Lords Sitting of 21 June 1993

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

Albania: UK Diplomatic Representation
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What is their policy on British diplomatic representation to Albania.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, diplomatic relations between the United Kingdom and Albania were restored on 29th May 1991. The British Ambassador to Albania is resident in Rome; a chargé d'affaires is resident in Tirana.
Lord Astor of Hever: My Lords, I thank my noble friend for that reply. Mindful of Albania's need for assistance, both financial and diplomatic, in adjusting to the outside world and to democracy, will she reconsider their offer to provide a building in settlement of our claim arising from the destruction of the British legation which has so far been rejected on the grounds of cost?
Baroness Chalker of Wallasey: My Lords, I thank my noble friend Lord Astor of Hever for that question. We are in discussion with the Albanian Government over compensation for the 1939–40 legation building. Our handling of this matter necessarily has to take into account the capital costs which might be involved in accepting a building for our embassy since that would be likely to be more expensive than renting space at the French Embassy, which we do currently.
Baroness Blackstone: My Lords, does the Minister agree that this is an excellent example where a small mission—indeed, a mini-mission—might be appropriate with a relatively junior but talented young member of the diplomatic service as our ambassador?
Baroness Chalker of Wallasey: My Lords, I thank the noble Baroness, Lady Blackstone, for that question. We do have a mini-mission there already, albeit with a chargé d'affaires. The first chargé d'affaires there was indeed a young man—a former assistant private secretary of mine who ran it very well from the beginning and who has been recognised for doing so. We now have two young people there, both doing an excellent job in support of British political and commercial interests.
We are mindful of the need to provide assistance. We shall seek to do so through the know-how funds which we extended to Albania last July. Bilateral aid now goes through that route. We are helping quite considerably, although in a small way as yet.
Lord Amery of Lustleigh: My Lords, am I right in thinking that one of the main objectives of government policy is to prevent the war in Bosnia from sliding into a conflict in Kosovo or Macedonia? In view of the fact that Albania is both geographically and ethnically closely connected with both, is it really wise not to have a listening post nearer than Rome, at a rather critical period in Balkan international history? Does it really make sense for British representation to be limited to accommodation in the basement of the French Embassy, albeit that it is a friendly power?
Baroness Chalker of Wallasey: My Lords, I understand what my noble friend Lord Amery of Lustleigh says very well indeed. We have more than a listening post in the French Embassy, albeit in a small way. We listen and have good contact also with members of the Albanian Government. But we must do this in a way in which we can both fund and use it to the fullest extent. We are seeking to do that at present. We are in close touch with President Berisha

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whom I met in Ankara last month. The Foreign Secretary is very much in touch with him. I too hope that President Berisha will soon be able to visit Britain. So our contacts are in place and our listening is good. We, together with our European partners, will do all that we can to make sure that we use all available information to prevent any spreading of the Balkan crisis.

Sunday Trading
2.41 p.m.
Lord Campbell Lord Campbell of Croy asked Her Majesty's Government:
Whether, when proposing options to replace the Shops Act, they will refrain from proposing any restrictions on Sunday trading in Scotland.
The Minister of State, Home Office (Earl Ferrers): Yes, my Lords.
Lord Campbell of Croy: My Lords, I thank my noble friend for his reassuring reply. Did he see the letter in The Times last Tuesday from the Keep Sunday Special Campaign mentioning an option extending to Scotland? As Scotland is not affected by the Shops Act, and has had no restrictions within living memory, would it not be retrograde to disturb a voluntary system of Sunday trading that has been working well for many years?
Earl Ferrers: My Lords, I did see the letter to which my noble friend Lord Campbell of Croy refers. I agree with him that Scotland does not wish to be regulated. According to a recent poll, only 8 per cent. of the people in Scotland want any regulation. The system has worked there very well in the past and we have no intention of changing it.
Baroness Jay of Paddington: My Lords, does the Minister agree that one of the other advantages about Scotland is that, following the letter from the Keep Sunday Special Campaign to which the noble Lord referred, what is shown about the Scottish experience is how little Sunday is disturbed by Sunday trading?
Earl Ferrers: My Lords, the noble Baroness is quite right. That is the experience of the people in Scotland.
Lord Boyd-Carpenter: My Lords, does my noble friend agree that the Scottish example is an extremely good one which, in that respect at least, we should follow?
Earl Ferrers: My Lords, that is one of the arguments, though not the only one. But I agree with my noble friend Lord Boyd-Carpenter that it is quite a forceful argument.
Viscount Tonypandy: My Lords, is the Minister aware that whenever I have had the pleasure and privilege of going to Scotland I have been impressed by the quietness of everything on a Sunday and by the fact that I have seen very few shops open?
Earl Ferrers: My Lords, whenever I have had the privilege of going to Scotland my experience has
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always been that I have been entertained by the amount of noise and happiness there. However, I agree that in Scotland the opening of shops on Sundays does not seem to have had a material or disastrous effect.
Lord Campbell of Croy: My Lords, is my noble friend aware that a little over 20 per cent. of shops open on Sundays, although they are free to do so, and that it has been estimated that a larger proportion of the population in Scotland goes to church on Sundays than is the case in England?
Earl Ferrers: My Lords, Scotland has always had a fairly severe discipline of puritanism which has not necessarily been reflected in England.

Benlate: Safety
2.44 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they will ban the use of the fungicide Benlate until the result of an inquiry into whether it causes children to be born without eyes is known.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, we greatly sympathise with families with children who are born without eyes. However, the Advisory Committee on Pesticides has examined, in the past 15 months, the data relating to benomyl (the active ingredient of Benlate) on two occasions. On both occasions it advised that there was no need for concern over its continued use in the UK. A ban would therefore not be appropriate.
Lord Molloy: My Lords, I thank the noble Earl, but is he aware that the very many women who have given birth to children who have no eyes—some 30-odd in the past few months—will not be particularly enamoured of that Answer? Would he be prepared to contact those scientists and researchers who have shown, not absolutely beyond peradventure but as a grave possibility, that the fungicide Benlate can be very dangerous? They are asking—these are not my words—whether its use should be stopped until the full inquiry which the Minister has announced has reported. Until then, should we be taking such a dreadful risk with other people's as yet unborn babies?
Earl Howe: My Lords, perhaps I should emphasise to the noble Lord that anophthalmia, the condition of being born without eyes, is very rare indeed. The figures that I have with me show that between 1980 and 1992 an average of 14 anophthalmia cases occurred each year. There is no perceptible trend in those figures over the period. The Government take this matter very seriously and, as well as consulting the ACP, we have invited the London School of Hygiene and Tropical Medicine to submit research proposals for an epidemiological study of anophthalmia. Those are now being considered as a matter of urgency.
Lord Skelmersdale: My Lords, while sympathising with those parents who, tragically, have had children born to them without eyes, does my noble friend agree

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that many medical scare stories arise as a result of unconfirmed experiments? Therefore, is it not quite right that the Government have instituted confirming experiments and, in this case, have come to the particular view that they have?
Earl Howe: My Lords, I am grateful to my noble friend. All the evidence suggests that the press have made links and suppositions that are not supported by the facts. As I said, anophthalmia is a very rare condition. Its incidence is not increasing. One cause is known to be genetic; another is German measles. Benomyl has been marketed in this country for many years and its toxicological profile is well established.
Lord Carter: My Lords, is the Minister aware that on 29th March, in a Written Answer to my noble friend Lord Ashley, he confirmed that no research studies had been conducted on humans into links between the use of pesticides and eye defects, and that in a further Written Answer on 14th April, he confirmed that the Advisory Committee on Pesticides had not examined the data on benomyl in those areas where it is used but had relied instead on information from California? In the light of that lack of information about experience in the UK, why has the Department of Health not yet responded to the proposals for a research study from the London School of Hygiene and Tropical Medicine, to which he referred? The Department of Health actually asked for those proposals from the London School of Hygiene and Tropical Medicine in March. In the light of the very distressing nature of the eye condition and the lack of information, should not the Government be moving rather more quickly on this matter since they asked for the research proposals in March and have not yet responded to them?
Earl Howe: My Lords, I can reassure the noble Lord that there is no delay. The Department of Health has taken steps to streamline the necessary procedures for committing public moneys to this significant research project It went out for peer review last month. The time allowed for that process was six weeks, and the contract for the study by the London School of Hygiene and Tropical Medicine should shortly be cleared by my right honourable friend the Secretary of State for Health.
Lord Molloy: My Lords, is it an absolute fact that there will be a full-scale investigation into this horrible substance, which very responsible researchers have claimed is the cause of children being born without eyes? Will the Government's researchers contact the people who have made and stand by those statements? Is the Minister aware that it has now been discovered that it is not a good thing even to spray crops or animal feed with this particular substance?
Earl Howe: My Lords, I take due note of the last part of the noble Lord's question and I shall look into it. As regards the first part of his question, Moorfields Eye Hospital, with geographers from Lancaster University, are conducting research into cases of anophthalmia and microphthalmia which are known to them. The Department of Health's expert
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independent advisers will review all data on anophthalmia and microphthalmia and examine Moorfields' study as soon as it is available.
Lord Tordoff: My Lords, does the data which the Ministry has available indicate that on the introduction of this fungicide there was an increase in the number of those suffering from the condition, or has there been a continuing level going back many years?
Earl Howe: My Lords, the only figures that we have date back to 1976. Benomyl was first marketed in the UK in 1969 but we are attempting to collate details dating back further than those which we have.
The Countess of Mar: My Lords, do the Government conduct any independent research for themselves as regards agricultural pesticides or do they rely entirely on the manufacturers' data?
Earl Howe: My Lords, by far the largest section of the R&D budget of the Ministry of Agriculture, Fisheries and Foods is devoted to pesticides.

