Education Bill

HL Deb 14 June 1993 vol 546 cc1298-416

Consideration of amendments on Report resumed.

Clause 94 [Proposals for change of character etc. by governing body]:

Baroness Blatch moved Amendment No. 163:

Page 57, line 26, leave out subsection (5) and insert: ("and, if pupils are proposed to be admitted for nursery education, shall give the prescribed information").

The noble Baroness said: My Lords, I beg to move Amendment No. 163. This amendment, together with Amendment No. 164 has been spoken to with Amendment No. 69.

On Question, amendment agreed to.

Clause 95 [Proposals for change of character etc. by funding authority]:

Baroness Blatch moved Amendment No. 164:

Page 58, line 34, leave out subsection (6) and insert: ("and, if pupils are proposed to be admitted for nursery education, shall give the prescribed information").

The noble Baroness said: My Lords, I beg to move Amendment No. 164, which has already been spoken to with Amendment No. 69.

On Question, Amendment agreed to.

Amendments Nos. 165, 166 and 167 not moved.

Clause 97 [Approval of school premises]:

Baroness Blatch moved Amendments Nos. 168, 169 and 170:

Page 59, line 43, leave out from ("school") to end of line 1 on page 60 and insert ("publish proposals under section 94 of this Act, they shall if the funding authority so direct submit to the authority, at such time and in such form and manner as the authority may direct, the particulars mentioned in subsection (1B) below; and particulars so submitted require the approval of the funding authority under this section.

(1A) Where the funding authority publish proposals under section 95 of this Act, they shall if in their opinion the circumstances so require prepare the particulars mentioned in subsection (1B) below; and particulars so prepared require adoption by the funding authority under this section.

(1B) The particulars are-").

Page 60, line 6, leave out from second ("the") to end of line 8 and insert ("funding authority may require or, in the case of proposals published under section 95 of this Act, as may be required").

Page 60, line 9, leave out ("(1) (a)") and insert ("(1B) (a)").

The noble Baroness said: My Lords, I beg to move these three amendments together. They were debated with Amendment No. 77. I beg to move.

On Question, amendments agreed to.

Clause 98 [Implementation of proposals, etc.]:

Baroness Blatch moved Amendment No. 171:

Page 60, line 23, after ("approved") insert ("or adopted").

The noble Baroness said: My Lords, I beg to move Amendment No. 171.

On Question, amendment agreed to.

Clause 100 [Proposals for change of character or enlargement approved before school becomes grant-maintained]:

Baroness Blatch moved Amendment No. 171A:

Page 62, line 21, at end insert: ("( )Subsection (2) above is subject to section 45(1) to (1C) of this Act.").

The noble Baroness said: My Lords, I beg to move Amendment No. 171A.

On Question, amendment agreed to.

Earl Baldwin of Bewdley moved Amendment No. 171B:

Before Clause 102, insert the following new clause:

("Power for Secretary of State to allow opt-back

—(1) The Secretary of State may before the end of the period specified under subsection (5) (b) below where he considers it to be in the best interests of the pupils concerned, and thereafter in any of the circumstances set out in subsection (2) below, give his consent in writing to the holding of a ballot under this section.

(2) The circumstances referred to in subsection (1) above are that the Secretary of State—

1. (a) has received a request from the governing body of a grant-maintained school, determined under the procedure specified in subsection (4) (a) below; or
2. (b) has received a request from not less than twenty per cent, of the number of registered parents of registered pupils at the school, drawn up in accordance with the procedure specified in subsection (4) (b) below; or
3. (c) considers the holding of such a ballot to be in the best interest of pupils at the school concerned.

(3) The Secretary of State may issue such guidance or criteria as he considers appropriate as to the circumstances in which proposals under this section may be approved.

(4) Where at any time after the period specified under subsection (5) (b) below the governing body of grant-maintained school—

1. (a) decide by a resolution passed at a meeting of that body ('the first resolution') to hold a ballot of parents on the question of whether county or voluntary status should be sought for the school, and confirm that decision by a resolution ('the second resolution') passed at a subsequent meeting of the governing body held not less than twenty-eight days, nor more than forty-two days, after that at which the first resolution was passed; or
2. (b) receive a written request signed (or otherwise endorsed in such manner as the governing body may require) by a number of registered parents of registered pupils at the school equal to at least twenty per cent. of the number of registered pupils at the school to hold a ballot of parents on the question of whether county or voluntary status be sought for the school; and in this subsection "registered" means 1300 shown in the register kept under section 80 of the Education Act 1944 as that register has effect on the date on which the request is received;

they shall—

1. (a) secure that the ballot is held in accordance with subsections (2), (3), (4) and (5) of section 26 of this Act, as though section 26 applied to a ballot under this section; and
2. (b) give notice in writing that the ballot is to be held to the local education authority, and in the case of a former voluntary school, the trustees of the school and any relevant diocesan authorities.

(5) Subject to subsection (1) above, subsections (4) and (6) to (12) of this section do not apply if in the case of the school in question—

1. (a) a ballot has been held in accordance with this section within the period of twelve months ending with the date immediately preceding the date on which the request is received; or
2. (b) a ballot has been held in accordance with section 26 of this Act within the period often years ending with the date immediately preceding the date on which the request is received.

(6) For the purposes of this section a person is eligible to vote in a ballot if he is a registered parent of a registered pupil at the school, where "registered" is as defined in section 27(2) of this Act, as though that section applied to a ballot under this section.

(7) Where in any ballot held in accordance with the requirements of this section (other than one held by virtue of this subsection) the total number of votes cast by persons eligible to vote in less than fifty per cent, of the number of persons eligible to vote, the governing body shall secure that a second ballot is held within the period of fourteen days beginning with the date immediately after that on which the result of the first ballot is determined.

(8) In such a case as is referred to in subsection (7) above—

1. (a) the result of the first ballot shall be disregarded for the purposes of subsection (9) below; and
2. (b) subsections (2), (3), (4) and (5) of section 26 of this Act shall apply subject to the omission of section 26(3) (a) and to the reading of section 26(4) as if the information there referred to were the information given for the purposes of the first ballot.

(9) Where the result of a ballot held under this section shows a simple majority of votes cast (by persons eligible to vote in the ballot) in favour of seeking county or voluntary status for the school the governing body shall publish proposals to that effect as though they were publishing proposals for grant-maintained status under section 30 of this Act.

(10) Section 31 of this Act shall apply to proposals published under subsection (9) above as though they were proposals for grant-maintained status.

(11) Sections 25 and 29 of this Act shall be deemed to apply to ballots under this section.

(12) The Secretary of State shall make such regulations as he considers appropriate to have effect, where proposals published under this section have been approved in respect of any school, in relation to—

1. (a) the transfer or vesting of property, rights and liabilities;
2. (b) the transfer of staff;
3. (c) disposals of land and the control of contracts;
4. (d) restrictions on changes or purposes of property or changes of staffing; or
5. (e) any other matter he considers relevant to the carrying out of proposals as approved.").

The noble Earl said: My Lords, with this amendment—and I am speaking principally to 171B, though many of my arguments apply equally to 226C, which is linked with it—we return to one of the most important issues of the whole Bill, which goes to the heart of the matter of parental choice as well as diversity of schools: the right of parents to ballot out of grant-maintained status if they wish to do so. It has been an anomaly—a serious omission—since the GM sector was first introduced, that schools could only ever go in one direction. We feel this is unjust and that if parental choice means anything there should be a right, as there is in practically every other sphere of life, to take a different view at a later stage if circumstances change.

I apologise if the wording looks rather forbidding. (I know, for my part, that I tend rather to switch off when I see anything as long and involved as this on the Marshalled List.) But it is not all that difficult. In fact everything from subsection (4) onwards, with a crucial exception in subsection (5) (b), is virtually exactly as debated in Committee. It provides for a mirror image of the opting-out process, with the second governors' resolution added back in (in (4) (a)) to guard against any over-hasty decisions.

The substantial differences from the amendment put forward in Committee are two. No move to opt back in may be made by the school before 10 years have elapsed (that is in (5) (b)): previously it was five years. And the Secretary of State will have a much tighter control of the process (that is in (l)-(3)) than was previously proposed, together with powers to initiate it himself at any time. Both these changes are designed to meet objections that were raised in Committee.

Let me run quickly through the reasons for giving parents this element of choice, obvious as they may seem to those who are wary of putting all their eggs in the GM basket at this early stage.

When a vote is taken to opt out, this involves one generation of parents only. Ten years further on, the local educational scene may be very different. And yet those parents have no way in which to express their views. They are permanently disenfranchised. My Lords, this cannot be right.

Again, as I pointed out in Committee, the matter of the irreversibility of the opting-out process underlay several of our other debates. On questions such as the majority vote in a ballot and the second governors' resolution there were many who felt that the dangers or inequities of the current provisions were made worse by the finality of this one decision. Get this one right, and many other worries would lose their force.

Not least, there is the matter of simple fairness. As things stand, this aspect of the Bill is yet another example of how the playing field is tilted in favour of grant-maintained schools. At so many points, financially, as we have heard earlier, and otherwise, the opting-out choice is made the attractive one. For the choice to be a genuine one, the scales must be even, with no inducements, no coercion and all options open. There is no level playing field where parents can only opt one way.

Because this is an issue of parental choice I shall say nothing at all about the merits or otherwise of GM schools. What I think, or what the noble Baroness the Minister thinks of them, is simply irrelevant. The point is that some parents and governors, some time, in a mixed economy of schools, are going to want to rejoin their local educational community, whether county or voluntary or special. Parental choice, my Lords, if you are serious about it, is surely indivisible. You cannot just give it for the things you like and withhold it wherever someone might disagree with you. And yet, without this amendment, that is the position we shall be faced with. And it should not be so.

I listened with the greatest interest and care to the arguments advanced against the amendment in Committee. I was heartened by the acceptance of the principle of what we were trying to do by a number of speakers from the Government Benches. The chief argument of substance revolved round the fear of long-term instability if a school were able to reverse its earlier decision to opt out. This is an understandable worry, though I did feel that at times it was exaggerated a little and showed a lack of trust in the good sense of parents and governors of grant-maintained schools who were not likely to provoke disruption without very good cause. Furthermore the Secretary of State was always there as a long-stop.

But in recognition of this concern, and in particular, of the widely expressed feeling that five years after opting out was too short a time-span, we have not only extended this to 10, but have greatly enhanced the role of the Secretary of State in subsections (1) and (2) so that if he believes for example that it is too unsettling for a school to consider a change even after 15 years, the governors may not even hold a ballot. I do believe that this should dispose of the principal objection to what we were trying to achieve.

The noble Baroness the Minister, as she has done before, brought in the subject of motives. I do not believe that the "Look who's talking" kind of argument gets us anywhere, and I do not propose to spend time on it. The only other point of significance that was raised was the view of the noble Baroness, Lady Cox, who is not in her place, and one or two others to the effect that, yes, this is a good idea on paper, but in the "real world" of wicked LEAs it cannot be allowed.

That there are unacceptable practices in some LEAs is I think beyond dispute, and I have listened to the noble Baroness's examples with no pleasure at all. But to advance this as a reason for denying all parents everywhere a democratic choice is surely not far short of arrogance. It is saying to parents "We know best what is good for your local school, and so we won't allow any of you a choice". Have the noble Baroness and others who took this line really thought through what they were saying? If so, I wonder how they could ever imagine that those parents and governors who had been subject to intimidation would be the ones to initiate a return to the offending LEA. But of course all this is doubly unrealistic since after 10 years local people and attitudes will have changed, and I think we can be fairly confident that in a new climate and under new legislation misinformation and coercion from either side will have been most properly stamped on. Indeed if there is any moral pressure it will probably now work against those who are seeking to opt back and change the status quo. However that may be, nothing can justify the blank refusal of a ballot in subsequent years.

This is an amendment to meet a long-range situation and to insert a very necessary plug in a gap in the range of options open to parents and governors. I believe it is widely accepted in principle, and we have made significant changes since last time to accommodate the more serious concerns of those who foresaw difficulties in practice. I commend it to the House and I beg to move.

8.30 p.m.

Lord Judd

My Lords, I am glad to support the noble Earl, Lord Baldwin, in his amendment. I should like to speak also to Amendment No. 226C. The reasons why I am glad to support the amendment can be summed up in its purpose. I underline what the noble Earl has just said. The clause would allow the Secretary of State, in specific circumstances, to permit a ballot on the question of whether a grant-maintained school could seek county or voluntary status. Such circumstances —this should be stressed—would be when the Secretary of State had received a request agreed by two meetings of the governing body for such a ballot; a request signed by 20 per cent, of the registered parents of pupils at the school for such a ballot; or when the Secretary of State considered the holding of such a ballot to be in the best interests of the pupils at the school. Such a ballot would not normally take place within 10 years of the school opting out, as has been said, and then only with the express approval of the Secretary of State. We must underline the point that it is with the express approval of the Secretary of State only.

Amendment No. 157BB proposed in Committee by the noble Earl would have allowed a school to opt back to county or voluntary status within five years of becoming grant maintained. As the noble Earl pointed out, a number of your Lordships expressed sympathy with the principle of fairness that the amendment sought to address—namely, if parents of the future, as well as parents of today, are to have meaningful choice so long as there are parallel systems in the state sector, the road between them cannot be a one-way street—but at the same time expressed concerns that the system would be open to abuse. I hope that, as the noble Earl argued, the amendment addresses those concerns effectively, incorporating, as it does, democratic roles for parents and governing bodies in deciding whether they wish their school to opt back, while requiring the Secretary of State's permission for such a ballot to be held.

The noble Earl referred to remarks by the noble Baroness, Lady Cox, who I see is still not in her place, and I am sorry about that. She was very fulsome. I almost believed that she was coming on board. I do not recall her ever before being more positive towards ideas from the Cross-Benches or this side of the House on the Bill. What she said, and I hope the noble Earl will forgive me for quoting her, was: I am deeply impressed by the plausibility both of the amendments and those who have spoken to them. Indeed, in an ideal world I should be delighted to support them in principle and in practice".—[Official Report, 27/4/93; col. 171.] The noble Baroness then went on to indulge—I wish that she were here—in what I believe has become a bit of a neurosis. Her concerns, as I understood them, were that the passing of the amendment would have led to instability and intimidation. Surely the noble Baroness, and no one else in the House, could believe that the Secretary of State would permit a ballot if he felt such were the consequences. That is the strength of what we are putting forward, because it covers that point. Therefore the anxieties expressed by others who were generally in favour of the proposition have been met, and I am sure we can all now unite behind the amendment.

In Committee, a number of noble Lords also questioned whether the ability to opt back would lead to instability. It is to be hoped that by requiring that, except in exceptional circumstances and then with the permission of the Secretary of State, no school may opt back within 10 years of opting out, their fears will be eased. Ten years seems to me to be a long enough time for schools not to opt out experimentally, a danger interestingly suggested by the noble Lord, Lord Renton, during our discussion on the point, and yet at the same time 10 years is not the eternity which the Bill otherwise currently proposes. Indeed I recall that the noble Lord, Lord Renfrew, said in Committee: A period of 10 or 15 years might be a much more feasible proposition".—[Official Report, 27/4/93; col. 182.] Again, I am sorry that the noble Lord is not here, because I would have hoped that he would feel that the amendment in its present form meets that anxiety and would enable him to support the amendment.

On Amendment No. 226C, all I would say is that we obviously do not need to go over all the arguments again for improving parental choice by allowing grant-maintained schools to opt back into LEA maintenance. Those arguments are self-evident. They have never been intellectually or morally refuted during long debates on the point. If there is choice, there should be choice for parents for all time if there really is a commitment to a parallel system. This is the question. Is there a commitment? If there is a commitment to a parallel system, then of course that right to change should exist.

The amendment looks at the particular case of grant-maintained special schools. Special schools are inherently more complex organisations than LEA-maintained schools, given the needs of the pupils and the very different admission arrangements. It allows a grant-maintained special school to consider whether grant-maintained status is appropriate after it has had some experience of the grant-maintained system. The amendment makes it possible for a grant-maintained school to opt back to the LEA.

In speaking to the amendment and warmly recommending it, I must say that I should be sorry if we have drifted into a situation in which parents of children with special needs became regarded as disenfranchised, second-class parents unable to enjoy all the rights which exist for the parents of children in other schools. As we are so firmly committed to action on the general front, it is logical that we pursue this point in the context of grant-maintained special schools.

Baroness Williams of Crosby

My Lords, it gives me great pleasure to approve of and support the amendment moved by the noble Earl, Lord Baldwin, and tabled at an earlier stage in the proceedings. I am sorry that I was unable to be present then but I am delighted to be here for this debate.

I have always heard that this House is distinguished for its ability to set aside strictly partisan considerations and to consider matters in a reasonable and rational way. The amendment is one which will, above all, appeal to people who come to it with an open and rational mind. As the noble Earl said, it is an attempt to try to leave open the final decision about the shape of our education system in the light of experience.

As the Bill passes through the two Houses of Parliament none of us can possibly know what its long-term impact will be. The noble Earl's amendment addresses itself to that issue. It leaves it open to parents, in the light of what happens, to take the decisions that should be made for the welfare of their children.

I commend the amendment to your Lordships on four grounds, and I shall do so briefly. The first is that the amendment is framed in an extraordinarily moderate and reasonable way. In every possible way it attempts to meet the objections raised by noble Lords in an earlier debate. It meets every possible demand for safeguards. It does so more extensively than the present Bill, as changed and amended by the Government in another place. For example, the noble Earl's amendment deals first with the issue of having not one resolution but two on the part of the governing body in seeking a fresh ballot. I understand that now we have only one resolution on the face of the Bill as proposed by the Government. So there are two resolutions and not one.

The noble Earl's amendment lays down a minimum and a maximum period during which the ballot shall be held. It therefore meets the objection made in many quarters that under the terms of the Bill a ballot could be held during the school holidays. By the very nature of things that must be highly objectionable. The amendment tries to meet that difficulty by giving due notice of when the ballot will be held. Thirdly, the amendment keeps closely to the Government's wording with regard to the 20 per cent. of registered children whose parents may call for a ballot on the issue which the noble Earl has in mind; in other words, of opting back into the local education authority structure.

The second ground on which I commend the noble Earl's amendment is that we know, because the noble Baroness, Lady Blatch, reminded us earlier today, that one of the purposes of the Bill is to create "a useful diversity of the system". I repeat those words, "a useful diversity of the system". The amendment becomes operational only after 10 years. That means that after 10 years we shall know whether parents have decided by their own ballots that they wish to maintain an option for a local authority school. Ten years will be long enough for them to determine whether they want to retain that degree of diversity or whether they want to replace the LEA system with one of universal grant-maintained schools.

One of the crucial aspects of the amendment is that it will operate only in a situation in which parents have in large numbers decided that the LEA system shall continue in parallel with the grant-maintained system. In that situation it would be unacceptable to refuse to allow those parents to choose from among those diversified systems and in effect to be compelled to keep to only one regardless of their own choices in the matter. Generations change and people's views change. It may well be that experience will tell parents that they want to do something different from that which they might do next year or the year after.

I urge your Lordships to think closely about the fact that education more than any other area of government concern is one in which the lead times are long. As with a tree it takes a long period, a generation, to know the value of an educational system. I know well that I may have been regarded as a controversial Secretary of State, as my successors have been so regarded. However, the point I am trying to make is much wider than that. It is the point that we in this country have fundamentally changed our education system every few years so that we have never allowed it to grow to see the fruits of those changes. We are about to do so again if we do not pass the amendment.

The amendment enables parents in the light of experience to judge what kind of school they want their son or daughter to attend. The light of experience is one of the richest means of enabling us to make the right choices for the next generation. Let us suppose—and I accept that it may be hard for noble Lords on the Government Front Bench to accept this—that the Bill has none of the good effects which Ministers claim for it. Let us suppose that it does not work very well. If noble Lords on the Government Benches doubt that I must point out that in only four years a substantial part of the 1988 Act is being changed by this Bill; specifically all the clauses which deal with the grant-maintained sector. That hardly suggests that we have access to such wisdom that we can decide in advance that nothing shall be changed. The noble Earl's amendment seeks to make such change possible within the constitutional structures of a democracy.

My final thought on that second point is that if one does not allow change within a democracy, if a system will not bend but only break, one begins to move that democracy into extra-parliamentary ways of expressing opposition because one allows no parliamentary or democratic ways. That is why the amendment is so significant and important.

The third ground to which I wish to refer is that in the Bill we are passing from a system in which we have laid a great deal of responsibility for the education of our children on those who are elected at local level to county councils and to local education authorities. I believe that a large part of the local authority structure, regardless of party, has done a remarkable and responsible job. I find it strange that in this House of all places there appears to be so little faith in elected local people. I thought that here I should find faith in their wisdom, experience and local knowledge.

We might be wrong in taking responsibilities and powers away from such people, and in future parents may want to return to the local education authority structure. The noble Lord, Lord Judd, made a special point about that in respect of Amendment No. 226C relating to special schools. While I do not wish to trespass on later debates, it is clear in respect of special education that the services provided by local authorities have been necessary, need further to be developed and are unlikely to be adequately replaced by a set of fragmented schools with no overall systematic approach to the problems of the special needs of children in this category.

Finally, there is a new factor which has not been raised so far in the debates on this amendment. I have looked at earlier debates and have regarded carefully the powerful argument made in those debates. It is a rather unexpected argument. It is that this country, uniquely among all the member states of the EC, is firmly moving in the direction of centralising its powers whereas every other country in the EC is moving towards decentralisation. That is reflected not only in the subsidiarity clauses of the Maastricht Bill but also in the setting up by the EC of the council of the regions.

I suggest to noble Lords that the council of the regions is likely to become one of the institutions through which a great deal of assistance and funding passes in future years. That could change the whole attitude towards what is happening in this Bill, which I believe to be profoundly outdated in many ways.

I return to the amendment itself. It leaves open the possibility that we may—and I quote the words of one of Britain's great political leaders—have been mistaken. I beg noble Lords to consider very carefully before they vote against the noble Earl's amendment and close the door to the possibility that we may be mistaken. For if we are mistaken, the cost of trying to change that mistake subsequently with no provision made for democratic change could be an extremely high price to pay.

Baroness Carnegy of Lour

My Lords, before the noble Baroness sits down, when she was Secretary of State for Education and legislating to force grant-aided schools either to go to the private sector, whether or not they could afford it, or to force them into local government control, did she allow them the choice of returning to being grant-aided schools? Did she allow them to remain as grant-aided schools? I do not remember how the situation was.

Baroness Williams of Crosby

My Lords, I believe that the noble Baroness, Lady Carnegy, refers to a Bill put forward by my then colleague, the noble Lord, Lord Prentice, which wound up direct grant schools. As a result of that legislation, direct grant schools were given a choice between whether to become independent or to become part of the maintained system.

Baroness Carnegy of Lour

My Lords, were they allowed to stay as they were or to change their minds afterwards?

Baroness Williams of Crosby

My Lords, I did not bring forward the legislation to which the noble Baroness refers. However, with regard to that legislation, it offered the schools a choice between independent status and being part of the maintained system. They could not stay exactly as they were. However, at present no choice of any kind is offered to parents and the noble Earl's amendment seeks to rectify that.

Baroness Seear

My Lords, as I understand it, the important thing is parental choice. We are talking about a span of 10 years. That means that except for the few parents who have a disproportionately large number of children—and they are becoming fewer and fewer—the parents with whom we are concerned will be completely different from those who voted to go grant-maintained. Why is it that parental choice is limited to one group of parents and then it stops? A parent is a parent. If a parent has a right to choose in 1993, why should a parent not have a right to choose in 2003, if parental choice is so important?

Lord Dormand of Easington

My Lords, I find it extremely interesting that throughout a large part of the debate there was present only one Conservative Back-Bencher. I see that there are now present five noble Lords opposite which has increased the attendance of noble Lords opposite by 500 per cent. I wonder why that is so. Perhaps some noble Lords are having a good dinner although it is now 8.50 and they have had plenty of time to do that.

More seriously, this must be one of the most important debates during our considerations on Report. We are talking about an absolutely fundamental matter. The noble Baroness knows that we pressed this matter in Committee. It was mentioned also on Second Reading. I should have hoped that there would be more contributions from noble Lords opposite.

Perhaps I may repeat what my noble friends and the noble Earl, Lord Baldwin, have said. I shall not repeat the quotations from the noble Baroness, Lady Cox, and the noble Lord, Lord Renfrew. It seems to me that the amendment has taken care of their objections. Although they are not present, perhaps I may say that the two noble Peers do not normally support this side of the House but I do not grumble about that because I seldom support the Government side. That is the way things are in this House.

The noble Baroness may remember that the previous amendment provided for a period of five years. I said that I would see nothing wrong in a time of seven years or nine years because I subscribed to the point made by the Minister that in running schools, you cannot have the turmoil—if that is the right word—which is brought about by frequent changes. That would happen in this case. That is why I believe that noble Lords who support the amendment have it right. I believe that 10 years is absolutely right.

The sheer logic of the amendment cannot be denied. If you deny that choice, then the difficulties arise which have already been mentioned by noble Lords this evening and I shall not repeat them.

I repeat for the sake of emphasis what the noble Baroness, Lady Seear, said and it has been said many times before. I fail to see why the Government believe that because one set of parents are able to make such a fundamental choice, other parents will not have that choice. That seems to me to be fundamental to this issue. I hope that there will be some change of mind in that regard.

Most of the points have been made. I recall that in Committee the Minister said that no period was satisfactory. Even if somebody had said, "Let us make it 20 years or even 50 years, no length of time would meet the case which the Government are putting forward". With great respect, I submit that that is a silly and illogical argument. I believe that the House is entitled to a full and logical reply to the objections which have been made again this evening.

Baroness Blatch

My Lords, I should be more impressed—and I have said this before—with this touching outbreak of democracy and the desire that the wishes of parents should be honoured if noble Lords opposite would honour the wishes of parents who want schools to become grant-maintained in the first place. Hypocrisy is rampant in the Chamber on the part of those noble Lords who support the amendment. If you believe in democracy you would allow free choice for parents to decide whether to enter the grant-maintained sector. That would at least be on all fours with the facility to opt back into the LEA-maintained sector.

Secondly, the noble Baroness, Lady Williams of Crosby, spoke about decentralisation and said how good that was. That is what the Bill is all about. It is about devolving power to parents and governors at school level—that unit of operation which makes most sense to local people so that they can make their own decisions.

I must say in support of my noble friend Lady Carnegy of Lour—and I am sorry to say this because I have so much respect for the noble Baroness, Lady Williams of Crosby—that it does not square with those parents who the noble Baroness said had a choice between state and private education. What a choice that was. It was no choice for parents who could not afford private education. This Bill gives a choice of state-funded education either through local autonomy at a very local level or local autonomy under the umbrella of a local education authority. Parents are not asked to put their hands in their pockets in order to exercise a choice in those matters. That was no choice for parents in the case of those grammar schools which either went to the wall or became independent schools. Therefore, that point does not impress me.

To enable me to respond properly to the debate I should like to ask the noble Earl, Lord Baldwin of Bewdley, to clarify a matter. The first part of the clause states: The Secretary of State may, before the end of the period specified in subsection (5) (b). Subsection (5) (b) concerns the 10-year period, but Clause 1 states that it is before the end of that period, so long as it is consistent with subsection (2). That subsection sets out the three reasons why a ballot could be triggered under the 10-year period. It can be done by a request through the Secretary of State, by a request from a governing body of a grant-maintained school that is determined under the procedures specified in subsection (4) (a), or by 20 per cent. of parents petitioning; or the Secretary of State may decide that it is in the interests of the pupils concerned. Will the noble Earl clarify what can happen within the 10-year period?

9 p.m.

Earl Baldwin of Bewdley

Certainly, my Lords. I am glad that this point has arisen. I did not deal fully with it in a presentation which did not cross all the "t"s and dot all the "i"s. I mentioned that the Secretary of State was able to initiate things himself. What he can do under those first two lines, which the noble Baroness quoted, is off his own bat. If he feels that a ballot should be held inside the 10-year period—in other words, say, after eight years—he can go to the governing body and say, "I think you ought to do this". So he has the initiative in which he can do that. It does not have to come from them; it can come from him if he sees circumstances which he thinks demand it.

Baroness Blatch

My Lords, I should like to press the noble Earl yet further. The clause states that before the end of the period and subject to subsection (2), he may give his consent in writing to the holding of a ballot under the section. The three circumstances referred to are a request from the governing body to the Secretary of State, 20 per cent. of the parents petitioning the Secretary of State, or a ballot being held in the interests of the pupils concerned. In other words the Secretary of State can make a determination himself.

I accept that if a ballot has been held in the previous 12 months that situation does not apply. However, if there is a vote to go grant maintained where 70 or 80 per cent. of the people vote in favour and 20 or 30 per cent. vote against, is the noble Earl saying that as long as a ballot has not been held within the previous 12 months, the 20 or 30 per cent. who lost the ballot may petition the Secretary of State to initiate another ballot inside 10 years?

Earl Baldwin of Bewdley

My Lords, I am not sure if I totally follow that point. I thought at first the noble Baroness was asking whether, when he initiates it himself before the end of the 10 years, the Secretary of State needed to go through all of those things into (a), (b) and (c). I think that the wording says "no" to that. The difficulty may be the words "and thereafter", although I was advised that that was the correct wording. If one reads it as an "or", it is separated out slightly better and I think it has the same effect. So if he does it off his own bat to begin with, my understanding is that it does not go through to (a), (b) and (c). Was that the point that the noble Baroness was making?

Baroness Blatch

My Lords, the House is very patient. The noble Earl is not making himself very clear but, given that it is his amendment, I hope that he will make it clear before the end of the debate.

Can the noble Earl tell the House what he means by the words: The Secretary of State may before the end of the period specified under subsection (5) (b) below where he considers it to be in the best interests of the pupils concerned, and thereafter"— It is "and thereafter", not "or thereafter"— in any of the circumstances set out in subsection (2) below, give his consent in writing to the holding of a ballot under this section". Can the noble Lord tell me what the words mean?

Earl Baldwin of Bewdley

My Lords, I shall have to go back to what I said before. The problem is in "and thereafter". There are two distinct things here. One is the circumstance which ends at "pupils concerned" and the next circumstance is if it is thereafter. In other words, if it is after the 10 years in that later period, then it brings in subsection (2) (a), (b) and (c). This, I understood, was correct drafting. If the noble Baroness thinks it is not, then we have a difference of view, and if that were really a sticking point, then of course I would look at it again. It may be that "or" in other circumstances would be a better way of putting it, but that is certainly what it was intended to do. I hope that that makes it clear.

Baroness Seear

My Lords, I understand that this is a very important amendment, but it is also Report stage and getting up and down in such a manner is surely not in order.

Baroness Blatch

My Lords, I apologise to noble Lords but this is a very unclear amendment. I do not know, even from the noble Earl's explanations, what can happen before the end of the period. It is not clear, but I will press on and respond to the amendment.

I was told by the noble Earl, Lord Baldwin of Bewdley, that the amendment does not address the long term. I hold contrary views. If there is a reference to activity that can take place before the end of the period, then I am at a loss to know what activity can take place before the end of the period.

The noble Lord, Lord Dormand of Easington, referred to Back Benchers. I happen to have done some arithmetic at the time that he made the comment. We outnumbered the numbers of his own Back Benchers by 100 per cent. at that time. It is always depressing that so few noble Lords sit through important debates such as the schools debate, but it is a feature of the House and it is a feature of all Benches. It is not a feature of this Bench specifically. There were more people sitting around and most of the people in the House at that moment were Front Benchers; and all Front Benchers are represented in the debate.

As I am sure noble Lords will recall, we discussed the issue of such a provision in relation to mainstream schools at considerable length during the Committee stage of the Bill. It appears to me that there are two main differences between this amendment and the similar amendment which we debated at length in Committee, and which noble Lords voted decisively against. First, there is the change in the time period specified in subsection (5) (b) of the amendment which is 10 years instead of five. There is confusion that surrounds what can happen before the period described in subsection (5) (b). In summing up perhaps the noble Earl will try again to convince the House as to what he means by that.

As I stated in the earlier debate, the Government have always made clear their policy on grant-maintained status. I do not wish to retread old ground but it is worth restating that position. We believe that there should be the opportunity at each school for parents to seek GM status, and that there is great value in self-governing status for state schools. Noble Lords who have spoken to the amendment do not believe in that principle and do not believe in that form of democracy. Therefore, I repeat that I find the degree of hypocrisy in the amendment almost staggering.

