjoyed it very much, but I did not at the time until I realised that it was a total misconception. If it had not been, the Government would have thought of it long ago.
The reason why it was a total misconception is that the position of other children was taken into account when I drafted the amendment. I act in the courts on these matters and fully appreciate that the position of other children is involved when we are dealing with one child. That is one of the reasons why there is the first qualification:If in the opinion of the Tribunal substantial compliance … as may be adjudged to be relevant was reasonably practical in the circumstances".If read fairly, that wholly subsumes the position of the other children. My noble and learned friend will say, "No, it does not", but he is in a sedentary position and I shall not continue to argue the matter.
The next point I wish to take is what I call the fine print contribution of a distinguished lawyer, my noble friend Lord Renton. He said that "only if" are the words of limitation. Yes, they were intended as such, but subject to the point that I have already made. Then the noble Lord dangles before one the spectre of wrangles in court. Anybody can say that. There are always wrangles in court. Why this matter should cause any more wrangles in court than any other, I do not know. The noble Lord will say that he does not agree. But it is my turn to say that I do not agree.
Next, I have to satisfy the noble Lord, Lord Rix, that there is no disadvantage. I hope I have done that by dealing with the demolition job, which itself collapsed. Then, I have to satisfy the noble Lord, Lord Henderson, that we cannot somehow get this by the back door. Well, we cannot.
Finally, if one spends a bit of time in the Bishops' Bar, it is always well spent. The noble and learned Lord, Lord Ackner, and I used to travel the western circuit together, after the war when we were young. We have remained on tolerable terms of friendship ever since, although he is a judge and I am not. He is a good lawyer, so I asked him whether he would mind looking the matter up, totally impartially. I had cited these cases—I did not give them to him—in the debate that I initiated in January 1986 on codes of practice. I did not give him that information, but he used one of the same authorities as I was using. He said that "shall have regard to" has no statutory force or effect. 1021 One can consider and one can disregard. The amendment that I propose is the only method of producing a satisfactory status with any form of safeguard. There it is. It is a disagreement which will continue as a disagreement. I opened this matter saying that my noble friend the Minister and I both agreed that it could only be resolved by your Lordships. I beg to move the amendment.
§ 7.2 p.m.
§ On Question, Whether Amendment No. 14B, as an amendment to Commons Amendment No. 14A, shall be agreed to?
§ Their Lordships divided: Contents, 88; Not-Contents, 118.
|Division No. 3|
|Ackner, L.||Lockwood, B.|
|Addington, L.||Longford, E.|
|Airedale, L.||Mclntosh of Haringey, L.|
|Archer of Sandwell, L.||Mackie of Benshie, L.|
|Ardwick, L.||Mason of Barnsley, L.|
|Beaumont of Whitley, L.||Merlyn-Rees, L.|
|Blackstonc, B.||Milverton, L.|
|Bonham-Carter, L.||Molloy, L.|
|Boston of Faversham, L.||Monk Bretton, L.|
|Brimelow, L.||Napier and Ettrick, L.|
|Campbell of Alloway, L. [Teller.]||Nathan, L.|
|Carmichael of Kelvingrove, L.||Ogmore, L.|
|Carter, L.||Park of Monmouth, B.|
|Cledwyn of Penrhos, L.||Peston, L.|
|Clinton-Davis, L.||Plant of Highfield, L.|
|Dahrendorf, L.||Ponsonby of Shulbrede, L.|
|Darcy (de Knayth), B.||Prys-Davies, L.|
|David, B.||Rea, L.|
|Dean of Beswick, L.||Redesdale, L.|
|Desai, L.||Renwick, L.|
|Donoughue, L.||Richard, L.|
|Dormand of Easington, L.||Rix, L.|
|Ennals, L.||Rochester, L.|
|Erroll, E.||Russell, E.|
|Faithfull, B.||Russell of Liverpool, L.|
|Falkland, V.||Saltoun of Abernethy, Ly.|
|Gilmour of Craigmillar, L.||Seear, B.|
|Graham of Edmonton, L.||Serota, B.|
|Greene of Harrow Weald, L.||Shackleton, L.|
|Gregson, L.||Shepherd, L.|
|Hamwee, B.||Simon of Glaisdale, L.|
|Harris of Greenwich, L.||Stedman, B.|
|Harrowby, E.||Stoddart of Swindon, L.|
|Henderson of Brompton, L.||Taylor of Blackburn, L.|
|Hilton of Eggardon, B.||Thomson of Monifieth, L.|
|Hollick, L.||Tordoff, L.|
|Hollis of Heigham, B.||Turner of Camden, B.|
|Howell, L.||Varley, L.|
|Hughes, L.||Warnock, B. [Teller.]|
|Jay of Paddington, B.||White, B.|
|Jeger, B.||Wigoder, L.|
|Judd, L.||Williams of Elvel, L.|
|Kennet, L.||Winchilsea and Nottingham, E.|
|Abercorn, D.||Bruntisfield, L.|
|Allenby of Megiddo, V.||Butterworth, L.|
|Arran, E.||Caithness, E.|
|Ashbourne, L.||Carnegy of Lour, B.|
|Astor, V.||Carnock, L.|
|Auckland, L.||Chalker of Wallasey, B.|
|Blatch, B.||Chelmsford, V.|
|Blyth, L.||Chilver, L.|
|Borthwick, L.||Clark of Kempston, L.|
|Boyd-Carpenter, L.||Colwyn, L.|
|Braine of Wheatley, L.||Cranborne, V.|
|Brougham and Vaux, L.||Crathorne, L.|
|Crickhowell, L.||Mersey, V.|
|Cross, V.||Mountevans. L.|
|Cumberlege, B.||Mowbray and Stourton, L.|
|Davidson, V.||Munster, E.|
|Denham, L.||Murton of Lindisfarne, L.|
|Denton of Wakefield, B.||Nelson, E.|