Bank of England: 1993 Accounts
2.51 p.m.
Lord Spens Lord Spens asked Her Majesty's Government:
Whether, in the light of the explanations in the 1993 annual accounts of the Bank of England, there is any continuing support for "small banks". and whether the provision against loss already provided in the accounts of £115 million is likely to be increased for the current year.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, this is a matter for the Bank of England. The Bank made a public statement on 25th March 1993. Since then it has published its annual report and accounts for 1993 and the Banking Act Report for 1992–93, copies of which have been placed in the Library of the House and which contains more detail.
Lord Spens: My Lords, I thank the Minister for that parsimonious reply. Does he agree with me that the whole purpose of this undisclosed support operation by the Bank of England was to persuade depositors that all was well with their chosen banks and to induce them not to move? Does he further agree that a deliberate policy decision was taken riot to disclose this massive support operation or the perceived £25 million provision for losses in the accounts of the Bank of England for 1992, which is the year previously? Has the Treasury considered the implications of a prima facie breach of Section 47 of the Financial Services Act 1986 which, whether the Treasury likes it or not, is the law of the land and applies to the Bank of England just as much as it applies to the rest of us? May I remind the noble Earl—
Noble Lords: No. Order!
Lord Spens Lord Spens: My Lords, does the noble Earl understand that the relevant ingredients of Section 47 are:

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"Any person who … makes a statement … which he knows to be misleading, false or deceptive … for the purpose of inducing … another person … to enter into, or to refrain from entering into … an investment agreement"?
Noble Lords: Order! Reading!
Lord Spens: My Lords, that person is guilty of a criminal offence. In the circumstances—
Noble Lords: Order, order!
Lord Spens: My Lords, in the circumstances will the Minister instruct the Crown Prosecution Service, in the public interest, to investigate, with a view to initiating proceedings against the Bank of England, its directors and officers—
Noble Lords: Order, order!
The Lord Privy Seal (Lord Wakeham): My Lords, I believe that the noble Lord is at the end of his question and that the House would like to hear the reply.
The Earl of Caithness: My Lords, the matters to which the noble Lord refers are, as I said in my original Answer, for the Bank and its auditors. The purposes of the support operations which the Bank conducted were and are to avert more widespread difficulty in the financial sector, which would impact on other institutions, their depositors, businesses and the economy more generally. I shall, of course, look into some of the detail which the noble Lord mentioned in his many supplementary questions. As far as we are aware there is no reason to question the Bank's judgment.
Lord Richard: My Lords, will the Minister confirm that in 1991 the Bank faced losses in this area of £25 million and that last year it faced losses of £90 million? We do not know what the losses will be this year. While the Minister can take refuge in saying that it is a matter for the Bank of England, is not the Treasury at least concerned that the Bank of England can make a miscalculation costing £115 million?
The Earl of Caithness: My Lords, that is a separate question from that on the Order Paper. I would not agree with the terminology used by the noble Lord the Leader of the Opposition in describing the operation. It is, of course, a matter for the Bank and the auditors.
Lord Richard: My Lords, with great respect, it really is not a separate question; it flows naturally from the Question on the Order Paper and the Answer which the Minister gave. Therefore, I ask him yet again whether the Government are not concerned by the fact that the Bank miscalculated, which cost it £115 million.
The Earl of Caithness: My Lords, I would not agree with the noble Lord's terminology of "miscalculated". The Bank undertook a support operation, which is quite in order under the powers granted to it by the Act of Parliament and described lucidly in the Bingham Report.

Business
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Report stage of the Education Bill will be adjourned at about 7 p.m. for about one hour and that during this adjournment the Report stage of the Local Government (Overseas Assistance) Bill will be taken, followed by the Third Reading of the Licensing (Amendment) (Scotland) Bill, and four Motions for approval. Lastly, the order of commitment to the Merchant Shipping (Registration, etc.) Bill will be discharged.

Education Bill
2.55 p.m.
The Minister of State, Department for Education (Baroness Blatch): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Blatch.)
On Question, Motion agreed to.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley) moved Amendment No. 235A:
After Clause 193, insert the following new clause:—
Exemption where child attains 5 years during term
(". Where—

(a) a child attains the age of five years during the school term of a grant-maintained school, and

(b) arrangements have been made for the admission of the child to that school at the start of the next school term,

then, during the period beginning with his attaining that age and ending with the start of that next school term, section 36 of the Education Act 1944 (duty of parents to secure the education of their children) and section 183 of this Act shall not apply to the child.").
The noble Lord said: My Lords, this is a minor technical amendment. It is necessary to ensure that parents of children who reach the age of five in the middle of a school term have equal access to grant-maintained and LEA-maintained primary schools. The Education Act 1948 made it clear that, where a child reaches compulsory school age in the middle of a school term, an LEA-maintained primary school may defer his admission until the beginning of the next term. The 1948 Act also provided that in such a case the parent of a child was not to be under any duty to secure the child's full-time education until the beginning of the next term if it were not practical to do so before that date.
There is no similar provision in relation to grant-maintained schools. The intention of the amendment is simply to plug that gap. It will prevent parents from being required to secure the attendance of their child at school where he or she reaches the age of five part-way through the school term, but they have been offered a place at a grant-maintained school at the beginning of the next term. They will be entitled to keep their child out of school for the remainder of the term rather than accept a place at another school. The amendment simply brings the treatment of

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children about to attend grant-maintained schools in line with those about to attend LEA schools. I beg to move.
Lord Judd: My Lords, I wish to ask the Minister two specific questions. First, is the background to the amendment the anticipation that grant-maintained schools will have different term arrangements from LEA schools? Secondly, why is it not envisaged that the provision will apply to LEA schools?
Lord Henley: My Lords, I thought I had made it clear that under the 1948 Act it does apply to LEA schools. The amendment simply plugs the gap so that children intending to go to grant-maintained schools should be treated in exactly the same way as those about to attend an LEA school. Under the 1948 Act there is power for the LEAs to treat children about to attend an LEA school in that way. We simply omitted to make such a provision for grant-maintained schools. The amendment brings the two into line.
The background to the amendment is not that there should necessarily be different dates for school terms as regards grant-maintained and LEA schools. That will be a matter for the schools themselves. The amendment simply brings the treatment of children about to go to grant-maintained schools in line with that of those about to attend LEA schools. I hope that with that assurance noble Lords will accept this government amendment.
On Question, amendment agreed to.
3 p.m.
Clause 194 [Extension of the Education (Schools) Act 1992]:
Baroness Blatch Baroness Blatch moved Amendment No. 235B:
Page 119, line 41. at end insert:
(""appropriate appointing authority" means, in relation to any aided or special agreement school—

(a) the appropriate diocesan authority, if it is a Church of England school, Church in Wales school or Roman Catholic Church school, and

(b) in any other case, the person who appoints the foundation governors").

The noble Baroness said: My Lords, in Committee I brought forward two sets of amendments: first, to give a new power of appointment of additional governors in the case of failing voluntary schools; and secondly, to ensure consultation with the Churches on the membership of any education association established to conduct a voluntary school.
The right reverend Prelate expressed anxieties about the bodies named in the amendments. As a result, I withdrew them and agreed to consult further. The amendments now before your Lordships reflect further discussions with the Churches and I am grateful for their co-operation on this important issue.
This amendment and Amendments Nos. 235B, 238A, 239A, 240A, 240B, 271E, 275B, 276A and 276B relate to the appointment of additional governors in cases where schools are deemed to be "at risk". Amendments Nos. 235B, 275B and 276A define the appropriate appointing authority. Amendment No. 240B allows the appropriate appointing authority to appoint such number of additional foundation governors as it thinks fit.
In the case of Church of England schools, the board of education for the diocese in which the school is situated will have the power of appointment. In the case of a Church in Wales school, the relevant diocesan board of finance will usually have that power. In the case of a Roman Catholic school, the bishop of the relevant Roman Catholic diocese will have the power. In the case of other voluntary aided schools, the persons who appoint foundation governors will have the power.
Amendments Nos. 238A, 239A and 240A to Clauses 199, 200 and 201 of Part V add those bodies to the list of those to whom copies of inspection reports, action plans and LEA commentaries on voluntary aided schools are sent.
Amendment No. 241D concerns the issue of consultation on the membership of an education association established to conduct a voluntary school. In Committee I sought to amend the Bill to require the Secretary of State to consult the person who appoints the school's foundation governors on membership. Again, we have had useful discussions with the Churches on this issue and the amendment names the appropriate diocesan authorities, as defined in Amendments Nos. 275B and 276A, as the people who should be consulted except where the schools are not Church of England, Church in Wales or Roman Catholic schools, when the person who appoints the foundation governors will be consulted.
I recognised also the Churches' anxieties that if a voluntary school were transferred to an education association, there was no requirement in the Bill to ensure that an education association should include a member with experience of education in the voluntary sector. In practice, I should have expected that to be the case but I have addressed that worry, and I am sure that the House will welcome the amendment which puts such a requirement on the face of the Bill.
Amendments Nos. 236, 237, 241A, 241B and 241C are drafting amendments intended to improve the clarity of expression across Part V. Amendment No. 241G is consequential on new Clause 90 introduced in Committee. It brings the provisions for borrowing by education associations into line with those for GM schools.
It may be helpful to the debate if I anticipate Amendment No. 241E in the names of the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Williams of Crosby. As I understand it, they seek to place a specific requirement on the face of the Bill in respect of the composition of all education associations. I have already added a requirement, through Amendment No. 241D, that one member of an EA appointed to conduct a voluntary school should have experience of the voluntary sector.
In appointing the members of an education association, my right honourable friend will be looking for persons who have shown capacity in their fields and I am prepared to accept the broad thrust of the amendment. I acknowledge that, generally speaking, someone with such experience would be a desirable member of an education association. I am not convinced that we should limit the experience specifically to,

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"a school providing the relevant kind of education",
because there are issues in a secondary school where somebody with general school experience may bring that expertise to bear. Equally, somebody in the secondary sector—for example, with experience of financial management—may be able to bring his knowledge to bear in a primary school.
However, we accept the thrust of the amendment, although I am concerned that tying oneself to a particular sector may be too restrictive. I shall consider further the wording and shall consult with the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Williams of Crosby, and return with another amendment to Clause 208 on Third Reading. I beg to move.
Lord Ponsonby of Shulbrede: My Lords, I was going to speak to Amendment No. 241E. However, in the light of the Minister's assurances, it would be prudent for me not to address the amendment in full but to look forward to the amendments which she said will be brought forward on Third Reading.
Baroness Williams of Crosby: My Lords, I welcome the remarks of the noble Baroness, Lady Blatch. I am sure that she will bear in mind in making appointments to education associations the need to have on them people with close knowledge of the education system. The recommendations of education associations are likely to carry more weight if their members are recognised in the education world to be people of knowledge and experience. However, I thank the noble Baroness for the assurances that she has given.
The Lord Bishop of Guildford: My Lords, perhaps I may continue with this pleasant period of peace and goodwill around the House by saying how grateful I am on behalf of the Church of England and the Roman Catholic Church for the extensive amendments which the Minister has brought forward. As near as is possible, they meet our anxieties and I am grateful for the trouble which the Minister and her department have taken in order to ensure that the Bill is improved entirely to our satisfaction.
Lord Judd: My Lords, I too should like to say that this is an encouraging beginning to a long day's work. I have made the point previously that when undertakings are given as regards consultation I hope that the Minister and her officials will be able to ensure that adequate time is allowed for consultation. Very often it is the case that the people who are being consulted are working with very small staffs and have very heavy workloads. Therefore, they cannot make sense of the consultation unless they are given plenty of time in which to undertake it.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 236 and 237:
Page 120, line 13, leave out ("Chapter") and insert ("Part").
Page 120, line 14, leave out ("Chapter") and insert ("Part").
On Question, amendments agreed to.
Clause 199 [Destination of Reports]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 238 to 239:
Page 123, line 4, at end insert:
("( ) to the head teacher of the school").
Page 123, line 9, at end insert ("and (if different) to the appropriate appointing authority").
Page 123, leave out lines 13 to 16 and insert ("in respect of which any person has power to appoint an externally appointed core governor under a provision of the instrument of government made in pursuance of Schedule [Core governors for groups] of this Act, to that person.").
On Question, amendments agreed to.
Clause 200 [Special measures by appropriate authority]:
Baroness Blatchmoved Amendments Nos. 239A and 240:
Page 124, line 23, at end insert ("and (if different) to the appropriate appointing authority").
Page 124, leave out lines 27 to 30 and insert ("in respect of which any person has power to appoint an externally appointed core governor under a provision of the instrument of government made in pursuance of Schedule [Core governors for groups] of this Act, to that person.").
On Question, amendments agreed to.
Clause 201 [Additional special measures by local education authority]:
Baroness Blatch Baroness Blatch moved Amendment No. 240A:
Page 125, line 23, at end insert ("and (if different) to the appropriate appointing authority").
On Question, amendment agreed to.
Clause 204 [Appointment of additional governors]:
Baroness Blatch Baroness Blatch moved Amendment No. 240B:
Page 127, line 26, at end insert:
("(5) If at any time—

(a) this section applies in relation to an aided or special agreement school, and

(b) the conditions in subsection (6) below are satisfied, the appropriate appointing authority may appoint such number of additional foundation governors as they think fit.