Parents know, when balloting, that they are being allowed to choose the appropriate form of control for that particular school. We make no secret of the fact that they are voting for that form of self government. They also know in advance that the decision will stand and that subsequent generations will not be able to change it. We agree that that means parents must consider the issue carefully and ensure that the time is right for a school to seek grant-maintained status. But that is properly a decision for them and one which we are quite convinced they are capable of making.

We have heard many arguments both today and during the previous debate suggesting that a five or 10-year provision would provide suitable stability within the education system. I have said before, and I repeat: I do not agree. Any system that provides for schools to oscillate between two different situations will inevitably lead to disruption. Indeed, my own children spanned a 10-year period in their secondary schooling. I would have considered it very disruptive to have had different forms of government, both to-ing and fro-ing; that is, flip-flopping in and out of the sector. What we have provided for is a system whereby parents can choose that their school remain with the local education authority or become grant-maintained. That provides for greater stability.

We want to see schools plan for a stable future in the grant-maintained sector. As I understand the amendment, what would be the reality of empowering the Secretary of State to allow a school to ballot every 10 years, or more frequently, to change to a different form of control?

Once a school had achieved grant-maintained status there could be great pressure from those opposed to such status—not necessarily those acting in the best interest of the pupils—to campaign for a change of status. That would cause instability; it could undermine the benefits which self-governing status brings and it would distract the governing body from its important function of governing the school to the benefit of pupils.

If only the noble Baroness, and others in the House, could be with me in my office when the staff and governors of schools come in who do not wish to be named through fear of intimidation. They describe the intimidation that takes place when they are seeking grant-maintained status. They say, "We will not put our heads above the parapet any more", because of the hostility that is shown towards them. It really is very depressing. However, it is something that is tossed aside by noble Lords opposite.

Baroness Blackstone

My Lords, before the Minister sits down, is she aware that there has also been intimidation the other way round? I deeply regret intimidation of any kind. I do not believe that it should take place on either side. However, I have plenty of examples of people who have opposed opting out in particular schools. They are ordinary members of governing bodies, including parents, who have been intimidated by those who wish to pursue opting out. It is the Government's divisive policy that has brought about intimidation.

Baroness Blatch

My Lords, the noble Baroness would do well to give us some of that evidence. We in the department are most interested in such examples. However, I am not sure that it extends, for example, to fire-bombs through letterboxes, damage to cars, physical damage to people, and intimidation by telephone threatening the professional futures of teachers who dare to support opting out. If the noble Baroness has evidence the other way, we would like to hear from her.

Lord Parry

My Lords, I am most grateful to the noble Baroness for kindly giving way. If what the Minister has told the House actually exists, then that statement is very grave and should be followed up by the authorities with as close attention as they can give to it. Is it not a fact that the greatest reaction to the opt-out is not the intense, almost neurotic, concentration on results, but rather that it is apathy itself. For example, can the Minister give the House the total number of opt-outs that have taken place in the whole of Wales since this great extension of democracy has been available?

Baroness Blatch

My Lords, I believe that we have given those figures a number of times, but I shall, of course, let the noble Lord have the latest figures. On this side of the House we have always said that opting out is an entirely voluntary procedure. We do not force schools to do it. If they wish to go down the road of balloting, it is of course a secret ballot.

The noble Lord, Lord Dormand of Easington, seems to be finding the debate rather funny. I should point out to him that there is evidence of people filling in voting forms and using Tipp-Ex to take out the "yes" and putting in the "no". Indeed, we have also been told by the Electoral Reform Society that that is the case.

The noble Lord, Lord Parry, is absolutely right. One of our problems is proving such practice. It is, of course, anonymous and always difficult to prove. However, we have heard from some very distressed staff, governors and parents. If you believe in democracy, then you must believe in it both ways. I have made that clear. Indeed, I have just said so in speaking to the amendment. We have set out a system that allows parents to know well in advance of voting that they vote to move away from local authorities and that there is no route back. But for those who want a route back, it would at least be principled if those noble Lords also believed in democracy the other way round.

Lord Dormand of Easington

My Lords, I am much obliged to the noble Baroness for giving way. I can assure her that I do not find it funny at all. Indeed, I have never been more serious about anything in my life than I am on this particular issue. What I find quite ludicrous are the reasons that the Minister is giving to the House for something that the whole House considers to be a major matter. That is why I mentioned the thin attendance tonight.

Finally, I should like to assist the Minister. She said that she would send the latest figures to my noble friend. However, the figures are these: seven schools have opted out in Wales out of a total of 2,000. If that is an indication of success—and I mean in a sense that has nothing to do with that about which the noble Baroness is talking—my goodness, I hate to think what constitutes failure.

9.15 p.m.

Baroness Blatch

My Lords, I believe the noble Lord was probably out of order as he did not speak to seek a point of clarification or to ask a question. If the noble Lord thinks the figure that has been mentioned is so derisory, he should not be so worried about what is happening in the grant-maintained sector. We are not putting pressure on the people of Wales. If they wish to opt out, that is fine. We are not saying that the policy will only be a success if all the schools in Wales opt out. We happen to believe, and have made no secret of it, that the greatest possible autonomy at local school level is preferable. We have made it clear that this is a matter for parental preference. We also make it absolutely clear to parents, when they are voting to move away from local authority control to controlling their own affairs, that that is a decision they make for all time. They make their decision in full knowledge of that.

Once grant-maintained status is achieved, we want school governors to be able to look forward and know that for the foreseeable future the administrative system in which they operate is secure; that they can plot the development of the school over a substantial number of years and they can plan for pupils to progress through the school without disruption. We allow for the terms of office of first or foundation governors to last up to seven years for the very reason that we wish to promote continuity and stability. This amendment undermines that.

There is also the question of the practicality of opting back into LEA control. In the previous debate I spoke of the difficulties that might occur if a grant-maintained school in an LEA which did not maintain any schools wanted to opt back into the control of that LEA. The new amendment has not addressed this issue. I do not believe that an LEA which had evolved to a point where 100 per cent. of schools in the area were grant-maintained would necessarily welcome a school that wished to be maintained by the authority. Such an LEA would have to recreate machinery to carry out that historical role.

I turn now to the new clause that concerns grant-maintained special schools. The arguments of practicality and of principle apply to these schools as they do to mainstream schools. We have made clear our belief that, with the possible exception of hospital schools, there should be the opportunity for parents to seek self-governing status. The move has not been presented as a two-way ticket for these schools any more than it has ever been for mainstream schools. It is immaterial whether the school is an ordinary or special school in this context. I have outlined a few of the reasons for our continued opposition to the arguments that lie behind these new clauses. I urge your Lordships to reject the amendments.

The Government have demonstrated their commitment to parental choice beyond any doubt. By improving the accountability of our schools, we have given parents direct control over the future of their children's education and, particularly through grant-maintained status, have widened the options available to them. Parental involvement in self-governing schools goes way beyond participation in a ballot. Once schools become grant-maintained, they continue to draw on the active support and commitment of their parents. The arrangements for increased representation of parents on the governing bodies of grant-maintained schools is one obvious example of this. They have a continuing valuable role to play in influencing the identity and direction of the school. This is an issue on which we have to agree to differ. Therefore I ask noble Lords to reject the amendment.

Earl Baldwin of Bewdley

My Lords, I listened with great care to all of that and I think I have to say that I have seldom heard a weaker series of arguments since I have been in this House. What did they consist of? They consisted, as I suspected they would, largely of motives: words like "hypocrisy", "look who's speaking", as I said before, and reference to what the noble Baroness, Lady Williams, may or may not have done 14 years ago. I thought we had finished with that. Indeed, I hoped we had finished with that at Committee stage. That gets us nowhere.

The nub of the argument of the noble Baroness—she used the phrase several times—was "We make no secret of the fact that this is a decision for all time". Well, that is precisely our objection. It is no argument in favour to say that this is how it is. It is because that is how it is that we are objecting to it and want to make it otherwise. So I cannot see that that is a conceivable argument against what we are putting forward. I know they make no secret of it and make it plain it is for all time but that is just what is wrong with it.

The noble Baroness said any such scheme would be disruptive. In a sense, if you can change your mind over anything there is disruption, but it is a normal principle of life that, if circumstances change, you can change your mind with that. Unless I am quite wrong in this, I believe that it is possible for schools which have changed their character to change their character back. I do not think there is anything which says they cannot do so. If they change their age range at some point in the future, they can change their age range back. Why, then, should they not reverse this decision if circumstances later—as the noble Baroness, Lady Williams, eloquently put it—teach them by experience that that is what is needed? That, it therefore seems to me, is no argument whatever.

As to practicality, if an LEA has run down so much that there is almost nothing to opt back into—again I thought we had dealt with this very fully in Committee stage; if we are going to be practical, let us be practical—what body of governors or parents would conceivably want to opt back into an LEA that was not there? Those would not be the circumstances in which it would happen, so practicality falls. There are no good arguments that I can see that are put up against this in any way.

I return, as briefly as I can, to three or four points. Most of them were put forward by the noble Baroness, Lady Williams. This helps diversity. It helps learning by experience if things should change after 10 years. It helps with flexibility, which, as she so rightly said, is a necessary feature of democracy lest things should break when matters go wrong 10 years down the track. Most of all—and I come back to this—it helps parental choice. With that, I beg leave to divide the House.

9.20 p.m.

On Question, Whether the said amendment (No. 171B) shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 86.

Division No. 4
CONTENTS
Addington, L.	Masham of Ilton, B.
Adrian, L.	Molloy, L.
Archer of Sandwell, L.	Monkswell, L.
Attlee, E.	Morris of Castle Morris, L.
Baldwin of Bewdley, E. [Teller]	Parry, L.
	Peston, L.
Blackstone, B.	Pitt of Hampstead, L.
Bonham-Carter, L.	Ponsonby of Shulbrede, L.
Brightman, L.	Redesdale, L.
Broadbridge, L.	St. Edmundsbury and Ipswich, Bp.
Darcy (de Knayth), B.
David, B.	Seear, B.
Dormand of Easington, L.	Sefton of Garston, L.
Eatwell, L.	Taylor of Gryfe, L.
Graham of Edmonton, L. [Teller.]	Tordoff, L.
	Warnock, B.
Hamwee, B.	White, B.
Jay of Paddington, B.	Wigoder, L.
Judd, L.	Williams of Crosby, B.
Longford, E.

NOT-CONTENTS
Aldington, L.	Belstead, L.
Allenby of Megiddo, V.	Bethell, L.
Archer of Weston-Super-Mare, L.	Blatch, B.
	Boardman, L.
Arran, E.	Brabazon of Tara, L.
Astor, V.	Bridgeman, V.
Auckland, L.	Brougham and Vaux, L.
Barber, L.	Bruntisfield, L.

Campbell of Alloway, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Carnegy of Lour, B.
Carnock, L.	Monk Bretton, L.
Chalker of Wallasey, B.	Montagu of Beaulieu, L.
Clanwilliam, E.	Morris, L.
Clark of Kempston, L	Mottistone, L.
Cochrane of Cults, L.	Moyne, L.
Colwyn, L.	Munster, E.
Craigmyle, L.	Norrie, L.
Cranborne, V.	Onslow, E.
Cross, V.	Park of Monmouth, B.
Cumberlege, B.	Pearson of Rannoch, L.
Denham, L.	Perry of Southwark, B.
Denton of Wakefield, B.	Peyton of Yeovil, L.
Dudley, E.	Rees, L.
Elles, B.	Renton, L.
Elliott of Morpeth, L.	Rippon of Hexham, L.
Elton, L.	Rodger of Earlsferry, L.
Ferrers, E.	St. Davids, V.
Flather, B.	Saltoun of Abernethy, Ly.
Fraser of Carmyllie, L.	Seccombe, B.
Gardner of Parkes, B.	Sharples, B.
Goschen, V.	Skelmersdale, L.
Gray of Contin, L.	Soulsby of Swaffham Prior, L.
Harmar-Nicholls, L.	Stewartby, L.
Henley, L.	Stockton, E.
Hesketh, L. [Teller.]	Strathclyde, L.
Hives, L.	Strathmore and Kinghorne, E [Teller.]
HolmPatrick, L.
Howe, E.	Teviot, L.
Jeffreys, L.	Thomas of Gwydir, L.
Lindsey and Abingdon, E.	Ullswater, V.
Long, V.	Vivian, L.
Lucas, L.	Wade of Chorlton, L.
Lucas of Chilworth, L.	Wakeham, L. [Lord Privy Seal.]
Lyell, L.
McColl of Dulwich, L.	Waverley, V.

Resolved in the negative, and amendment disagreed to accordingly.

9.28 p.m.

[Amendment No. 172 not moved.]

Clause 104 [Approval, adoption or rejection of proposals]:

[Amendment No. 173 not moved.]

Clause 106 [Power to transfer functions under preceding provisions of Chapter VIII]:

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley) moved Amendment No. 174:

Page 66, line 25, leave out from first ("section") to end of line 28.

The noble Lord said: In moving Amendment No. 174, I speak to Amendments Nos. 175 to 177 and Amendment No. 192.

Amendments Nos. 174 to 176, as amendments to Clauses 106 and 109, are purely technical amendments which repair and rationalise provisions for winding up the affairs of grant-maintained schools which are closed. As presently drafted, the Bill enables the Secretary of State to provide by order for the winding up of the governing body of a closed school and the disposal of its property in all circumstances except where the closure proposal has been determined by the funding authority. The amendments to Clauses 106 to 109 fill this unintended gap.

The amendments to Clauses 110 and 129, Amendments Nos. 177 and 192, are minor drafting amendments which do not change the effect of the clauses in any way. I commend the amendments to the House. I beg to move.

On Question, amendment agreed to.

Clause 109 [Power to provide by order for winding-up and disposal of property]:

9.30 p.m.

Lord Henley moved Amendments Nos. 175 and 176:

Page 68, line 17, leave out from ("Where") to ("given") in line 20 and insert: ("( ) proposals for the discontinuance of a grant-maintained school have been approved or adopted under section 104 of this Act, or ( ) the Secretary of State has").

Page 68, line 23, leave out ("he") and insert ("the Secretary of State").

On Question, amendments agreed to.

Clause 110 [Winding up]:

Lord Henley moved Amendment No. 177:

Page 69, line 24, at end insert ("or").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 174. I beg to move

On Question, amendment agreed to.

Clause 112 [Disposal of school property]:

Lord Henley moved Amendment No. 177A:

Page 70, line 44, after ("consideration") insert ("(not exceeding the maximum)").

The noble Lord said: My Lords, in moving this amendment I speak also to Amendments Nos. 177B to 177E. Perhaps I may apologise in advance for the fact that I might have to speak at some little length on these amendments. I believe it is important to get one or two points on the record. These amendments must be seen in the context of our general policy towards school property owned by trustees, whether at voluntary aided, special agreement or grant-maintained schools.

When a voluntary aided or special agreement school whose premises are owned by trustees closes, the trustees sell those premises for their full market value. The proceeds of sale are then recycled for educational purposes. In particular, the Church of England and the Roman Catholic Church use such proceeds to maintain and develop denominational education. For Church of England schools, disposal proceeds are usually recycled by means of an order made by the Secretary of State under Section 2 of the 1973 Education Act. For Roman Catholic schools, the trust deed itself usually provides for the appropriate use of disposal proceeds, and for other schools recycling is achieved through schemes made by the Charity Commissioners. These well-established arrangements reflect the historic partnership between Church and state in the provision of public education, and we see no justification for changing them.

We cannot justify applying different principles to voluntary aided schools which have become grant-maintained or to other grant-maintained schools whose premises are owned by trustees. These amendments to Clauses 112 and 113 put our intention to apply similar principles beyond doubt.

Clauses 109 and 112 enable the Secretary of State by order to dispose of the property of grant-maintained schools which have closed. Clause 112 already has the effect that, where no order vesting trustees' property in another body has been made, that property will be retained by the trustees without any payment to the Secretary of State being required. To complement this, Amendments Nos. 177A to 177D provide that, where the Secretary of State vests trustees' property in another body, the order shall require the recipient to pay the trustees the full market value of that property. Money received in this way will then be recycled for educational purposes consistent with the original trust through the well-established mechanisms which exist for redeploying receipts from the disposal of voluntary aided schools. But, as with voluntary aided schools, trustees should not always be able to retain all the disposal proceeds of premises held by them.

Trustees may have acquired premises under Schedule 1 to the 1946 Education Act. This requires LEAs under certain circumstances to convey premises provided by the authority to trustees, and paragraph 8 of that schedule provides a mechanism through which the Secretary of State can direct payments to LEAs should trustees subsequently dispose of those premises. One of the effects of Amendment No. 85, which the House agreed to last Thursday, is to extend the effect of paragraph 8 in Schedule 1 to the 1946 Act to grant-maintained schools whose premises were originally acquired by trustees in this way. These amendments to Clause 112 do not negate the effect of this extension in any way.

I turn to market value. Payments for property under Clause 112 will be based on assessments of market value made by the Secretary of State. Such valuations will of course be matters of considerable importance to those making and receiving such payments. So in case there is any doubt, let me make it quite clear what we mean by "market value".

The expression is not defined on the face of the Bill because we intend it to have its normal and natural meaning. We would interpret this as the best price that a willing seller might expect to raise on the open market, taking account not only of the land's existing use and any planning consent which currently applied to it but also to its development potential for other purposes.

We have also concluded that it would be right to provide a means by which trustees, LEAs or any other body receiving or making payments could appeal against the Secretary of State's valuation of school premises. The Lands Tribunal is the right body to which appeals of this kind could be made, and Amendment No. 177E provides for such appeals. It requires the Secretary of State to specify the maximum consideration payable—which would be his valuation—in the winding up order, and enables those who would make or receive payments based on that valuation to appeal against it to the Lands Tribunal. If the Lands Tribunal determined a different valuation from the Secretary of State, the Secretary of State would be required to consider whether the amounts of consideration specified in a winding-up required alteration in the light of the Lands Tribunal determination. In relation to the maximum consideration, a Lands Tribunal valuation would effectively be binding because it would clearly be unreasonable—and therefore unlawful—for the Secretary of State to conclude that the maximum consideration, to which the tribunal's judgment applied directly, should not be adjusted to match the tribunal's determination.

I turn to Amendment No. 177F. The amendment to Clause 113 is consequential to the principle underlying the amendments to Clause 112. Among other things, Clause 113 enables the Secretary of State to require the promoters of an independent school who receive the premises of a closed grant-maintained school to pay the redundancy costs associated with closure. It also requires such payments to be taken into account in determining the payment which the promoters will be required to make for the premises.

It would be inconsistent with arrangements for voluntary aided schools—and with the amendments proposed to Clause 112—for redundancy costs to be deducted from consideration received by trustees for their property, and this is not our intention. So to make that clear Amendment No. 177F disapplies the provision enabling such deductions to be made from property held by trustees.

Finally, let me say a few words about property and money held on trust by the governing body. These amendments to Clause 112 deal only with property held by trustees other than the governing body. But governing bodies can also act as trustees. Although it is rare for governing bodies to hold land on trust, it is more common for them to act as trustees for money which may, for example, have been raised by parents for a particular purpose related to the school.

There is an argument for dealing with the disposal proceeds of property and any other money held on trust by governing bodies in the same way as that held by other trustees; in other words through charity law. But the position of governing bodies is different from that of other trustees. The governing body has to be wound up after the school closes, but it cannot be wound up until all its responsibilities are discharged or transferred. So before that could happen a new scheme would have to be made and new trustees appointed for any money held on trust by the governing body. That might greatly—and in some cases indefinitely—delay completion of the winding-up process.

I have to say that we are still considering this issue. It may be that I shall have to bring forward further amendments to deal with it at Third Reading. I apologise for such a lengthy introduction to these fairly straightforward amendments. I beg to move.

The Lord Bishop of Guildford

My Lords, I thank the Minister for the amendments, which in large measure meet the concerns that have been expressed by the Churches. In particular, I am grateful for some of the comments of the noble Lord in relation to market value. If I heard him correctly, it was reassuring.

I was also glad to hear that the findings of the Lands Tribunal will be binding on the Secretary of State and that he is prepared to consider the possibility of a further amendment touching matters where the governing body holds money in trust. In all respects I am extremely grateful to the Minister. He moved at incredible speed. I listened as carefully as I could but I shall need to study those statements. So far as I can tell after careful listening, I have nothing but gratitude to express to him.

Lord Henley

My Lords, I apologise to the House for speaking at what the right reverend Prelate described as "incredible speed". I shall endeavour to move somewhat more slowly in the future. I was not trying to hide anything. I am grateful that the right reverend Prelate is in the main satisfied with the explanation. I hope that he takes the opportunity to read carefully tomorrow what I have said. With the assurance that it might be necessary for me to bring forward further amendments at Third Reading, I hope that the House will be prepared to accept these amendments.

On Question, amendment agreed to.

Lord Henley moved Amendments Nos. 177B to 177E:

Page 70, line 44, at end insert: ("( ) Subsection (3) above does not apply to property held on trust for the purposes of the school otherwise than by the governing body; but where an order under section 109 of this Act vests property so held otherwise than by the governing body in any person the order shall require that person to pay to the trustees the maximum consideration in respect of the property.").

Page 70, line 45, after ("The") insert ("maximum").

Page 70, line 46, leave out ("shall not exceed") and insert ("is").

Page 71, line 7, at end insert: ("(4A) Where such an order requires any person in whom any premises are vested to pay any consideration in respect of the premises, the order shall specify the amount determined by the Secretary of State under subsection (4) (a) above; and any dispute as to that amount may be referred to the Lands Tribunal by—

1. (a) the person in whom the premises are vested,
2. (b) the person from whom they are transferred, or
3. (c) the person to whom the consideration is to be paid, and shall then be determined by the Tribunal.

(4B) Where—

1. (a) by virtue of subsection (3) above such an order requires any person in whom any premises are vested to pay any consideration in respect of the premises, and
2. (b) on a reference under subsection (4A) above the Lands Tribunal determine a different amount from that determined by the Secretary of State,

he shall consider whether the amount of the consideration specified in the order requires alteration in the light of the determination of the Tribunal and, if it does, he shall vary the order accordingly.").

The noble Lord said: My Lords, I beg to move these amendments en bloc.

On Question, amendments agreed to.

Clause 113 [Disposal of school property: supplementary]:

Lord Henley moved Amendment No. 177F:

Page 71, line 34, at end insert: ("( ) Subsection (1) above does not apply to any property held on trust for the purposes of the school otherwise than by the governing body.").

On Question amendment agreed to.

Clause 117 [Parent governors]:

Viscount Astor moved Amendments Nos. 178 to 181:

Page 74, line 33, leave out ("not less than three nor more than five").

Page 74, line 34, at end insert: ("( ) The number of parent governors shall not be—

1. (a) less than three, or
2. (b) subject to paragraph (a) above, more than the number of schools in the group.").

Page 74, line 37, at end insert ("but, if any of the schools in the group is established in a hospital, the instrument may provide for any of the parent governors to be appointed by the other members of the governing body").

Page 74, line 40, at end insert ("and, to qualify for such appointment, a person must when he is appointed be such a parent or, if that is not reasonably practicable, a parent of one or more children of compulsory school age").

On Question, amendments agreed to.

Clause 120 [Core governors]:

Viscount Astor moved Amendments Nos. 182 and 183:

Page 75, line 26, leave out subsections (2) to (6) and insert: ("( ) Schedule [Core governors for groups] to this Act shall have effect.").

Page 76, line 29, leave out subsection (8).

On Question, amendments agreed to.

Clause 121 [Power of the Secretary of State to replace core governors]:

Viscount Astor moved Amendments Nos. 184 and 187:

Page 76, line 35, leave out from ("any") to end of line 36 and insert ("externally appointed core governor appointed in respect of a particular school").

Page 77, line 16, after ("governors") insert ("other than externally appointed governors").

Page 77, line 17, leave out from ("vacancies") to end of line 20.

Page 77, line 22, leave out ("section 120(3) of") and insert ("Schedule [Core governors for groups] to").

On Question, amendments agreed to.

Clause 122 [Additional governors]:

Viscount Astor moved Amendment No. 188:

Page 77, line 33, at end insert: ("( ) Section 120(7) of this Act and Schedule [Core governors for groups] to this Act do not apply to additional core governors.").

On Question, amendment agreed to.

Clause 125 [School acquiring grant-maintained status as a member of a group, etc.]:

Viscount Astor moved Amendments Nos. 189 to 191:

Page 79, line 23, after ("Act") insert ("Schedule [Core governors for groups] to this Act").

Page 80, line 7, at end insert: ("( ) Regulations may make provision for the governing body of a group to be reconstituted where any change occurs in the membership of the group.").

Page 80, line 16, leave out ("or special schools").

On Question, amendments agreed to.

Lord Henley moved Amendment No. 191A:

After Clause 127, insert the following new clause:

Transfer of premises to trustees

(".—(1) Where grant under section 51(2) of this Act or capital grant is paid to the governing body of a grant-maintained school established in pursuance of proposals published under section 47 of this Act in respect of the provision of a site for the school or of school buildings, a requirement shall be imposed under section 51 or, as the case may be, Chapter VI for the purpose of securing that the site or buildings in question are held on trust by trustees of the school.

(2) Where buildings are to be provided for any grant-maintained school which are to—

1. (a) form part of the school premises, and
2. (b) be constructed partly on land held by the governing body and partly on land held on trust for the purposes of the school by persons other than the governing body,

the governing body shall transfer to those persons the land held by the governing body on which the buildings are to he constructed; and section 66(7) (b) of this Act does not apply to a transfer required by this subsection.

(3) In this section "site" does not include playing fields.").

The noble Lord said: My Lords, in moving Amendment No. 191A I shall speak also to Amendments Nos. 191C and I92A to 192E. I can deal with them briefly.

This group of amendments has four main purposes: first, to secure trustees' property interests in new grant-maintained schools established by promoters; secondly, to secure trustees' interests where grant-maintained schools change site; thirdly, to avoid the division of ownership of new buildings between trustees and governing bodies; and finally, to secure the Exchequer interest in disposal proceeds from premises acquired by governing bodies directly from the funding authority without payment of capital grant.

They are fair and necessary provisions and I commend them to the House. However, if the House would prefer me to deal with them at greater length, I am prepared to do so. I beg to move.

The Bishop of Guildford

My Lords, once again I thank the Minister for these amendments, which are helpful to us and meet some of the anxieties we have expressed. Perhaps I may raise one query which troubles me in relation to Amendment No. 192B.

Where the funding agency transfers a new site direct to the trustees, I do not see a problem. However, if the funding agency were to transfer the site to the governing body and the governing body then transferred it on to the trustees, we may be in difficulty because that may catch us—to use a colloquialism—in connection with the 15 per cent. contribution and the Government's recoupment proposals. I hope that the Minister will be able to tell me that that can be considered when I meet him tomorrow in relation to Clause 260 and to discuss my anxieties in regard to Amendment No. 111. Provided we can continue to discuss that related aspect, I am content to leave the matter there.

Lord Judd

My Lords, far be it for me to waste the time of the House, but it would be helpful for the Minister to go into a little more detail, as he generously offered to do. I should like to raise a number of points.

First, in framing the amendments, were the Government able to form any judgment in regard to the frequency with which grant-maintained schools will find part of their property held by the governing body in part by trustees? It will be interesting to know the scope of that issue.

Secondly, though I was reassured by the equanimity of the right reverend Prelate, I wish to probe a little whether pressure from the Churches ensured that all such property would be transferred to Church interests so that the Church could reclaim its investment should the school close. Finally, in these days when we are watching the pennies and pounds look after themselves, will stamp duty have to be paid on transfers from the governing body to the trustees?

Lord Henley

My Lords, I do not know the answer to the noble Lord's last question. Inspiration may come to me before I conclude, but if it does not I shall write to him in due course as to whether or not stamp duty is payable.

I note the anxieties raised by the right reverend Prelate. They are matters which he can raise at his meeting tomorrow with my noble friend when he discusses Clause 260 and Amendment No. 111. I shall certainly pass on those anxieties.

Thirdly, on the question of divided ownership which was raised by the noble Lord, Lord Judd, we believe that it is intrinsically undesirable because it can complicate disposal if a school were to close and also prevent trustees from spending money to improve the building in any way because they cannot spend money on premises that they do not own. If this situation were to arise—I cannot speculate on how often it might or might not arise—at a voluntary aided or special agreement school the LEA would be required to convey its portion of land on which the building stands. Amendment No. 191A will ensure that. In the grant-maintained sector, where a building was to be constructed partly on land owned by trustees and partly on land held by the governing body, the governing body will convey its portion of the land on which the building was to stand to the trustees. The trustees would not be required to pay for this additional land but, should they subsequently dispose of it, it is right to provide a mechanism equivalent to that which exists for voluntary aided and special agreement schools through which the Secretary of State can direct the trustees to pay some or all of the disposal proceeds to the relevant LEA. Amendment No. 192A provides for that.

Not all the land acquired by trustees in these circumstances would be former LEA land. Some would have been provided through capital grant or directly by the funding authority. So it is also right to enable the Secretary of State to provide for some or all of the proceeds of such land to be paid to him or the funding authority if trustees subsequently dispose of it. That is the purpose of subsection (2) of the new clause proposed by Amendment No. 192B. Again I have to say that I cannot speculate on how often, as the noble Lord pressed me, such occasions might arise, nor, as inspiration has not reached me, can I yet answer the noble Lord's question about stamp duty. But I can give the noble Lord an assurance that I shall write to him on that matter. I suspect that the noble Lord, Lord Dormand, wants to ask me something before I sit down.

Lord Dormand of Easington

My Lords, before the noble Lord sits down, can he say whether any other costs are involved with the transfer to trustees? My noble friend has mentioned stamp duty. I understand that the noble Lord kindly said that he will write to my noble friend about it. These are legal matters and I would not pretend to know too much about them. But is any other cost involved on either side when this is carried out?

Lord Henley

My Lords, the noble Lord quite rightly said that these are legal matters and he implied that neither he nor I properly understands legal matters. I have forgotten most of the law that I ever did know. Again, I am speaking off the cuff, but other legal costs might be involved. I would prefer to write to the noble Lord, just as I promised to write to his noble friend Lord Judd, on this matter if there are legal costs or whatever relating to any transfer of property. If I give the assurance that I shall write to the noble Lord on that, I hope that he will allow me to move the amendments.

On Question, amendment agreed to.

9.45 p.m.

The Lord Bishop of Guildford moved Amendment No. 191B:

After Clause 127, insert the following new clause:

("Duty to Consult

—(1) Before publishing proposals under sections 46, 95 or 103 of this Act (and without prejudice to the provisions of subsection (4) of each of those sections) in relation to a school or schools in any area each funding authority shall consult with and have regard to the views of the bodies described in subsection (2) below.

(2) Those bodies are—

1. (a) the local education authority for the area in question;
2. (b) the governing bodies of other schools in the area which may be affected by the proposals;
3. (c) the Diocesan Board of Education (where the proposals relate to or may affect any voluntary school or grant-maintained school to which the Diocesan Board of Education appoints one or more of the foundation governors);
4. (d) the relevant Roman Catholic Diocesan Bishop, (where the proposals relate to or may affect any voluntary school or grant-maintained school to which that Bishop appoints one or more of the foundation governors); and
5. (e) where the proposals relate to or may affect any voluntary school or grant-maintained school which has foundation governors other than one mentioned in paragraphs (c) or (d) above, the person or bodies who appoint one or more of the foundation governors of each such school.

(3) Any reference in this Act to a Diocesan Board of Education shall be interpreted as a reference to the Diocesan Board of Education constituted under the Diocesan Boards of Education Measure 1991 for the diocese concerned.").

The right reverend Prelate said: My Lords, this amendment relates to consultation by the funding agency before it publishes proposals to establish changes of character or to discontinue a grant-maintained school. I moved a similar amendment at the Committee stage. The Minister accepted it in principle, promising a government amendment on Report. The Minister has corresponded with me about this since but as no government amendment has been tabled I thought it wise to put down my own amendment to make sure that the matter is not overlooked and to give the Minister an opportunity to tell us where his negotiations have got to.