|Downshire, M.||Norrie, L.|
|Elles, B.||O'Cathain, B.|
|Elliot of Harwood, B.||Orr-Ewing, L.|
|Elliott of Morpeth, L.||Oxfuird, V.|
|Elton, L.||Pearson of Rannoch, L.|
|Ferrers, E.||Pender, L.|
|Finsberg, L.||Perry of Southwark, B.|
|Flather, B.||Pike, B.|
|Fraser of Carmyllie, L.||Plumb, L.|
|Gisborough, L.||Prior, L.|
|Goold, L.||Quinton, L.|
|Goschen, V.||Rankeillour, L.|
|Grantchester, L.||Reay, L.|
|Gray of Contin, L.||Rennell, L.|
|Greenway, L.||Renton, L.|
|Haddington, E.||Rodger of Earlsferry, L.|
|Hailsham of Saint Marylebone, L.||Romney, E.|
|St. Davids, V.|
|Hanson, L.||Sanderson of Bowden, L.|
|Harmar-Nicholls, L.||Seccombe, B.|
|Harmsworth, L.||Sharples, B.|
|Hayhoe, L.||Skelmersdale, L.|
|Henley, L.||Skidelsky, L.|
|Hesketh, L. [Teller.]||Soulsby of Swaffham Prior, L.|
|Hives, L.||Stanley of Alderley, L.|
|Holderness, L.||Stewartby, L|
|Hooper, B.||Strange, B.|
|Hothfield, L.||Strathclyde, L.|
|Howe, E.||Strathmore and Kinghorne, E. [Teller.]|
|Jenkin of Roding, L.||Sudeley, L.|
|Kimball, L.||Swansea, L.|
|Lane of Horsell, L.||Thomas of Gwydir, L.|
|Lauderdale, E.||Trumpington, B.|
|Leigh, L.||Ullswater, V.|
|Long, V.||Vivian, L.|
|McColl of Dulwich, L.||Wakeham, L. [Lord Privy Seal.]|
|Mackay of Ardbrecknish, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Whitelaw, V.|
|Mackintosh of Halifax, V.||Wise, L.|
|Macleod of Borve, B.||Wynford, L.|
|Marlesford, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.10 p.m.
§ The Lord Chancellor
My Lords, the Question is that this House do not insist on their Amendment No.14 to which the Commons have disagreed, but do agree with the Commons in their Amendment No. 14A in lieu thereof.
On Question, Motion agreed to.
§ LORDS AMENDMENT
§ 15 Clause 247, page 148, line 6, at end insert:
§ ("(8) In this section "direction" means a direction contained in an order made by the Secretary of State.")
§ The Commons agreed to this amendment with the following amendment—
§ 15A Line 3, after 'State' add 'but section 63(1) of this Act shall not apply to the power of the Secretary of State to make orders under this section.'
§ Baroness Blatch
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15A as an amendment to Lords Amendment No. 15.
1023 Amendment No. 15A ensures that directions made by my right honourable friend the Secretary of State in respect of sponsor governors at aided schools are not to be made by statutory instrument. These directions are essentially administrative acts relating to individual schools and in common with other such directions it would not be appropriate for them to take the form of statutory instruments. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 15A as an amendment to Lords Amendment No. 15.—(Baroness Blatch.)
On Question, Motion agreed to.
§ LORDS AMENDMENT
§ 16 Clause 251, page 151, line 37, at end insert:
§ ("() in subsection (6) after "with respect to" there is inserted—
§ "(aa) the planned financial provision in that year specified in the statement prepared by the authority under subsection (3) above", and
§ () for subsection (8) there is substituted—
§ "(8) The authority shall furnish—
- (a) the governing body of each school required to be covered by the scheme in any financial year, and
- (b) the governing bodies of such grant-maintained schools in the authority's area and grant-maintained special schools mentioned in section 34(4) (c) of this Act as may be prescribed,
§ () After that section there is inserted—
§ "Certification of statements by Audit Commission.
§ 42A.—(1) This section applies where in the case of any local education authority the authority's financial provision for county and voluntary schools is subject to regulation by a scheme.
§ (2) Any such local education authority shall, if directed to do so by the Secretary of State, require the Audit Commission to make arrangements in accordance with section 29(1) (d) of the Local Government Finance Act 1982 for certifying such statement or statements prepared by the authority under section 42 of this Act as may be specified in the directions; and any statement under that section shall be treated for the purposes of section 29(1) (d) of that Act as a return by the authority.
§ (3) The arrangements made by the Audit Commission in pursuance of subsection (2) above shall include arrangements for sending a copy of any such statement or statements as so certified to the Secretary of State.
§ (4) Directions given under subsection (2) above may relate to any local education authority or to local education authorities generally or to any class or description of such authorities." ")
§ The Commons agreed to this amendment with the following amendment—
§ 16A Line 24, after 'Commission' insert 'for Local Authorities and the National Health Service in England and Wales'.
§ Baroness Blatch
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16A to Lords Amendment No. 16. This is a further technical amendment which simply inserts the full title of the Audit Commission in Amendment No. 16. I beg to move.
1024 Moved, That the House do agree with the Commons in their Amendment No. 16A to Lords Amendment No. 16.— (Baroness Blatch.)
On Question, Motion agreed to.