(6) Those conditions are—

(a) that a period of ten days has elapsed since—

(i) in the case of a school not having a delegated budget, the period prescribed for the purposes of section 200(3) of this Act expired, and

(ii) in any other case, the period allowed under section 201(3) of this Act for preparing a statement under that section expired, or

(b) that the Secretary of State has received a copy of a statement prepared—

(i) in the case of a school not having a delegated budget, under section 200 of this Act, and

(ii) in any other case, under section 201 of this Act, and has served notice in writing on the appropriate appointing authority stating that the power conferred by subsection (5) above is exercisable.

(7) The Secretary of State may by notice in writing served on the appropriate appointing authority determine that subsection (6) (a) above shall have effect as if the reference to ten days were to such shorter period as he may determine.
(8) In the case of any appointment made by virtue of subsection (5) above to the governing body of a school—

(a) the instrument of government for the school, or

(b) if the governing body is constituted in accordance with arrangements under section 12 of the Education (No. 2) Act 1986, those arrangements,

shall have effect as if, notwithstanding section 4(3) of that Act (foundation governors for aided and special agreement schools), the instrument or, as the case may be, arrangements authorised the appropriate appointing authority to appoint such number of additional foundation governors as they think fit.

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(9) Where in the case of any aided or special agreement school which is not a Church of England school, Church in Wales school or Roman Catholic Church school there are different powers to appoint foundation governors, references in this section (other than subsection (6) and (7)) to the appropriate appointing authority are to—

(a) all those persons who have any such power acting jointly, or

(b) if they are unable to agree, such of them acting jointly, or such one of them, as the Secretary of State may, after consulting all those persons, determine.").

On Question, amendment agreed to.
Clause 205 [Suspension of right to delegated budget]:
Baroness Blatch Baroness Blatch moved Amendment No. 241:
Page 127, line 34, at end insert ("and a copy of the notice shall be given to the head teacher of the school at the same time as the notice is given to the governing body").
On Question, amendment agreed to.
Clause 206 [Grouping and de-grouping]:
Baroness Blatch Baroness Blatch moved Amendment No. 241A:
Page 128, line 9, after ("received") insert ("a copy of").
On Question, amendment agreed to.
Clause 207 [Prohibition on ballot under Part II]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 241B arid 241C:
Page 128, line 28, after ("received") insert ("a copy of").
Page 128, line 35, after ("received") insert ("a copy of").
On Question, amendments agreed to.
Clause 208 [Power to establish education associations]:
Baroness Blatch Baroness Blatch moved Amendment No. 241D:
Page 129, line 7, at end insert:
("( ) Before making an order under this section in the case of a voluntary school, the Secretary of State shall consult—

(a) if it is a Church of England school, Church in Wales school or Roman Catholic Church school, the appropriate diocesan authority, and

(b) in any other case, the person who appoints the foundation governors.

( ) In the case of an education association which conducts a voluntary school, at least one member must be a person who has experience of, and has shown capacity in, the provision of education in voluntary schools.").
On Question, amendment agreed to.
[Amendment No. 241E not moved.]
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 241F:
Leave out Clause 208.
The noble Lord said: My Lords, in speaking to this amendment I shall speak also to Amendments Nos. 241H, 242A to 242E, 242G to 242J, 243A to 243D and 244A and 244B.
First, as regards Amendment No. 241F, we firmly believe that policies should be designed to avoid schools failing. We have consistently argued against the Government's commitment to the application of market forces for that reason. National and local policy should be designed to ensure that all schools have the opportunity to succeed. For that reason, we have argued for schools to be properly resourced and that the teaching profession should be an all-graduate profession whose members receive worthwhile training and induction throughout their careers.
Schools require support from local education authorities with extra support needed at various
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times; for example, following the appointment of a new head teacher. It is important to recognise that good LEAs have avoided schools failing in the past by reasoned intervention. They must be fully resourced and supported in their work to prevent schools from failing.
LEAs should have powers to intervene and to withdraw delegation of budgets. They should be able to call on Ofsted support extensively during a period in which any LEA action plan is being drafted. LEAs should be provided not only with the power but also with the ability to intervene successfully.
Finally on this amendment, we should like to see policies designed to ensure that all schools succeed, and recognition that resources are indeed a factor in ensuring success. We would also like to see local education authorities provided with the ability to support and assist schools so that they avoid failure, as well as the power to intervene where necessary. Finally, we would like to see a withdrawal of the proposed central government intervention through education associations.
Perhaps I may now address Amendment No. 241H. Its purpose is to allow local education authorities at least 12 months to turn the school around before an education authority is appointed. The aim of the amendment is to ensure that a local education authority is allowed at least 12 months to take action in order to deal with the problems that have been identified in the inspection report and to put those problems right. Allowing an education authority to take control of the school before the LEA has had the opportunity to deal with the problems that have been identified by the inspection might result in the school experiencing more problems and having greater difficulty in dealing with them.
The LEA has experience and knowledge of the school, and once the problems have been identified by the inspection report, it should be in a good position to work with the school to deal with the problems. An education association will come to the school as a newly-established body appointed by the Secretary of State and may, perhaps, have little or no experience of the particular problems of that individual school, though clearly, in the opinion of the Secretary of State, there will be individuals who have considerable experience relevant to dealing with the schools that are experiencing difficulties. By giving the LEA at least a year to tackle the issues, there is every reason to believe that the school should recover without needing to be taken over by an education association. That might ultimately avoid the more drastic result of the school's closure and all the consequences that that would bring.
I should now like to address Amendment No. 242A. The amendment is designed to increase the options for schools which have been run by an education association. As presently framed under the Bill, the only options are either school closure or grant-maintained status. The amendment would ensure that the Secretary of State consulted with the local education authority on the future of such schools. It is, therefore, complementary to the amendment agreed last week giving the LEA a

15
strategic planning role over schools in its area. Upon receipt of a report on an education association school, the LEA could, first, either request that the school be maintained once more by the local education authority; or secondly, inform the Secretary of State that the school should be given grant-maintained status; or, thirdly, inform the Secretary of State that the school should be discontinued.
If the LEA requested that the school be once more maintained by the LEA, it would then be for the governors and the parents to decide in the normal way whether or not to seek grant-maintained status. The amendment introduces flexibility into the arrangements and would allow for parents and governors of the schools run by an education association to be properly involved in the discussion and decision about the appropriate status for the schools.
I turn now to deal with a group of amendments which I should, perhaps, call a sub-group of amendments and which is headed by Amendment No. 242B. I should like to speak also to Amendments Nos. 242C, 242D, 242E, 242G-242J, 243A-243D and 244A. The proposed group of amendments is similar to one debated in Committee which was led by Amendment No. 243C tabled in the name of the noble Baroness, Lady Hamwee. The principal aim of the group is unchanged; namely, to provide the option of a school conducted by an education association reverting to its former status as a county or voluntary school, in addition to the Government's proposed options of becoming a grant-maintained school or closing.
However, there are some important differences in the present group of amendments. First, the amendments tabled in Committee comprised a paving amendment and three proposed new clauses, without the supporting seven other amendments now tabled. In reply, the Minister was inadvertently hampered by the lack of consequential detail that was given, but nevertheless raised several reasoned objections. Therefore, the amendments seek to address the objections raised earlier. Most importantly, as can be seen from the paving amendment, the proposals are now limited to the situation before an order is made under Clause 10(1)(b); that is, before the 75 per cent. transfer point to grant-maintained status in an area is reached, or some lower percentage where the LEA chooses to shed its responsibilities.
I do not propose to go into great detail as regards the present group of amendments. However, I should like to explain the general thrust a little further. As with the former group of amendments, Clause 217 is left unchanged so that the starting point for an education association school finding a new future is the same. That is when it is no longer "at risk" and a summary of the inspector's report has been sent to every parent under Clause 217(3).
Under the Bill as drafted, parents need not even be consulted before the Secretary of State directs the education association under Clause 214 to publish proposals for grant-maintained status. The amendments and proposed new clauses provide for parents to be fully involved in determining the school's new status, whatever it is. In Committee the noble
16
Baroness Lady Blatch argued that once a school had been turned around, the work of the education authority association was done and the school, all things being equal, would move on to new governance by a representative governing body as soon as possible. Against that, we assert that the right of parents to be consulted—and offered a real choice—is more important than the administrative convenience of moving swiftly. However, the amendments would have no effect after the 75 per cent. point, as there is then insufficient real likelihood of the local education authority's management of the school being attractive to parents.
The amendments seek to address some of the reasoned objections put forward in Committee by the Minister. They still stick to the central principal point of our amendments; namely, that choice should be offered to parents of schools that are under the governance of education associations. As it is choice that we hear time and again is the guiding principle of many aspects of the Bill, I hope that the Minister will respond favourably to them. I beg to move.
3.15 p.m.
Baroness Williams of Crosby: My Lords, I should like to speak briefly to two of the proposed amendments. I should like, first, to speak to Amendment No. 241H to which the noble Lord, Lord Ponsonby of Shulbrede, just referred, which relates to the length of time which an education association has to turn around a school. Secondly, I should like to speak about Clause 211 as regards the issue of options open to a school which has failed and which has been turned around by an education association.
Anyone who has been interested in the area of education, either in this House or in another place, will know that there is no category of schools that does not include a small minority of failures. Whether it is an independent school, a comprehensive school, a primary school or a voluntary school, every Minister at the Department of Education (the DFE as it now is) has, at one time or another, had to deal with the problem of a school that fails. There are many reasons therefor: it may be the personality of or the difficulties faced by the head teacher; it may be because of the catchment area of the school; or it may be because the school has had an unstable life and it is difficult for it to maintain the kind of morale and cohesion that are needed over a period of time to make a school a really good one.
As I said, there is no monopoly of failed schools. They exist in every category; indeed, they always have. It is important that there should be ways of dealing with them. However, whoever is responsible for dealing with a failed school—be it the governing body in the case of an independent school or a local education authority in the case of a maintained school—it is quite clear that that authority or governing body must have adequate time to turn around the school. It is not something that can be done immediately, quickly or in a matter of weeks. It involves human relationships, the relationship between the head teacher and the staff and, in many cases, it involves the relationship between the staff and the governors.