The issue is quite straightforward. When the funding agency is formulating proposals about a school, it needs to consult not only that particular school but other bodies which will be affected by the knock-on effect on other schools in the locality, in particular other bodies responsible for their own strategic planning. It is of course on the face of the Bill who can object to proposals once they are published. But it is just as important to have on the face of the Bill who will be consulted before the proposals are actually formulated. In my view that is even more important because once proposals have been published they seem to take on a life of their own and they become much more difficult to amend or stop. So the earliest possible consultation is crucial.

I understand that the Government do not like my proposal that the funding agency should consult the diocesan authorities, whether Anglican or Roman Catholic; and if that consultation is not to be on the face of the Bill, I hope at least that it will be included in guidance. That will be particularly important if education committees are to disappear, because where there are such committees and the Churches are represented on them, then we have an automatic opportunity for being in at the earliest possible place where proposals are being formulated. If education committees are to disappear we lose that opportunity, and therefore consultation at this early stage becomes all the more important.

I recognise that my amendment in its present form is probably not satisfactory. It is not here in the expectation that the Government will accept it as it stands, but it is important that this matter should be properly dealt with. I am anxious to know that the Minister will be able to bring something before us at Third Reading if he is not content to accept my amendment as it stands. I beg to move.

Lord Judd

My Lords, perhaps I may from these Benches warmly support the right reverend Prelate in what he has put forward. I believe that we would be 200 per cent. behind his intention here. In encouraging the Minister to bring forward some convincing arrangement, perhaps I may underline that what is as important as the principle of consultation is the effectiveness of it. The effectiveness of consultation means time for proper consultation.

Sometimes people who are rather better endowed in terms of administrative resources, staff and so on, do not always realise the pressure of very hard work on small staffs in diocesan offices around the country. From that standpoint the more that any arrangements can be firm about the proper time span for the process, the better.

Lord Renton

My Lords, I also believe that this amendment is very necessary because when a funding authority has presented its proposals they tend to become a fait accompli and people will riot find it easy to depart from them. Therefore I hope that my noble friends on the Front Bench will regard this matter as something which should be dealt with.

As regards the form in which the amendment is proposed by the right reverend Prelate the Bishop of Guildford, I have only one point which I have already mentioned to him. In subsection (2) (b) there needs to he a more precise indication of the "other schools" referred to. It states, the governing bodies of other schools in the area which may be affected by the proposals". If possible that phrase should be defined. To those with a better knowledge of the matter than I, it may be perfectly clear and obvious. In that case perhaps no further indication is necessary. But in the present case it looks as though some clearer indication is desirable.

Lord Henley

My Lords, perhaps I may begin by accepting the general statement put forward by the noble Lord, Lord Judd, as regards consultation. He is quite right to stress that it is always important to allow sufficient time for consultation, particularly with small non-governmental bodies which do not necessarily have available to them such resources as are available to Government and other similar organisations.

The right reverend Prelate is also right to press us on this matter. As he well knows, officials in the department have been in constant discussion with his officials and will continue to be until these matters can be finally resolved. We have no difficulty in agreeing with the general substance of this amendment. It is plainly right that a funding agency, before publishing a proposal that directly affects a Church grant-maintained school, should consult the relevant bodies, by which I mean not only the governing body of the school affected but also the supporting Church education authorities. That is the Diocesan Board of Education in the case of a Church of England school and a Roman Catholic diocesan bishop in the case of a Roman Catholic school. I believe that there is nothing between the views of the right reverend Prelate and the Government on that matter.

I ought to say that we take slight issue—I stress that it is a slight issue—with the right reverend Prelate on two matters in the precise terms of his amendments. First, we are not persuaded that it is necessary to list the local education authority. As the proposed amendment itself points out, in each of these clauses there is a general requirement on the funding authority to consult such persons as appear to it to be appropriate. It would be extraordinary if that did not include the relevant education authority.

Secondly, and more importantly—and this picks up the point made by my noble friend Lord Renton—I am not happy with the reference to schools "which may be affected". If a Church school is to be affected by the proposal, the relevant bodies need to be consulted. But to extend the duty to consult explicitly to include any school that might be affected could result in the funding authority having to consult almost every school in at least part of the LEA, if not the whole of the LEA. We believe that that is too wide-ranging and I prefer to leave it to the judgment of the funding authority to determine which are the relevant schools to be consulted. I have no reason to believe that the funding authority will be other than generous in that determination, and if it were not, I have no doubt that a school would quickly complain first to the funding authority itself and, if it did not receive satisfaction, then to the Secretary of State.

As I have said, with the exception of those two points there is nothing of substance between the views of the right reverend Prelate and the Government. It is simply a question of finding the best way of expressing the matter on the face of the Bill. Certainly, with an eye to the shadow of the Parliamentary Counsel looming over me and doing so with economy of drafting, with the assurance that consultation will continue and with the firm expectation of agreed wording before we get to Third Reading, I ask at this moment that the right reverend Prelate should withdraw his amendment.

The Lord Bishop of Guildford

My Lords, I am grateful to the Minister for that response. Indeed, I am ready to withdraw the amendment. If I heard him correctly, he said that he did not think that it would be necessary in the Government amendment to lay down that the funding agency would consult with the relevant local education authority. I understood from the letter that I received from the Minister that that was precisely what they were proposing to do. However, I do not wish to detain the House at the moment but merely to put that matter on the record. In the light of the undertaking that the Minister has given, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 128 [Disposal of premises on transfer of school to new site]:

Viscount Astor moved Amendment No. 191C:

Page 81, line 27, at end insert:

("(3) Where trustees of a grant-maintained school are required to pay any sum to the Secretary of State under subsection (1) above in a case where any interest in the new site is or is to be held by the governing body, then—

1. (a) if the interest or, as the case may be, all the interests held by any persons for the purposes of the school in the previous site were freehold interests held by the trustees, the governing body shall transfer their interest in the new site to the trustees, and
2. (b) if in any other case the trustees held any interest in the previous site, the governing body shall if directed to do so by the Secretary of State transfer to the trustees their interest in the whole of the new site or such part of it as may be specified in the direction.

(4) Where trustees of a grant-maintained school are required to pay any sum to the Secretary of State under subsection (1) above in a case in which they may also be required to pay any sum to a local education authority under paragraph 8 of the First Schedule to the Education Act 1946 in respect of the disposal of the same premises, that paragraph shall have effect as if—

1. (a) in relation to that disposal, the reference to the purchase money paid in respect of the acquisition of the premises were a reference to so much of the amount of that purchase money as remains after deducting the amount of the payment under subsection (1) above, and
2. (b) any premises transferred to the trustees in pursuance of subsection (3) above were premises conveyed by the authority as mentioned in that paragraph.

(5) In subsection (3) (a) above "site" does not include playing fields.")

The noble Viscount said: My Lords, Amendment No. 191C was debated with Amendment No. 191A. I beg to move.

On Question, amendment agreed to.

Clause 129 [Disposal of premises transferred under section 36]:

Viscount Astor moved Amendment No. 192:

Page 81, line 33, leave out ("from") and insert ("with").

The noble Viscount said: My Lords, this amendment was debated with Amendment No. 174. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 192A and 192B:

After Clause 129. insert the following new clause:

Disposal of pretnises held by trustees

(".—(1) This section applies where any premises—

1. (a) transferred to the governing body of a grant-maintained school under section 36(1) (a) of this Act, or
2. (b) acquired by such a governing body wholly or partly with the proceeds of the disposal of any premises so transferred or of any premises so acquired,

have been transferred by them to be held on trust by the trustees of the school.

(2) If at any time the trustees dispose of the premises the Secretary of State may require them to pay to such local authority as he may specify the whole or any part of the proceeds of the disposal.").

After Clause 129, insert the following new clause:

Disposal of premises provided, etc. by the funding authority

(".—(1) Where the governing body of a grant-maintained school apply to the Secretary of State for his consent to the disposal of—

1. (a) any premises provided by the funding authority, or
2. (b) any premises acquired wholly or partly with the proceeds of the disposal of any premises so provided or of any premises so acquired,

the Secretary of State may require the governing body when the premises are disposed of to pay to him or to the funding authority the whole or any part of the proceeds of disposal.

(2) Where—

1. (a) any premises falling within subsection (1) (a) or (b) above are transferred by the governing body to be held on trust by the trustees of the school, or
2. (b) any premises in respect of which capital grant was paid are transferred by the governing body (otherwise than in pursuance of a requirement imposed in accordance with section [Transfer of premises to trustees] of this Act or in pursuance of section 128(3) of this Act) to be held on trust by the trustees of the school,

then, if at any time the trustees dispose of the premises, the Secretary of State may require them to pay to him or to the funding authority the whole or any part of the proceeds of the disposal.").

The noble Viscount said: My Lords, these amendments were debated with Amendment No. 191A. I beg to move.

On Question, amendments agreed to.

Clause 130 [Interpretation of sections 128 and 129]:

Viscount Astor moved Amendments Nos. 192C to 192E:

Page 82, line 15, leave out ("section 128") and insert ("sections [Transfer of premises to trustees] to [Disposal of premises provided, etc. by the funding authority]").

Page 82, line 15, after ("person") insert ("(other than the governing body)").

Page 82, line 17, leave out ("and 129") and insert ("to [Disposal premises provided, etc. by the funding authority]").

The noble Viscount said: My Lords, again these amendments were debated with Amendment No. 191A. I beg to move.

On Question, amendments agreed to.

Clause 131 [Variation of trust deeds etc. by order]:

Lord Henley moved Amendment No. 193:

Page 83, line 8, after ("school") insert ("or a transfer of the school to a new site").

The noble Lord said: My Lords, this is a technical amendment which is needed as a consequence of the new provisions in the Bill governing the transfer of grant-maintained schools to new sites which we discussed in Committee on 27th April.

Clause 131 enables the Secretary of State, after consultation with the governing body and the trustees of a grant-maintained school, to make such modification of any trust deed or other instrument relating to the school which appear to him to be needed as a result of the implementation of certain statutory proposals affecting the school.

Amendment No. 193 extends the Secretary of State's power to enable him to make such modifications as a consequence of the implementation of the proposals to transfer the school to a new site. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 194:

Page 83, line 9, at end insert: ("( ) The Secretary of State may by order make such modifications of any trust deed or other instrument relating to an independent school where proposals have been approved for the establishment of a grant-maintained school in its place as, after consultation with the promoters and the trustees (if any), appear to him to be requisite—

1. (a) in consequence of the approval of the proposals, or
2. (b) for removing any inconsistency between the provisions of that trust deed or other instrument and any provisions included or proposed to be included in any instrument or articles of government made for the grant-maintained school under Chapter V which it appears to him to be expedient to remove in the interests of the school.").

The noble Viscount said: My Lords, this amendment has already been debated. I beg to move.

On Question, amendment agreed to.

Clause 136 [Changes in religious education and worship]:

Viscount Astor moved Amendments Nos. 195, 195A and 196:

Page 86, line 45, leave out ("or adopted").

Page 87, line 5, leave out ("and (4)") and insert ("to (5)").

Page 87, line 12, leave out ("or adopted").

The noble Viscount said: My Lords, these amendments have already been debated. I beg to move.

On Question, amendments agreed to.

Clause 144 [Minimum number for admission]:

Viscount Astor moved Amendment No. 197:

Page 91, line 20, leave out from ("disregarded") to end of line 23.

On Question, amendment agreed to.

10 p.m.

Clause 146 [Alteration of minimum number by funding authority]:

Lord Henley moved Amendment No. 198:

Page 91, line 36, leave out ("(a) or (b)").

The noble Lord said: My Lords, this is a drafting amendment, whose sole purpose is to ensure consistency in the way in which references are made in the Bill under Clause 10(1) to orders made either under paragraph (a) or (b) of that provision. The amendment has no effect of substance and I beg to move.

On Question, amendment agreed to.

Lord Brightman moved Amendment No. 199:

After Clause 146, insert the following new clause:

("Efficiency Studies

The Secretary of State shall make regulations for the purpose of securing that, in respect of every grant-maintained school,—

1. (a) an examination under section 6(1) of the National Audit Act 1983 is carried out by the Comptroller and Auditor General once in every five years or such other period as the Secretary of State shall from time to time prescribe, either generally or for any particular grant-maintained school, unless
2. (b) a study by the Audit Commission has during that period been carried out at the request of the Funding Agency for Schools, or the Schools Funding Council for Wales or the governing body of the School, pursuant to section 220 of the Education Reform Act 1988.").

The noble and learned Lord said: My Lords, I beg to move this amendment and propose to deal with it very briefly. The object is to secure that an efficiency study, a value-for-money study, is carried out in respect of every grant-maintained school every five years, unless the Secretary of State determines otherwise. As your Lordships may know, there are two statutory bodies which have the power to carry out such studies. One is the National Audit Office, established by the National Audit Act of 1983. This body is empowered to carry out: examinations into the economy, efficiency and effectiveness", with which certain concerns, including the governing bodies of grant-maintained schools, have, used their resources in discharging their functions". The other body is the Audit Commission, established by the Local Government Finance Act 1982. Under the Education Reform Act 1988, it is empowered: to promote or undertake studies designed to improve economy, efficiency and effectiveness in the management or operations of (inter alia) a governing body of a grant-maintained school". Your Lordships will have noticed that the terms of reference of the two bodies are slightly different, but nobody suggested, when a somewhat similar amendment was debated at Committee stage, that there was any fundamental difference in function between the National Audit Office and the Audit Commission. There is, however, this distinction: the Audit Commission promotes or undertakes studies of a grant-maintained school "on request". And the request has to come from the governing body of the school.

At the Committee stage of the Bill, the noble Lord, Lord Peyton, introduced an amendment to make it obligatory for the Audit Commission to carry out value-for-money studies in respect of grant-maintained schools. The Government objected to this amendment because it would mean, they considered, that there would or might be two value-for-money studies in respect of the same school: one by the National Audit Office and the other by the Audit Commission—in other words, "double banking".

I accept that would be an oppressive result but, as the Bill now stands, there is no statutory obligation whatever on anyone to initiate value-for-money studies, efficiency studies, in respect of a grant-maintained school. It is merely something which can take place.

The first object of my amendment is to provide that such a study shall be carried out every five years, or whatever other period the Secretary of State may consider appropriate. My second objective is to make certain that there is no "double banking" and that an efficiency study should not be carried out by both bodies. That risk is avoided under the terms of my amendment. There will be complete flexibility. The Secretary of State may increase or reduce the period of five years as he thinks fit, either generally or in relation to a particular school. The scheme is wholly flexible and the Secretary of State is in total command.

If I may refer very briefly to Amendment No. 199 to show your Lordships how it fits together, there are alternatives (a) and (b): (a) relates to the National Audit Office and (b) to the Audit Commission. The amendment provides that:

(". The Secretary of State shall make regulations for the purpose of securing that, in respect of every grant-maintained school,— (a) an examination under section 6(1) of the National Audit Act 1983 is carried out by the Comptroller and Auditor General once in every five years or such other period as the Secretary of State shall from time to time prescribe, either generally or for any particular grant-maintained school, unless"—

Here is the alternative: (b) a study by the Audit Commission has during that period been carried out at the request of the Funding Agency for Schools, or the Schools Funding Council for Wales or the governing body of the School, pursuant to section 220 of the Education Reform Act 1988.")".

I mentioned in respect of a previous amendment that I placed before your Lordships that there is a great deal of money involved: currently £279 million and prospectively £1.5 billion. With so much money at stake, the question before the House is whether your Lordships take the view that, against that background, efficiency studies/value for money studies should be required by statute to take place periodically under appropriate regulations introduced by the Secretary of State. I beg to move.

Lord Peyton of Yeovil

My Lords, I shall not detain your Lordships for any length of time at this late hour, especially as I had a clear indication from my noble friend earlier that she was for once disposed to smile upon a proposal with which I had been associated. I can hardly find the language with which to describe my gratification which is, at least, tinged with surprise. On that note I had better cease, and say to my noble friend that I am grateful, but that I hope, even if she goes so far as to express the opinion that an amendment drafted by—if I may so describe him—my noble and learned friend could possibly be flawed in any way, and so could be capable of improvement, that the improvement she intends will in no way seriously alter the purport or content of the amendment.

Baroness Blatch

My Lords, I cannot resist. I did say earlier that I am agreeable in principle to the amendment. I give the House an assurance that I will put on the face of the Bill a commitment and clear requirement that an examination of economy, efficiency and effectiveness at grant-maintained schools should be held on a regular basis. I have also in the margins of the meetings said to my noble friend that I am more than prepared to allow my noble friend, the noble and learned Lord, Lord Brightman, and the leaders of the parties opposite, to see the wording of any amendment which comes from counsel between now and Third Reading. In that case, I hope that the amendment will be withdrawn.

Lord Brightman

My Lords, in those circumstances I express my gratitude to the Minister. I am delighted to ask your Lordships for leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 199ZA not moved.]

Clause 148 [Provision of information by governing body]:

Baroness David moved Amendment No. 199A:

Page 93, line 7, at end insert: ("( ) in relation to the planning of special educational provision as provided in Section 153 or").

The noble Baroness said: My Lords, the amendment is part of a large group and I had better read out the numbers rather slowly. With Amendment No. 199A are grouped Amendments Nos. 206, 206A, 207, 207A, 207B, 207C, 212, 212B, 212C and 213A. My name is at the head of the list of those who have tabled Amendments Nos. 206 and 207 so I shall speak to those first.

The aim of the group of amendments is to ensure, as we thought was the intention, that LEAs are the planning authority and have the responsibility for making the arrangements for special educational provision in their areas. The purpose of Amendments Nos. 206 and 207 is to ensure that provision for all pupils with special educational needs in the area of the LEA is both co-ordinated and coherent, taking into account the opportunities for financial planning and economy of scale.

Adding "plan and" to the LEAs' obligation to review the amendment entails that the requirement of government Circular No. 791 is sustained. That circular requires LEAs to submit to the Secretary of State their plans for meeting the requirements of the whole range of pupils with special educational needs in their areas. The amendment extends that requirement to an ongoing duty to plan.

By omitting "by them" the amendment intends that the requirements of Circular No. 791 and the requirement of the Education Act 1981 that LEAs have a duty to review the arrangements made by them for special educational provision are sustained with respect to all pupils with special educational needs—that means the 20 per cent. and not just the 2 per cent. who may have statements—wherever they are being educated.

The Warnock Report pointed out that pupils' special educational needs occurred in a continuum of degree from the most severe to those which pupils experienced in ordinary schools. The report therefore held that provision was needed to match that continuum. As it stands, the Bill requires the LEA to review only provision made for pupils with statements, thus breaking the responsibility for the continuum of special educational needs.

I turn to the need for planning. At present responsibility for ensuring a co-ordinated and coherent range of provision for pupils with special educational needs rests with the LEA for children within its area. The plan for that provision is drawn up in accordance with Circular No. 791. It covers provision in special schools and units, support services and provision in ordinary schools funded through the LMS formula. The aim in all cases is to plan a spectrum of provision to meet the pupils' needs and so to achieve optimal economy of scale.

In arguing against the amendment on LEA planning put forward in Committee the Minister, the noble Baroness, Lady Blatch, replied that under the Bill schools are obliged to provide information to the LEA if they plan a change in their character. Schools have to publish their policy for meeting pupils' special educational needs, and their adherence to the policies will be inspected by the teams allocated to them by Ofsted. LEAs and the funding authority of the schools have the right to obtain information from each other. We welcome those requirements but point out that they do not ensure that a plan is achieved which is both co-ordinated and coherent and takes into account the opportunities for financial planning and economy of scale.

Those are the very criteria used by the Minister in arguing against the amendment to extend grant-maintained status to hospital schools. She stated: I hope … that the reform of the provision of education otherwise … will serve to secure better co-ordination and more coherent provision for these [sick] children". Those were the words which she used again today in responding to Amendment No. 162 tabled by my noble friend Lord Young of Dartington. The Minister continued: the kind of regime which the noble Lord has in mind would reduce the amounts available to authorities for the provision of education otherwise and significantly lessen their scope to do so in cost-effective ways which took account of opportunities for financial planning and economy of scale". —[Official Report, 29/4/93; col. 582.] Although the Minister made those points with respect to a parallel form of provision, it is significant that she enunciated the very points which also argue the need for achieving a plan for special needs provision for all pupils within an LEA area. Without such a plan, the LEA is left to cobble together provision against the interstices of a collection of individual school policies.

Action to remedy inadequacies may need to await the outcome of appeals and critical inspection reports. Instances of possible inadequacies could include: schools changing their character in slight and cumulative ways which gradually erode their support for pupils with special education needs; financial constraints on schools, forcing them to return to using LEA support services but finding that they have been reduced to levels which preclude the capacity to respond; and grant-maintained schools withdrawing outreach support before alternative provision is available.

Therefore, it is absolutely vital that Clause 153 is amended. The removal of the words "by them" will emphasise the LEA's reviewing role for all education in the LEA area. That does not mean that LEAs will automatically have control over that provision but they will automatically have a whole and comprehensive overview. Even at this stage, I contend that the amendment is essential.

It may be convenient if I speak now to Amendment No. 212B which also stands in my name. That is an amendment to Clause 156. The amendment states: The local education authority shall ensure the availability of goods and services to assist governing bodies in their duties under section 155(1) (a)". Its purpose is to require LEAs to ensure the availability for schools of support services for children with special educational needs. Pressure on LEAs to increase the percentage of their budget that is delegated to schools currently means either that LEAs are delegating money for support services to schools and making service level agreements with the schools which wish to buy back into the services or they are striving to continue to fund such services from a centrally held budget.

There is pressure on schools which have to buy services to look for cheaper alternatives. We are aware of some schools which have inappropriately used unqualified adult help at times to mind children with special educational needs instead of buying in more expensive specialist help and advice. Equally, where funding is retained centrally, pressure on that portion of the budget means that services are already being cut in a number of LEAs with more LEAs pointing to reductions which will come about shortly as pressure to delegate increases. In either situation, financial constraints mean that currently there are real anxieties that over the next six months or year, LEA support services will be dramatically reduced.

A telephone survey of 18 LEAs conducted recently by the Disability Resource Scheme indicated that now is a critical time for support services with their future very much in the balance. The underlying concern is that when a school decides to seek help and advice for a child with a particular difficulty which it recognises falls outside the expertise available within the school, then the much reduced LEA service may well not be able to supply that expertise.

It is possible that other providers who have set up services in the area cannot provide the expertise or may be able to do so initially but, as circumstances change, then withdraw such a service. Either way, it is entirely possible that schools will end up with no expertise on which to draw.

The Special Educational Consortium argues that the funding arrangements should permit LEAs to retain central funding of such services without any pressure to delegate. In addition, there needs to be a duty on an LEA to ensure that support services are available in every area of special educational need, if necessary, by providing the service itself.

The Minister replied to a similar amendment in Committee. It was apparent from her response that the Government understood the intention of the earlier amendment as being to discourage the growth of alternative suppliers or special needs support services. But that was not the intention. The consortium accepts that there should be a variety of providers of support services. The purpose of the amendment is to ensure that should other providers not come forward, or should they fail, then the LEA will be under a duty to provide a service for any type of special educational need.

The consortium believes that by re-wording and recycling the amendment, the interpretation put upon it at Committee stage is ruled out and the intention of the amendment as set out above will be met. I beg to move.

10. 15 p.m.

Baroness Warnock

My Lords, my name is attached to this amendment and to others in this large group. I agree strongly with everything that the noble Baroness, Lady David, has put forward in favour of the amendments. I shall not weary the House by going over the arguments again.

Amendment No. 212 falls under the general heading of aiming to ensure that the local authority is the planning agency in the provision for children with special educational needs, and that so far as possible it meets the needs of children who fall under its responsibility.

Clause 155, to which Amendment No. 212 relates, refers to all pupils in a school of whatever kind, whether a local authority school or a grant-maintained school, who have been ascertained as having special educational needs, whether or not statements have been issued by the local education authority. The clause requires that governing bodies of schools use their best endeavours to secure special educational provision for all such pupils. I emphasise that very obvious point because there is a danger that we will fall into the trap of thinking about children for whom statements have been issued when we are talking about children with special educational needs. However, Clause 155 undoubtedly refers to all pupils, whether or not they have statements. It is essential that we should at this stage of the Bill ensure as far as possible that those children who have been ascertained as having special needs but who do not have statements are not neglected.

Amendment No. 212 seeks to ensure that pupils with special needs, that is, the majority who do not have statements, continue to have provision made for them, or, after the review, are deemed no longer to need any special provision. At the moment schools may change or withdraw provision which was originally provided and which will in future have to be specified in their required statement of policy. They may withdraw or change this provision without any consultation and without informing the parents of the children concerned that that is to be done. The independent panel for special educational advice has dealt with several instances of that having been done, especially in Hampshire and Oxfordshire where the local authority has passed on to the individual school part of the cost of the teaching or non-teaching provision for children with statements. For example, a school in Romsey in Hampshire is passing on to the individual school the first hour and a half of special provision that is mentioned in the statement. Because the schools have a budget that they put aside for special educational needs, they are bound to withdraw provision from children without statements in order to make the provision that is specified for those children who have statements.

In those cases, parents have not been informed that that has been happening. Indeed, in the Oxfordshire case, it was the parents of a boy with a statement who raised the matter with the local education authority, believing—correctly—that their son was taking away from resources that had been promised to other children who did not have statements. As the school named in a statement must accept the child whose statement it is and must make the provision demanded therein, it is manifest that there is, necessarily, a temptation in such cases to cut down on the provision made for those children with special needs who do not have statements. That temptation exists equally in any school which manages its own budget, whether it is an LEA or a grant-maintained school.

There is no doubt that the large number of children with special needs who do not have statements, and ought not to have them, are seriously at risk. Their parents, unlike the parents of children with statements, have no possibility of redress and, at present, no right even to information with regard to the withdrawal of or change in the provision that is made.

I believe that there is here, in the present Bill, one more instance of general feebleness of the commitment to that enormously important and numerous group of children. We are awaiting the publication of the code of practice to learn exactly how such children are to be identified and assessed and what sort of provision they are to expect. But it seems to me that even when the code of practice is brought in, such children will remain extremely vulnerable and their parents will be left with very limited rights to information or consultation.

Earlier today I was in the luscious buildings of the Department for Education. I saw a poster which read, "If you don't know she's slipping, how can you help her to stay up?" On the admirable principle of knowing what is happening to your child, I shall move the amendment. Its purpose is to afford those extremely vulnerable children a modest degree of statutory protection.

Before I conclude, I should like to say a few words about Amendment No. 213A. I had hoped that it would be grouped with Amendments Nos. 219F and 219H. I believe that the point of Amendment No. 213A is covered by Amendment No. 219F which the Minister is to introduce later. In her summing up, I should be most grateful if she could tell me whether Amendment No. 213A is in fact covered by Amendment No. 219F. However, I do not wish to say any more about the amendment at present.

10.30 p.m.

Lord Addington

My Lords, my name appears, along with many others, in the group of amendments. We are basically dealing with a variety of problems throughout what is a rather long and complicated grouping. Many of the amendments relate to overall planning. The Government have conceded on many occasions that there has to be a degree of overall planning throughout the local education authority, for the simple reason that, as one is dealing with special educational needs, one is covering an incredibly wide variety of subjects. The amendments primarily seek to help ensure the correct allocation of resources across the board.

To emphasise the latter, I should point out that there is no way in which any one special group, or indeed group of schools, can even start to deal properly with all the types of possible disability or problem which are being caused in this respect. I am talking about every kind of problem, both emotional and physical and a combination of the two. There is a strong correlation between behavioural problems of dyslexics and their not feeling part of a group. There are dozens of different forms of dyslexia. I understand dyslexia reasonably well and I consider that to say someone is dyslexic is like saying someone has bad eyesight. An individual teacher will often not be able to deal with the many different forms of a particular disability.

I hope the Minister will be able to give me some further guidance as regards the overall planning for the wide range of problems and disabilities we are discussing. Amendment No. 206A concerns the problematic area of what constitutes effective integration of children with special educational needs into schools which are not special schools. This amendment stands in my name and that of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Darcy (de Knayth). Does the Minister believe that the wording of the amendment is sufficiently strong to ensure that children with special educational needs will have the opportunity for integration without necessarily forcing such children to integrate if they are not ready for it for whatever reason? As I have said before, we are dealing with a range of problems and disabilities. Will the Government once again explain their thinking on this matter?

I wish to re-emphasise some of the points that were made so clearly by the noble Baroness, Lady Warnock, on Amendment No. 212. As regards this matter, the Government are effectively being beaten with a club that they created to deal with another problem. In creating the statementing system they have set up something which could potentially suck up all the funding available for children with special educational needs at all levels. New problems are always being identified in this area and new developments and new types of treatment and teaching are continually emerging. Unless some ring-fencing is established for the 18 per cent. of pupils who have been referred to, they will always be the poor relations. I feel that in dealing with one problem in this area, the Government have probably created another for themselves. I would be the last person to criticise the Government for supporting statements but we must support the 18 per cent. of pupils that have been referred to.

Lord Judd

My Lords, I wish to speak to several of the amendments in this large group. I hope the Minister is not too confused by our dancing about between amendments. However, that is the penalty one pays with such a large group of amendments. I shall attempt to deal with the amendments one by one. I turn first to Amendment No. 206A, which states: Page 95, line 44, leave out from ("keep") to end of line 45 and insert ("plan and review—

1. (a) the arrangements made for special educational provision, and
2. (b) without prejudice to the duties towards individual children set out in section 154, the arrangements for securing that the special educational needs of children arc met wherever possible in schools which are not special schools.")".

I am very glad to be able to speak on this issue of special needs because since I joined the House I have been tremendously impressed by the very sincere commitment which exists in different parts of the House to ensuring that a very important part of our population in the United Kingdom is properly considered in the midst of our deliberations. I take this opportunity to pay tribute to those who monitor, watch and support this cause so diligently.

In speaking to Amendment No. 206A I want to make the point that the value of integrated education to children and their families, not merely to children with special needs but also to those without, must never be underestimated since segregation breeds fear and intolerance of disability.

The HMI/Audit Commission study of provision for pupils with special educational needs, Getting in on the Act, shows that many more parents wanted a transfer of their children from a special school to an ordinary school than the reverse. That is a matter we should all take seriously. I can think of nothing which is less acceptable than the concept of a child with special needs who wishes and whose parents wish it to be included in an ordinary school but who is debarred.

The Audit Commission points out that there is a financial disincentive to LEAs to transfer children from special schools to ordinary schools because the LEA has to continue to fund the empty special school place. For the same reason, there is little impetus within special schools to encourage the integration of children into the mainstream, because any reduction in pupil numbers may reduce the school's viability. On the other hand, the commission found that over half the head teachers of ordinary schools interviewed complained that their schools' managed budgets were inadequate to provide for pupils with special needs.

Nonetheless, the HMI/Audit Commission report found that: the quality of the learning experience for pupils with special needs is virtually the same in both special and ordinary schools, when it might be expected that the presumed higher level of expertise in special schools would lead to a better quality of learning experience for the pupils". It also found, contrary to popular belief, that: On average it is not more expensive to educate a child with learning difficulties in an ordinary school with support rather than in a special school for pupils with learning difficulties It was only more expensive to educate pupils with severe handicaps if they were spread across a number of schools instead of having particular schools target a particular disability. If the latter approach is adopted initial pump-priming investment is needed for physical adaptations.

The rationalisation of school places is key to developing integrated education. It would be amazing if we ignored that principle. The Government have endorsed the principle that children should be integrated where possible, but in many cases that will be financially viable only when special school places are reduced. The duty to integrate individual children must be translated into a duty to plan for an increase in integrated places. That will not just happen on a haphazard basis. We have to plan for it if we want it to happen. Switching resources and expertise from special to mainstream education is essential. I commend Amendment No. 206A to the House.

I turn now to Amendment No. 207B. I hope that the House will bear with me if I spell out the terms of the amendment because they are very important and speak for themselves. The amendment provides for a new clause after Clause 153, headed: Strategic plan by local education authority". It reads: (1) A local education authority shall submit to the Secretary of State for approval a strategic plan for the purposes of section 153 above and of the progressive development of educational provision including special needs within their areas". That relates to the point that I have just made. (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". That again underlines the point I made in the context of the other amendment. (6) A plan compiled under this section shall contain proposals on the following matters—

1. (a) the broad direction and development of nursery, primary and secondary education respectively within the authority concerned, having regard to the requirements of section 154 below;
2. (b) the number and size of mixed and single sex schools in the authority concerned;
3. (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 154 below;
4. (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;
5. (e) the range of goods and services to be provided by the authority under sections 156 and (where applicable) 271 below; and
6. (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". I believe, although I say it myself—I hope that it does not sound unduly arrogant—that it is virtually a self-explanatory amendment. However, perhaps I may say a few words around it.