17
As all noble Lords in the House who have been concerned with education will know, it is a matter which, like any other organic institution, takes a little time and a little patience. Indeed there are real dangers in trying to rush the process of turning around a school that is in trouble. There is the danger that, in an attempt to turn it around too quickly, the school may find itself in a worse position than if there is a longer period of time in which to change the nature, psychology and attitude of the school.
In the White Paper the Government proposed a period of 12 months. I believe most of us would recognise that that is not an unreasonable period of time—three school terms—in which to attempt this difficult task of turning a school around. I am troubled by the fact that in these amendments no reference is made to a minimum period of time. Indeed, it appears that the Secretary of State may declare any such shorter time as he or she may wish.
As in many other aspects of the Bill, a great deal of responsibility rests on the Secretary of State: in practice, that means the civil servants at the department, many of whom have not had direct dealings with schools at what one might describe as the ground floor level. I hope I may press the noble Baroness, Lady Blatch, to say what she would expect to be the normal period of time which the education association would be able to rely upon to start this difficult task of turning a school around.
I appreciate that there may be some exceptional cases. There may be cases where, to avoid the demoralisation of a school, it is important to move quickly. I suspect that those cases will be extremely rare. It may be necessary to give the education association time to get to know people and to talk to them. It is of crucial importance that the EA should be open to their suggestions and ideas. I would therefore welcome an assurance from the Minister that the 12 months laid down in the White Paper would in most cases be adhered to and that the Secretary of State would not use his powers to shorten that time in many instances.
I follow what the noble Lord, Lord Ponsonby of Shulbrede, said with regard to the options open to a school that has failed, has seen an education association put in place, and has reached the stage where its future has to be considered. I am sorry that the Government have taken the view that one of the three options for such a school should be closed off. The three options are: closure; becoming a grant-maintained school; and becoming, once again, a local authority maintained school or continuing as one. I believe the education association would be in a much better position than the Secretary of State to advise on the best possible course for the school to take. Yet by this Bill we are taking one of those three options away.
All of us have seen how quickly a local education authority can change for the better. Most of us would say that that rather depends on the outcome of elections. That is what elections are all about. Certainly local education authorities can adopt different policies and different attitudes. It is perfectly
18
possible for an organisation, when it knows the circumstances of a problem, to find adequate answers to it. We suggest that the education association must recommend a course of action in these cases. It is then for the Secretary of State to consider that course of action and parents must be consulted about it before a decision is made. I found the remarks made by the right reverend Prelate the Bishop of Guildford convincing when he asked whether, if this matter was stood on its head, we would declare that any grant-maintained school had failed and was therefore obliged to return to local education authority control without anyone being consulted. Some grant-maintained schools will fail in that regard.
Either this Bill is concerned with giving the greatest possible voice and influence to parents or it is not. This particular part of the Bill rules out one option on which parents might wish to express a view and on which they might wish to be consulted. They might wish a school to remain within the local education authority's purview. I and my noble friends argue that parents must retain the right to be consulted and to express a view on this matter as the Government have insisted they do in the case of a school moving from the control of a local education authority to grant-maintained status. What is sauce for the goose is sauce for the gander.
Earl Baldwin of Bewdley: My Lords, I should like to speak briefly on a couple of these amendments. First I shall speak to Amendment No. 241H. I believe this is an important amendment. Local action is always going to be preferable to the heavy stick from outside, partly because of greater familiarity with the circumstances and the kind of remedies that are likely to succeed, and partly because of the follow-up that will be possible over time.
One can foresee that an interventionist Secretary of State might easily be tempted to flex his or her muscles and send in the hit squad prematurely, perhaps at a point where local measures were just beginning to take effect. It is right that a breathing space should be built in, and 12 months is by no means too long for this. The Minister in another place said of a similar amendment, which was not actually moved, that it offered a reasonably practical course of action. He said:
"We do not want to rush in and impose an education association when the governors of a school and the LEA are attending to the matter".
This being so, will the Minister please look favourably on this addition to Clause 210?
Turning to Amendment No. 242A, it would be interesting to know which principle the Government thought more important: the imposition of grant-maintained status, or the right of parents to choose the future of their school. Whenever it comes to the crunch, the latter seems to go down the drain.
In opposing a similar amendment in Committee the noble Baroness, Lady Cox, who is not in her place, spoke of,
"the ultimate devolution of power and accountability to parents, where it most belongs".
But it appears this power is not to extend to choosing in each case whether their school is to change status or

19
not. There are only two options allowed, as we have heard, after the hit squad has been in: extinction, or GM status.
Now, in some cases an LEA will have been very much at fault. In others—say, where there has been a loss of experienced staff resulting in disciplinary problems which will take time, patience and resources to resolve—the position will not be clear-cut. The noble Baroness, Lady Williams, has given other examples too. In these cases, to talk as the noble Lord, Lord Elton, did in Committee of a school being,
"in effect rendered inoperable by a local authority",
is frankly absurd. It is entirely appropriate that parents on the spot should judge. One way would be to ballot there and then. The other would be by means of this amendment which has a presumption in favour of local authority status, which can be converted in short order to GM status if parents feel so inclined and demand a ballot.
It does seem that the Government only trust parents so long as they can be relied on to take the right decision. This amendment would preserve the options, and for that reason deserves to be supported.
Lord Elton: My Lords, I rise only because my name was mentioned in connection with having said that a local authority would allow a school to become inoperable. This has happened in the past and emergency staff and head teachers have been drafted in to rescue schools. I add no more to my previous argument.
Lord Dormand of Easington: My Lords, when the Minister replies I hope that she will spend a little time defining a failing school. We spent a little time on this matter in Committee but, as the Minister is aware, many of us were dissatisfied with the position. It is a matter which is being talked about a great deal and not only in the education world. At this stage it is important to clarify exactly what we are talking about when we debate failing schools.
3.30 p.m.
Baroness Blatch: My Lords, I shall deal with that rather direct question first. It is not for any politician, even my right honourable friend the Secretary of State, to make a subjective judgment about what is or is not a failing school. If the noble Lord looks at the procedure set out in the Bill, he will see that it is for Ofsted to make the recommendation on professional grounds as to whether it believes that a school is at risk. That will be the information on which the Secretary of State triggers the process set out in the Bill.
Lord Dormand of Easington: My Lords, I am grateful to the Minister for giving way. Is she saying that the Secretary of State will accept fully what Ofsted says?
Baroness Blatch: My Lords, what I am saying is that the Secretary of State will be advised by Ofsted even if complaints come to the Secretary of State informally, or formally from a local authority, or from whatever source. It will be for the Secretary of State to
20
put the inspectorate into the school and it will be for the inspectorate to make a report to the Secretary of State to confirm whether or not the school is at risk. If the school is deemed to be at risk, the Secretary of State would be failing in his duty not to address that issue. If the school is not at risk, the Secretary of State must consider the professional judgment and the advice he is given. I cannot say at this stage how any particular Secretary of State would respond to advice from professional bodies that a school was at risk.
There is a great deal of misunderstanding about this part of the Bill, and perhaps I may deal with the amendments on the Marshalled List. We have returned again to the question of the introduction of education associations and the future of schools conducted by education associations once they have been given a clean bill of health. Amendment No. 241F in the name of the noble Lord, Lord Ponsonby, removes the clause which provides for the Secretary of State to establish an education association to conduct a failing school. With that one amendment we would return to the present situation in which we know that there are schools which, in the view of the inspectorate, are at risk yet are not necessarily being improved. Some are, but we know that many are not.
The appointment of an education association is not the only weapon in the armoury for remedying the problems at a failing school. It is the step of last resort and will be taken only where other bodies have failed to take effective action to remedy the problems. I shall not go into the full detail of the way in which failing schools will be identified or the steps which will be taken before an education association can be brought in to take over the management of the school. Suffice it to say that local education authorities are given additional powers to allow them to remedy the school's problems. The process would allow the governing body of a school and its maintaining LEA the first opportunity. However, if they fail to set out adequate plans for action, or if they fail to implement them effectively, I can assure the House that my right honourable friend will not hesitate to transfer a school to an education association. We would be failing the children in the school if, in such desperate circumstances, we did nothing to seek to improve the standard of their education.
The amendment to Clause 210 seeks to prevent the Secretary of State from transferring a school to an education association until 12 months have passed from the date he receives a copy of the LEA's statement of the action it proposes to take in relation to the school. As I have said, in cases where the LEA has produced what appears to be a sensible and well-judged action plan, the Secretary of State will want to allow it time to carry out the plan. He must not, however, be prevented from placing a school in an EA, where he is of the opinion that the LEA's action plan would be ineffective or the LEA incapable of carrying it out. It is entirely possible that, having allowed a school under its control to have reached such unacceptable standards, the LEA would not produce an effective action plan. The amendment also neglects to consider the possibility that the LEA might not propose to take any action with regard to the