The points that we seek to make on the amendment are relevant to the basic worries on this side of the House about the fundamental shortcomings of the Bill in its dangerous over-centralisation and its total failure to recognise the indispensability of a real partnership between local communities as reflected in their LEAs and the centre and its arrogant and foolish assumption that the centre knows best.

The amendment requires LEAs to produce a strategic plan for their special educational provision and for the progressive development of educational provision generally. If the aim of the governance of education is to meet the educational needs of the whole community while using resources efficiently, planning is indispensable. The body best suited to carry out such a planning task is in our view—we have repeatedly emphasised it—the local education authority, which is rooted in the local democratic process and which has front-line knowledge of the realities of the structure of the local community and its needs as well as of the interplay of services and activities which help to make that community.

It is only through planning to meet the needs of the whole community that the educational needs of all children can be addressed. That is particularly the case with special educational needs. Those needs have long been underestimated and never fully met. The amendment requires the local education authority to draw up a strategic plan of its arrangements to meet special educational provision. As special educational provision is integral to the whole of the education provision of an area, the amendment also calls on the LEA to plan for the progressive development of all educational provision within its area.

The strategic plan must be approved by the Secretary of State and cover a period of not less than four years. The Secretary of State can lengthen that period. The Secretary of State can modify any plan put to him so long as he considers such modifications to be appropriate to the interests of pupils.

As we put the provision forward, the plan must also contain proposals about the broad development and future direction of nursery, primary and secondary education having regard to the need to secure the education of children with special educational needs in ordinary schools. That is the point that we have been dealing within the previous amendment. The plan must take account of the number, size and mix of single-sex schools within the authority and whether or not they select pupils. The plan, we suggest, must also take account of the places available, not only in LEA-maintained schools but also in grant-maintained schools and city technology colleges. A central part of the plan must be the specification of the services that the LEA will supply to all schools in the area, particularly for pupils with special educational needs. Other matters may be included in the plan that are agreed by the authority or specified by the Secretary of State. The LEA must consult neighbouring education authorities and parents and, as I have spelt out in the wording of the amendment, also head teachers, teaching and non-teaching staff and other community organisations.

The amendment requires the LEA and every governing body included in the plan, including grant-maintained school governing bodies, to bring forward proposals to implement the plan approved by the Secretary of State, so that it emphasises the importance of comprehensive community participation. There should by no doubt about the intention of the amendment that where the LEA has planned for the progressive development of the educational provision within its area and those plans have been agreed through consultation with the local community and locally democratically elected representatives on the council of the LEA and by the Secretary of State, then all relevant educational bodies will be under a duty to implement those plans in the lifetime of the strategic plan.

The hope is that through coherent planning, the progressive development of educational institutions can be resumed following the harmful ideologically-based market experiments which this Government have indulged in over recent years. This amendment is intended to improve the opportunities of parents to send their children to a wide range of schools. It recognises that that will be possible only if there is an agreed framework. We have argued, in putting it forward, that without such a plan a confusing and damaging jungle of possibilities will confront parents at the educational expense of their children. The more sophisticated parents will inevitably be at an advantage in finding their way through that jungle. Equal opportunity would therefore again be the victim.

Perhaps I may now move to Amendment No. 207C which, again, is drafted in a form which is self-explanatory: Planning of nursery provision for pupils with special educational needs":

1. —(1) Without prejudice to the provisions of Section 167 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. (2) A child to whom this section applies is a child who is aged not less than three nor more than rive years and who has a learning difficulty which calls for special educational provision to be made for him.
3. (3) The Secretary of State shall within three years of the dale 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 live years whose parents wish it.").

The purpose of this amendment is to require LEAs to plan nursery provision for pupils with special needs. It requires LEAs to plan and secure the provision of nursery education for all children from the age of three who have special educational needs.

In the debate on nursery education in Committee on 20th April, several noble Lords expressed their concern about the costs of providing nursery education for all, but wanted a priority to be given to nursery education for children with special needs and disadvantaged children.

The noble Lord, Lord Northbourne, wanted nursery education for disadvantaged children, such as children who are abused and neglected at home from birth and do not have any hope by the time they are five. The noble Lord, Lord Skidelsky, talked of targeting nursery provision. This amendment makes the case for nursery education for children with special educational needs. The practical problems of introducing this provision should not be underestimated because of the problems for an LEA in determining which children have special educational needs at the age of three when they have not attended school. Therefore, subsection (3) of the amendment provides that the Secretary of State, within three years of Royal Assent, should consider the desirability or otherwise of extending the duty of providing nursery education for children with special educational needs to all children.

I believe that it has become increasingly clear each time that we have returned to the subject of nursery education in this House that there is a growing conviction on all sides of the House that this is one of the soundest possible provisions that could be made. It is one of the best economic investments that could be made in our whole education system. We have not heard one single logical and convincing argument to the contrary.

Therefore, we believe that at least by starting in the ways that we have suggested we should be taking practical measures towards what other countries, including the United States, increasingly see as an indispensable part of their total education system. It is for those reasons that I am very glad to speak to these amendments.

Baroness Darcy (De Knayth)

My Lords, I should like briefly but warmly to support these amendments concerning planning. I have added my name to Amendment No. 206A tabled in the name of the noble Lord, Lord Ponsonby, which has already been spoken to by the noble Lords, Lord Addington and Lord Judd. Perhaps I may just signal that this amendment is one of triplets. It goes with Amendments Nos. 250A and 279A. They do not appear on the grouping, so I just flag that these amendments are triplets.

Planning, as the noble Lord, Lord Judd, said, is crucial to successful integration. In Committee (at col. 514 in Hansard) I gave Hounslow as an example of good practice. Just before Christmas I met the pupils at two mainstream schools who had come from the neighbouring special school which had been closed down. The pupils had come in by degrees and not all at once. Several of them were very severely disabled without speech, but all said, or typed out, how much they had benefited from the move and how much more demanding was the education. It also makes it very much easier to get on in the harsh, competitive adult world if a pupil with special needs has grown up with a model of the ordinary child. The latter also gains an insight and understanding from contact with fellow pupils with special needs.

I therefore warmly support all the amendments on planning. I should particularly like to support Amendment No. 212 tabled by my noble friend Lady Warnock, which would ensure that the needs of those children with special needs but without statements are being met and not forgotten. My noble friend has shown very well how vulnerable that group is.

Lord Renton

My Lords, some noble Lords may understand that, as a past president of MENCAP and having lived with this subject for many years, I am naturally interested and concerned by this group of amendments which cover not only a mass of detail but fairly wide ground.

I should like to say that the Government have taken a tremendous amount of trouble already in attempting, so far as concerns the mentally handicapped, to get right this part of the Bill. I welcome what has been done and the further amendments which my noble friend has tabled. I acknowledge that the mentally handicapped are only one group of people who have special educational needs. But they are perhaps the largest and, in a way, the most difficult group of all.

Perhaps I may speak generally and first of all say, with deep respect, that I found it very difficult indeed to follow the introductory speech of the noble Baroness, Lady David. But, as I understand the matter as she presented it and as others have mentioned, including the noble Lord, Lord Judd, great importance is attached to Amendment No. 206A. That amendment intends to make a fundamental change in Clause 153 which, as it stands at the moment, the Government have, I believe, got right. The clause states: A local education authority shall keep under review the arrangements made by them for special educational provision". The clause rebuts the argument that there has been over-centralisation towards the Secretary of State on the matter of special educational needs. It speaks for itself and shows that what has been alleged is not so.

If we look at Amendment No. 206, we find that instead of having that general obligation placed on a local education authority, it has to move towards integration, as the noble Lord, Lord Waddington, claimed it should do.

Lord Elton

My Lords, it was the noble Lord, Lord Addington.

Lord Renton

My Lords, I beg your pardon. I apologise. I meant the noble Lord, Lord Addington. I am sure the noble Lord, Lord Waddington, and the noble Lord, Lord Addington, would feel it a compliment if I confused either one with the other.

In regard to the mentally handicapped, integration should not be the aim. I have a severely handicapped daughter now in her thirties, but I have kept in touch with this subject for years. In fact, I have taken part. either in another place or here, in the debates on every Act of Parliament dealing with the mentally handicapped since the Mental Health Act 1959 in which I had to represent the Home Office attitude as Under-Secretary of State. I am therefore familiar with the subject and can tell your Lordships from experience that integration of the mentally handicapped is a counter-productive exercise. It makes those who are mentally handicapped, but who may have some reduced mental capacity for learning, feel out on a limb when they are put into ordinary schools. Also, one must acknowledge that in classes where both are to be found, it may cause those who are not mentally handicapped to be held back a little because of the concentration on those who are.

I must therefore oppose the amendment in principle. I am opposed to the amendment of Clause 153.1 believe also that the Government have got right Clause 154. They are right to mention the wishes of the parents, as is done in subsection (1) of Clause 154. It would certainly be wrong in those cases to ignore the wishes of parents, and I speak as a parent.

We could easily turn discussion on this group of amendments into an all-night sitting if we had the mind to do so. Therefore I do not burden your Lordships with the details of all the other amendments grouped with Amendment No. 199A, including expensive new clauses proposed by the noble Lord, Lord Judd. I believe that it is more important that we have the broad obligations rightly stated, as I believe the Government have done, than to overlay them with a mass of detail. The more detail we introduce by way of modifying and defining the general obligation, the more scope there is for making an administrative and executive mistake. It is far better to state the principle, the aim and the intention of Parliament than that we should aim at the kind of mass of detail that underlies these various amendments.

I do not know what my noble friend Lady Blatch will say. I have not discussed this group of amendments with her. But I hope that she will be very careful indeed before she departs from the well expressed general terms of the Bill.

11 p.m.

Baroness David

My Lords, perhaps I may answer the noble Lord before he sits down. The noble Lord made a complaint—

Baroness Trumpington

My Lords, I believe that I am right in saying that the noble Baroness can ask for a point of clarification or ask a question. But she may not speak twice.

Baroness David

My Lords, I wish to clarify a point. The noble Lord, Lord Renton, said that he could not quite follow what I had said. I should like to make this quite clear. The amendment I first spoke to was to Clause 153, which is a two-line clause. It states: A local education authority shall keep under review the arrangements made by them for special educational provision". My amendment would make it read: A local education authority shall plan and keep under review the arrangements made … for special educational provision". That means that it would plan and have the overall view over all the provision that was made not only by its own schools but by grant-maintained schools and city technology colleges. It would have an overall view. I hope that that has clarified the matter.

Lord Renton

My Lords, perhaps I may reply to the noble Baroness, who was, I presume, given leave to make that point. Paragraph (a) of Amendment No. 206A does not add anything of substance to what is already in the clause.

Baroness David

My Lords, it was Amendment No. 206—

Noble Lords

Order, order!

Baroness Trumpington

My Lords, I really do suggest that at this time of night we cannot have an argument between both sides of the Chamber. Another speaker is waiting to speak on the amendment.

Lord Parry

My Lords, I welcome the opportunity to speak and to do so closely following the noble Lord, Lord Renton, whose contribution on this subject over the years is deeply appreciated. His particular personal knowledge of it is moving for the House. I say that because it is perfectly possible to support, as I do completely, the concept of integration for all the valid reasons that we would share, and it is also possible to point out that there are a great many parents in the country who at this moment are concerned about the provisions that will be an alternative to the schools in which their children are being educated.

We have explored this subject and I shall not deal with it at this time of night. I want to suggest, though, through the House to the noble Lord that there is a specific reason why it is also perfectly possible for me, appreciating the things that he said at the beginning of his remarks, to support the amendments. These amendments deal with a time in British education when so much change is taking place. The very institutions on which we seek to place the authority, and the very people who have held the authority and responsibility until now, are themselves under sentence. In Wales it is a possibility that in two years from now none of the county councils with their local authorities will continue to exist. A separate plan for local government going forward, reaching a point where it could well be implemented within two years, is finalised. We are seeking at this time to make certain that, with all these changes taking place, the good intentions of the Government, prompted by equally good intentions from all sides of the House, are seen through this difficulty and change. It is absolutely essential that we specifically identify those weaknesses.

Perhaps I may ask the noble Baroness as I sit down—because I do not want to presume upon the House at this hour —whether she is satisfied that the statements referred to in the amendment go through quickly enough to be of advantage in the education of children. Does she get, as I get, complaints from parents that the statements arrive after the children have completed their education? Is she aware that there is a time lag even in good, well-intentioned local authorities in meeting the obligations now placed on them? Is the noble Baroness absolutely certain that we are not doing by accident things which none of us would have the intention to do? I have mentioned that matter several times in the House.

Lord Campbell of Alloway

My Lords, I shall be very brief. Clause 153 is about right, but Amendment No. 206 is an important and relevant addition because planning, as has been pointed out, is such an integral part of the discharge of the duties. Therefore, I support Amendment No. 206.

As regards Clause 154, which was spoken to by my noble friend Lord Renton, I do not see it referred to in this grouping of amendments.

Lord Renton

My Lords, but it is referred to in one of them.

Lord Campbell of Alloway

My Lords, maybe it is, but it is not in the grouping. May I be permitted to refer to it when it arrives? I do not want to take time out of the grouping. These amendments, as implementing requirements, by and large have considerable importance and force. But surely they should be incorporated in the code of practice rather than cluttering the statute with a mass of detail.

Amendment No. 119A I support in principle. The general review provisions in Amendment No. 153 are very well drafted, subject to the amendment which has been proposed. But they anticipate Part III and should not be there. They should be in part of a code of practice such as that in Amendment No. 206A—not as it stands, but as to the substance of it. I oppose Amendment No. 207 because it is too restrictive. Amendment No. 207A, as an implementation, could well be in a code of practice. Amendment No. 207B really creates a complex, bureaucratic superimposition on the face of the Bill, but it contains in it, here and there, relevant and important implementing provisions. I ask that objective consideration be given to some of them. A similar situation arises with Amendment No. 207C.

Perhaps it is naive to say so, but I wonder whether these amendments have been grouped because so many of the ideas could be more properly put in a code of practice which as yet we have not seen.

Lord Dormand of Easington

My Lords, I was very interested indeed in that part of the speech made by the noble Lord, Lord Renton, dealing with mental handicap. As has been said, he perhaps has more experience, both personal, ministerial and parliamentary, than anybody in either House. I hesitate to say this, but he says that where pupils have a mental handicap it is not possible, with profit, to have them absorbed (I believe that is the appropriate word) in relation to the Education Act 1980. Is he saying that there are some children who are simply not capable of learning because of a mental handicap? I see that he agrees with that. The noble Lord may well be right, but I should have thought that there might be a range of mental handicap in which most of those so handicapped can, with integration, achieve some kind of standard—

Lord Renton

Very rarely.

Lord Dormand of Easington

I did not hear the noble Lord's intervention.

Lord Renton

Very rarely.

Lord Dormand of Easington

Like perhaps other noble Lords, I have been reading a recent publication on special educational needs in the future which, as your Lordships probably know, is published by the National Commission on Education. I think that speaks for itself. One of the points that it makes, in relation to what the noble Lord and I have been saying, is: The 1981 Act asserted the right of children and young people with SENs to be educated as far as possible with their peers in ordinary schoools". Obviously, we were aware of that. It then states that, it remains a challenge for all schools to extend their flexibility so as to respond to pupils' learning needs in the future". Nowhere does the document mention what might be the exception to which the noble Lord, Lord Renton, refers. That is one of the reasons why I am on my feet now.

There is a part of the document which relates very much to what was said by my noble friends Lady David and Lord Parry, as well as by myself. It states: Progress in education for the next 25 years has to start with a recognition of children and young people as they are. From this a context can be created which meets the full range of pupils' SENs along the lines of the principles originally stated in the Warnock Report. It is clear that effectiveness cannot be achieved without a commitment to providing the necessary means". That has been said time and time again from these Benches. I understand what the Minister says and that there are priorities even in this field. That has to be recognised and I hope that I am one who recognises it.

The document continues: but the examples given show that concern for the eflicient use of resources does not have to be neglected. Perhaps the most significant finding of all is that many of the necessary developments depend on creating a climate which encourages the collaborative sharing of responsibility". There follows a question: Will it be possible to pursue the vision of these developments through the present turbulence in education? We on these Benches say that there is too much turbulence in education at the moment. The contribution of the noble Lord, Lord Renton, really does make us think about what I believe to be one of the most difficult aspects of the issue that we are discussing in speaking to these amendments.

Baroness Faithfull

My Lords, I agree with my noble friend Lord Renton, but I agree equally with the noble Lord, Lord Dormand. It seems to me that, as my noble friend said, there are certain mental handicaps that cannot be looked after in the community. Equally, however, there are certain mental handicaps that can be looked after in the community, particularly Down's Syndrome cases. Are we not therefore in a little trouble here? What we should be doing is meeting the needs of each individual child. We cannot make an overall decision for all children of one particular type.

11.15 p.m.

Baroness Williams of Crosby

My Lords, let me say how much I have appreciated this debate, and particularly the contribution by the noble Lord, Lord Renton, whom I have heard on previous occasions on this subject and who brings a very great deal of knowledge and feeling to the issues that we have been discussing.

This is a very important group of amendments and it has been pretty fully discussed, but there are one or two things I should like to raise before the noble Baroness responds to the debate. We moved perhaps a little rapidly over Amendment No. 207A, moved in the name of the noble Baroness, Lady Blackstone. It concerns access to schools and the provision that can be made in educational terms for children with disabilities of one kind or another.

I do not want to speak about this at length. Many of your Lordships will have seen the moving story of the young girl, Elizabeth Sheppard, who was unable to be received into Coloma Convent school because of the nature of her disability, although she had outstanding intellectual achievements. The major reason why the school felt that it could not accept this young girl who is suffering from cystic fibrosis was the difficulties in her moving about the school, which would have put additional financial demands on its budget.

That is precisely the kind of issue that we should very much like to hear the noble Baroness talk about. In the United States disability is treated in terms of the legalised right of the individual: that is to say, people can bring cases to court if they feel that adequate access for educational purposes has not been made for a child or student who suffers from a disability. The effect of this legal provision with regard to access has been dramatic in the United States in the past 10 years. Compared with Great Britain, access to schools and colleges in the United States is extremely favourable, even though overall it does not spend a larger proportion of its GNP on education.

The reason appears to be that the right of parents to bring a legal case has made schools go out of their way to provide physical access for children suffering from some form of physical handicap. The result is that one sees in schools all over the place that provision has been made for those who may be unable to walk on their own, who have to use wheelchairs or who would be disadvantaged in other ways without such provision in a normal school within the community.

A number of able boys and girls here are barred from schools which their parents would like to choose for them because of the problems of physical access. Quite honestly, if your Lordships walked around any of your local schools to see how someone in a wheelchair would get around you would understand exactly what I am saying. I hope the noble Baroness will say something about the steps that are being taken to ensure adequate access for children to the schools which their parents want to choose for them.

I turn from that to Amendment No. 207B, which was spoken to in a very full and cohesive way by the noble Lord, Lord Judd, and which concerns the strategic plans to be made by local education authorities for children suffering from special educational needs. I should not say "suffering": "having" is a better way to put it. This amendment imposes on the local education authority the duty to implement any plan that has been approved by the Secretary of State after having been submitted by the local education authority. It is a very comprehensive amendment. It suggests that the local authority should look at the full provision that its schools can make, should consider the ways in which the special educational needs of its children should best be met and should look at the resources of teachers and of equipment and at other ways in which those needs can be implemented. Therefore, it goes far beyond the extremely brief reference in Clause 153 to the provision that should be made to meet the special educational needs of children.

I am worried about the interface between the LEA and the funding authorities when—as I understand it, although the Minister may be able to put me right on this issue—the major responsibility for meeting the special educational needs of children will rest upon the individual grant-maintained school rather than on the funding authority, whereas at present it rests upon the LEA. The significance of that distinction is important, because it is the provision made between a range of schools that most precisely meets the need as defined by, among others, the noble Baroness, Lady Warnock, in her distinguished and famous report, which was in many ways a pioneering effort in the whole approach to special educational needs and one from which we all recognise that we have benefited greatly.

In her report, the noble Baroness pointed out something that has been referred to by a number of noble Lords during the debate; namely, that special educational needs constitute a wide spectrum of need; that those needs range from what may be—this was referred to by my noble friend Lord Addington - merely mild dyslexia at one end to serious needs that may flow from a major condition relating to the mental or physical health of a child at the other end of the spectrum. The crucial point is that there has to be, as it were, a tailor-made response to the need of the individual child. As I understand it, that is the whole meaning of the requirement for statementing a child. It is the reason why in her original report the noble Baroness, Lady Warnock, proposed the possibility of a named person—something that has never yet been implemented fully—being responsible for the requirements of a child with special educational needs.

One school, however much it tries to do so, cannot meet those needs in that precise way; only a number of schools can do so, so that the authority—the body that has overall responsibility—can meets needs precisely as they develop and are discovered as a child moves through his or her educational experience. That is why I am worried about the problems of the relationship between the LEA and the grant-maintained school, as the responsibilities for children in the area begin to move from one to the other.

I am even more worried—this is where I believe the amendment spoken to by the noble Lord, Lord Judd, is so significant—about what happens when we reach the point, suggested in the Bill, when 75 percent. of all the schools in the local authority area decide to become grant-maintained school, and we then have somehow the sudden falling in of the LEA's responsibility, followed by no clear indication of what happens to the residual 25 per cent. That troubles me enough in relation to children without special educational needs but, in respect of children with special educational needs, it leaves one with the feeling that they are, in a sense, abandoned. A LEA will no longer have a responsibility to meet their needs. Grant-maintained schools will be looking after the 75 per cent. of children whose parents have opted for them, and the other 25 per cent, may well be in those schools which are already least advantaged. There will, in a sense, be no clear responsibility resting upon any body for their future needs.

There is one other thing that troubles me about the issue raised by Amendment No. 207B—the issue of a strategic plan. It is mentioned in the document that has been referred to by the noble Lord, Lord Dormand, called the National Commission on Education from the Paul Hamlyn Foundation. It is a useful short report. It is related directly to strategic plans, and it refers to what happens when the provision is inadequate, which would then presumably be pointed to and identified by the new form of inspectors of Ofsted which results from the changes made in an earlier Act of Parliament.

What bothers me is that the extraordinary expertise that Her Majesty's inspectors were able to bring to bear on the special educational needs of children—an expertise which flowed precisely from the fact that they covered the entire spectrum of educational provision—is no longer available to us. I understand that teams will be brought in to look at special inspection needs. Having been brought together for the purpose, those teams will once again fall apart after the needs of the inspection have been completed.

I speak from experience in saying that it has been precisely the continuing commitment of inspectors to the entire school system during a period of years that has enabled us to identify the weaknesses in the system with regard to children with special educational needs. We have already lost that safeguard. Therefore, it is all the more important that some kind of cohesive approach is made to these particular problems. In that respect I am sorry to see the Minister shaking her head. It is not I who draw attention to that but the report from which I quoted. It comes from a distinguished source of expert knowledge on the subject.

Amendment No. 207C has not been discussed in sufficient detail. It is the single most significant amendment in the group. It refers to the provision of nursery schooling as a requirement made on the local education authority in respect of children with special educational needs. I ask noble Lords to look at Clause 150. The definition of children with special needs refers to children as young as 2 years. The age given to begin to indicate a special educational need is put at the age of 2 or above. However, we know very well that the provision in the Bill does not include children under compulsory school age, which starts at about 4½ to 4¾. Therefore, children between the ages of 2 and 4½ will not be covered by the provisions and requirements of the Bill.

As was pointed out by the noble Baroness, Lady Warnock, in her report, and as subsequent reports have confirmed, the best possible stage at which to catch a child with special educational needs and to take steps to ensure that as far as possible the child's needs are met, in order that later demands may be avoided, is at nursery school. With great respect for the enthusiasm which the Minister brings to pre-school playgroups, they do not have the kind of provision which nursery schools provide for identifying children with special needs.

There are many examples but I shall give only one or two. Children are often first discovered to have a hearing impairment because of their response to the teaching of words at an early stage in nursery schooling. That is long before they reach compulsory school age. Children with a common condition known as "glue ear", which arises through the misuse of antibiotics, can be cured if the condition is picked up early enough. They become incurably deaf if it is not. That depends heavily on identification at an early age.

I am concerned by two debates we have had on the Bill. The first was the debate on the provision of nursery education through the Bill as a whole. We learnt that for reasons of finance and so forth the Government felt it impossible to lay down requirements for the steady development of nursery education; and now, associated with that, the lack of any specific provision, at least for children with special educational needs, in respect of nursery education. I believe that that combination is troubling because it means that we are now looking at a large number of children for whom provision is likely to become not better but worse. I repeat that those are the children who are most at risk at a very early age.

This country has made major steps forward in respect of special education in recognising that such children's needs must be met individually rather than treating them as a block, a generalised group. Indeed, the present Government and their predecessors deserve some considerable credit for the steps which have been made. The country has certainly done a great deal to try to provide better teaching and more qualified teachers for that group of children who range from the 2 per cent. with very severe difficulties to the 20 per cent. affected by some degree of difficulty in their learning. I believe that noble Lords have a deep sympathy for those children.

If the remarks made in the briefing to which I referred are correct, until 1988, with due credit given to governments of both parties over a long period of time before that, there was steady advance in respect of meeting special educational needs. The evidence indicates that, since the passage of the 1988 Act, there has been a deterioration of provision for pupils with special educational needs. Those are not my views but those expressed by the Paul Hamlyn Foundation. At this point we should pause and consider very carefully when voting on this group of amendments whether we have made sufficient provision for children who depend on this Chamber, Members of Parliament and noble Lords concerned with education to protect them and their parents and to assist them. Therefore, I ask noble Lords to consider very carefully this group of amendments before reaching a decision, in particular before reaching a decision which may damage those children and fail to meet their requirements.

11.30 p.m.

Baroness Blackstone

My Lords, I too support this group of amendments. In particular, I support strongly what my noble friend Lord Judd said about Amendment No. 207 which has just been so eloquently reinforced by the noble Baroness, Lady Williams.

I want to speak in particular to Amendment No. 207A standing in my name, which has not yet been spoken to in this group, other than the few words which the noble Baroness, Lady Williams, has just addressed to it.

The amendment follows on from the Committee stage debate on access orders. It takes into account the comments made at that stage by the noble Lord, Lord Henley. The amendment calls for local education authorities to keep under review arrangements to make schools accessible to children with special needs, in particular those with physical disabilities.

The amendment is concerned with the physically handicapped. I should say in passing that, although I very much respect the experience of the noble Lord, Lord Renton, in those matters, I do not agree with him entirely in what he said about the mentally handicapped. When considering the integration of those children into ordinary schools, we must take into account not only their needs but also the effect that their integration has on children who are not handicapped. I have spent some time observing the integration of such children in schools in Italy, which has a long record of integration. I have seen extremely moving examples of children who are not handicapped taking great care with children who are; in particular—I follow what the noble Baroness, Lady Faithfull, said—children with Down's Syndrome.

At Committee stage the Minister was correct to state: LEAs have been under a duty to promote integration of children with special education needs since the 1981 Act became law. However, in its research for the report Within Reach; access for disabled children to mainstream education, Coopers & Lybrand discovered that no LEA, not just those that were involved in the five case studies, knew the detailed profile of school buildings beyond the original school plans. The Department for Education certainly does not know the profile of school buildings; their age, the number of floors, the kinds of staircases, whether they have lifts and so on. How could they?

The Within Reach report highlighted a lack of precise information about buildings, making it very difficult to compare the extent of existing progress by LEAs towards greater integration, let alone to gauge the cost of progressing further.

The second Coopers & Lybrand report, Within Reach; the school survey, was excellent. It covered 2,500 schools. The survey investigated the proportion of primary and secondary schools that are currently accessible to pupils with physical disabilities, the amount of work that might be needed at other schools to improve access, and it made a first estimate of the likely costs of that work. That research was commissioned by the Spastics Society with the National Union of Teachers and it was designed to assist both the Government and local education authorities in obtaining a clearer picture to help in the implementation of policies for the fuller integration of pupils with special educational needs in mainstream schools.

The realistic and manageable costs that were established by the Coopers & Lybrand School Survey provide a very helpful starting point for a strategy for making such integration a reality. The most important point is that the research shows a fundamental need for access audits of schools to make educational premises accessible.

I believe that the new amendment will not build "a raft of prescriptive legislation", as was originally feared by the Minister. It requires LEAs to undertake access audits at its schools, which are so essential to fulfil the Government's policy of improving integration.

Requirements for a review of access arrangements should be made explicit under the terms of Clause 153. It is not sufficient for the Minister to say that LMSS proposals will mean that a substantial amount of relevant information becomes available over the next few months". Just as the Government conceded that their implicit call for special educational needs research and information under Clause 19 needed to be made explicit with an amendment to the Bill, so a review of access arrangements has to be made explicit under Clause 153.

Access audits paint the local and national picture for a valued assessment to be made on access to schools. A strategic and progressive model for access and integration along the lines recommended by Coopers & Lybrand could easily be adopted. However, under the terms of the amendment that model is not forced upon the local authority or funding authority. The audits do not force the local education authority or the funding authority to spend money on making schools more accessible, nor does the amendment give LEA's powers to assess grant-maintained schools, which is something that the Minister was concerned about. It provides for both the LEA and Government to collate information about the building stock in order to facilitate local and national plans and reviews of educational spending assessments accordingly.

The amendment is phrased on the understanding that the LEA has the main strategic role in planning for special educational needs. Its access audits should then inspire voluntary-aided and grant-maintained schools also to review accessibility to provide a full local and national profile of our school buildings.

I strongly believe that we must move away from the situation where some disabled young people are rejected by schools simply because the governing bodies believe that they cannot cope with the problems that they would face, for example, in transferring between classrooms or moving up and down stairs. The noble Baroness, Lady Williams, referred to such a case, which concerned a girl with cystic fibrosis.

There was a recent article in the Daily Telegraph about a child who had a mild form of cerebral palsy and who had attended a mainstream primary school for over six years. Her application to a particular school was supported by her parish priest, her physiotherapist and by her primary school head teacher, who regarded the girl as highly intelligent and, indeed, one of his most able pupils. She was in fact also able to walk unaided in class and around the playground and could even manage some PE activities. Yet, her desperately disappointed parents had to cope with the fact that she was rejected for the voluntary-aided school which she wanted to attend because the governors felt that their buildings were not quite adequate to cater for her needs.

It is important to recognise that making a school more accessible is not simply a matter of building ramps and installing lifts. A review of access arrangements could provide for the very careful siting of provision so that logistical obstructions to curricular integration are minimised and ensure that there are opportunities for individualised programmes as regards the placement of pupils in different classes and groups for different activities.

Both the reports from Cooper & Lybrand to which I referred recommend national government action to promote research and collate information on access to schools. We have called for government guidance and for the resources for LEAs to implement the policies of access audits and integration. I suggest that the new amendment provides the ideal platform for the Government to take action and also provides an impetus for local education authorities to implement those policies. I beg to move.

11.45 p.m.

Baroness Blatch

My Lords, there is an amendment on the Marshalled List tabled in my name— Amendment No. 212C. Its purpose is to allow local education authorities, in prescribed circumstances, to charge county, voluntary or maintained special schools in other LEAs for special needs support services. The clause already enables local authorities to provide special needs support services to governing bodies of county, voluntary, maintained, special or GM schools outside their area, but allows them only to charge GM or GM special schools for such services. I hope that the House will accept the amendment.

I turn now to Amendments Nos. 199A, 206, 207, 207B and 213A. The new structure in the Bill for the management of schools, and for the suitable provision of school places, has been properly debated long and hard both in the House and in another place and, indeed, for a very long time during the Report stage. Noble Lords have decided that the Government should proceed with that structure. It has been an imperative of the Government to ensure that specific and sensible arrangements which are compatible with that overall structure are put in place in an area for the provision of special education. We have therefore been at pains to provide within the Bill a comprehensive and coherent system for special educational needs which will enable those sensible arrangements to be made. I find the debate somewhat depressing. Certain remarks made this evening clearly illustrate to me the fact that some noble Lords have not read the Bill properly.