21
school. It, too, might feel that it is best for the school to be transferred to an education association. The Secretary of State must be free to take that step without delay.
I am sure that the House is now aware that in such cases it is our intention that, when the education association has completed its task, a school will normally become grant-maintained. The Opposition have presented us with a series of amendments designed to allow schools conducted by education associations to be returned to local education authorities once they have been turned around. One set is bewildering in its complexity, while Amendment No. 242A, in the name of the noble Lord, Lord Judd, and the noble Baroness, Lady Williams, appears to be a masterpiece of elegance and simplicity. I shall deal firstly with that amendment, whose effect is to leave any decision about the future of the school in the hands of the LEA, an LEA which has already failed that school. The LEA may decide to maintain the school itself; it may recommend to the Secretary of State that it should become grant-maintained; it may recommend to tile Secretary of State that it should be discontinued. It is preposterous to suggest that an LEA which had let a school down so badly in the first place should then be given sole responsibility for making decisions about its future. The whole objective of the Opposition's amendment is clear. They have condemned our proposals for lack of parental choice over the future of schools which have been brought back to health after a period with an education association; yet their agenda is to return the school to the LEA which has already failed the school. Where is the parental choice in that?
I shall turn now to the series of amendments with which we have become familiar. It is interesting to see a new twist on them. I can understand why the Opposition feel that it is a good idea to abandon their policy of returning a school to the control of an LEA in areas where at least 75 per cent. of pupils are educated in grant-maintained schools. However, the amendments still pursue the idea that, where the relevant LEA shares a responsibility for providing school places, a school should be returned to it. I am forced to repeat what I have said before: if an LEA has already failed a school I can see no sense in returning it to that same LEA.
In the small number of cases where schools are transferred to education associations it will be because the LEA has not only failed to ensure a satisfactory level of education at the school in the past but has given no indication that it is capable of restoring acceptable standards in the future. Parents are unlikely to want schools to return to LEAs which have failed them in the past, and the complex processes proposed will do nothing to contribute to the stability of a school which has been restored to health by an education association.
Baroness Willliams of Crosby: My Lords, I am grateful to the noble Baroness for giving way. The point which we are trying to make to the noble Baroness from this side of the House is that, whatever the opinion of Ministers may be, this is an issue which in the end should be decided by the parents. It is not
22
for Ministers to say that it would not make sense for the school to return to LEA control. Surely the noble Baroness will understand that we are suggesting that that choice as well as the other options should be open to parents.
Baroness Blatch: My Lords, I would make two points in reply to that remark. I have already mentioned a number of amendments which do not give parents that opportunity. Some of the amendments put that decision in the hands of the local education authority. We have a mixed bag of amendments here. Secondly, I repeat that I would find this outbreak of democracy very touching if noble Lords opposite, including the noble Baroness, Lady Williams of Crosby, supported parents making the choice in favour of grant-maintained status in the first place.
I have already mentioned the arguments of noble Lords opposite, not to mention those of Opposition Members in another place, on the subject of parental choice over the future of a school turned round by an education association. In this set of amendments it is the education association which chooses whether the school should be returned to the LEA or go on to ballot for grant-maintained status. Again, where is the concept of parental choice here? It seems to me that if an education association decides to return a school to an LEA the only real choice lies with the LEA, as the Opposition have now considered the possibility that it might be unwilling to take the school back. The noble Lord, Lord Judd, has accepted in this instance the principle that the school should become grant-maintained without a parental ballot. If the education association however, feels that, because the LEA has failed the school in the past and is likely to do so again, the school should become grant-maintained, the balloting process must take place. It is a bizarre logic which says that the EA's judgment can be trusted only if it decides to return the school to the LEA.
As I said in our previous debate on this issue, in the unlikely event that an education association proposed that a school should return to LEA control the amendments provide for a long and cumbersome route back to the LEA. The amendments have not changed in that respect and are still somewhat unclear about the length of the process back to LEA control. It seems to me it could take at least nine months. If the Secretary of State were to reject the proposals for the school to return to the LEA, the only option open under these amendments would be for him to require the LEA to publish further proposals. It is not clear what happens if he rejects them again. Is it to keep publishing proposals until it gets them right? Needless to say, that is not a process which could contribute to the stability and well-being of the school.
The procedure already in the Bill for these schools to move to GM status is, by contrast, a quick and simple one, perhaps taking three to four months. Given that the school will have been through a period of some uncertainty while being conducted by the EA, it is desirable that, once recovered, its future should be determined as quickly as possible.
If a school is to return to the LEA, the amendments now give the power of appointment to the new

23
governing body to the Secretary of State, instead of the education association as previously. While I am sure that my right honourable friend appreciates the Opposition's faith in his judgment, we intend that once the work of the EA is done the school, by acquiring GM status, should have a representative governing body composed in the same way as those of other GM schools. The amendment does nothing to allay my concern in our previous debate that an LEA may be reluctant to maintain a school where it has had no say in the membership of the governing body, as it does now with all county and voluntary schools. Although the amendments now allow LEAs to decline to maintain those schools, they have to give notice of their decision within two months of the EA giving its notice that the school should return to the LEA. If it takes back the school it may still be in the position of maintaining a school where it has no say in the membership of the governing body.
I should like to remind the House that when an EA publishes proposals for grant-maintained status, parents will have the opportunity to make their feelings known. The Secretary of State will take all representations, including parents' views, into account when he considers the proposals.
On one thing I agree wholeheartedly with noble Lords opposite. This is an important issue. We did not reach the conclusion that a school conducted by an EA should not return to its former maintaining LEA without very careful consideration. Though we have now debated this more than once, the Opposition have failed to make a convincing case that LEAs which have failed—not once, but at least twice—to ensure that a school gives its pupils an adequate standard of education, should be given another chance. The children in the school have only once chance. We must not fail them. These amendments would do nothing to ensure that their only chance is not taken away from them.
We should not become self-indulgent about the role of LEAs in this matter. The only issue that matters is that a school that is failing or is at risk of not providing good education for its children should be restored to good education as fast as possible with the help of the local authority and/or an education association.
Turning to Amendment No. 243C, we debated an identical amendment, tabled by the noble Lord, Lord Peston, in Committee on 4th May. As my noble friend Lord Henley said then, subsection (b) of the amendment assumes incorrectly that grant-maintained schools will be among the types of school that could be conducted by an education association.
Let me explain why I shall ask the House to reject the amendment. It proposes that where a county school conducted by an education association is discontinued the school property must be returned to the local education authority. The Bill certainly does not rule out that eventuality, but it allows the necessary flexibility for the different circumstances that may arise. For example, the school may have received capital grants from the funding authority, or
24
it might be appropriate for the premises or other school property to be used for the purposes of another school.
Amendment No. 244B would require the regulations to be made under Clause 218(1) to be subject to affirmative resolution of both Houses of Parliament. I am, of course, aware that the Select Committee on the Scrutiny of Delegated Powers drew that regulation-making power to the attention of the Committee as one where the affirmative resolution might be appropriate. But that matter was not raised by your Lordships in Committee. We have a good record in our response to the recommendations of the Scrutiny Committee. I can assure the House that we considered seriously the case made for the affirmative resolution in this case, as the Scrutiny Committee suggested.
The basic framework for the operation of schools conducted by education associations is set out on the face of the legislation. By virtue of Clause 208(5), education associations and members of education associations are included in references in any enactment to the governing body of a school and the governors respectively. There is no power under the regulation-making power to amend that provision. By virtue of Clause 211(4) to (7) references in any enactment to grant-maintained schools include schools conducted by education associations.
Schools conducted by education associations will be subject to the same requirements of employment law, race relations legislation, and so on, as other schools. But not every provision is capable of applying as it stands or is intended so to apply. The provisions of Clauses 208 and 211 are therefore made subject to the following provisions of Chapter II of Part V, including Clause 218. Regulations made under that clause will therefore be able to disapply or adapt particular provisions as necessary.
Perhaps I could give a couple of examples. When a school is conducted by an education association, it will be necessary to disapply Clause 52 of the Bill, since a school conducted by an EA will have no governing body. An education association is not to be able to propose the discontinuance of the school it conducts. Regulations will therefore disapply Clause 100 in relation to EAs. I could give other examples. The changes that will be needed are of a technical nature and therefore are appropriately left to delegated legislation. It is not, I contend, the kind of legislation that normally requires affirmative resolution procedure.
I am grateful to your Lordships for your forbearance. This is a long and complicated group of amendments. It is important to make just two more points. First, the noble Baroness, Lady Williams of Crosby, was concerned about the length of the period. I hope she will accept that it is right that LEAs should be given the first opportunity to restore good education to a failing school. There is only one caveat to that. In extremis, where it is deemed that an LEA has been contributing to the failure of that school or is deemed not to have the capability to restore good education, there should be flexibility for the Secretary of State, as is set out on page 50, paragraph 11.8 of the White Paper. There it says that he would allow up to

25
a full academic year to improve the school, or to curtail that period if it were felt that the the local authority was making no progress or, indeed, if it refused to take proper action.
Secondly, the kind of flexibility that my right honourable friend would wish to see is where a local authority has produced an effective action plan and effective plans for restoring the school. I believe that the noble Baroness, Lady Williams, will agree with me that it takes a long time for some schools to have full, good education restored to them, and so if the plans and the action being taken by the local authority are sufficiently impressive to Ofsted, which will make the recommendation to my right honourable friend, and is such that the time needs to be extended, then my right honourable friend would wish to have that time extended, because progress, albeit slowly but surely, is being made and it is preferable not to stop that activity in its tracks and put in an education association. But where my right honourable friend believes that progress is not being made, that the plan of action is not adequate, then, in order to have education restored quickly, my right honourable friend would wish to have the flexibility to do that. It is flexibility that we require here to achieve the objective which I know unites the whole House; that is, that good education should be restored to a failing school as quickly as is practicable.
3.45 p.m.
Lord Ponsonby of Shulbrede: My Lords, I have to say that we are disappointed by those replies. The Minister said that she was not touched by the interest in democracy shown by our Front Benches. We have been candid about our views. We oppose the general thrust of the Government's education policy root and branch. But this is a revising Chamber. We are trying to revise the legislation so as to level the playing field. That is an expression we have used time and time again. We have made our views plain, but the Minister has not been candid in expressing her antipathy to LEAs.
This group of amendments seeks to address yet another inequality that exists between LEA-maintained schools and grant-maintained schools. We are taking the Government at their word when they say that they want choice for parents. That is what we are trying to put on to the face of the Bill. The argument that LEAs have failed is one that the parents can take on board. They can also take on board the fact that LEAs can change. They do change, as we have seen recently, as a result of things called elections, something about which we all agree.
It has been said before, and I shall repeat it: what is sauce for the goose is sauce for the gander. I can see no reason why parents should not be given the option of staying under LEA control. It is for that reason that I must ask the opinion of the House.
3.49 p.m.
On Question, Whether the said amendment (No. 241F) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 148.

Division No. 1

CONTENTS

Addington, L. [Teller.]

Kilbracken, L.

Airedale, L.

Kinloss, Ly.

Archer of Sandwell, L.

Llewelyn-Davies of Hastoe, B.

Ardwick, L.

Lockwood, B.

Aylestone, L.

Longford, E.

Baldwin of Bewdley, E.

Lovell-Davis, L.

Beaumont of Whitley, L.

McCarthy, L.

Blackstone, B.

McIntosh of Haringey, L.

Bonham-Carter, L.

Mackie of Benshie, L.

Boston of Faversham, L.

McNair, L.

Bottomley, L.

Mallalieu, B.

Carmichael of Kelvingrove, L.

Merlyn-Rees, L.

Carter, L.

Milner of Leeds, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Pen rhos, L.

Morris of Castle Morris, L.

Clinton Davis, L.

Nathan, L.

Cocks of Hartcliffe, L.

Nicol, B.

David, B.

Ogmore, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Donaldson of Kingsbridge, L.

Portsmouth, Bp.

Dormand of Easington, L.

Prys-Davies, L.

Eatwell, L.

Richard, L.

Fisher of Rednal, B.

Ritchie of Dundee, L.

Gallacher, L.

Sainsbury, L.

Galpern, L.

Seear, B.

Geraint, L.

Scrota, B.

Gladwyn, L.

Shackleton, L.