As regards Amendment No. 213A, I also outlined in Committee the three key points where the arrangements for the provision of special needs services in an area need to be carefully considered between the LEA and individual schools in the GM sector. They are where an LEA-maintained school acquires GM status; where the FAS or a promoter establishes a new GM school; and when an existing GM school wishes to change its character.

Paragraph 4 of Schedule 3 requires a governing body's proposals for GM status to describe the proposed provision for pupils with SEN. I would expect those proposals to include the school's SEN policy and to say how, if at all, the acquisition of grant-maintained status would affect that policy. The legislation requires that the Secretary of State must be satisfied with the arrangements—including those for special educational provision—before approving any proposals. The LEA is a statutory objector to the proposals and may draw to the Secretary of State's attention any difficulty it sees locally with the proposed arrangements for SEN provision. The governors of course always have their duties under Clause 155 towards their pupils with SEN.

At the other points I referred to—the establishment of a new GM school or the change of character to an existing one —the Bill requires, in Clauses 46, 47, 94 and 95, that the FAS, promoters or the governing body consult appropriately and have regard to guidance which the Secretary of State will issue before publishing relevant proposals. I assured the Chamber during the debate in Committee that the guidance from the Secretary of State would specifically state that before those proposals are published the FAS, the promoter or the governing body should consult the LEA over any implications for special educational provision in an area that would flow from the proposals. That consultation process over SEN provision should be a genuine dialogue with the LEA. The explicit aim of the consultation process should be to ensure that, so far as is practicable, the special educational provision which should result from a change of character in the existing school, or the provision to be made in the new school, would contribute to and indeed enhance the range of special educational provision in the area as a whole, taking into account that made in other self-governing schools as well as that made in LEA-maintained schools.

At the same time consultation should seek to ensure the LEA is fully conversant with the aims and objectives of the SEN provision in the self-governing school so that the LEA can adjust its provision as necessary and offer appropriate support services which it is able to provide under Clause 156. Consultation will enable an LEA to take account of all these developments as, under Clause 153, it reviews the arrangements it makes on behalf of children with special educational needs. Proper and effective consultation must therefore take place between the LEA and the GM sector at crucial points where the provision for SEN in an area may be affected. I hope that that goes some way to reassuring the noble Baroness, Lady Warnock, and that she will consider withdrawing her amendment.

Amendment No. 207B does not argue for the LEA itself to plan all SEN. And I have to say that the intention behind the amendment tabled by the noble Lord, Lord Judd, appears to go much wider than protecting the interests of those with special educational needs. I think noble Lords will realise from what I said on the first day of Report that it is not in the Government's view appropriate to suggest in legislation that the planning of education for an area will always rest solely with the LEA, nor therefore to place a statutory duty on the LEA to set out a strategic plan for the area. It is therefore not appropriate to give the LEA the responsibility of preparing a plan for the overall direction of education in its area as proposed by the noble Lord.

These provisions are the most centralising provisions that I have come across. The Government have been criticised constantly for being a centralising government. However, these provisions are highly centralised and of course they have the potential for offering total prescription. The system as I have described it under the Bill should already ensure proper and sensible coverage of SEN provision in an area between the providers, while allowing the GM schools freedom to participate in the planning of that provision. I recognise that some of your Lordships accept that the planning arrangements we have in mind are sensible but are concerned that self-governing schools may not deliver the special educational provision the plans entail. The argument is that if the LEA had an overall planning role it could ensure that provision in the plans is delivered. I cannot accept that argument. All schools will have to draw up plans for and report on their special needs provision. All schools will be subject to four-yearly inspections. All schools will have to have regard to our new code of practice.

The Bill provides for close accountability and regular monitoring, and for children with statements the LEA will have powers to oversee provision in grant-maintained schools. Beyond that I am wholly confident that the self-governing schools will wish to do all in their power to make proper special educational provision for the benefit of pupils in the locality with special needs. The experience of the grant-maintained sector to date bears out my confidence. Therefore, for all of the reasons that I have given, I hope that the amendments will not be supported.

I propose to take the last part of Amendment No. 207C first. We have already had two extensive debates on amendments which would place a duty upon local authorities to provide nursery education for all three and four year-olds whose parents wish it. Those amendments were not carried. There were two main arguments against them: first, that they would have introduced a standardised provision in place of a healthy diversity; and, secondly, that they carried a large cost since without doubt a great deal of good quality voluntary and private provision, which is well known on the Continent—and we are often criticised for not making comparable provision—would have closed down in consequence. Those arguments will still hold in three years' time. I suggest that no useful purpose would be served by giving the Secretary of State a duty to review that matter.

The first part of the amendment would also remove from local authorities an area in which until now they have had discretion. They would be required to make provision for three and four year-olds with special educational needs only in nursery classes. The essential point is not that the provision that is made for those children should be in nursery classes but that the provision which is made should be appropriate, in a nursery class or another setting where it is possible to provide suitable support.

We must not be over-prescriptive as to how a duty should be fulfilled. There is no justification for ruling out on principle settings such as suitably staffed playgroups, a number of which, with strengthened staffing and appropriate training, cater for children with special educational needs. Often that form of investment may well be the most cost efficient available, especially but not only in some rural areas. I have to say to the noble Baroness, Lady Williams of Crosby, that playgroups do care for children with special educational needs and do pick up their problems. F know, too, from personal experience, that in the case of children with hearing impairment, co-ordination difficulties, speech impediments and all sorts of difficulties those involved work very closely with social services, local doctors and infant departments of local schools.

The Bill makes similar provision to that in the 1981 Act. LEAs will retain their statutory duties to identify and assess children with special needs from the age of two, and the power to provide for children with recognised disabilities from birth. Special provision for very young children must be flexible in order to meet the demands of the child in a way which also provides support for the family. For example, portage, the early intervention scheme for children under five, under which a weekly home visit is made, also has an important role in co-ordinating the work of local authorities, social services and health authorities in identifying and helping certain children with special needs in the crucial early years.

In Amendment No. 207A the noble Baroness, Lady Blackstone, has raised matters which were addressed in general terms during the Committee stage by my noble friend Lord Henley. I simply remind your Lordships that we have a positive policy on integration. We seek to encourage the integration of disabled children into mainstream schools wherever possible and when it is appropriate for the child, which is very important.

The Government have, of course, given very generous capital guidelines to authorities in recent years. Therefore, there is scope for LEAs to make progress in improving access for the disabled in schools. Indeed, many are making considerable progress in that respect. It is for local authorities to determine their capital expenditure priorities between services and between schools. Local authorities can top up the borrowing approval implied by the education annual capital guidelines from other sources, which I mentioned earlier today in relation to another amendment. In so far as local authorities are under a general duty to review their special needs provision in any case and should be looking at access for the disabled as part of that duty, and in the light of their responsibilities under Clause 154, I suggest that that amendment is also unnecessary.

Amendment No. 212 addresses the delivery of provision for those children who have special educational needs but do not have a statement—the "Warnock 18 per cent." Your Lordships will recall that we debated this question also at some length in Committee. We are all agreed about the importance of providing appropriate education for those children. The issue here is the practical one of how to ensure that provision.

A school's policy statement on special educational needs will be required to cover a wide range of information, including the school's objectives for pupils with special needs and its recording, monitoring and reviewing procedures for individual children's special needs.

Under the code of practice, with its five-stage model of assessment, schools will be expected during the first three school-based stages to identify any registered pupil who displays a learning difficulty, to assess the cause of his difficulty, to devise a programme of support for the pupil, to monitor the success of that programme, and to revise the provision as necessary in the light of that review. All intervention will be in close consultation with the child's parent and with outside professional assistance as appropriate. That assistance could be in the form of advice from an educational psychologist, medical advice or from a specialist advisory teacher.

The child's progress will be under constant review from his class teacher and will be discussed regularly with his parent. I would expect such reviews to occur far more frequently than once a year.

If the school's action is unable fully to meet the child's individual needs, and it is necessary for him to move to stage 4 when the local education authority will consider the need for a statutory assessment under Clause 160, the authority will expect to receive from the school clear documentary evidence of the child's learning difficulty or disability and of the action taken during the earlier stages of the child's performance.

Those are concrete ways of ensuring that all children with special educational needs receive the special educational provision appropriate to their learning difficulty and that that provision is revised as their needs change.

The amendment tabled in the name of the noble Baroness, Lady Warnock, singles out for primary legislation the review of provision. But, as I have indicated, that is just one aspect of a continuum of provision for children with special educational needs. Each child's needs are different and will themselves vary during his school career, according to his progress in the light of the provision he receives. In the case of some children, the provision made will need to be reviewed on a virtually continual basis. In the case of other children, a one-off action may be all that is required to enable them to overcome a temporary difficulty. This variety of circumstances makes the inclusion of such detail in primary legislation not only undesirable but actually unworkable. The code of practice and the requirements of schools' policies on special needs will give the flexibility to enable schools to tailor their intervention to the needs of the individual pupil. I hope therefore that the amendment will be withdrawn.

Turning to Amendment No. 212B, Clause 156 provides for local education authorities to supply goods and services to governing bodies so that, if a pupil has special educational needs, the special educational provision which his learning difficulty calls for can be secured. The amendment seeks to place LEAs under a new duty to ensure the availability of support services. I wholly accept that schools will need access to support services if they are to implement their special needs policies and take action in accordance with the code of practice. In many cases those services will be provided by the LEA. But we do not believe that the LEA should be the monopoly supplier of such services. The imposition of a duty would discourage the growth of alternative suppliers.

The Government cannot support a move which seems intended to stifle the choice available to governing bodies and, since requirements will vary from area to area, it seems unreasonable for the LEA to be protected as the sole supplier. It will be for governors to decide whether to secure SEN support services from their parent LEA or from another source. There should, in other words, be a market in such services, and indeed there is, and LEAs will be empowered to be one provider in that market.

All maintained schools have, or are likely to have in the near future, some funding to purchase SEN support services: LEA maintained schools through LMS; and grant-maintained schools through their annual maintenance grant, or later from the common funding formula when introduced. Governing bodies of county, voluntary and maintained special schools should be able to purchase services, at a price, from the provider of their choice.

Perhaps I may say to the noble Baroness, Lady Warnock, that Amendments Nos. 219F and 219G will meet the anxieties embodied in her amendments, Amendments Nos. 213A and 219H which we shall debate later. The government amendments will give LEAs a limited right of access to all grant-maintained schools and indeed all maintained schools to ensure that provision specified in a statement is being made and will ensure that all maintained schools are involved in the annual review of statements.

The noble Lord, Lord Parry, can be assured that the requirements of the Bill will be vested in the relevant local authority. There is no question that there will be a lacuna. There will be opportunity for parents' views and preferences to be given serious consideration by the relevant local authority.

The noble Baroness, Lady Williams of Crosby, wondered where all the expertise was going in Ofsted. That is a terribly disparaging reference to Ofsted. It will have the necessary expertise; indeed it is required to have the necessary expertise to do whole-school inspections, including either partial or whole special needs inspections.

In regard to the 75 per cent. trigger point that was referred to, there will be no sudden falling away of the LEA responsibility. The LEA will continue, all the way through the trigger point and beyond, to have responsibilities as laid down in the Bill. But at 75 per cent., the other 25 per cent. of schools continue to be the responsibility of the LEA ad infinitum so long as the LEA has maintained schools in its area. I hope that my amendment will be accepted and that the other amendments in this grouping will be rejected.

Midnight

Baroness David

My Lords, we have certainly had a very long debate on these 11 amendments which have been grouped together. I have counted, and we seem to have had 14 speakers in all, so there has been great interest in them. They have covered quite a wide range of subjects. The general theme has been the overall planning which was necessary. Integration has come in to the argument. There have been worries about the 18 per cent. of children who will not have statements, whether their circumstances will be all right—particularly when 75 per cent. of children are in grant-maintained schools—and what will be provided for them then.

As the Minister said, we have had the arguments and the votes about nursery education for all children aged three and four whose parents wish them to have that education. But now, having lost those, we come to the much more urgent group of those children with special educational needs of three and four years who genuinely benefit. We have had the old arguments again about playgroups and nursery education. My views are entirely with those of the noble Baroness, Lady Williams, that nursery education supplies something very much more than a playgroup can, good though playgroups may be.

I am sorry that the noble Lord, Lord Campbell, has gone, but I shall still answer him, as I could not answer when he spoke. He supported my Amendment No. 206 on planning. But then he said that my Amendment No. 207, which struck out "by them" from Clause 153, was too restrictive. In fact it did exactly the opposite: it made the LEA have an overall review of all the planning, all the schools in its area, so that it could oversee the whole thing and not just a certain portion of it. How that could possibly have been covered in a code of practice I do not know. But I hope that the noble Lord will read what I have said.

What has come through in the debate on all the amendments in this long grouping is the overall need for strategic planning. That is, I believe, what we are all fearful of; namely, that when the changes have come about which the Government expect to happen, when more schools go grant-maintained—some may, but I find it very hard to believe that it will happen in all that much of a hurry—some of these children will suffer, particularly those who do not have statements. Will they get the services that they need? Our fear is that they will not. For that reason, I should like to press this amendment and this group.

12.05 a.m.

On Question, Whether the said amendment (No. 199A) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 61.

Division No. 5
CONTENTS
Addington, L.	Jenkins of Hillhead, L.
Archer of Sandwell, L.	Judd, L.
Baldwin of Bewdley, E.	Lockwood, B.
Barnett, L.	Macaulay of Bragar, L.
Blackstone, B.	McIntosh of Haringey, L.
Bonham-Carter, L.	Mallalieu, B.
Boston of Faversham, L.	Merlyn-Rees, L.
Carmichael of Kelvingrove, L.	Milner of Leeds, L.
Carter, L.	Monkswell, L.
Clinton-Davis, L.	Morris of Castle Morris, L.
Cocks of Hartcliffe, L.	Nicol, B.
Darcy (de Knayth), B.	Parry, L.
David, B.	Peston, L.
Dean of Beswick, L.	Pitt of Hampstead, L.
Desai, L	Plant of Highfield, L.
Donoughue, L.	Ponsonby of Shulbrede, L.
Dormand of Easington, L.	Prys-Davies, L.
Eatwell, L.	Rea, L.
Ewing of Kirkford, L.	Redesdale, L.
Faithfull, B.	Richard, L.
Falkland, V.	Rochester, L.
Graham of Edmonton, L.	Rodgers of Quarry Bank, L.
[Teller.]	Russell, E.
Grey, E.	Seear, B.
Guildford, Bp.	Sefton of Garston, L.
Hamwee, B.	Taylor of Blackburn, L.
Harris of Greenwich, L.	Thomson of Monifieth, L.
Henderson of Brompton, L.	Tordoff, L. [Teller.]
Hilton of Eggardon, B.	Turner of Camden, B.
Hollick, L.	Warnock, B.
Hollis of Heigham, B.	Wedderburn of Charlton, L.
Holme of Cheltenham, L.	Williams of Crosby, B.
Howell, L.	Williams of Elvel, L.
Howie of Troon, L.	Williams of Mostyn, L.
Irvine of Lairg, L.	Winchilsea and Nottingham, E
Jay of Paddinglon, B.
NOT-CONTENTS
Aldington, L.	Campbell of Alloway, L.
Allenby of Megiddo, V.	Carnegy of Lour, B.
Archer of Weslon-super-Mare,	Carnock, L.
L.	Chalker of Wallasey, B.
Arran, E.	Chelmsford, V.
Astor, V.	Clanwilliam, E.
Belstead, L.	Clark of Kempston, L
Blatch, B.	Colwyn, L.
Boardman, L.	Craigmyle, L.
Bridgeman, V.	Cranborne, V.
Brougham and Vaux, L.	Cumberlege, B.
Bruntisfield, L.	Denham, L.
Caithness, E.	Denton of Wakefield, B.

Dudley, E	Northbourne, L.
Elles, B.	Onslow, E.
Elliott of Morpeth, L.	Pearson of Rannoch, L.
Elton, L.	Perry of Southwark, B.
Ferrers, E.	Renton, L.
Fraser of Carmyllie, L.	Rodger of Earlsferry, L.
Goschen, V.	St. Davids, V.
Hacking, L.	Saltoun of Abernethy, Ly.
Hardwicke, E.	Seccombe, B.
Harmar-Nicholls, L.	Stewartby, L.
Henley, L.	Strathclyde, L.
Hesketh, L. [Teller.]	Strathmore and Kinghorne, E.
HolmPatrick, L.	[Teller.]
Jeffreys, L.	Thomas of Gwydir, L.
Long, V.	Trumpington, B.
Lucas, L.	Ullswater, V.
Lyell, L.	Wade of Chorlton, L.
Mackay of Clashfern, L. [Lord Chancellor.]	Wakeham, L. [Lord Privy Seal.]
Monk Bretton, L.

Resolved in the affirmative, and amendment agreed to accordingly.

12.12 a.m.

Clause 149 [Interpretation of Part II]

[Amendment No. 200 not moved.]

Viscount Astor moved Amendment No. 201:

Page 93, line 38, at end insert: ("(5A) The transfer to a reception class of pupils who have been admitted to a school for nursery education shall be treated as admission to the school.").

The noble Viscount said: My Lords, Amendment No. 201 was spoken to earlier. I beg to move.

On Question, amendment agreed to.

Clause 151 [Code of Practice]:

Lord Elton moved Amendment No. 202:

Page 95, line 10, after ("revise") insert ("(a)").

The noble Lord said: My Lords, Amendments Nos. 202 and 203 are paving amendments for Amendment No. 205, which strikes after Clause 152 and proposes a new clause as printed on the Marshalled List.

I bring Amendment No. 202 to your Lordships as a probing amendment on a matter of considerable concern. Your Lordships may recall the tragic case, many years ago, of Maria Colwell, a child of around five years old who was killed as a result of the relevant agencies, who knew that she was at risk, not being aware of each other's suspicions.

I am aware that this is an amendment taking its place in the wake of an earlier amendment, but I hope that your Lordships can contain your satisfaction or despair about the earlier events sufficient to give your attention for a moment to this case.

This group of amendments seeks to deal with the cases of children of a young age who are at risk of what was called "non-accidental injury", which we now call "physical and sexual abuse", and which can and does on occasion lead to their deaths or horrific experiences being undergone by them.

The case of Maria Colwell triggered a series of debates in this House and another place and resulted in the institution of the child protection registers kept by local authorities. Under the law as it exists, any school or other agency being aware that a child is at risk of such an experience is required to notify the keeper—the local authority— of the child protection register.

It happens that the parents of such children are often not very stable and not very closely geared into the mechanics of our society. The parents and the child who is registered on the child protection register of one authority may well move overnight into another authority without informing the first authority of their departure. The intention is that, on moving from one authority to another, the name of the child at risk shall be notified by the authority which it is leaving to the authority to which it is going. If the authority is not aware of the departure or of where the parents have gone that cannot happen.

The Bill provides, among other things, for the transfer of information between schools from which a child goes and to which a child goes. It follows that if a child whose parents have flitted by night, as it were, from one authority to another do not inform it, and the keepers of the child protection register are therefore not aware of that departure, the child will still be protected if there is a note on the child's school record. I have chosen as the vehicle for this probing amendment the curricular record. I do not believe that that is the right document but I strongly believe that there should be a document in the school which records the fact that a child is believed to be at risk of serious injury by its parents or others against whom it has no other defence and that that information should be by law transferred from one school to another when a child moves to that second school. The present drill is that a school that receives such a child writes to the school it has come from and asks for the school record. That will happen whether or not the keepers of the child protection register are aware of the move.

It is because I have corresponded with my noble friend the Minister to discover what is the status of this information when it comes to a move from one school to another that I put down this amendment, so that my noble friend can clarify the situation. If it is not a good situation we shall be able at Third Reading to rectify it. I think that I have spoken long enough, though I am flattered that so many noble Lords on the other side of the House have stayed to hear. Nevertheless, I have spoken long enough, and I therefore beg to move.

Baroness Blatch

My Lords, I fully appreciate the concern of my noble friend Lord Elton to protect children at risk of abuse. We all share that concern. However, these amendments create a provision for the Secretary of State to make additional regulations on matters which in our view are already sufficiently covered by existing legislation and guidance.

We recognise that because of their day-to-day contact with individual children, teachers and other school staff are particularly well placed to observe outward signs of abuse, changes in behaviour or failure to develop. Where they have the slightest suspicion that a child is at risk of abuse, locally established procedures already exist for schools to alert the social services department. It will then be for that department to investigate and decide whether the suspicion is justified and the child should be placed on the child protection register.

Each social services department is required to nominate an experienced senior social worker to be custodian of the child protection register for that area. The custodian should notify the school (including a nursery school) if a pupil's name has been placed on the child protection register, or when a child whose name is on the register starts school. The school must immediately inform the custodian of the register if the child changes school and also tell the receiving school that the child is on the child protection register. At the same time, if the child is moving from one local authority area to another, the custodian of the child protection register should ensure that the child is immediately registered on the receiving authority's child protection register.

These requirements for inter-agency co-operation were set out in guidance entitled Working Together under the Children Act, issued jointly by the Education and Health Departments, the Home Office and the Welsh Office. This guidance was issued under Section 7 of the Local Authority Social Services Act 1970. While it does not have the full force of statute, it should be complied with unless local circumstances indicate exceptional reasons which justify a variation. Copies of Working Together under the Children Act were sent to all local education authorities and to all grant-maintained, non-maintained special and independent schools.

I hope that my noble friend will agree that these inter-agency procedures satisfactorily meet the need he has identified. If he has any evidence to suggest that they do not, I should be happy to consider it and to consider with my right honourable friend the Secretary of State for Health whether further action is necessary.

My noble friend has suggested that a pupil's curricular record should include information on teachers' concerns about pupils being at risk of abuse. I do not think that it would be appropriate for a pupil's educational record to be the principal means of recording and passing on information of this kind.

My noble friend is, I know, concerned that if a child is not already on the child protection register but a teacher suspects that the child is at risk, this information could be lost when a child transfers to another school if there is no provision for it to be placed on the child's curricular record. But we need to bear in mind that such a provision could itself be open to abuse if, for example, a teacher's suspicions, though recorded, were unfounded and an innocent parent fell, without his or her knowledge, under immediate suspicion at the new school.

It seems to me that the existing procedures provide better safeguards for both child and parent. If a teacher suspects, however slightly, that a child is at risk, he or she should alert the social services department so that it may carry out any necessary investigations. Simply noting a concern on the child's curricular record does not of itself help that child and could, if the suspicion is misplaced, do positive harm.

There is already provision under the Data Protection (Subject Access Modification) (Health) Order 1987 for information first recorded or given to a health professional to be withheld if giving access would, in the opinion of the health professional, be likely to cause serious harm to the mental or physical health of the individual. That seems to me to provide appropriate protection.

The code of practice to be issued under Clause 151 will contain practical guidance on the discharge by LEAs and the governing bodies of maintained and self-governing (GM) schools and of grant-maintained special schools of their functions under Part III of the Bill toward children with special educational needs. LEAs, such governing bodies and the new SEN tribunal will be required to have regard to the provisions of the code.

The code will address the whole range of special educational needs, including the possibility that an individual child's emotional and behavioural difficulties may result from abuse or neglect. The code will offer advice to the school and to the local education authority on assessing the child's learning difficulties and on acting to meet the child's needs in conjunction with other authorities as appropriate.

Grant-maintained schools and Sections 27 and 47 of the Children Act 1989 are referred to in an article in an Education study which I can make available to my noble friend, who may find it interesting on this subject.

The department has taken action to bring grant-maintained schools and city technology colleges within the scope of Sections 27 and 47 of the Children Act 1989. These sections require co-operation with local authorities acting on behalf of children in need or investigating child abuse. The department wrote in April to the heads of the schools concerned informing them of the Secretary of State's intention to make an order bringing them within scope of Sections 27 and 47 and inviting any comments on the implications of implementing this measure. The deadline for response was 28th May and no comments have been received. The Secretary of State will shortly make the necessary order. We will send the schools copies of the order and remind them of the guidance in Working Together Under the Act. I know that this has been a subject of concern to my noble friend and to other Members of the House. I can give him an assurance that the procedures that are in place cover most of his concerns.

Lord Elton

My Lords, I am grateful to my noble friend for her explanation. If I have understood her aright, the procedures at present are that if the custodian of the child protection register is aware of a child being thought to be at risk by another agency, it must inform the school at which the child is registered as a pupil. Conversely, if the child is thought by the school to be at risk, the school must inform the custodian of the child protection register. If things then proceed normally and the child moves to another school, the local authority is informed by the school and has the duty of informing the new school of the suspicion registered on the child protection register. If that new school is in a different local authority area, as it now is, or—my noble friend did not mention this and before I sit down perhaps she will put me right on it—if it is subject to an appropriate authority (that is, the Funding Agency for Schools) then it will be the duty of the custodian of the child protection register to inform that authority which, in turn, will inform the new school. All that is tickety-boo and absolutely fine.

However, what happens if the child leaves the first school and goes to another not in the same local authority area or possibly not anywhere near it? It may be in the Stilly Isles, as happened in a recent unfortunate case, or in Northumbria, the child having started from Buckinghamshire. In that case, a child turns up in the new school— let us hope with the same name— and the school says, "Where do you come from?" Let us hope that the parents are not sufficiently devious and acute to conceal their origins or, indeed, to change their names. The new school is then in a position to write off to the school from which the child came and that school will send back information in the form of a curricular record about the child's performance and capabilities.

However, if I understood what my noble friend wrote to me before the debate, there is no authority from the school to disclose in that document the fact that the child is believed to be at risk, nor is there any requirement for it to do so. Therefore, I assume that it will not. There are arguments in favour of that position. There are those who feel in the light of the recent experiences in the Scottish isles that it would be most unfortunate if the possibly quite groundless suspicions of teachers were to be marked on a child's record with the result that innocent parents arriving in a new authority area would suddenly find themselves marked down as possible baby-bashers. I can see that that would be very unfortunate. I am sorry that my noble friend Lady Young is not here because she would have put that view to your Lordships, so I feel that in her absence I am duty bound to put it to your Lordships myself.

I go back to Maria Colwell, aged five, in her vest and pants at five o'clock in the morning, if I remember correctly, on a cold doorstep, and her subsequent death. That is such a dreadful thing that if a risk has to be taken it is probably better to take it with the parents than with the child. It is a horrible decision to have to take, but we need to think about it. In that case, there might be merit in the information being transmitted from one school to another albeit in a guarded fashion; or it might be possible that, on receiving the message from the school from which the child had gone, the receiving school might be put under a duty to inform the custodian of the child protection register that it had received that request and the address from which it came. Then the machinery to which my noble friend has alluded could be put into operation, confidentiality could be retained and the information could be transmitted through that custodian to the custodian of the new authority, thus protecting the parents' interests at least to the extent that it would not alert the incoming school unless that information was already recorded on the register.

However, even there there is a lacuna because it seems to me from the cases that I have read that there are two sources which commonly give the alert that a child is at risk. One is social workers, and we are not here concerned with them. The other is teachers, and we are here concerned with them. They know children intimately; they know their behaviour patterns and they see them day after day. They can note the first bruise and see the explanation regarding the second, and then they can see that it is becoming a habit. They are then rightly suspicious and probably somebody will go to the home and eventually, if that pattern continues, there will be a note on the school register. The matter will get to the custodian of the child protection register.

These are complicated procedures. They will not in any case finish up on the face of the Bill; but I am not entirely satisfied that the procedures my noble friend has described to us are in fact sufficiently foolproof for us to let the matter rest there. I am not sure whether my noble friend has the information that will enable her to reply to my earlier question but, if not, I shall content myself until Third Reading. However, I must say that I should like to have your Lordships' leave to take this away, think about my noble friend's reply and possibly correspond with her before Third Reading, because this is the penultimate stage of the last chance to do anything about this matter for some considerable time. I think my noble friend wants me not to have sat down, so I shall now not sit down.

12.30 a.m.

Baroness Blatch

My Lords, with the leave of the House, I understand that my noble friend wants to have some assurance that when a child moves from one part of the country to another the receiving school will have full information about that child, both curricular information and information that the child may be at risk. I understand it to be the case that the school will know of the child at risk, either because they have directly picked up the problem in the first place and informed the custodian of the register, or that a third party has informed the social services directorate, who would then inform the school, so that in one way or another the school would actually know. When a child leaves an area, if the fact is known to the receiving school, certainly the curricular records would go on, but it would be for the school to inform the custodian of the register to inform the receiving custodian and the school that the child had indeed been placed on the at risk register.

It is still possible that one school can telephone another school to say that child X is coming, that the child is at risk and that information will follow; but it is always possible sometimes, sadly, in these sort of cases, where a child simply flits in the night, that the school from which the child has left is not aware of the receiving school, and therefore it is up to the receiving school to contact the school the child has left. Then the process would be triggered again and the school would inform the custodian of the register, who would inform the receiving custodian of the new register and the new school where the child had attended. I think that the system is foolproof, but of course I will continue to look at this between now and Third Reading, and I will of course correspond with my noble friend if he feels that would be helpful.

Lord Elton

My Lords, I am most grateful to my noble friend. It was her latter remark that came closest to addressing my actual concern. I take it that not having sat down, I can now not stand up and complete my remarks. That leaves just the question that when the child arrives at the school unheralded and the school writes off to the alleged school of origin and finds it does not exist or that the pupil was never registered there, something needs to happen then, because these are very real traps for tiny mites who have no other protection. My noble friend, I am sure, will forbear with my persistence between now and Third Reading. I hope that your Lordships will, too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

(Amendment No. 203 not moved.).

Lord Campbell of Alloway moved Amendment No. 204:

Page 95, line 21, 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 noble Lord said: My Lords, this amendment is of crucial importance and perhaps it is unfortunate that it has to be debated so late, because the code of practice is the main implementing machinery of the whole of Part III of this Bill, and that code must have sufficient legal efficacy when breaches of the code are before the tribunal so as to make Part III of this Bill work. In the Private Member's Bill there were provisions to make it work but now, the Government having taken over most of the concepts of that Bill, have taken out some of the implementing measures which would have been on the face of the Bill, have put them in a code of practice and have deprived them of the requisite legal efficacy.

The true intention of government as to the status of the code cannot be assumed from looking at Clause 151 as it stands, but it is apparent from the speech of my noble friend the Minister in Committee (cols. 486–487). Taking those intentions of government into account, I have drafted the amendment which in no way conflicts with the intention of government, but renders such intentions plain on the face of the Bill.

The problem is simple to state, and I shall not take long to do so. Clause 151(1) says that the code is for guidance. Clause 151(2) says that the guidance is not mere exhortation, as is so often the case with these codes, as it imposes duties. In Committee we had the element of legal efficacy cast in the form of an onus of justification in the event of departure from or breach of the code. My noble friend said that any departure from the code would require justification before the new special needs tribunal if the matter were 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.] I have taken that, which is the way that the Government have themselves put it, as a matter which should be plain on the face of the Bill, because this is an entirely new form of hybrid trigger for a code of practice, and, as I say, the code of practice is the main, and, in effect, the only effective implementing machinery for many aspects of the Bill.

There is no reference to that novel concept of absence of justification giving rise to legal efficacy in the clause as it stands. That must be— I make this point— enshrined in primary legislation. It cannot be introduced when the code is put before Parliament. I have referred to the passage in the speech of my noble friend the Minister.

There was a debate several years ago which I initiated in the House. "Shall have regard to" was one of the five types of code of practice. "Shall have regard to" directed to local authorities in the realm of public administrative law is not appropriate to confer legal efficacy in accordance with the stated intention of government, as recorded at col. 486 of Hansard. Such indeed was the considered opinion of the noble and learned Lord, Lord Simon of Glaisdale, who so stated on a previous occasion, and is unable to attend today.

The amendment would not of itself impose duties and it would not lay down hard and fast rules. It would constitute an essential evidential component in the machinery of enforcement of the provisions of the code by the new statutory tribunal in the exercise of its appellate functions, according to the stated intentions of government. On that basis the amendment affords a crucial element in the enforcement machinery in implementation of the Bill. I beg to move.