Graham of Edmonton, L. [Teller.]

Shaughnessy, L.

Stallard, L.

Hampton, L.

Stedman, B.

Hanworth, V.

Stoddart of Swinclon, L.

Harris of Greenwich, L.

Strabolgi, L.

Hilton of Eggardon, B.

Taylor of Blackburn, L.

Hirshfield, L.

Thomson of Monifieth, L.

Howie of Troon, L.

Tordoff, L.

Hughes, L.

Turner of Camden, B.

Hunt, L.

Wallace of Coslarty, L.

Irvine of Lairg, L.

Warnock, B.

Jay of Paddington, B.

White, B.

Jenkins of Hillhead, L.

Wigoder, L.

Jenkins of Putney, L.

Williams of Crosby. B.

John-Mackie, L.

Williams of Mostyn, L.

Judd, L.

Wilson of Rievaulx, L.

Kennet, L.

NOT-CONTENTS

Abercorn, D.

Chalker of Wallasey, B.

Aldington, L.

Charteris of Amisfield, L.

Alexander of Tunis, E.

Chelmsford, V.

Allenby of Megiddo, V.

Cochrane of Cults, L.

Annan, L.

Constantine of Stanmore, L.

Archer of Weston-Super-Mare, L.

Cranborne, V.

Cullen of Ashbourne, L.

Arran, E.

Cumberlege, B.

Astor, V.

Davidson, V.

Auckland, L.

Denham, L.

Barber of Tewkesbury, L.

Denton of Wakefield, B.

Belhaven and Stenton, L.

Dudley, B.

Bellwin, L.

Eccles of Moulton, B.

Beloff, L.

Effingham, E.

Bessborough, E.

Elibank, L.

Blatch, B.

Ellenborough, L.

Blyth, L.

Elles, B.

Boardman, L.

Elliot of Harwood, B.

Borthwick, L.

Elliott of Morpeth, L.

Boyd-Carpenter, L.

Elton, L.

Brabazon of Tara, L.

Fanshawe of Richmond, L.

Brentford, V.

Ferrers, E.

Butterworth, L.

Finsberg, L.

Cadman, L.

Foley, L.

Caithness, E.

Fraser of Carmyllie, L.

Campbell of Alloway, L.

Fraser of Kilmorack, L.

Campbell of Croy, L.

Gainford, L.

Carney of Lour, B.

Gainsborough, E.

Carnock, L.

Goschen, V.

Cavendish of Furness, L.

Gridley, L.

Cayzer, L.

Haig, E.

27

Hailsham of Saint Marylebone, L.

Pearson of Rannoch, L.

Peel, E.

Halsbury, E.

Pender, L.

Harding of Petherton, L.

Peyton of Yeovil, L.

Harmar-Nicholls, L.

Porritt, L.

Harmsworth, L.

Prior, L.

Hayhoe, L.

Quinton, L.

Henley, L.

Reay, L.

Hesketh, L. [Teller]

Renton, L.

Hives, L.

Rodger of Earlsferry, L.

HolmPatrick, L.

Roskill, L.

Hood, V.

St. Davids, V.

Howe, E

St. John of Fawsley, L.

Hylton-Foster, B.

Salisbury, M.

Johnston of Rockport, L.

Saltoun of Abernethy, Ly.

Kimball, L.

Sanderson of Bowden, L.

Knollys, V.

Savile, L.

Knutsford, V.

Seccombe, B.

Lauderdale, E.

Shannon, E.

Lindsay, E.

Skelmersdale, L.

Liverpool, E.

Stewartby, L.s

Long, V.

Strange, B.

Lucas, L.

Strathcarron, L.

Lyell, L.

Strathclyde, L.

McColl of Dulwich, L.

Strathmore and Kinghorne, E. [Teller.]

Mackay of Ardbrecknish, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Suffield, L.

Swinfen, L.

Macleod of Borve, B.

Tebbit, L.

Manton, L.

Terrington, L.

Marsh, L.

Teviot, L.

Merrivale, L.

Thomas of Gwydir, L.

Milne, L.

Thurlow, L.

Milverton, L.

Trefgarne, L.

Montgomery of Alamein, V.

Trumpington, B.

Mottistone, L.

Ullswater, V.

Mowbray and Stourton, L.

Vaux of Harrowden, L.

Moyne, L.

Vivian, L.

Munster. E.

Wakeham, L. [Lord Privy Seal.]

Murton of Lindisfarne, L.

Norrie, L.

Westbury, L.

Northbourne, L.

Whitelaw, V.

Northbrook, L.

Wynford, L.

O'Cathain, B.

Yarborough, E.

Orkney, E.

Young, B.

Orr-Ewing, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.58 p.m.
Schedule 11 [Education Associations]:
Baroness Blatch Baroness Blatch moved Amendment No. 241G:
Page 209, line 44, at end insert ("except money lent under section 90 of this Act").
The noble Baroness said: My Lords, I have already spoken to the amendment. I beg to move.
On Question, amendment agreed to.
Clause 210 [Transfer of responsibility for conducting school to an education association]:
[Amendment No. 241H not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 242:
Page 130, line 13, after ("body") insert ("and head teacher").
The noble Baroness said: My Lords, the amendment has already been spoken to with Amendment No. 46. I beg to move.
On Question, amendment agreed to.
Clause 211 [Effect of order under section 210]:
[Amendments Nos. 242A to 242E not moved.]
Lord Judd Lord Judd moved Amendment No. 242F:
Before Clause 214, insert the following new clause:
28
("Establishment of a General Teaching Council
.—(1) Within three months of this Act receiving Royal Assent the Secretary of State shall establish an enquiry into the future development of the teaching profession in schools in England and Wales and in particular such an enquiry shall consider the establishment of a General Teaching Council.
(2) The General Teaching Council shall have regard for schools requiring special measures.").
The noble Lord said: My Lords, during our deliberation of the Bill it has become clear that the one essential ingredient to the future of our education system is the quality of the teaching profession. That fact cannot be over-emphasised and it is the underlying reservation on this side of the House in the context of the debate on education associations. We are not convinced that ad hoc, specific, artificial arrangements that are put in place to make a success of a school can achieve that result unless the quality of the teachers within the school can bring about the improvements that are sought. Therefore if we are looking genuinely to the next century the House should do all possible to improve the Bill to enhance the status of teachers and their profession.
There have been many changes to education in the past 14 years. Among teachers and parents it was a welcome relief when the Secretary of State said that this Education Bill would be the last for a quarter of a century. Yet, despite having said that, he has already announced fundamental changes in primary teacher training. All the changes that have been introduced—a new one is envisaged—have been imposed with scant regard to the professional judgment of teachers and the views of parents and others involved in education. The new proposals for teacher training are a case in point. I find a certain paradox in a situation in which we are told that the future preparation of teachers can be left increasingly to teachers within schools at the very time that the Government state that they are not prepared to recognise an enhanced status for that profession, in the way that we advocate, with its own general teaching council.
The proposals regarding the changes for primary teacher training were issued this month for a minimal period of consultation. Comments are required by the DfE by the end of July and implementation is envisaged in the autumn, with new legislation likely to follow. It is all too characteristic of the rush last summer over the Bill.
The Government apparently want to allow non-graduates into infant teaching—mothers and nursery nurses with A-levels or other qualifications for higher education. This "Mums' Army" will have to squeeze into their one-year course knowledge of the national curriculum, assessment, practical classroom skills, language development and essential theories about how children learn.
The Times Educational Supplement described the proposals as "unnecessary" and "unjustifiable". In a very convincing editorial comment on 11th June, it states:
"The Mums Army proposal can have no rationale beyond dogma and some obscure political purpose and is a serious threat to schools".
There is no doubt in my mind that the proposals constitute precisely such a serious threat. We have long argued for a widening of access to teacher

29
education, but it has to be no less rigorous than existing courses, leading to graduate and professionally qualified status.
I wish to make it absolutely clear that I am completely in agreement with those who say that it can be a deeply regenerating experience for the teaching profession to see many from outside the profession, from families which do not necessarily have a tradition in education, coming into the profession. That would be an exciting enhancement, a great drive forward for the future of education. However, that is not instead of preparation or professional status; it is not instead of training. That breath of fresh air from outside goes together with proper training and preparation.
However, whatever our views on the proposed changes, the fact is that the proposals affect the status of the whole teaching profession and the quality of education for all children. Successful changes emanate from constructive dialogue. Such significant changes should not be imposed by Ministerial edict on our schools. It is our view that a general teaching council would be the ideal forum to discuss the professional views of teachers and the concerns of those in education, as indeed it would be to discuss the needs of schools requiring special measures.
During an earlier debate in Committee we considered an amendment that called for consultation on the establishment of a general teaching council. The amendment had support from all sides of the House. It fell, but only just, when the Minister made it clear that the Government would not be moved on the matter and would refuse to establish a general teaching council, making any consultation on establishing one a waste of time.
We are discussing a further amendment on the issue having reflected on the strength of argument in that debate and in the light of the new government proposals for teacher training. An inquiry into the future development of the teaching profession should consider the need to establish a general teaching council. The future development of the teaching profession is inextricably linked to the quality of education and the future economic prosperity of our country.
It is time to pause for breath and to take stock. We believe that the review which we propose, leading to the establishment of a proper professional body which could play its full, rigorous part in the development of the education system, is timely and deserves support from all sides of the House. I beg to move.
4 p.m.
Earl Baldwin of Bewdley: My Lords, this amendment, as the noble Lord, Lord Judd, has explained, is not a direct proposal for a general teaching council, but for an inquiry where at least the reasons for and against a GTC could be impartially explored.
If properly set up, it could have a dispassionate look at all the arguments we have thrown about over the past few weeks. It could advise whether or not the Minister and the noble Baroness, Lady Cox, are right to feel that the worst of union attitudes and practices
30
will be translated to the new body proposed by Professor Tomlinson and others, or to some other body constituted in a way that they may suggest. It could look at the merits of the non-statutory "royal college" model which the Government appear to favour.
This is a most important debate. Almost every week, it seems, there are new ideas thrown at the profession with little regard for the views of participants, whether suppliers or consumers of education. The latest, as we have heard, is the deprofessionalising of infant teaching—the Mums' Army, or, like the card game we used to play when I was young, "Mother's Madness". This, as a question of teacher training, would have been ideally suited for discussion in a general teaching council, where representatives of the profession and wider public interest could put forward well thought-out proposals over the whole range of educational matters.
I have some concerns about professions being the sole regulators of their own affairs. But I have even greater concerns about the Government determining almost everything that goes on, especially in the area of the hearts and minds of our children. That is something we have always tried to avoid in our decentralised democracy, and it is one of the most disturbing features of recent legislation how this principle is being thrown out of the window with apparent insouciance. Significantly, it was fear of general opposition to the Government's reforms within a GTC that formed one plank of the Minister's refusal to contemplate it in Committee. To me that is one of the strongest reasons for a teaching council so that controversial measures can be properly debated and, where necessary, professional nonsense can be exposed for what it is. The Government's present propensity to dictate unchecked over a range of professional matters is doing harm to our education service and to the all-important relationships within it.
Teachers are often accused of having low expectations of their pupils. If you treat people as if you expect more of them, they will usually respond. Could not the Government themselves adopt this more positive attitude towards teachers?
Baroness Williams of Crosby: My Lords, I wish to address briefly the amendment put forward by the noble Lord, Lord Judd, and to make two or three points which have not already been made.
First, I find myself filled with a certain strange sense of déjà vu at present. Throughout the 1970s the battle fought by the noble Baroness, Lady Thatcher of Kesteven, and myself was to try to establish that teaching should be a graduate profession. We moved little by little towards that goal. The first step was to require that no one could enter teaching unless he or she had an O-level pass in both mathematics and English. The second was that all teachers should hold a degree of one kind or another to be followed by a postgraduate certificate of education lasting for one year.
Both the noble Baroness, Lady Thatcher, and I fought for the same thing,—there was no division between the parties. The view was held extremely strongly at the time that teaching needed to be made

31
into the same kind of profession as medicine and law; in other words, an honourable profession with a very high status. There were two reasons for that. First, it was recognised that teaching was a difficult and responsible job and it was important to try to keep teachers with their classes for some time, and to keep them in the profession. At that time one of the most troubling aspects of education was the relatively rapid turnover in teachers simply because the profession commanded neither the salaries nor the status that it deserved.
Therefore, I repeat that at the time there was no division between us or between the major political parties about the need for all teachers, including primary and nursery school teachers, to hold graduate or equivalent to graduate status. That was the whole drive at the time.
I add another reason. At that time in 1975 the country had decided to become a member of the European Community and it was recognised that virtually every other country, with the exception of the Iberian group and Greece, had a graduate profession in teaching. Those countries' requirements were in many cases more demanding than ours; that was true of Scandinavia, the Low Countries, Germany and France, and it is still true today.
We therefore appear to be going back to arguing that a primary school or infant teacher requires only a year or two of qualification to teach in the schools at a time when many of our neighbours in Europe are moving ahead, if anything to a more demanding status for teachers. That may be an unwise road to march down, especially at a time when the equivalent qualification is a serious part of the provision being made within the European Community treaties.
A further reason is that, as a country—and I pay due credit to Her Majesty's Government on the issue—a much larger proportion of our young people are becoming graduates. Ever since the Robbins Report of the 1960s there has been a steady move, which has continued government by government; that move has been rapid under the present Government as regards the polytechnics, now the new universities. A growing proportion of that age group is taking a degree.
How strange, then, that we should be moving away from that concept in the case of some elements of the teaching profession, because we shall have more graduates than we have had for a long time. It is therefore more important that we regard the teaching of young children as a crucial part of the responsibilities of a graduate profession.
Perhaps I may finally add two other points. First, partly as a result of the Bill and partly as a result of the public expenditure difficulties that the Government face, we know that it is likely that there will be fewer and not more nursery schools over the next few years. That means that the responsibility which rests upon teachers in the first two or three years of compulsory education is greater than it would be if most of the children came from nursery schools or nursery classes. The noble Baroness, Lady Warnock, has pointed out the importance of qualified teachers, able to deal rapidly with children who may have special learning
32
needs at these early stages in their education. It is rather rare for people who are essentially ill-trained to be able to pick up those kinds of needs at an early stage.
Finally, I believe that the move towards a general teaching council is good in the sense that it establishes the professional status of teachers. One of the reasons that we have not attained that over recent years is, I am afraid, that there have been sharp divisions between the teachers' associations about a general teaching council and the kind of functions it should have. I shall not bore the House with many reminiscences; I just wish to give one. I remember back in 1978 inviting the teachers' associations to discuss a general teaching council. At that time there was no agreement among teachers' associations as to what ought to be the functions of a general teaching council. In fairness to the House, we must make it plain that responsibility for good education rests not only with the Government, but also with all those who are concerned and involved in education.
Nevertheless, that does not mean that it was the wrong way to go. I profoundly believe that it was right, and that the teaching profession needs the self-respect that goes with having a professional council, with being consulted about the nature and structure of the training of teachers and, not least, that goes with saying that some people are no longer able or fit—not necessarily through their own fault—to continue to serve in that profession. That would be the way that the General Medical Council is able to act with regard to doctors.
Therefore, I believe that the amendment has a great deal to say about the shape and future of education. It should commend itself to your Lordships. The dangers of drifting in the opposite direction are acute and could result in a profound part of this country no longer being regarded as being in the front rank of European countries when it comes to the issue of education. I for one would regret that very much.
4.15 p.m.
Lord Renton: My Lords, as this is the first time that I have followed the noble Baroness, Lady Williams of Crosby, since she was ennobled, perhaps I may say what a pleasure it is to find oneself taking part in the same debate as her. It was in a way a nostalgic experience for me because I remember her as a socialist Secretary of State for Education and I remember her attitude towards grammar schools. I find myself no more in agreement with her now than I used to be in those days.
As regards the amendment, she will forgive me if I do not follow her precisely in the arguments which she put because I wish to speak to the amendment in a more general way.
The first point that occurs to me with regard to the amendment is that the idea that there should be an inquiry into the teaching profession within three months of the Act receiving Royal Assent seems to me to be a misguided suggestion. I say that because the Bill will make a number of changes which we believe to be improvements. It is, alas, a detailed Bill and it will take some time not only for the teaching

33
profession but also for all involved in the education world to absorb and apply what Parliament proposes in the Bill. I cannot see how an inquiry within three months of Royal Assent could get anyone anywhere effectively. That is the first difficulty which I feel.
Noble Lords will note that the inquiry is to take place in two stages. First, the Secretary of State is required to:
"establish an enquiry into the future development of the teaching profession in schools in England and Wales".
Presumably that is to be a wide inquiry. In particular, subsection (1) states that:
"such an enquiry shall consider".
There is an obligation to consider, but not to establish a general teaching council.
However, if a general teaching council is established, there is one matter to which it shall have regard, and only one. As we all know, to state one particular matter as an obligation or in any other way in a statute and to leave out all other possible matters means that those concerned are confined to that one matter. The one matter to which a general teaching council would have to have regard would be "schools requiring special measures". That phrase is not defined. What are such schools? We find the words "special needs" in a large part of the Bill and I am glad that that is so. But "schools requiring special measures" would be a newly introduced phrase in the Bill so far as I am aware. That raises the disadvantage of uncertainty. Those are the reasons why—and they are general to the amendment—I find myself unable to support this amendment.
Baroness David: My Lords, in answer to the noble Lord, Lord Renton, I should have thought that the recent announcement by the Secretary of State on setting up "Mums' Army" makes some sort of inquiry into the future development of the teaching profession particularly important at this moment. The deprofessionalising (if there is such a word) of the teaching profession surely makes it even more important to set up a general teaching council, or at any rate to plan for one, than it was a few weeks ago before the recent announcement by the Secretary of State.
Baroness Warnock: My Lords, I should like very much to support the amendment. It is very modest. It demands only that a committee of inquiry be set up. I took it that subsection (2) did not propose to confine any general teaching council that might be set up to having regard to schools requiring special measures. I confess to being somewhat confused by the second part of the amendment. Nevertheless, I took it that the general teaching council, if set up, would have regard, among its other duties, to those schools which were failing. However, with regard to the first part of the amendment, it seems to me to be of enormous importance that the Government should not be seen to refuse to inquire into the setting up of a general teaching council. In 1985 I put forward the idea of a general teaching council (being by no means the first person to do so) in the Dimbleby Lecture of that year. I was asked to see the then Secretary of State for Education, now the noble Lord, Lord Joseph, to discuss the matter. We did discuss it, and his first
34
objection was the one that we have heard many times; namely, that any such council would undoubtedly become unionised. His second objection was that it would be impossible to satisfy the teachers as to the fairness of their representation as members of that council. I have heard those two objections many times since.
The purpose of a committee of inquiry could be, first, to look at whether there are ways round the difficulties caused by the composition of the general teaching council. Secondly, it could examine ways in which one could ensure that the general teaching council, if set up, remained totally separate from the unions. That second point is of extreme importance. What we lack at the moment is a statutory body that has responsibility for the training of teachers, the many other aspects of the teaching profession, and the nature of schools—matters about which the Government need to consult but have at the moment no body with which they can consult because they do not wish, for obvious reasons, to fall into a discussion which will become a battle with the unions. It is the absence of a general teaching council which makes it so very difficult for the Government to take part in consultation before introducing the kind of changes that we now see. That seems to me to be a weakness, and one which I am sure the Government themselves deplore. There is no proper body of consultation.
The last point that I want to make is that a non-statutory teaching council is futile. It would not fulfil the particular need for a body which is the obvious and proper body for discussion. Let us not be fobbed off with the response that the teachers can form a council if they so wish and "play act" at being a general teaching council. That is not enough. We need a statutory body. But we need it—I fully agree with this point—to be set up only after all the difficulties about its establishment have been thoroughly examined by an independent committee of inquiry. It is, of course, open to that committee to say that no such body should be set up because it would be too difficult. We need that response thoroughly argued, and the argument set out, before a final refusal to have a general teaching council is accepted.
Lord Elton: My Lords, this Bill is passing across the waters of education like a great liner passing across a smooth or fairly choppy sea. The amendment suggests that we cast our fishing line into the water immediately behind the stern in the turmoil of its wake. For that reason, like my noble friend Lord Renton, I believe that it is premature. But I believe that it is premature for another, more important and sadder, reason. That is to do with the profession, which the Secretary of State would be invited, or indeed directed by this amendment, to inquire into.
The body which it is proposed should be set up is, I take it, the body which would regulate for teaching all those aspects of the profession which the General Medical Council administers for the purposes of medicine. One sees what a desirable parallel that is for the profession; it is one to which, had I still been in that profession (as I was for 10 years) I should myself aspire. But the profession has changed. In some respects it is not altogether, in my view, professional.