Lord Renton

My Lords, I acknowledge that there are few Members of your Lordships' House— indeed, there may be none— who have the knowledge and expertise with regard to codes of practice which my noble friend Lord Campbell undoubtedly has. When he claims the support— as he is entitled to do on this occasion— of the noble and learned Lord, Lord Simon of Glaisdale, it requires immense courage on the part of another lawyer, such as myself, to venture to disagree with what he has said. But I have that amount of courage left in me— if not much else.

With great respect to my noble friend, I ask him to bear in mind several points and to give emphasis in a different sense to words which he has already used. I feel that I should challenge one expression which he used because it is ambiguous. My noble friend said that the code must have "legal efficacy". If he is suggesting that a code of practice to which people shall only have regard is to have the same force in law as the words of the statute itself, I am sure that on reflection he will not agree with himself because it just is not so. Indeed, the very expression "practical guidance", which we find in subsection (1), indicates something different from what he described as legal efficacy. It was very natural for him to have tried.

In order to justify the wording of his amendment my noble friend referred to an explanation of the effect of the clause given by my noble friend Lady Blatch in Committee. Indeed, he used almost exactly the same words in his amendment. I wonder why what a Minister says in Committee by way of explanation of how a clause will work should in itself mean that his or her words should necessarily become an amplification of what he or she was attempting to explain.

Especially do I wonder about that when the meaning of the clause as it stands is self-contained. Indeed, it has precedence. On previous occasions the statute has provided that there shall be a code of practice, that it shall be used for guidance and that those concerns "shall have regard to". My noble friend Lord Campbell was good enough to agree that the expression "shall have regard to", which is the operative expression in relation to the clause, has been used on other occasions. There are precedents for it. Therefore, I do not have the difficulty which my noble friend has in allowing the clause to stand as it is. It seems to me to be perfectly clear. I do not think that it is likely to give rise to difficulties in practice.

Of course, everything depends upon the meaning and effect of the expression "have regard to". It was fair, although not in any sense binding in law— if it seemed to be expressed by my noble friend on the Front Bench as being binding in law, I do not believe that she was right to say that— and justifiable for my noble friend Lady Blatch to indicate in Committee that a departure from the code of practice (in other words, a failure to have regard to it) would require justification.

That is not unexpected. Surely there is not much purpose in having a code of practice if people are to be free to disregard it and take a chance on what view a tribunal may take of that disregard. I should have thought that the expression "disregard", which, as my noble friend rightly said has been used on a number of occasions, is all that is required for a code of practice, which does not have the same weight as a statute. Therefore, for those reasons, and with great temerity and deep respect for my noble friend, I find that I am unable to support the amendment.

Earl Russell

My Lords, I rise to disagree with the noble Lord, Lord Renton, with even more temerity than he did with the noble Lord, Lord Campbell of Alloway. However, I have experience of those words "have regard to" in a code of practice— the homelessness code of guidance for local authorities. My council ignored what was prefaced by those words. The Minister may remember that she corresponded helpfully with me about that matter. She told me that it was not possible to make the council do anything to have regard to those words. I believe that that is conclusive.

Lord Henderson of Brompton

My Lords, the amendment is in my name also. I believe that the House will be extremely grateful to the noble Lord, Lord Campbell of Alloway, for persisting in this matter and for producing what I believe to be the minimum necessary for the enforcement of the code.

Most reluctantly, I must disagree with the noble Lord, Lord Renton. I hesitate to do so, having sat with him on a committee on the preparation of legislation. One of the matters with which the noble Lord was concerned, quite rightly, was certainty in the law. In a case like this where there is a code of practice which we all want and which we all want to be obeyed, it is a matter of necessity that the legislation which introduces the code should say that it shall be enforced and shall be enforced in a particular way. The noble Lord, Lord Renton, sought to make a difference where there is no difference, between his interpretation and that of the noble Lord, Lord Campbell of Alloway.

Unless there is a provision for enforcement in the primary legislation, there is no doubt that some local authorities will be in dereliction of their duty. The matter would then go to a tribunal which would determine whether or not the alleged dereliction of duty had taken place. If there is no guidance in the original legislation, then the tribunal will not have any yardstick by which to judge whether the local education authority or other authority—for example, a governing body—has been in dereliction of duty. The matter is as simple as that.

The formula that was put before noble Lords by the noble Lord, Lord Campbell of All way is correct. It is the minimum form of words to prove that there is a criterion according to which the tribunal can make a decision, and without those words it is not clear whether the tribunal would be able to reach a decision as to whether an education authority had or had not been in dereliction of its duty. It is absolutely clear that the amendment should be agreed to, and I hope that it will be.

Baroness Darcy (de Knayth)

My Lords, I should like to give my wholehearted support to the amendment, which was very clearly explained by the noble Lord, Lord Campbell of Alloway. The special status of the code is absolutely crucial. As the noble Lord stated, many amendments have been or may be withdrawn on the understanding that they will be incorporated in the code. They should be included in the Bill if the code is not to be given the necessary force. I hope that the Minister will acknowledge the value of the amendment and accept it.

Baroness Blatch

My Lords, Part III of the Bill places a clear statutory duty upon local education authorities to identify among the children for whom they are responsible those who have special educational needs and for whom it is necessary for the authority to determine the special education provision. Once those children have been identified, the authority is required to make and to maintain a statement of their special educational needs. The Bill gives parents substantial new rights to appeal against the decisions that an authority may take concerning their children's special educational needs. It establishes a new independent tribunal to hear parental appeals.

I hope that noble Lords will forgive a statement of the obvious, but I am concerned to set our debate on the code of practice within the context of the real purpose of this part of the Bill—namely, that all children with special educational needs receive the appropriate special educational provision to meet those needs. That is a purpose that is shared by all of us, not least those in whose name the amendment is tabled.

I should like to remind noble Lords that last week saw the anniversary of the Second Reading of the Bill of my noble friend Lord Campbell of Alloway which has proved so valuable in forming the Bill before us now. I have also spoken on many an occasion since the Bill entered this House of the ground-breaking work of the noble Baroness, Lady Warnock. I make no apology for doing so again.

Without the work of my noble friend Lord Campbell, we would not have made as much progress as we have with the Bill. I should like to thank him enormously not only for paving the way with his Bill, withdrawing it generously and taking my assurances on trust, but also for the way in which he has kept a very practical eye on the work and the negotiations with my officials and myself as the Bill has proceeded to this stage.

The amendment concerns the tribunal and in particular the significance of the code of practice for the tribunal's decisions. I remind your Lordships that the role of the tribunal is not primarily to enforce the code of practice. The tribunal must consider whether the decisions which an LEA may take have resulted in a child with special educational needs receiving the appropriate special educational provision to meet those needs. Thus it is the appropriateness of the statement to the child's needs which will be important to the tribunal and which the tribunal must judge.

Of course, the tribunal will be under a statutory duty to have regard to the code when hearing each appeal. However, if it considers that the provision for the child is wholly correct it would be a matter of secondary significance to the tribunal whether the authority determined that provision by following the guidance in the code to the letter. But should the tribunal judge that the provision is insufficient, the authority's observance of the code of practice may well inform that judgment. Nevertheless, it will be for the tribunal to direct the authority to specify the correct provision for the child rather than to enforce the code of practice on the authority.

The issue here is one of means and ends. If I may put it simply, the tribunal will be concerned with the ends, not with the means used to reach those ends, if the ends are satisfactory. Perhaps I may give the House an example. Let us imagine that a parent makes a request to the LEA under paragraph 8 of Schedule 9 to change the school named in his child's statement. Paragraph 8(2) says that the authority shall comply with that request provided that the school put forward by the parent meets certain criteria regarding the suitability of the placement to the child, the efficient education of the children with whom he would be educated and the efficient use of resources. The code of practice may provide for full consultation among the parent, the existing and the proposed schools and the LEA.

If the authority complies with the request without consulting one of the parties named in the code, the parent will have no grounds of appeal to the tribunal. He will be happy with the decision. However, should he consider that he was caused unnecessary upset by the fact that the LEA did not consult as the code of practice provided, that may be grounds for him to approach the local government ombudsman with a complaint of maladministration.

If the authority refuses to comply with the parent's request that the school named in his child's statement be changed, the parent may appeal to the tribunal against that refusal. The tribunal will then consider the authority's decision and in so doing will have regard to the guidance in the code. The evidence put to the tribunal may show that the authority did not consult the relevant parties. But if it considers that the decision not to comply with the parent's request was the correct one and resulted in the child receiving special educational provision appropriate to his needs, the tribunal will rule in the authority's favour. The LEA's failure to follow the guidance in the code of practice will be immaterial to the tribunal's decision. If, however, the parent appeals against the authority's refusal to comply with his request, and the tribunal considers that the parent's preferred school did meet the criteria under paragraph 8(3) of Schedule 9, the tribunal will rule against the authority, even if the LEA can show that it had consulted with all the relevant parties as the code provides.

The code of practice is a tool. It will be there to assist an authority to reach the correct decision whenever it has a decision to take regarding a child with special educational needs. It will be there to assist the tribunal to decide whether that decision was correct if the parent decides to appeal against the decision.

I am finding it very difficult to continue with my speech. There are about five or six different conversations going on around the Chamber.

As I was about to say, both the authority and the tribunal will be under a statutory duty to have regard to the code, but at the end of the day it will be the appropriateness of the authority's decision to the educational needs of the child concerned which will be decisive, not whether the authority followed the guidance in the code. I hope that my noble friend will forgive me for speaking at such length on the issue. However, I know that it is of great interest to him and of vital importance to the whole part of the Bill.

Given the scope of the amendment, I have not addressed the other bodies which will be required to have regard to the code such as the governing bodies of schools; neither have I referred to the other authorities which may be called to consider the appropriateness of decisions which the code might inform and which will also have regard to the code when doing so. I have, however, tried to explain the significance of the code to the local education authority which takes a decision regarding a child's needs, and to the tribunal which may be called by the child's parent to consider whether that decision was correct. I hope that, in the light of my explanation, your Lordships will agree that this amendment is not appropriate and that my noble friend Lord Campbell of Alloway and the noble Lord, Lord Henderson of Brompton, will consider withdrawing it.

Finally, we must accept that the code of practice cannot and will not be all-embracing. It would be impossible for the code to anticipate, and therefore offer advice on, every possible situation and combination of situations. As your Lordships are aware, there will be a full and thorough consultation exercise later this year on a draft of the code. Thereafter my right honourable friend the Secretary of State will lay the final draft before both Houses of Parliament for approval by the affirmative procedure before it is issued.

The code will therefore be an authoritative document, informed by the views, contributions and experience of the widest range of experts in the field of SEN, from the parents of children with special educational needs, the organisations which promote their interests, the professionals involved in all aspects of meeting their needs, to the Members of this House. 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.

It is not unusual for legislation to provide simply for a duty to have regard to a code or guidance. Section 60(4) of the Control of Pollution Act 1974 and Section 71(1) of the Housing Act 1985 do precisely that. The general principles of administrative law require public authorities or officers in exercising their functions to direct themselves properly, and to take into account all relevant factors, and not to take into account irrelevant factors. Failure to do so may result in a decision or other act being challenged in proceedings for judicial review, or simply being regarded as legally ineffective.

Guidance available to those involved with the policy and drafting of statutory provisions relating to codes of practice 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. 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.

I hope my noble friend will feel that the provisions in place are fulsome and that the amendment is unnecessary. I hope that he will not press it.

1 a.m.

Lord Campbell of Alloway

My Lords, I thank my noble friend the Minister for the undeservedly kind words that she said about me, but I am afraid I am wholly unable to withdraw this amendment. There is no object in postponing the matter much further. As the noble and learned Lord, Lord Simon of Glaisdale, remarked in Committee, the essence of the disagreement between myself and my noble friend the Minister would not appear to have been understood. It was not understood then, it is not understood today and it obviously will not be understood in the future. If it is understood by your Lordships I, in due course, in a moment or two, will take the opinion of the House.

I hope I may deal with some of the matters that have been mentioned. First, one of the functions of the tribunal must be to enforce the code of practice if departure from it is not justified. That is precisely what my noble friend the Minister said in Committee. Secondly, it is not a question of consultation as my noble friend the Minister said. It is not a matter of an affirmative resolution. That is totally beside the point. This has to be an enforceable code or it is not worth the paper it is written on.

Perhaps I may deal briefly with the points made by my noble friend Lord Renton. He said that what the Minister said about justification was fair comment but not binding in law —whatever that means—and that it was not right for her to have said it. I took a note of what my noble friend said. He also said that in the circumstances this was a matter covered by precedent. There is no precedent for this type of hybrid code of practice clause where there is exhortation and guidance in one part and a clear duty in another. To suggest that there is a precedent for such a totally novel type of trigger clause for the code of practice is wholly misconceived. I shall take the opinion of the House.

1.6 a.m.

On Question, Whether the said amendment (No. 204) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 42.

Division No. 6
CONTENTS
Addington, L.	Jay of Paddington, B,
Archer or Sandwell, L.	Judd, L.
Baldwin of Bewdley, E.	Lockwood, B.
Blackstone, B.	Macaulay of Bragar, L.
Bonham-Carter, L.	McIntosh of Haringey, L.
Boston of Faversham, L.	Mallalieu, B.
Campbell of Alloway, L.	Merlyn-Rees, L.
[Teller.]	Milner of Leeds, L.
Carmichael of Kelvingrove, L.	Monkswell, L.
Carter, L.	Morris of Castle Morris, L.
Clinton-Davis, L.	Nicol, B.
Cocks of Hartcliffe, L.	Parry, L.
Darcy (de Knayth), B.	Peston, L.
David, B.	Pitt of Hampstead, L.
Dean of Beswick, L.	Plant of Highfield, L.
Desai, L.	Ponsonby of Shulbrede, L.
Donoughue, L.	Prys-Davies, L.
Dormand of Easington, L.	Rea, L.
Eatwell, L.	Redesdale, L.
Ewing of Kirkford, L.	Richard, L.
Faithfull, B.	Rochester, L.
Falkland, V.	Rodgers of Quarry Bank, L.
Graham of Edmonton, L.	Russell, E.
Grey, E.	Saltoun of Abernethy, Ly.
Guildford, Bp.	Seear B.
Hamwee, B.	Sefton of Garston, L.
Harris of Greenwich, L.	Taylor of Blackburn, L.
Henderson of Brompton, L.	Thomson of Monifieth, L.
[Teller.]	Tordoff, L.
Hilton of Eggardon, B.	Turner of Camden, B.
Hollick, L.	Warnock, B.
Hollis of Heigham, B.	Wedderburn of Charlton, L.
Howell, L.	Williams of Crosby, B.
Howie of Troon, L.	Williams of Elvel, L.
Irvine of Lairg, L.	Williams of Mostyn, L.
NOT-CONTENTS
Allenby of Megiddo, V.	Caithness, E.
Arran, E.	Carnock, L.
Astor, V.	Chalker of Wallasey, B.
Belstead, L.	Chelmsford, V.
Blatch, B.	Clanwilliam, E.
Brougham and Vaux, L.	Clark of Kempslon, L

Craigmyle, L.	Lyell, L.
Cranborne, V.	Mackay of Clashfern, L.
Cumberlege, B.	[Lord Chancellor.]
Denton of Wakefield, B.	Northbourne, L.
Dudley, E.	Pearson of Rannoch, L.
Elliott of Morpeth, L.	Renton, L.
Elphinstone, L.	Rodger of Earlsferry, L.
Elton, L.	St. Davids, V.
Ferrers, E.	Strathclyde, L.
Fraser of Carmyllie, L.	Strathmore and Kinghorne, E
Goschen, V.	[Teller.]
Henley, L.	Thomas of Gwydir, L.
Hesketh, L.[Teller.]	Trumpington, B.
HolmPatrick, L.	Ullswater, V.
Jeffreys, L.	Wakeham, L.
Long, V.	[Lord Privy Seal.]
Lucas, L.

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

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 152 [Making and approval of code]:

1.14 a.m.

Baroness Blatch moved Amendment No. 204A:

Page 95, line 27, leave out from ("and") to ("shall") in line 40 and insert ("shall consider any representations made by them. ( ) If he determines to proceed with the draft (either in its original form or with such modifications as he thinks fit) he shall lay it before both Houses of Parliament. ( ) If the draft is approved by resolution of each House, the Secretary of State").

The noble Baroness said: My Lords, noble Lords will recall that during the Committee stage I gave an undertaking to bring back an amendment to Clause 152 to ensure that the code of practice would be subject to the affirmative procedure when it was first issued and subsequently when it was revised. I gave the undertaking in the light of the views of the Delegated Powers Scrutiny Committee.

My Lords, I have found it very difficult. This is the second time that I have had to battle against about 20 conversations going on on the opposite Benches.

I gave that undertaking in the light of the views of the Select Committee on the scrutiny of delegated authority, and also the strength of feeling expressed by noble Lords at Committee stage. The amendment before your Lordships tabled in my name has been prepared to meet this end, and I commend it to the House.

1.15 a.m.

Lord Elton

My Lords, noble Lords will remember that this amendment springs from a recommendation of the Select Committee on Delegated Powers of which I have the good fortune to be a member. The noble and learned Lord, Lord Simon of Glaisdale, drew attention to the importance of the way in which this code is to be treated.

The Government have given more than the committee requested. The request of the committee was that the code should be put through the affirmative procedure on the first occasion when it was introduced, and that alterations to it might be as already in the Bill. The background to this is that in the third of its questions to the department after it received the original departmental report, the committee asked: Can you explain why the Code of Practice to be issued under Clauses 149 and 150"— as they then were— is to be subject to negative rather than affirmative procedure?". As we hope that this decision is to be a precedent of other decisions, and as we hope that the behaviour of the department will be a guide for future departmental decisions, it is worth noting that the department's reply was, first of all, to say that under the provisions in the Bill as it was then drafted the Secretary of State must prepare a draft of the code, including guidance; and that he then had a duty to consult about the code before laying a copy of the draft before Parliament. It considered that the reference to the requisite consultation procedure, before a draft of the code is laid before Parliament and the subject-matter of the code which is not"— I emphasise— controversial in party political terms; and also because the negative procedure is more usual for codes of practice of the kind", would suffice. Clearly it does not, and it is worth having that on the record.

The second part of the question was: Which procedure is more unusual for Codes of this kind?". The department said that the most recent example it was aware of was: the code of practice for the promotion of equality of opportunity to be maintained, under section 7 of the Fair Employment (Northern Ireland) Act 1989 … by the Fair Employment Commission for Northern Ireland". Then rather oddly it said: A similar negative procedure is applicable in respect of a draft of that code laid before the Northern Ireland Assembly", which has been defunct for some time. The committee went on to give examples of a fiery kind dealing with picketing, the closed shop and strike ballots as being appropriate for the affirmative procedure.

I ask those who follow these proceedings and who will pay attention to further reports of the committee— I refer not to Members of this House but to members of the department—to direct their attention to those arguments and the conclusion of them that they may then be guided into having an appropriate form of procedure in the first instance.

In conclusion, I am most grateful to my noble friend for responding with this alacrity to a request of the committee.

[Amendment No. 205 not moved.]

Clause 153 [Review of arrangements]:

Baroness David moved Amendment No. 206:

Page 95, line 44, after ("shall") insert ("plan and").

The noble Baroness said: My Lords, in moving Amendment No. 206, I shall also speak to Amendment No. 207. The amendments are consequential on Amendment No. 199A, which was won.

Baroness Blatch

My Lords, in the light of the earlier decision, I shall not resist these amendments.

[Amendment No. 206A not moved.]

Baroness David moved Amendment No. 207:

Page 95, line 45, leave out ("by them").

The noble Baroness said: My Lords, as I said, this amendment is consequential on my earlier amendment, Amendment No. 199A. I beg to move.

Baroness Blatch

My Lords, I shall not resist this amendment.

Baroness Blackstone moved Amendment No.207A: Page 95, line 45. 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.").

The noble Baroness said: My Lords, I beg to move.

Baroness Blatch

My Lords, in the light of the early decision, I shall not resist this amendment.

Lord Judd moved Amendment No. 207B:

After Clause 153, 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 153 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—

1. (a) the broad direction and development of nursery, primary and secondary education respectively within the authority concerned, having regard to the requirements of section 154 below;
2. (b) the number and size of mixed and single sex schools in the authority concerned;
3. (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 154 below;
4. (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;
5. (e) the range of goods and services to be provided by the authority under sections 156 and (where applicable) 271 below; and
6. (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.").

The noble Lord said: My Lords, this amendment has already been debated in connection with another amendment. I beg to move.

Baroness Blatch

My Lords, in the light of the earlier decision, I shall not resist this amendment.

Lord Judd moved Amendment No. 207C:

After Clause 153. insert the following new clause:

("Planning of nursery provision for pupils with special needs

—(1) Without prejudice to the provisions of section 167 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.").

The noble Lord said: My Lords, similarly this amendment has been debated in connection with another amendment. I beg to move.

Baroness Blatch

My Lords, in the light of the earlier decision, I shall not resist this amendment.

Lord Judd moved Amendment No. 207D:

After Clause 153. insert the following new clause:

("Power of the Secretary of State to require information—amendment

—(1) The arrangements referred to in section 153 above shall include arrangements for the assessment and reporting to parents of educational achievements while at school of pupils with special educational needs.

(2) Section 16 of the Education (Schools) Act 1992 (Power of the Secretary of State to require information) is amended as follows.

(3) For subsection (1) there is substituted— (1) The Secretary of State may by regulations make provision requiring the proprietor of each independent school and the governing body of every school other than a special school maintained by a local education authority, which is—

1. (a) maintained by a local education authority; or
2. (b) a grant-maintained school or grant-maintained special school

to provide such information about the school as may be prescribed'".

(4) After subsection (3) there shall be inserted the following subsections— (3A) For the purposes of subsection (3) above, any comparative information as to the performance of any grant-maintained special school or other school to which subsection (1) above applies shall include information about the background and educational abilities of pupils on entry to the school and the educational achievements of those pupils while at the school (including in each case the results of examinations, tests or other assessments). (3B) The Secretary of State shall make regulations prescribing the matters to be taken into account in the background of pupils, which shall include socio-economic factors, ethnic origin and gender".

(5) In subsection (4) at the beginning there is substituted "Subject to subsection (3A) above".").

The noble Lord said: My Lords, this amendment is virtually the same as Amendment No. 232, which was grouped with Amendment No. 12 on Thursday last. It differs only in requiring special schools to devise reporting arrangements to parents for their pupils' progress. I beg to move.

Lord Henley

My Lords, I am slightly surprised that when the noble Lord, Lord Judd, moved this amendment he said that it was similar to an amendment that he moved last Thursday and required so little explanation. He has possibly treated the House in a somewhat cavalier manner in not explaining in some detail what his amendment is about. Perhaps it would help if I responded at possibly some length to details of the amendment. From the interest in the House and the number of noble Lords present in the Chamber, it seems that the amendment itself warrants a great deal of interest.

The amendment in the name of the noble Lord, Lord Judd, would put quite unnecessary fetters on the Secretary of State's discretion to publish the information about schools which he considers appropriate. Sadly, I have not been able to listen to the arguments that the noble Lord should have put forward in explaining to the House why he felt a desire to see LEA maintained schools excluded from the regulations concerning schools' comparative tables. I cannot even say that I appreciate what the noble Lord's views are. I am not sure that I know what the noble Lord's views are. I know only that he has moved the amendment. But I have to say that I am unable to accept his simple and brief moving of the amendment and I am unable to accept what he said in support of it; namely, that it was similar to the amendment that he moved last Thursday.

I simply cannot see the logic in the proposal of the noble Lord, Lord Judd, that any grant-maintained special schools should be included in publication—and under the new clause of the noble Lord (that is, the new clause sought in Amendment No. 207D) non-maintained special schools would also be included—while LEA maintained special schools alone should not.

Like my noble friend Lady Blatch, I should appreciate the House listening to me. It would make life somewhat easier. Again, if there are so many noble Lords who wish to listen to this amendment being debated, it would help if the House would give me a reasonable degree of attention.

As I was saying, I cannot see the logic in the noble Lord's proposal that any grant-maintained special schools should be included in publication—and under the noble Lord's new clause non-maintained special schools would also be included —while LEA maintained special schools should not. If the arguments are that it is not fair that special schools should be included alongside other schools, it is surely illogical to exclude one type of special school only.

We are quite opposed to the exclusion of special schools from performance information. Some pupils at such schools are academically very able, and the achievements of all pupils at such schools should be recognised. And it is important to include special schools in the tables and in local average figures for another reason: if we did not do so, authorities which pursue a more extensive policy of integration of their special needs pupils into mainstream schools might find their overall figures looking less good than those of authorities where most such pupils are educated in special schools within or outside the authority.

We have consulted all the main organisations representing special needs groups, both last year and this, about our proposals for the tables, and none has argued that special schools should be excluded. Further, I should like to add that during the passage of the schools Bill there was no attempt in either House to amend the Bill so as to exclude special schools from the tables, and there was general agreement that the parents of pupils with special educational needs had as much right to information to inform their choices as the parents of other pupils.

I appreciate that in the case particularly of schools for children with severe learning difficulties, there may be little positive information to include in the tables. But special schools are clearly identified as such and parents too can appreciate their special position. We are proposing certain improvements on last year's tables which will ensure that it is made clear when, for example, pupils are not entered for examinations. We are also planning that the results of special schools should not be amalgamated with those of other schools, as last year, but set out in a separate alphabetical list which will make it even clearer to parents which schools are special schools.

Turning to the more general issue of the type of information which should be included in published comparative tables, I should make clear to the House—and to the noble Lord, Lord Judd, who moved the amendment with such precision—that the Secretary of State is entitled under the schools Act 1992 to publish whatever information about schools he considers likely, to assist parents in choosing schools for their children; increase public awareness of the quality of the education provided by those schools, and of the educational standards achieved… or assist in assessing the degree of efficiency with which the financial resources of those schools are managed". Those objectives are very wide and would certainly allow the inclusion of such information as the noble Lord is proposing, if that were thought necessary and appropriate. Again, we consulted in February on our proposals for the tables to be published in 1993, and will shortly be notifying schools of the arrangements to be put in place. Our proposals were that the background information on each school would, as last year, include the gender—I will come back to that word which the noble Lord included, no doubt for his own reasons of political correctness—of its intake, the number of its pupils with statements of special educational needs and whether it has special classes for such pupils.

Taking the noble Lord's suggestions for additional information in turn, he proposes, first, that we should include information about pupils' educational achievement on entry to the school and while at the school. I assume his purpose—and I can only assume because the noble Lord moved his amendment with such brevity that he denied the House the opportunity of hearing why he believed in the amendment—is to enable some kind of calculation of "value added" by the school in terms of its pupils' end of key stage results.

This Government are certainly committed to ensuring the development of methods which will enable the measurement of pupils' development at different ages and stages, and the schools Act 1992 would allow such calculations to be included in the published tables. But we are some way off achieving that. It will be some time before the option exists of calculating reliable measures of the extent to which schools have enhanced pupils' attainments over time, based on the results of the national curriculum assessment arrangements which will not be fully in place until 1997. It is also possible that the review of the national curriculum and the assessment currently being undertaken will lead to changes in this schedule. If I may, I shall pause for a glass of water, but, again, I would appreciate a little silence from noble Lords opposite, if they are listening. If they are not, so be it.

I appreciate that the noble Lord, Lord Harris of Greenwich, finds this very amusing but these are serious amendments to be debating at this hour of night and I think that they ought to be taken seriously. Perhaps noble Lords will take them seriously in due course.

Lord Harris of Greenwich

My Lords, I apologise to the noble Lord. I thought that we were having an example of his wit. I was merely joining in.

1.30 a.m.

Lord Henley

My Lords, the noble Lord knows perfectly well that I have no wit; and I certainly have no wit at this Dispatch Box. The more wit we have from the noble Lord the more he can brighten up our otherwise drab proceedings at this hour of night or this hour in the morning and the more happy we will be. I think that what the noble Lord would really like me to do is to get on to the question of the 16 to 18 front, which is what I am about to do. The noble Lord again finds this amusing. I had better take him through this fairly carefully and slowly so that he can understand the point as well as he ought to be able to and make the appropriate decision in due course.

On the 16 to 18 front, we are similarly looking for robust and workable measures of value added, covering the difference between performance at GCSE and A-level, and between GCSE or other attainments and advanced vocational qualifications. Such measures are not available yet. We cannot, as this amendment would imply, hold up publication of other information which is of value to parents and the wider community now until we have adequate value added measures. Equally—I am sure that the noble Lord, Lord Judd, accepts this—we should not try to get by with measures which would be either inadequate or unable to command the necessary widespread acceptance.

The noble Lord's suggestion—again, I presume, an implied suggestion, as the noble Lord, with his wonderful brevity, did not explain the amendment in quite the detail that the House would have liked—that the achievements of pupils on entry to the school should he used also causes some difficulty. It would mean a large number of new assessment arrangements for four and five year-olds. Moreover, since pupils transfer from school to school at different ages, the amendment would in effect mean that every pupil entering any school at any age would have to be assessed. That, I suggest, would be unworkable. Again, I think that the noble Lord would accept that. When he responds to my speech he may care to address some of these points, in particular the specific point about the workability of his amendment.

The amendment suggests an inevitable and simple correlation between social background and likely achievement. We have always resisted the inclusion of information about such factors as being liable to mislead and result in unreasonably low expectations of whole groups of pupils. But, then again, I dare say that that is not something that would be of any concern to the noble Lord. He might wish to address that point.

The noble Lord proposes that the published information should somehow include an indication of the ethnic origin of pupils. Leaving aside the race relations minefield into which any such step would undoubtedly lead, I wonder just what kind of information he has in mind and how he would propose to obtain it. Presumably his objective would be to indicate the problems of schools with a large number of pupils for whom English is a second language. Ethnic origin is not a proxy for language skills, however, so its inclusion in the tables could be of no relevance.

As I said earlier, the noble Lord also proposes that the published information should take account of what he refers to as gender. I think that what he meant was sex but, again, I shall leave the matter there. I think that the noble Lord has probably now taken the point.

At the simplest level, to spread results to show the achievements of boys and girls separately would lead to an enormous increase in the amount of information shown in the tables and make them quite inaccessible to the parents and others for whom they are intended. At the extreme, it would enable factors to be built into calculations which would even up the performance of boys and girls. As in the case of calculations which purport to take account of socio-economic variants, this would be misleading and could lead to an unjustifiably low expectation of one group or another.

I hope with that brief explanation the noble Lord will feel able to withdraw his amendment.

Lord Judd

My Lords, I am very grateful to the noble Lord for replying with his usual good humour and patience. I am sorry that there was a certain atmosphere of celebration on this side of the House which at times was difficult to penetrate.

Perhaps I may make a couple of points in responding. I certainly agree with the noble Lord that it is important to consider his point seriously. This amendment required the LEA, while reviewing the arrangements that it made for special education provision, to include the issue of the arrangement for the assessment and reporting to parents of the educational achievements of pupils with special educational needs. The LEA and the public at large must surely have some knowledge of the educational achievements of pupils with special educational needs. I would have thought that that commended itself very clearly to the Government in view of everything else which they are doing.

Therefore, in order to assist the LEA with its arrangements in Clause 153, we suggest that the Secretary of State should publish not only the raw data as he did for the GCSE results in 1992, but he must also publish background information which takes into account the educational abilities of pupils on entry to the school and also the background of pupils, including socio-economic factors, ethnicity and gender.

The intention is that a proper value-added system is introduced into assessing the work of schools. The Government have only gone half way to that objective in their proposals on the future publication of examination results and have given no detail of their thinking so far other than to restrict value-added information to prior achievement using the national curriculum assessment arrangements.

The Secretary of State and his fellow Ministers have shown a reluctance to embrace wholeheartedly value-added methods of assessing schools. This amendment required them to do so. I listened very carefully to what the Minister said. This amendment raises very big policy issues. I believe that we shall be pursuing them vigorously at other times and therefore, because we shall be doing so, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 154 [Qualified duty to secure education of children with special educational needs in ordinary schools]:

Baroness David moved Amendment No. 208:

Page 96, line 5, leave out from ("school") to end of line 6.

The noble Baroness said: My Lords, in moving this amendment I shall also be speaking to Amendment No. 209. Under the Education Act 1981, LEAs must take account of parents' views on the question of integration hut, at the end of the day, LEAs make their decision on a school for a child on the basis of the child's best interests, not the parents' preference.

Clause 154 of the Bill would seem to change this. The barrister, John Friel, and the solicitor, Peter Liell, both acknowledged experts on education law, have expressed the view that Clause 154 of the Bill, as currently worded, would give parents an absolute right to veto the placement of their child in an ordinary school. Ministers have said that this is not the Government's intention and the Department for Education has said that their legal adviser disagrees with Friel and Lien's interpretation.

Traditionally, department advice on education law carries an explicit warning, along the lines of: The guidance in this circular does not constitute an authoritative legal interpretation of any of the provisions of the law … that is exclusively a matter for the courts". But, in this instance, the department would seem to have lost its traditional circumspection. Its officials say there is no risk of Clause 154 being challenged in the courts; no risk of parents being given a veto. Yet the fact that there is disagreement between legal experts on the meaning of Clause 154 is evidence in itself of an ambiguity in the wording of the Bill; evidence that there is a risk.

Further, as the Government must be aware, the courts have in the past frequently agreed with Mr. Friel when he has challenged the department's interpretation of education law. There is no basis for the department's +confidence in this matter.

The mystery now is why the Government should want to risk the courts giving their new law a meaning which they say they do not intend or wish it to have. The solution is provided in this amendment, which would reinstate the 1981 Education Act formulation, giving LEAs a duty in law to take account of parents' views, but not necessarily to be bound by them when considering what kind of placement is in a child's best interests.

It is commendable that the Government should seek to emphasise to LEAs that, in making their decisions, they should give serious consideration to the parents' preference for school. Indeed, thanks to the Government, LEAs will be under a legal obligation to meet the parents' preference, provided that the childrens' needs also can be met. It should surely be sufficient for this to be spelled out for LEAs in the code of practice.

At the meeting with officials from the DFE on Thursday 27th May, an assurance was given that it was not the Government's intention to give parents a veto over their child's integration. There was a suggestion that the code of practice could make reference to the need to give due weight to parental opinion on the issue of integration, rather than that influencing the wording of Clause 154, and Brian Norbury said that he would look at that possibility and write to IPSEA on the question. However, as of now, the legislation still embodies a risk which we believe to be unnecessary and dangerous.

It is absolutely ridiculous to leave this ambiguity in the Bill. There is a difference among lawyers about the meaning, and it seems to me that to put legislation on the statute book when there is a clear difference of opinion is really stupid. I beg to move.

Baroness Darcy (de Knayth)

My Lords, I should like most warmly to support the amendment which has been so clearly and compellingly moved by the noble Baroness, Lady David. It is very important that the Government make it absolutely clear that it is not their intention that parents should have an absolute right of veto over their child's integration. The new form of wording has caused a great deal of concern—I could say "alarm"—among individual families and organisations. I very much hope that the Minister might agree to the wording of the amendment or to come back with similar wording of her own.

Obviously, it will be for the noble Baroness, Lady David, to decide what to do, but I hope at the very least that the Minister will first make a clear and emphatic statement that, Clause 154 notwithstanding, a parent's wish for a special school cannot override an LEA's judgment that integration is in a child's best interests when that appears to it to be the case. Secondly, I hope that there will be a commitment to include specific reference to that in the code of practice.

Baroness Faithfull

My Lords, my name is down to this amendment which has been very well explained by the noble Baronesses, Lady David and Lady Darcy (de Knayth), and I support it.

Lord Pearson of Rannoch

My Lords, having listened to what has been said so far, I am afraid that it appears that these two amendments take us in the wrong direction. By that, I mean that the duty to secure education of children with special education needs in an ordinary school appears to be less qualified and indeed somewhat strengthened by these amendments, whereas your Lordships will not be surprised to hear, in view of Amendment No. 211 which is in my name and which is to follow, that I believe that that duty should be weakened, at least for mentally handicapped children.

The Bill as drafted at least allows parents of special educational needs children to take a stand and insist that their child is educated in a special school, provided that the conditions in subsection (2) are met. These amendments would appear to remove that ability to take a stand, and would leave the parents exposed to only having their views considered in accordance with the provisions of Schedule 9.

It may be just a question of drafting, and I may not even be entirely right about that, but the amendments do not seem to make it absolutely clear that the whole of paragraph (8) of Schedule 9 would be available to parents with its right of parental appeal to the tribunal when they do not believe that the school chosen by the local authority is suitable for their children. The amendments merely say that account has to be taken of the views of the parents in accordance with Schedule 9. Even if I am wrong about that and the appeal procedure to the tribunal is included in these amendments, I fear they weaken the parents' position in Clause 154, and therefore I cannot support them.

1.45 a.m.

Lord Addington

My Lords, the amendment moved by the noble Baroness, Lady David, removes an absolute right, but the noble Lord, Lord Pearson, has said that he feels that right to be a very good safeguard. I feel that here we are touching on a raw nerve, so I would ask the Minister to explain why, if this type of amendment was not originally sought to be in the Bill, it was removed: it was a mistake. Hopefully she could try to allay some of the fears of the noble Lord, Lord Pearson, and many others like him, because unless we can establish a more even approach to this we shall continue to bump into the problem of people actually being frightened of having themselves pushed over and their children possibly being pushed into positions that they are worried about. We have the eternal problem of trying to find out exactly where the parents' rights lie in their attempts to voice their opinion on their child's interests.

Baroness Blatch

My Lords, we have had an interesting debate over the issue of integration and the parent's rights over special school placements. From our debate it is clear that some of your Lordships are desperately fearful that parents have a veto in Clause 154 over an integrated placement for their child; others of your Lordships, however, are most anxious that we should make clear in the Bill that there should be such a veto where parents want it.

I believe that the Bill has struck the right balance. The important factors are that there should always be scope for parents to make clear their views on the child's placement —be it a special or ordinary school—but the LEA must make the final decision against the clear and sensible duties on the face of the Bill and in regulations, and having regard to the practical guidance in the code of practice. The LEA's decisions will be subject to scrutiny by the tribunal against the background of similar guidance and criteria.

Noble Lords have argued that Clause 154, as worded, effectively gives parents a power of veto over a mainstream placement for their child. I have argued—and continue to argue—that this is not so and is not our intention. The legal opinions on this matter that have been prayed in aid have confined themselves largely to comparing the 1981 Act wording with the wording in this clause. They do not consider Clause 154 in relation to the Bill's provisions as a whole—in particular to the new duty on LEAs in Schedule 9 to comply with a parent's preference. We made a detailed analysis in writing of those opinions. I have not seen any further response from the lawyers concerned that contradicts our analysis.

The amendments before us revert to the wording in the 1981 Act. That wording was changed in the Bill so as to avoid a conflict of duties on LEAs. On the one hand, they must comply with the parent's preference under Schedule 9; on the other, they have a duty to integrate a child after having taken account of the parent's views under Clause 154. Should a parent express a preference for a maintained special school, the conflicting duties on the LEA are that it must both comply with that preference and also educate that child in an ordinary school, having taken account of the parent's wishes.

Under Clause 154 and Schedule 9, if a parent expresses a preference for a maintained special school or makes representations in favour of an independent or a non-maintained special school placement, the duty in Clause 154 does not apply as that duty is not compatible with the parent's wishes. It is certainly not the Government's intention that the parent should have a veto on a mainstream school placement, and the clause as drafted does not give such a veto.

Let me restate what happens if a parent expresses a preference for a maintained special school or makes representations for a special school outside the maintained sector. The LEA does not have the duty under Clause 154 to integrate the child. It has the duty to comply with the parental preference, subject to three important conditions: one of which is that the parent's choice of school, in this case a special school, is suitable to the child's age, ability or aptitude or to his special educational needs. If special school education is not so suited, the LEA shall not name that school in the statement. The parents therefore do not have the right of veto over a mainstream placement where a special school placement is unsuitable. I hope the noble Baroness will not press the amendment.

Baroness David

My Lords, I am mystified because the Minister seems to agree with what we want to do and yet will not accept that the wording of the clause is ambiguous. At this of night I shall not divide the House, but I feel disinclined to leave the Bill as it is. So I should like to read carefully what the Minister has said, take further legal advice and then decide whether to come back again on Third Reading. At the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 209 not moved.]

Baroness Darcy (de Knayth) moved Amendment No. 210:

Page 96, line 13, at end insert: ("( ) In exercising their duty under subsection (2) (c) any person shall have regard to any benefits which may result for other persons at a school which is not a special school from changes to be made at the school.").

The noble Baroness said: My Lords, the purpose of the amendment is to ensure that in considering the efficient use of resources account is taken of the benefits to other users of school premises arising from changes made for an individual child. I spoke to this amendment in Committee (Hansard. col. 515). I did not move the amendment because it was in a large group. In his reply the noble Lord, Lord Henley, said: The Government consider that a good proportion of schools should be accessible to such pupils".—[0fficia Report, 29/4/93; col. 529.] That is, those with disabilities. I did not feel that he had addressed my point. Many parents are told that the placement of their child in a mainstream school is not compatible with the efficient use of resources. Frequently, efficient use of resources means that the cost of making a school accessible to a child is balanced against that child only.

The Special Education Consortium is asking for a definition of "efficient use of resources" that would take account of others who would benefit from any adaptation of the building: future or existing pupils, teachers, governors, parents, visitors, all of whom are important when schools are used increasingly for events outside school hours.

I agree that it is important that resources are used efficiently, but consideration of a large number of cases individually does not make for the efficient use of resources. LEAs should therefore be encouraged to take a wider view and consider the benefits to others of any building adaptions or any other form of re-organisation which may be needed. That is what the amendment seeks to achieve. If the Minister can tell me that advice along those lines will be included in the code of practice or in guidance, I shall be content and will withdraw the amendment. I beg to move.

Baroness Blatch

My Lords, it can be a delicate balance, as this debate has shown, to give more weight to parents' views and to increase integration, but I think that the Bill, as I said before, strikes that balance. A similar amendment was tabled by the noble Baroness in Committee, and my noble friend Lord Henley gave a full reply on that occasion.

I wish only to add one further point to the remarks made by my noble friend in Committee. The amendment would require authorities to consider benefits of every conceivable change to mainstream schools which could facilitate the integration of a particular child. That is a wide-ranging and somewhat impractical requirement to put in primary legislation. It would also extend the requirement on LEAs to consider such changes in grant-maintained and independent schools where the authority has no managerial responsibilty.

Perhaps I may assure the noble Baroness that I appreciate her concerns on this matter. I share her desire to see an increase in the sensible and practical integration of disabled children into mainstream schools, and welcome the progress that is being made in that respect. But I hope, for the reasons which I have given today and which were given in Committee, that the noble Baroness will not press her amendment further.

Baroness Darcy (de Knayth)

My Lords, I thank the Minister for that reply. I am not much more encouraged by it than I was by the noble Lord, Lord Henley, in Committee, and the Minister will not be surprised by that. She said that the amendment would mean that one would have to consider the benefits of every conceivable change each time. I ask whether a broader view could not be taken of the wider benefits when some adaptation is done. Will the Minister consider whether she could include something about this in guidance?

Baroness Blatch

My Lords, with the leave of the House, whenever I am asked to think about things between stages of a Bill, I will do so. It is still difficult to know how one defines what are the changes in a mainstream school that would create a benefit. They can he minute or great. I can give the promise that I will think about the matter between now and Third Reading.

Baroness Darcy (de Knayth)

My Lords, I thank the Minister for that reply. Perhaps I can talk to her about the matter because I believe that we can get a little further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Pearson of Rannoch moved Amendment No. 211:

Page 96, line 13, at end insert: ("( ) Unless the consent of the parents has been obtained, subsection (1) above shall not apply to any child recorded under the Mental Health Acts.").

The noble Lord said: My Lords, the amendment seeks to excuse mentally-handicapped children from the presumption in favour of educating them in a school for normal children, which is to be found in Clause 154. I made the case fairly fully in Committee (cols. 516 to 519) and especially in view of the lateness of the hour I am sure that your Lordships will prefer that I do not do so again.

As noble Lords may have mentioned earlier, special education needs cover a broad church of children. I said in Committee that I was privileged to spend some two years in fairly close contact with the special education needs movement. I am absolutely convinced of its belief that at some stage most children should be regarded as special education needs children.

Be that as it may, special education needs certainly cover children who for one reason or another are going through a bad patch, children who may have a leg in plaster for a couple of weeks and are therefore not able to get up and down stairs, dyslexic children, children with physical handicaps of varying severity, children with varying degrees of emotional disturbance or illness and, finally, children with a mental handicap.

Your Lordships may remember that in Committee I expressed doubts about the wisdom of our present presumption in favour of educating children with more severe physical and other handicaps in a normal school. My amendment does not reflect those doubts because I have little personal experience of such areas. The amendment applies only to mentally-handicapped children of whom I do have personal experience as the father of a 12 year-old Down's syndrome child. Nor does my amendment seek to direct mentally-handicapped children to special schools, which I am sure would often be kinder and perhaps sometimes more helpful to other children. My amendment seeks merely to remove the qualified duty to send them to ordinary schools.

In Committee my noble friend Lord Henley said that he was advised that my amendment was unnecessary because the Bill already stated what I wanted. I believe that he then wrote to the noble Lord, Lord Peston, who was good enough to support me in my amendment, and for that I am extremely grateful. My noble friend Lord Henley confirmed his view.

I am afraid that I must take issue with my noble friend. To say that a mentally-handicapped child must go to a normal school unless his parents fight against it is not the same as saying that the child shall not go to a normal school or, indeed, to a special school unless his parents agree. The amendment may appear to be picking at a nuance but having been through the process myself I can assure your Lordships that it would be an important aid to parents such as myself who know that their mentally-handicapped children would be happier and better educated if they were sent to school among their own kind.

I believe that the time has come to differentiate between one kind of special educational need and another, and we might start with some of the least fortunate. I beg to move.

2 a.m.

Lord Northbourne

My Lords, I support the noble Lord, Lord Pearson, in his Amendment No. 211. Young children can be very cruel to any one of their number who seems to them odd or unusual. I wish to speak to Amendment No. 216A, which relates to denominational provision in the case of a child with special educational needs. It can be extremely important. Often it is important for such a child to be in a situation which is familiar. Since the Government accept the general principle that wherever possible school provision should be in accordance with the parents' wishes, I hope that they will not have too much difficulty in accepting this amendment or one like it.

I now move to Amendment No. 220. I must spend a little time on this. I cannot accept responsibility for the lateness of the hour and I think that this is an important issue. The amendment is concerned to ensure as far as possible that the excellent voluntary and independent special needs' schools, which have for so many years given love, care and special education to children with various kinds of special educational needs, should continue to be able to do so and should not be squeezed out of the market by the provisions of this legislation.

I want to make it clear that we do not ask for special privileges for such schools. We merely want a level playing field so that those schools—and I believe that it is most of them—which offer a first-class service for the children they serve at a competitive and reasonable cost should be able to continue to do so.

The problem is that under Clause 161 local authorities may make a statement of the special educational needs in respect of any child, having taken account of the representations made by the parents. Clauses 162 and 162 provide for parents to be able to appeal to a tribunal. Schedule 9 provides details about procedures under Clause 161. It provides in paragraph 2 for parents to receive a copy of the draft statement before it is finally made and paragraph 3 gives parents the right to: express a preference as to the maintained, grant-maintained or grant-maintained special school at which he wishes education to be provided for his child". I emphasise that there is a preference in that respect. That schedule goes on to state that the local authority shall specify the school for which the parents have expressed a preference unless the school is unsuitable or the education of other children would be adversely affected. Your Lordships should note that that mandatory preference—the "put option" as it were—by the parents is possibly in respect of only a maintained or grant-maintained special school. Of course, the parent can still express a preference as regards his request for a non-maintained school but the LEA is under no obligation to accede to that request, whereas if he asks for the child to attend a maintained school he is certain to have that request granted.

I ask your Lordships to put yourselves in the position of a parent who urgently wishes to ensure that his or her child has denominational support in the special school which he is to attend or does not wish his child to be drafted into a mainstream school. Under those circumstances, what would you do? You would opt for the maintained school because you would know that you would be certain to get what you were asking for. The LEA would be obliged to grant your request whereas in the case of the non-maintained school it might not do so. That puts an enormously unfair competitive disadvantage in the way of a non-maintained school providing for special needs. Many of those schools are centres of excellence and are among the best in the world. That is unjust and I should have thought that it is not in line with government policy.

The Royal London Society for the Blind and the National Association for the Education, Training and Support of Blind and Partially Sighted People, in a letter to the noble Lord, Lord Jenkin of Roding, who apologises for not being in his place this evening, stated: The omission of the words 'non-maintained school' from Schedule 9, paragraph 3(1) of the Bill will have a very serious long-term detrimental effect on the future of such schools". I have not moved the amendment as an amendment to Schedule 9 because I know that the noble Baroness is concerned that to simply insert the words "and non-maintained schools" into paragraph 3(1) of Schedule 9 would tip the playing field in favour of such schools because non-maintained schools do not have to take a pupil who is statemented to them whereas maintained schools do. I do not believe that to be a compelling argument because I am sure that any non-maintained school which is worth its salt would always be delighted to take any special needs pupil if he or she could be fitted in. However, out of respect for the noble Baroness's anxieties on that issue, I have attempted to draft an amendment which would be as fair as possible to all schools which make provision for special educational needs and ensure that special needs children receive the best possible help and that the taxpayer receives the best possible value for money.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord Northbourne in regard to Amendment No. 220. If there is a good school in the vicinity run by the local authority which the parents can accept, it would be wise for the child to attend that school. However, there may be special difficulties, outstanding difficulties which are not dealt with locally, and many parents may know of a school which is independent or non-maintained that they wish their children to attend.

It is difficult to discuss the amendment because there is a case currently before the High Court. A parent is going to court because the local authority has not allowed her child to go to an independent school.

A child does much better if it is allowed to go to the school of its parents' choice because then there is no conflict within the home. I support the amendment.

Baroness Darcy (de Knayth)

My Lords, I should like to ask the noble Lord, Lord Pearson, a question in connection with something that worried me at Committee stage. Having read the reply of the noble Lord, Lord Henley, at col. 528 of Hansard, I am still uncertain of the position.

The noble Lord's reply mentioned children with mental illness. Do the Mental Health Acts cover children with a mental handicap? I thought that it might be my ignorance but, thanks to my noble friend Lord Rix, I spoke this afternoon to a very experienced senior official at Mencap who thought that the Mental Health Act covered someone with a mental handicap only if he was a danger. The amendment refers to a child who is recorded under the Mental Health Act. That experienced officer could not help me as to that meaning. If the child were sectioned, he would be in a hospital, not a school. Can the noble Lord help me as to how the wording of the amendment covers the group of children about whom he is so deeply concerned?

Lord Pearson of Rannoch

My Lords, the noble Baroness has asked me a question that I do not think I can answer satisfactorily. The wording of the amendment was given to me to reflect the kind of child that I know about, which is the mentally handicapped child. The spirit of my amendment, which is that the parent of a mentally handicapped child should not be coerced towards any particular kind of school, should apply also to mentally ill children. I should like it to apply to children with other severe kinds of handicap.

The amendment, as drafted, applies purely to mentally handicapped children, although I would be happy to see it extended to mentally ill children, if the noble Baroness's interpretation of the law is correct.

Baroness Darcy (de Knayth)

My Lords, I understood that the Mental Health Act would not cover the children that the noble Lord, Lord Pearson, wishes it to cover.

Lord Pearson of Rannoch

My Lords, in that case, I am indebted to the Public Bill Office for drafting the amendment in the wrong way. I hope that the meaning is clear and that we may resolve the matter at the next stage, if not now.

Lord Addington

My Lords, the group of amendments concerns special needs and the problem of integration, which is a matter that has not been resolved. I agree that for those people who would benefit from it, integration for most or all of their educational career would be desirable. But that would depend upon the type of disability and other matters. It is something that should be encouraged. There will always be exceptions for whatever reason. Amendment No.220 begins to confront the problem head-on. There is no right answer.

I hope that the debate will produce the Government's view as to the right balance. A number of amendments contain very good points. We will be chasing the points around until we arrive at a position which allows enough flexibility to take into account the differing points of view and the different problems that are faced by various children. If noble Lords decide that there is a correct answer, there will always he a problem because, whenever a rule is made, there will be an exception. Can the Minister tell us what she feels the balance to be at the moment, or can she give an indication of when she could give a more definitive answer? I feel that it is a problem which is only just starting to occur. Indeed, we could probably continue ad infinitum unless we try to establish a bench-mark position.

Lord Lucas

My Lords, I should like to express my support for the caveats that the noble Lord, Lord Northbourne, has included in Amendment No. 220. I believe that we should be careful about extending to parents of children with special educational needs an absolute right to choose whatever school that they want for their child. After all, it is a right which we would not dream of extending to any other parent; indeed, we covered that point extensively in debate on the Bill.

To choose an independent school may incur substantial additional fees. There are the additional costs of inspection by the local authority involved. Moreover, there is certainly concern on the part of local authorities that many parents are vulnerable to salesmanship by some independent special schools, which may persuade them of their benefits, when that is not actually so if one looks at the matter from an independent point of view. The way in which the noble Lord, Lord Northbourne, drafted his proposed new clause covers my worry perfectly.

2.15 a.m.

Baroness Blatch

My Lords, there are amendments in the group tabled in my name. I refer to Amendments Nos. 218A, 218B, 219A, 219B and 219C. I promised to look again at the possibility of extending the parent's right to express a preference to include schools outside the maintained sector and to return to the issue on Report. My right honourable friend and I have given very careful consideration as to how best to ensure that schools continue to play their full part in providing for pupils with special educational needs.

We have concluded that we should not extend the right to express a preference to include schools outside the maintained sector. Our purpose is to give parents of pupils with statements the same rights as other parents have under the 1980 Act. Local authorities have a duty to comply with parental preference, subject to certain reasonable conditions. Maintained schools must then admit the child. Maintained schools are also subject to the planning regimes of the LEA or the funding agency. We have no intention of tampering with the autonomy of schools outside the maintained sector by making them subject to such controls. Similarly, we do not think it right that such schools should be subject to direction by local education authorities as to the pupils they should admit.

There is a difference in the Bill between preference for maintained schools and representations for non-maintained and independent schools because the schools themselves are different. Much has been made of the idea of creating a level playing field. But we could not impose a level playing field without imposing restrictions on autonomous schools, many of which we know they would not want.

However, the amendments I have tabled should ensure that parents have every opportunity to make informed decisions about their child's school placement, including the possibility of a placement in an independent or non-maintained school. They would require the LEA to give to parents a written notice with the draft statement that would explain such matters and give such information as the Secretary of State may prescribe. We intend that the regulations would require local authorities to explain to parents in straightforward terms their rights to make representations in favour of an independent or non-maintained special school, to give parents information about any such suitable schools for their child, and to arrange meetings with parents if they wish to discuss the choice of school. For our part, we shall ensure that the Department of Education keeps local authorities fully informed about the range of approved independent and non-maintained special schools, including details of the fees they charge and the specialisms for which they cater.

In addition to those regulations, as I said earlier, we shall be addressing the issue of the school placement in the code of practice. The code will guide LEAs in making placements outside the maintained sector and will complement the regulations. My noble friend's amendment is, I believe, therefore unnecessary as the tribunal must also have regard to that code when making its judgment. We shall of course be consulting fully on the regulations and on the code of practice in the autumn.

With the amendments I have tabled, the Bill strikes the right balance between the thrust towards sensible and appropriate integration and the rights of parents over choosing a special education for their child within and outside the maintained sector. I therefore ask your Lordships to accept the amendments tabled in my name.

Amendment No. 211 highlights the point I made earlier about the divergence of opinion amongst your Lordships over the issue of integration and giving due weight to parental wishes where those wishes are for a special school placement. I maintain that the Bill strikes the right balance. The amendments before us give me a further opportunity to show how the Bill will work for parents who believe that an integrated placement is not suitable for their child.

My noble friend Lord Pearson is rightly concerned that the duty to integrate should not be applied unsuitably to children who have serious mental health problems. Noble Lords will recall that we debated a similar amendment during Committee stage, when my noble friend was supported by my noble friends Lord Renton and Lady Cox. As was said on that occasion, I believe that this amendment is unnecessary. Let me repeat why I believe this to be the case.

The Government are committed to the principle that a pupil with identified special educational needs should be integrated in mainstream provision only when it is right for the child. We are concerned that, when deciding between a mainstream or special school placement, parents should be able to take the initiative. I would say to the noble Lord, Lord Addington, that Clause 154, as presently drafted, provides for the wishes of the parents to be taken fully into account. The clause clearly states that a child should not be educated in an ordinary school unless certain prescribed conditions are met. It also relieves LEAs of their qualified duty to integrate when to do so would be incompatible with the wishes of the child's parents.

Perhaps I may remind your Lordships that parents will have the right to state a preference for a school, with which the authority must comply, subject to certain conditions being met. The authority would decline to educate a child in a special school only if it could show that such education would be inappropriate. The parent then has the right of appeal to the tribunal against the school named in the statement. Thus the final decision rests with the authority, or with the tribunal, should the parent challenge the authority's decision. The Bill will not give parents any kind of veto—neither on a mainstream placement nor on a special school placement—but will ensure that parents' rights are clearly stated and their interests protected.

In Clause 154 the parent has the primacy in terms of making that choice. I hope I can assure my noble friend Lord Pearson that the legislation as drafted meets his concerns and I hope he will not press the amendment.

Amendment No. 216A stands in the name of my noble friend the Duke of Norfolk and the noble Lord, Lord Northbourne. The Bill is not explicit about denominational considerations. It is quite possible, however, that denominational concerns might inform the wishes of the parent of a child with a statement when expressing a preference for the particular mainstream maintained school he wishes his child to attend, or in making representations in favour of a denominational or non-maintained special school or independent school over an LEA-maintained special school. In both cases it is of course entirely proper that denominational considerations should play a part in the parent's choice.

When deciding the appropriate school placement for the child, the LEA will be under a duty to consider such representations as the parent has chosen to make. Furthermore the code of practice will stress to LEAs the importance of meeting the parent's wishes in this respect wherever possible and appropriate and the contribution this would undoubtedly make to the success of the placement.

That said, I remind noble Lords that the authority's prime concern when deciding which school to name in a child's statement must be to meet its statutory duty to place a child in a school which is suitable for the child's age, ability or attitude or to his special educational needs and where his attendance will be compatible with the efficient education of his peers and the efficient use of resources. Thus, where a parent has expressed a preference or made representations as appropriate for a denominational school, the LEA will have to consider if that school meets these criteria. If it does, it would be unreasonable for the authority not to comply with the parent's wishes. The parent would be able to appeal to the tribunal against the authority's decision and the tribunal's ruling would be binding on the LEA. However, if the authority placed the child in a denominational school and the placement did not meet the criteria, the authority would be in breach of a statutory duty.

We are sympathetic to the anxieties of all noble Lords. That is why we shall ensure that the code of practice will guide LEAs to meet a parent's denominational preference whenever that is possible and appropriate. However, though denominational considerations are important and will have to be taken into account, they cannot be overriding. At the end of the day the authority must ensure that the placement is suitable for the child's age, ability or aptitude or for his special educational needs and that his attendance will he compatible with the efficient education of his peers and the efficient use of resources.

Turning to Amendment No. 220, there has been eloquent support for my noble friend Lord Northbourne concerning the position of independent schools catering for pupils with special educational needs and non-maintained special schools where parents prefer that option. I, too, add my appreciation to the fine work that is done in such schools, often most cost effectively, and of the contribution they make to the education of children with special needs. I have already explained the measures which the Government propose to take to ensure that non-maintained special schools and independent schools play their full part in providing for pupils' special educational needs and contribute to the choice and diversity of special education available to parents. I hope that your Lordships will not accept that amendment.

I should like to refer to the point which was the subject of an exchange between the noble Baroness, Lady Darcy (de Knayth), and my noble friend Lord Pearson. I understand that there is no reference to persons being recorded in legislation under the Mental Health Acts pertaining to England and Wales. The amendment is therefore technically meaningless. My noble friend Lord Pearson, together with my noble friends Lady Cox and Lord Renton, tabled a similar amendment at Committee stage. It became clear from that debate that my noble friend's intention in moving the amendment was to prevent the parent of a severely mentally disabled child from feeling under pressure to agree to the child being integrated into mainstream education. Therefore, irrespective of whether there is a register of such children, I believe that it is important that children with mental handicaps are appropriately placed.

Lord Pearson of Rannoch

My Lords, I am extremely grateful to my noble friend, especially for her recent explanation. I am afraid that it may be that I shall have to look again at the wording of the amendment and bring it back at Third Reading. Of course, I would not think of dividing your Lordships' House at this late hour, especially as a number of noble Lords who had intended to speak in favour of the amendment this evening are no longer present, given the lateness of the hour and other commitments.

I simply leave your Lordships with the thought that the qualified duty to secure the education of a child with mental handicap in an ordinary school is wrong and should be removed from the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 155 [Duties of governing body etc. in relation to pupils with special educational needs]:

Baroness Warnock moved Amendment No. 212:

Page 96, line 24, after ("him") insert: ("( ) 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,").

Baroness Blatch

My Lords, in the light of the earlier decision, I shall not resist the amendment.

[Amendment No. 212A not moved.]

Clause 156 [Provision of goods and services in connection with special educational needs]:

Baroness David moved Amendment No. 212B:

Page 97, line 17, at end insert: ("( ) The local education authority shall ensure the availability of goods and services to assist governing bodies in their duties under section 155(1) (a) of this Act.").

The noble Baroness said: My Lords, the amendment was included in the earlier grouping. I beg to move.

Baroness Blatch

My Lords, in the light of the earlier decision I shall not resist the amendment.

Baroness Blatch moved Amendment No. 212C:

Page 97, line 20, after ("schools") insert ("or to the governing bodies of county, voluntary or maintained special schools in any other area").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 199 and I ask the House to accept the amendment. I beg to move.

Clause 158 [Provision outside England and Wales for certain children]:

Lord Henley moved Amendment No. 213:

Page 98, line 4, leave out from ("is") to second ("any") and insert ("without prejudice to").

The noble Lord said: My Lords, in moving Amendment No. 213, I speak also to Amendments Nos. 214, 217, 234, 286C and 297A. They are technical amendments. Amendment No. 213 aims to make the language of Clause 158(4) consistent with the language of other clauses and subsections of the Bill, such as Clause 156(3) whose purpose is to explain the powers contained therein without prejudice to other powers of a local education authority.

The purpose of Amendments Nos. 214 and 217 is similar: to make the language of Clause 160(5), which brings Schedule 8 into effect, and Clause 161(7), which brings Schedule 9 into effect, consistent with the language of other clauses and subsections of the Bill which bring schedules into effect.

Amendment No. 234 will clarify that where a school attendance order is in force in respect of a child with a statement of special educational needs, and the name of the school specified in the statement is changed, the local education authority must amend the school attendance order also, so that it specifies the same school as that now named in the statement.

The last two amendments in my noble friend's name, Amendment No. 286C to Schedule 18, and Amendment No. 297A to Schedule 20, refer to amendments to and repeals of existing legislation. Unless noble Lords prefer any further explanation, I beg to move the amendment.

Baroness Warnock moved Amendment No. 213A:

After Clause 158, insert the following new clause:

("Relationship of local education authority and grantmaintained 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 bode 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.").

Baroness Blatch

My Lords, in the light of the earlier decision on Amendment No. 1 19A I shall not resist the amendment.

Clause 160 [Assessment of educational needs]:

Lord Henley moved Amendment No. 214:

Page 99, line 16, to leave out from ("Act") to end of line 17 and insert ("(which makes provision in relation to the making of assessments under this section) shall have effect.").

Baroness Faithful had given notice of her intention to move Amendment No. 214A:

After Clause 160, insert the following new clause:

("Co-operation between authorities on special needs

—(1) When assessing a child's special educational needs consideration shall be given to the cause of those needs which may be due to adverse social conditions, disruptive family circumstances and/or mental and emotional disturbances; and such circumstances as may result in non-school attendance, truancy, and disruptive behaviour.

(2) Where it appears to a local education authority that any authority mentioned in subsection (4) below could by taking any specified action, help in the exercise of any of their functions under this part, they may request the help of that other authority specifying the action in question.

(3) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.

(4) The authority to whom subsection (2) applies shall be determined by the Secretary of State and shall include:

1. (a) any local education authority;
2. (b) any local authority to include Social Services;
3. (c) any health authority or National Health Service Trust.

(5) In such cases the Local Education Authority jointly with Social Services shall consider whether residential care and education is appropriate to the needs of the child and shall consider the use of residential schools run by voluntary organizations, charities or on a private basis.

(6) The cost of such residential schools to meet social needs shall he met jointly by the Education and Social Services Department.").

The noble Baroness said: My Lords, I have sat here for the whole of today's Sitting. I have four important amendments to move: Amendments Nos. 214A, 218, 230 and 231. They are contentious. I propose to speak on them for a very long time and therefore will not do so tonight.

[Amendment No. 214A not moved.]

Viscount Astor moved Amendment No. 215:

Before Schedule 8, insert the following new schedule:

("CORE GOVERNORS FOR GROUPS

Introductory

1. The provision made for core governors in the instrument of government for the governing body of a group must be in accordance with this Schedule.

Kinds of core governor

2.—(1) Core governors may be either—

1. (a) appointed by the governing body, or
2. (b) externally appointed.

(2) Externally appointed core governors may be either—

1. (a) appointed in respect of a particular school in the group, being a school—
   1. (i) which was a voluntary school immediately before it became grant-maintained, or
   2. (ii) which was established in pursuance of proposals published under section 47 of this Act, or
2. (b) where the group consists only of such schools, appointed in respect of the group otherwise than by the governing body.

(3) A person appointed as mentioned in sub-paragraph (2) (a) above must be appointed—

1. (a) by the persons named in the instrument of government for the group as being entitled to appoint externally appointed core governors in respect of the school, or
2. (b) in the case of a school which was a voluntary school immediately before it became grant-maintained, by the persons who were then named in the school's instrument of government as being entitled to appoint foundation governors (within the meaning of the Education Act 1944) to the existing governing body.

(4) A person appointed as mentioned in subparagraph (2) (a) above must be appointed—

1. (a) where any statement annexed to the proposals in pursuance of which the school became a grant-maintained school described the religious character of the school, for the purpose of securing that (subject to any change in the character of the school which may be authorised by or under Part II of this Act) the religious character of the school is such as was indicated in the statement, and
2. (b) where there is a trust deed relating to the school, for the purpose of securing that the school is conducted in accordance with the deed.

(5) Core governors, other than externally appointed core governors appointed in respect of particular schools in the group, must be appointed from among persons who appear to the person making the appointment to be committed to the good government and continuing viability of all the schools in the group.

(6) A person who is a member of the teaching or other staff at any of the schools in the group is disqualified from holding office as a core governor, other than an externally appointed core governor.

Groups consisting only of former voluntary schools or section 47 schools

3. —(1) This paragraph applies in the case of such a group as is mentioned in paragraph 2(2) (b) above.

(2) The minimum number of externally appointed core governors (referred to in this paragraph as "MN") is one greater than the number of governors other than externally appointed core governors.

(3) Any head teacher of a school in the group who has chosen not to be a governor shall be counted as one for the purposes of sub-paragraph (2) above.

(4) In respect of each school in the group there must be the same number of externally appointed core governors.

(5) The total number of externally appointed core governors in respect of schools in the group must not be less than the highest number, not exceeding MN, that is consistent with sub-paragraph (4) above.

Other groups

4.—(1) This paragraph applies in the case of a group other than such a group as is mentioned in paragraph 2(2) (b) above.

(2) If any school in the group falls within paragraph 2(2) (a) above, one externally appointed governor must be appointed in respect of that school.

(3) The appropriate number of the core governors must (on the date or dates on which they respectively take office) be parents of registered pupils at schools in the group, and the appropriate number of the core governors must (on the date or dates on which they respectively take office) be members of the local community; but one person may satisfy both requirements.

(4) In sub-paragraph (3) above "the appropriate number" means not less than two or, if all but one of the schools in the group fall within paragraph 2(2) (a) above, at least one.

(5) In appointing core governors, the governing body must secure that those governors include persons appearing to the governing body to be members of the local business community (and such persons may also satisfy one or both of the requirements of sub-paragraph (3) above).

(6) The number of core governors must be such number, not being

1. (a) less than five, or
2. (b) subject to paragraph (a) above, more than the number of schools in the group,

as will secure that they and the parent governors outnumber the other governors.

(7) Any head teacher of a school in the group who has chosen not to be a governor shall be counted as one for the purposes of sub-paragraph (6) above.").

The noble Viscount said: My Lords, this amendment was spoken to with Amendment No. 56. I beg to move.

The Lord Bishop of Guildford

My Lords, at the end of the previous discussion on Thursday last, the noble Baroness gave me an assurance in relation to paragraph 2(3). Since then there have been further communications between officials of the Church of England Board of Education and the department. I had expected the Minister, when moving the amendment, to indicate that a further amendment to sub-paragraph (3) will be required. I shall be grateful for that assurance.

Lord Henley

My Lords, without my noble friend's presence, I am not sure that I can give that assurance to the right reverend Prelate. I take on board what the right reverend Prelate has said. If it is necessary to bring forward a further amendment at Third Reading, obviously by speaking now I retain the right so to do. However, I shall have to take advice from those who advise me. I shall pass on the comments of the right reverend Prelate to my noble friend Lady Blatch.

2.30 a.m.

Schedule 8 [Making of assessments under section 160]:

Baroness Darcy (de Knayth) moved Amendment No. 216:

Page 200. line 23, at end insert: ("( ) The advice to be sought under paragraph 2(2) above shall record the views of those providing it on whether the child can be educated in a school which is not a special school.").

The noble Baroness said: My Lords, I shall be as brief as possible, but if I do not make sense it is because I have been over-lavish with the red pencil. If I do not get the answer that I hope for from the Minister, I shall come back and be more lengthy at another time.

The purpose of the amendment is to ensure that as part of the assessment of every child with special educational needs the LEA will ascertain whether the conditions permitting integration can be fulfilled. Under the new wording of Clause 154 it looks as if the LEA has discretion not to investigate the possibility of integration for a child with special educational needs. This means, first, that parents would be forming their views and expressing their wishes on integration without the benefit of professional opinion; secondly, that the LEA's view on the child's placement would also be uninformed by professional opinion; and thirdly, that the tribunal itself would be uninformed because the professional reports would not contain the integration element.

Following a very helpful meeting with officials of the Department for Education, I hope that the Minister, if he cannot agree to this amendment, will be able to make a clear and emphatic statement that, Clause 154 notwithstanding, a parent's wish for a special school cannot override an LEA's duty to obtain professional advice on the question of a child's integration as part of its duty under Schedule 8, and that he will undertake to include specific reference to that in the code of practice. I beg to move.

Lord Addington

My Lords, I rise briefly to support the amendment. It seems that we are talking here about common sense and further information. Surely, an amendment like this will be of benefit to anyone involved in the decision-making process.

Baroness David

My Lords, my name is attached to this amendment, and I wish to express my support for it.

Lord Henley

My Lords, I can give the noble Baroness, Lady Darcy, a categorical assurance that she certainly made sense, and I do not think that she was over-lavish with the red pencil. At least it was not the red bottle.

We have debated at some length the issue of integration and parents' rights over special school placements, as the noble Baroness will appreciate, both today and during Committee stage. I believe she will acknowledge that it can be a delicate balance both to give more weight to parents' views and to encourage integration. There are very strongly held views in different parts of the House as to where that balance should lie. We believe that the Bill strikes the right balance.

The amendment of the noble Baroness would require in primary legislation that advice on a child's special educational needs should state a view on whether the child can be educated in a school that is not a special school. Obviously, I would agree that it is most important that full and proper consideration in co-operation with the parents must be given to finding the school placement best suited to meeting the child's special education needs. Consequently, consideration as to whether an ordinary school is suitable or whether a special school is necessary must inform a decision over every child's placement.

We believe that this important and sensitive matter is best left to the code of practice to which all LEAs and the tribunal must have regard. The code will therefore cover guidance to LEAs on the appropriate advice to be obtained in forming decisions over school placement. It will specifically address the need to consider carefully in each case the benefits of educating the child in an ordinary school where possible. The guidance and the code of practice will reflect the Government's policy that the child should be integrated wherever possible, but that integration must be sensible and, above all, pursued only if appropriate to the child. I hope that those reassurances are sufficient for the noble Baroness. If they are not, perhaps we may be able to pursue the matter outside the Chamber. I hope that for the moment she will feel able to withdraw the amendment.

Baroness Darcy (de Knayth)

My Lords, the Minister will be extremely relieved to hear that there is no need to pursue this matter outside the Chamber, although I am sure there may be other matters. That is a completely satisfactory reply. I thank him very much indeed, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Northbourne had given notice of his intention to move Amendment No. 216A:

Page 99, line 47, at end insert: ("( ) In so specifying as described in subsection (4) above, the local education authority shall take careful account of any parental request that the child's needs be met in an appropriate denominational institution.").

The noble Lord said: My Lords, I think that the assurance that has been given probably covers this matter. I should like to have the opportunity to read Hansard and if necessary bring the amendment back at Third Reading.

[Amendment No. 216A not moved.]

Viscount Astor moved Amendment No. 217: Page 100, line 15, leave out from ("Act") to end of line 16 and insert ("(which makes provision in relation to the making and maintenance of statements under this section) shall have effect.").

The noble Viscount said: My Lords, this amendment was spoken to with Amendment No. 213. I beg to move.

[Amendment No. 218 not moved.]

Schedule 9 [Making and maintenance of statements under section 161]:

Viscount Astor moved Amendments Nos. 218A and 218B:

Page 201, line 18, leave out ("explanation or') and insert ("notice explaining").

Page 201, line 20, at end insert ("and containing such other information as may be prescribed").

The noble Viscount said: My Lords, Amendment No. 218A and Amendment No. 218B were spoken to with Amendment No. 211. If beg to move.

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, I now call Amendment No. 219A.

Lord Henley

My Lords, I think the noble Viscount has failed to call Amendment No. 219 which comes before Amendment No. 219A.

Lord Pearson of Rannoch

My Lords, is Amendment No. 219 to be passed over or has it already been spoken to?

Lord Henley

My Lords, I am sorry. Amendment No. 219 on the Marshalled List refers to page 201, line 48, whereas Amendment No. 219A refers to page 201, line 31. Therefore Amendment No. 219 will come later.

Viscount Astor moved Amendment No. 219A:

Page 201, line 31, leave out ("explanation") and insert ("notice").

The noble Viscount said: My Lords, Amendments Nos. 219A, 219B and 219C were spoken to with Amendment No. 211. I beg to move.

Lord Henley

My Lords, I believe that we should now have Amendment No. 219 which is in the name of the noble Baroness, Lady Darcy (de Knayth).

Baroness Darcy (de Knayth) moved Amendment No. 219:

Page 201, line 48, at end insert: ("( ) Where—

1. (a) a Statement is made under section 161 of this Act, and
2. (b) the Statement names a special school as the school in which the child is to be educated

the Statement shall specify which of the conditions set out in Section 154 cannot be satisfied and why.").

The noble Baroness said: My Lords, I am grateful to the Minister. The purpose of this amendment is to enable parents seeking an integrated placement to know which of the conditions permitting integration cannot be met and why. I moved this amendment in Committee (at cols. 534–535 of Hansard) and withdrew it saying that I hoped to have a discussion about it and maybe come back with it. Following useful discussions with officials from the Department for Education, I am back.

I must just briefly explain that the Special Education Consortium produced a slightly different version of this amendment which gave the same rights to parents seeking a placement in a special school as well, which would take account of the objection of the noble Lord, Lord Henley, that the amendment was not even-handed. But I tabled the amendment before I had the consortium's revised version.

The consortium is concerned at the large number of parents seeking an integrated placement who are told that proper provision cannot be made in a mainstream school or that that would not represent an efficient use of resources. Sometimes they are given no explanation.

Following that very useful meeting with officials —I shall not go into the arguments now—I shall only say that I hope that the Minister will be able to say that he will include something in guidance to ensure that parents are told the reasons for decisions about conditions permitting integration and to ensure that those conditions have been properly explored before a decision is reached. I beg to move.

Lord Pearson of Rannoch

My Lords, perhaps I may just point out that, although I completely accept the reasoning behind the noble Baroness moving this amendment, as drafted it would have the effect of putting more pressure on the parents of a mentally handicapped child (which I referred to in my Amendment No. 211) because, if those parents had said that the placing in a normal school was incompatible with their wishes, this amendment would appear to underline that hurdle. It would have to be part of the statement, which would have to be put into the open much more. Therefore I see it as going the other way, unless its wording were to be changed, and it would make life more difficult than it already is under Clause 154.

Lord Henley

My Lords, we had the same amendment at Committee stage when we considered Clause 154 (then Clause 152). Perhaps I could add a few words of emphasis to my arguments at that earlier stage.

It has been quite clear during the debates that we have been having on issues relating to integration that the House holds a range of different views, each of which places a somewhat different emphasis on the weight to be given to integration or to the value and desirability of a special school education. Obviously I respect all those views. However, I continue to maintain that this part of the Bill offers a proper balance within the legislation for those views to be represented and acted upon.

The naming of a school is the final stage in writing a statement, and that must be right. There is little point in assessing needs and considering provision if the school has already been decided. The logical flow of the statement leads to naming the appropriate school as the last stage. The specification of needs and provision therefore should lead to justification of the naming of a special or ordinary school.

The Bill makes provision for parents to express their views and for LEAs to explain their thinking. At the end of the process, it is for the LEA to decide which school should be named and to arrange the provision. The LEA cannot, in fulfilling its duties, ignore—even if it does not always meet—the wishes of parents. Moreover, LEAs will know that they cannot act arbitrarily in naming a school. Their actions will be subject to scrutiny by the new SEN tribunal. Under the Bill they must tell parents of their rights of appeal to that tribunal. If a case goes to appeal, the LEA will have to justify itself before that tribunal. The tribunal will have the power to overturn an LEA decision and to instruct the LEA to name the school of the parent's choice on the statement.

Why should the explanation of the statement be one-sided, as this amendment would have it? Why should the LEA not be required to explain in the statement why it believes an integrated placement is appropriate for the child where the parent had believed a special school to be right for the child? Here again, we believe that that is a matter which deserves full, considered and sensitive treatment in the code of practice and is not appropriate for primary legislation. The code will not only reinforce the need for an LEA to keep parents properly informed at all times of the reasons for its decisions, but it will also guide—the noble Baroness was asking what guidance there would be—LEAs on making special and ordinary school placements.

I hope that that is sufficient assurance to the noble Baroness, again at this early hour of the morning, so that she will not feel it necessary to press the amendment.

Baroness Darcy (de Knayth)

My Lords, I thank the Minister for that reply. I shall have to read in Hansard what he said to see whether I am completely satisfied. I agree that it should be even-handed and should apply to the parents who have expressed a wish for a special school placement.

I quoted an example at Committee stage of a child whose mother was told that he could not be integrated because his needs could not be met in the mainstream school. It turned out that the LEA had taken an early decision that whatever school the boy attended, the LEA would need to provide full-time welfare support for him. But the only school that was approached by the LEA was not told that the welfare support would be given and naturally said that it could not integrate him. That is the kind of thing I am trying to avoid; to ensure that LEAs explore properly the possibilities of integration. That is why we need something about it in guidance.

I see the Minister nodding, and probably he has satisfied me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendments Nos. 219B and 219C:

Page 202, line 22, leave out ("explanation") and insert ("notice").

Page 202, line 29, leave out ("explanation") and insert ("notice").

The noble Viscount said: My Lords, I wish to take Amendments Nos. 219B and 219C en bloc. I beg to move.

Clause 163 [Appeal against contents of statement]:

2.45 a.m.

Baroness Darcy (de Knayth) moved Amendment No. 219D:

Page 100, line 43, leave out ("amend the") and insert ("make and maintain a new").

The noble Baroness said: My Lords, in moving this amendment I shall speak to Amendment No. 219E, with which it is inextricably linked. These amendments would give the parent of an already statemented child who has been subject of a further assessment the same rights as are enjoyed by parents following the issuing of a child's first statement. Those rights are, first, to be sent copies of all the professional advice obtained by the LEA as part of its assessment of the child; secondly, to express a preference as to which school they wish to be named on the statement; thirdly, to require a meeting to be arranged with an officer of the authority; and fourthly, to require a meeting to be arranged with any or all of the professionals who have written the advice on their child.

Surely the rights that parents enjoy after this first assessment are equally vital for a subsequent assessment of the child. To deny a parent these rights would be to go against the whole spirit of the new legislation enshrined in the Bill and would be contrary to the spirit of the Private Member's Bill first introduced by the noble Lord, Lord Campbell of Alloway, which was the catalyst for this Bill.

Again, at this useful meeting with the officials from the Department for Education on 27th May, an assurance was given that it was not the Government's intention to deny parents of statemented children the rights which they have hitherto enjoyed with regard to meetings, copies of professional reports and the other two matters that I have mentioned, following subsequent assessments of their child. I very much hope that I will hear the Minister give a clear emphatic statement that parents will have the same rights following subsequent assessment as they will following a first assessment, and a commitment to include specific reference to this in the code of practice. I beg to move.

Lord Henley

My Lords, I understand the noble Baroness's concern and I hope that I can give her some reassurance that her amendment is unnecessary. Let me briefly explain the procedure under the Bill regarding the amendment of statements.

Under paragraph 10 of Schedule 9, an authority which proposes to amend a statement, including following an assessment under Clause 160, is required to serve on the child's parent notice of its proposal. It must also serve on the parent written explanation of his right to make representations to the authority about its intention. These representations may concern any aspect of the proposed amendments to the statement, including the school to be named.

The authority must consider any representations before deciding whether to go ahead with the amendment to the statement as it originally proposed, to amend it differently in the light of those representations, or, indeed, not to amend it at all. Once its decision is made, it is then required to write to the parent explaining that decision.

In any case where an authority proposes to amend a statement, be it following an assessment under Clause 160 or not, it would be unreasonable for the authority to refuse to allow the parent to see the professional advice. Indeed, we would expect the authority to provide the parent with that information.

This is already good practice. Furthermore, and most importantly, the code of practice will address this point.

We are all now familiar with the code of practice. The House will also recall that we have debated it at some length. Local education authorities will be under a statutory duty to have regard to the code when carrying out their functions under Part III of the Bill. Among those functions is the procedure that they must follow when amending a statement.

Thus the code will address the issue of a parent's ability to request a meeting with the authority and, where appropriate, with its advisers, when his child's statement is to be amended. It will also stress the importance of enabling a parent to discuss the professional advice which has informed the authority's determination to amend the statement. Again, this is existing good practice—and so it should be—and it would certainly be unreasonable of any authority to deny the parent such meetings.

In short we believe that the code will reinforce the present good practice among LEAs of enabling parents to play an active role in deciding their children's future on the basis of full information. With that assurance I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Darcy (de Knayth)

My Lords, I thank the Minister for that reply. If I do not sound totally enthusiastic, it is because I shall have to read what he said to make sure that parents have all the rights that they would have following a first assessment. I am very grateful for that reply. I think that the noble Lord has totally satisfied me. I shall read his response very carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 219E not moved.]

Lord Henley moved Amendment No. 219F:

After Clause 163, insert the following new clause:

Access for local education authority to certain schools

(".— (1) This section applies where—

1. (a) a local education authority maintain a statement for a child under section 161 of this Act, and
2. (b) in pursuance of the statement education is provided for the child at—
   1. (i) a school maintained by another local education authority,
   2. (ii) a grant-maintained school, or
   3. (iii) a grant-maintained special school.

(2) Any person authorised by the local education authority shall be entitled to have access at any reasonable time to the premises of any such school for the purpose of monitoring the special educational provision made in pursuance of the statement for the child at the school.").

The noble Lord said: My Lords, in moving this amendment I shall be speaking also to Amendment No. 219G. According to the groupings, I understand that I shall also be speaking to Amendment No. 219H in the name of the noble Baroness, Lady Warnock.

The two government amendments tabled in our name are designed to give greater assurance about the continuing suitability of the individual child's statement on the delivery of the special educational provision specified in the statement. Amendment No. 219F would enable LEAs to monitor the provision of the special education which they have determined in a statement and which they have a statutory duty to arrange in schools maintained by other authorities, self-governing grant-maintained schools and grant-maintained special schools.

The purpose of this right of access is twofold: to empower LEAs to fulfil their statutory duties to ensure that arrangements for making the special educational provisions specified in the statement are appropriate and to enable them to monitor the provision for which they are directly responsible for funding in the light of their duty to ensure the efficient use of their resources.

Section 77(3) of the 1944 Act allows LEAs to make an inspection of any of their educational establishments. They therefore have the right of access to their schools to monitor the arrangements made for a child with a statement. Regulations governing the approval of non-maintained special schools require such schools to afford access at all reasonable times to an LEA which has placed a child at that school. Similar regulations apply in the independent sector.

Schools which have sought and been given approval under the Education (Special Educational Needs) (Approval of Independent Schools) Regulations must also allow access to a placing authority at all reasonable times. At the moment LEAs have no automatic right of access to grant-maintained schools or to schools maintained by other LEAs to monitor the special educational provision made for the child by virtue of a statement made by the LEA and for which the LEA is paying.

This amendment is about the LEA's accountability for its resources. It must be assured over the quality and the value for money of the provisions specified within the child's statement which it is responsible for arranging and funding. It therefore gives the LEA that restricted right of access to grant-maintained schools and schools maintained by other LEAs.

Turning to our second amendment, Amendment No. 219G, Clause 164(6) allows the Secretary of State to make regulations governing the conduct of reviews of statements. The monitoring of the statement and the efficacy of the provisions specified are an important part of the process. We anticipate that the new regulations governing the format of statements will endorse the need for the statement to specify, first, the broad objectives against which to measure the pupil's progress and, secondly, the arrangements for setting more detailed targets and monitoring provision.

We intend that progress should be monitored at least annually through the statement review. The review would serve both to monitor the child's progress over the year against the agreed targets and to set new targets for the next year. Although the LEA will have responsibility for conducting the review within its overall responsibility for the statement, the review itself will need to be school-based if it is sensibly to monitor progress and set realistic targets. Effective monitoring of the child's progress against objectives can only be made with the school's co-operation. Detailed, realistic targets can only be set with the agreement of the school.

We have been advised that the regulation-making power in Clause 164(6) does not allow the regulations to be extended to cover the school's role in the review of statements. This amendment would extend the vires of the regulations made under Clause 164(6) to cover the role of the school in the review process. Therefore, I ask the House to accept this and the previous amendment.

I hope that the noble Baroness, Lady Warnock, will agree that our two amendments, Nos. 219F and 219G, go to the heart of the issues relevant to this debate about the accountability of all schools to make proper provision for their pupils with statements of SEN. I hope that they will address the concerns which lie behind the noble Baroness's Amendment No. 219H. I shall say nothing more about her amendment for the moment. I do not know whether the noble Baroness wishes to speak to it or to move it, but if she does feel it necessary to move it, I shall respond at the end of this short debate. In the meantime, I beg to move.

Baroness Warnock

My Lords, all I was going to say is that Amendment No. 219H is mentioned in an amendment which your Lordships have already accepted—

Lord Henley

My Lords, will the noble Baroness give way? The Question has not yet been put.

Baroness Warnock

My Lords, Amendment No. 219H is mentioned in an amendment which has already been accepted by your Lordships, Amendment No. 213A. This is the only reason why I now wish to move Amendment No. 219H. Almost all its main points have been incorporated or are covered in Amendments Nos. 219Fand 2I9G. Therefore, I beg to move Amendment No. 219H on the assumption that it will somehow be amalgamated with the two government amendments that precede it.

Lord Henley

My Lords, I am not sure whether our procedures quite allow us to do that. I think that I understand what the noble Baroness is getting at. Perhaps, with the leave of the House and bearing in mind that we are on Report, she could elucidate. Am I right in thinking that the noble Baroness feels that that our two amendments, Amendments Nos. 219F and 219G, do not go quite far enough and that therefore Amendment No. 219H should somehow be merged into them? At the moment, I do not think that I can accept that. I should have to say, "May I take that away and have a look at it?" Our feeling was that Amendments Nos. 219F and 219G met her particular concerns, but, if she feels that Amendment No. 219H takes us further, it is probably something that is best left for consideration between now and a later stage. If if is necessary to meet her concerns, perhaps we could properly discuss this by means of correspondence, then either we or the noble Baroness could come forward with an amendment at Third Reading. I shall give way now in case the noble Baroness wishes to intervene again, and shall then formally put the amendment to the House.

Baroness Warnock

My Lords, I think that that is exactly the position that I would take about the amendment. As I have said, I am moving it only because Amendment No. 213A refers to it, so, in a way, it is a technical amendment. I beg to move, but in the full expectation that thereafter it will be tinkered about with. I beg to move—

Lord Henley

My Lords, no. The noble Baroness cannot move it because we are actually discussing my amendment, Amendment No. 219F, which I have moved. The noble Baroness was speaking to that. What I was trying to get over—again, I speak with the leave of the House—is that I cannot accept the noble Baroness's amendment at the moment. What I should like to do is to move my amendments —and I ask the House's agreement to my two amendments. I would then hope that the noble Baroness would refrain from moving hers. We can then continue this discussion by means of correspondence and see whether her amendment takes us further. I am not sure that it actually relates to Amendment No. 213A, as the noble Baroness suggested, but that is probably something that could best be taken forward by means of correspondence between now and Third Reading.

Lord Monkswell

My Lords, before the Minister sits down, I wonder whether I may raise a point. He has referred to the financial concerns of the LEA. Something of concern to this side of the House is that it is not just a matter of financial considerations, but of the provision of the special educational support for the child involved. That is what is of primary importance. It is the monitoring of that provision and the ensuring that that provision is actually furnished that is important rather than it being a question of the LEA simply looking after its financial contribution.

My feeling is that it will be necessary to include Amendment No. 219H to ensure that the provision of special educational needs support is not only made, hut continues to be made. No doubt the noble Baroness, Lady Warnock, will make that decision in her own cognisance. It may be that we shall have to return to this subject on Third Reading to clarify the situation.

3 a.m.

Lord Henley

My Lords, I remind the noble Lord that this is the Report stage. I emphasise that LEAs must be sure of the quality and value for money of any provision that they specify. We are bringing in these provisions to make sure that LEAs knew they were getting the service that particular child needed and that they were not just throwing their money down the drain.

[Amendment No. 21911 not moved.]

Lord Northbourne had given notice of his intention to move Amendment No. 220:

After Clause 172, insert the following new clause:

("Parenral choice

In any case where the parent of a child has made representation in favour of a non-maintained or independent special school and the tribunal is satisfied that the cost to the local authority of sending the child to that school would not be significantly greater than the cost of sending him to the school proposed by the local authority there shall be a presumption in favour of the parent's choice provided this would not be against the best interests of the child.").

The noble Lord said: My Lords, I am most grateful to the noble Baroness for the help that she has given me over Clause 218 (a) and (b). However, I am not absolutely satisfied that this quite meets the extent of the advantage which is given to maintained schools by a parent's preference, which is only enforceable against a maintained school. Therefore, if I may, I should like to have a discussion between now and the next stage, and reserve the right, if necessary, to bring the matter back at Third Reading.

[Amendment No. 220 not moved.].

Schedule 10 [Government and conduct of grant-maintained

Lord Henley moved Amendments Nos. 220A, 221 and 221ZA:

Page 205, line 38, at end insert ("but, in the case of a governing body incorporated in pursuance of proposals made under section 175(3) (a) of this Act, such of the articles as may he prescribed shall have effect as from the incorporation date.").

Page 209, line 11, at end insert: ("( ) Any additional first governor appointed in pursuance of such a provision is to hold office for such term (not being more than five years) as may be specified in the terms of his appointment.").

Page 209, line 24. after ("conducted") insert ("or formerly conducted").

The noble Lord said: My Lords, these are all technical and drafting amendments and I do not think it is necessary to detain the House with their details now, unless any noble Lord wishes to have such details. I beg to move.

Lord Ponsonby of Shulbrede

My Lords, the noble Lord did not mention Amendment No. 221ZB. Just on a point of clarification, that is also part of the group.

Lord Henley

My Lords, it is entirely my fault. I apologise for not mentioning Amendment No. 221ZB and I thank the noble Lord for bringing that to my attention. I beg to include this amendment with the others.

Page 209, line 27, after ("VI") insert ("VII").

[Amendment No. 221A not moved.]

Clause 175 [Establishment, etc. of maintained or grant-maintained special schools]:

[Amendments Nos. 221B and 221C not moved.]

Viscount Astor moved Amendments Nos. 222 to 226B:

Page 107, line 24, leave out ("intend").

Page 107, line 25, at beginning insert ("intend").

Page 107, line 27, leave out paragraphs (b) and (c) and insert: ("( ) are of the opinion that any prescribed alteration should be made to a grant-maintained special school, or ( ) are of the opinion that such a school should be discontinued").

Page 107, line 30, at beginning insert: ("and an order under section 10(1) of this Act applies to the area concerned").

Page 108, line 1, leave out ("under") and insert ("referred to in").

Page 108, line 6, after ("notice") insert ("or, in the case of proposals under subsection (3) (b) or (c) above, the governing body of the school").

Page 108, line 8, leave out ("in accordance with Schedule 10 to this Act").

Page 108, line 13, after ("IV") insert ("or V").

The noble Viscount said: My Lords, I beg to move these amendments together. These were spoken to with Amendment No. 220A.

[Amendment No. 226C not moved.]

Clause 176 [Procedure for dealing with proposals]:

Viscount Astor moved Amendments Nos. 227 and 228:

Page 108, line 37, after first ("them") insert ("and, in the case of proposals under section 175(3) (b) or (c) of this Act, the governing body").

Page 108, line 39, leave out from ("may") to end of line 41 and insert ("modify any proposals required under section 175 of this Act to be implemented— ( ) in the case of proposals under section 175(3) (b) or (c) of this Act— ( ) at the request of the governing body, or ( ) at the request of the funding authority and after consulting the governing body, or ( ) in any other case, at the request of the body which served notice of the proposals").

Clause 178 [Maintained special school becoming grant-maintained special school]:

[Amendments Nos. 228A and 228B not moved.]

Viscount Astor moved Amendment No. 228C:

Page 110, line 10, leave out ("or III") and insert ("III or V").

The noble Viscount said: My Lords, the amendment was debated with Amendment No. 220A. I beg to move.

Viscount Astor moved Amendment No. 229:

After Clause 178, insert the following new clause:—

—Groups including grant-maintained special schools

(".—(1) Regulations may modify the provisions of Chapter IX of Part II of this Act for the purpose of securing that

1. (a) two or more grant-maintained special schools, or one or more grant-maintained special schools together with one or more grant-maintained schools, may be conducted as a group by a single governing body,
1416
2. (b) a special school maintained by a local education authority may cease to be so maintained and may be conducted by a governing body incorporated under that Chapter, and
3. (c) a grant-maintained special school may become a member of a group of schools conducted by such a governing body,

and that, where a group of schools including one or more special schools is conducted by such a governing body, the governing body is appropriately constituted.

(2) Regulations made for the purpose mentioned in subsection (1) above may modify sections 175 to 177 and 179 of this Act and Schedule 10 to this Act.

(3) Where that Chapter applies to special schools by virtue of regulationss2014;

1. (a) section 20(1) of this Act shall not be read as applying to such schools,
2. (b) a special school conducted by a governing body incorporated under that Chapter shall be known as a grant-maintained special school, and
3. (c) references in Chapter I of Part V of this Act to a group of grant-maintained schools include a group of one or more grant-maintained special schools together with one or more grant-maintained schools.").

[Amendments Nos. 230 and 231 not moved.]

[Amendments Nos. 232 and 232A had been withdrawn from the Marshalled List.]

Clause 185 [Specification of schools in notices under section 184(2)]:

Viscount Astor moved Amendment No. 233:

Page 115, line 15, after ("body") insert ("and head teacher of the school").

Clause 187 [Choice of school: child with statement of special educational needs]:

Viscount Astor moved Amendment No. 234:

Page 116, line 30, after ("name") insert ("of the school").

Clause 190 [Offence: failure to secure regular attendance at school of registered pupil]:

[Amendment No. 235 not moved.]

Viscount Astor

My Lords, I beg to move that further consideration on Report be now adjourned.

House adjourned at eight minutes past three o'clock.