35
I do not want to apportion blame for that. The problem has clearly arisen from the increasing confrontation between the Government and teachers and the increasing acrimony of that confrontation. But when, in the middle of the last decade, the teachers descended—I can think of no other word—to the level of striking in a way that damaged the prospects for the whole of the lives of some of their pupils, that was a highly unprofessional course of action. Any hope one had that the position was being recovered in recent years was, to say the least, weakened by the reception which the Secretary of State recently received at one of the professional associations' general conferences.
The question is, therefore, whether teachers as a body, and as organised, are a professional body. It follows inevitably from the experience in Scotland that it would be to those organisations in one form or another that a general teaching council would immediately fall. It does not seem to me that the condition of the practice of teaching and its organisation is at present such that one would wish to pass to it this enormously important control over the standards not only of the profession into which the Secretary of State is invited to inquire, but of the future of all our children and grandchildren in their schools.
The second weakness of the amendment, as my noble friend Lord Renton again pointed out, is the extraordinarily obscure and (even more alarmingly) curtailed effect of the second subsection. The principal concern of the Secretary of State in making these arrangements should be the future of the children of this country. That should be the principal concern of the teachers in any general teaching council, just as the health of the people of this country is the principal concern of the General Medical Council. The terms of this amendment do not suggest that that would be the concern of that body. Therefore, I believe that it is misconceived and dangerous, and it should be rejected.
Earl Russell: My Lords, I understand very well what the noble Lord means when he compares this Bill to the passage of a liner. It makes those of us who are in the education profession feel that we are in rowing boats. When you are in a rowing boat and a liner has just passed, that is a moment when you have to ask some questions very urgently indeed; for you need to set a new course which will ensure that you do not sink. For that reason it is altogether misconceived to suggest that, because big changes are taking place, one should not ask questions. If the noble Lord had said that we should not reach answers, that would have been quite another matter. But inquiries, after all, do not report instantly. They take a certain amount of time.
To deal with the point about the second subsection of the amendment, the complaint has been made of isolating a single purpose. But inquiries operate by terms of reference given by the Secretary of State. So if the Secretary of State wishes the inquiry to consider other points, he is perfectly able to put them within the terms of reference and put them in context with this one. Therefore, that point also falls.
36
I hope very strongly that concern about the future of children in schools is not something which either side of the House will attempt to monopolise. It is felt very strongly on both sides of the Chamber.
The noble Lord, Lord Elton, said a good deal about professional standards. I hope he will agree that if one tries to operate by professional standards one's first duty will be towards one's pupils. That duty takes priority over one's duty to anybody else, not excepting the Secretary of State. Consciences may often be misguided but provided one has a professional conscience, one must act according to it, whether rightly or wrongly.
The noble Lord, Lord Elton, also said a good deal about threatening children's future by not conducting the tests. That is a controversial statement.
Lord Elton: My Lords, perhaps the noble Earl will forgive me for interrupting. I was referring to the teachers' strike in the mid-1980s, not to teaching tests. My speech had nothing to do with that. I have not voiced an opinion on that issue.
Earl Russell: My Lords, I thank the noble Lord for that correction. I wondered about it while he was speaking. I am sorry to have misinterpreted him. But the noble Lord referred to the reception given to the Secretary of State at the conference of the National Association of Head Teachers. The Secretary of State said on that occasion that he did not know what he had done to deserve such a reception. That indicates that milder methods have not been very successful in getting the Secretary of State to listen. When one talks to someone who is deaf, one occasionally regrettably finds it necessary to raise one's voice. I am sorry that on this occasion it was so. But can the noble Lord, Lord Elton, tell me that it is possible to talk to the Secretary of State in a quieter voice and be heard?
4.30 p.m.
The Lord Bishop of Guildford: My Lords, I do not want to detain the House for very long but I wonder whether I could encourage the House to think more favourably about a general teaching council. I fully accept the criticisms made of this amendment by the noble Lord, Lord Renton. It is not a very happy amendment. But I do not believe that that is the principal issue, which is whether or not we want a general teaching council.
I have to say also that I regret that we have brought in the issue of what is collectively called "mums'army". That is peripheral to the general point of whether we want a general teaching council. I have mixed views about the so-called "mums' army". I reached the peak of my academic career at the age of four and have been in a steady decline ever since. Who teaches you at that early age is of vital importance. Perhaps if I had had better teaching at that age I should have been more successful than the examiners have proved me to be. I would rather that we left those issues on one side to focus on the particular point of whether we want a general teaching council and whether the general thrust of the amendment is one that we want to pursue.

37
I deeply regret that the teaching profession from time to time has gone on strike. In no way do I support, encourage or condone it. I very much regret the behaviour, reported in the press, at a recent trade union conference when the Secretary of State was present. That did not do the teachers' cause any good. Having said that, we have to recognise that when people behave in that way it is very often an expression of frustration rather than anything else. I remind your Lordships of what happened earlier this afternoon in this House. When a particular Member spoke in a way that noble Lords did not wish to hear, I regret to say that your Lordships shouted him down so that he could not continue. It is up to others to say whether or not that was because he was out of order or because they wished to bring him under control in some way. I would not wish to make a precise parallel with what the teaching profession has done; I merely say that that is an illustration of the way in which people sometimes behave when they are frustrated.
I believe that in a good educational system we must have, above all else, a dedicated and self-respecting teaching profession. I deplore some of the behaviour that the profession has been indulging in recently. However, I believe that to move towards a general teaching council, and particularly for the Government to do so, would be an act of imagination, generosity and confidence that might break the stalemate we have almost reached and dispel the sense of a lack of communication. That would give self-respect to the teaching profession. It would also provide a focus for professional consultation.
For those reasons, despite all the criticisms that have been made, I hope that we shall continue to move towards a general teaching council.
Baroness Faithfull: My Lords, I absolutely agree with my noble friend Lord Renton. We do not approve of the amendment as it is worded. However, I personally believe that we should work toward the establishment of a general teaching council.
First, there have been complaints from all round the country about teacher training colleges and their teaching. Students have come to see me about it. Secondly, as the right reverend Prelate said, many people are worried about the training of teachers for very young children. I received a deputation from Cornwall which said how worried people were about it.
I should like to make a completely different suggestion; namely, that the teachers themselves should be asked to bring forward a plan for a general teaching council. They should take a year to decide how they want the general teaching council to be set up and then to bring the plan to Westminster. I believe that the teachers themselves have to put forward a plan for a general teaching council and it is then for us to debate it. I believe that the responsibility for teaching lies with the teachers. Therefore, they themselves should say how it should be done.
Lord Dormand of Easington: My Lords, I rise very briefly to comment on a remark made by the noble
38
Lord, Lord Renton. He referred particularly to subsection (2) of the amendment which states that the general teaching council,
"shall have regard for schools requiring special measures".
The noble Lord made a number of comments. Among other things, he said that that was a new phrase, that it was not contained in the Bill and therefore one had to be careful about it. Had that been the position, one would have agreed with the noble Lord. We all know what a formidable debater he is; and part of his skill, if I may say so, is based on his detailed knowledge of Bills. Therefore, I thought I had better say that Part V of the Bill is headed:
"Schools failing to give an acceptable standard of education".
Chapter I of Part V is headed:
"Identification of schools requiring special measures".
Later, there is a heading: "Special measures". Indeed, the three clauses under that heading deal specifically with special measures.
Chapter II of Part V is headed:
"New powers over schools requiring special measures".
In that section there are five clauses dealing with special measures.
That had to be said but it is not my main point. My main point is that one of the strengths of the amendment is that it deals with special measures. We are not just talking about the general measures which a general teaching council would affect—and it has been heartening to note the support from various Members of your Lordships' House. The amendment says that the teaching profession ought to take particular note of special measures. Those are defined. Indeed, we have talked about special measures not only at Report Stage but also during the Committee stage.
I feel that that subsection is of very great importance. The fact that noble Lords on this side of the House have raised it in the amendment is very much to be applauded. I hope that all parts of the House will support it.
Viscount Eccles: My Lords, I believe that my noble friend Lady Faithfull made a valid point. How one achieves a better position in society for teachers is a big question. We all felt it was not right. For years and years governments have thought about it and tried to do something about it, or perhaps have done nothing about it but have been aware of it. This amendment is not the right kind of amendment. I do not believe that professional status can be imposed on a body of people. What one ought to do is go out and talk to them, particularly their unions. As long as their unions quarrel amongst each other the possibility of bringing teachers together into one sensible body is very remote.
I do not believe the proposal fits into this Bill. When the 1944 Act was going through another place I remember Mrs. Cazalet-Keir and I moving an amendment to put equal pay for women teachers into the Bill. I won but then had to reverse it the next day. Sir Winston Churchill sent for me and said, "Look, you mustn't try to put an elephant into a perambulator". This amendment reminds me of that. It is not right in this Bill.
Lord Ritchie of Dundee: My Lords, reference has been made by the noble Lord, Lord Elton, to the acrimony and strife that has taken place over the past few years between successive Secretaries of State and the teaching profession. Much reference has also been made to the irresponsibility of teachers in striking and to their discourtesy to the Secretary of State on certain occasions. I suggest to your Lordships that none of those things need have happened had there been an effective representative body to express and represent the views of teachers and to act as an intermediary between the Government with, let us face it, their political aims and the profession with, we hope, its professional aims. If there was an intermediary body so that the teaching profession was at arm's length from the Government, none of the things that have done so much damage to the teaching profession over the past few years need have happened. I strongly support the amendment. Even though, essentially, it may not be correctly worded I support the substance of it.
Baroness Blatch: My Lords, I should like to begin by referring to something that I believe unites every member of the House: that the quality of the teaching profession is absolutely crucial to the well-being and health of education in this country. In my view, this debate is about means to an end rather than the end in itself. The difference between us is that, unlike the proposers of the amendment, the Government believe that professional teachers should organise themselves into a professional body and that a general teaching council should not be born out of governments or trade unions; it should be born from the precious commodity of the professionalism of teachers. The noble Baroness, Lady Williams of Crosby, reminded us of how difficult it was during her term as Secretary of State to reach agreement with the key bodies in the debate—that is, the professional bodies of teachers and trade unions. While I agree with the sentiment expressed by my noble friend Lady Faithfull, I part company in the following respect. At the end of the debate why should not the teachers themselves form themselves into a professional body but not then come to government for statute?
There are some very interesting precedents. I refer to the royal colleges in the health service, of which there are a number. They range from large bodies like the Royal College of Nursing, with nearly 300,000 members, to the Royal College of Pathologists, with 5,000 members. None of those bodies has a statutory function but each acts as a professional body to promote members' interests. Several of those bodies see themselves as trade unions as well. For the most part they represent only one occupational group. Some also represent local groups—for example, the Royal College of Physicians of Edinburgh. Royal colleges are still being set up. The Royal College of Anaesthetists was created in 1992. That body represents considerable expertise in the field in which it operates. It is closely involved in education and training. Many such bodies have links with similar organisations in other countries. They are able to use the title "member" or "fellow" of a royal college, which is generally held in high esteem. For example,
40
the Royal Society of Teachers was set up in 1929 but had its origins in the Teachers' Registration Council that had come into being in 1902. Both bodies acted as a register of qualified teachers. A small registration fee was charged and members were able to use the designation MRST (Member of the Royal Society of Teachers). Membership rose to almost 100,000 in 1931 and began to tail off as new teachers saw no reason to join. In 1949 that society was dissolved. There is no record of that society having had access to government or any obvious influence. But why should it not be resurrected?
A considerable number of references have been made to what I prefer to call mature entrants into teaching. Are noble Lords who have spoken against the idea denying the opportunities set out in our proposals for mature people with qualifications for entry into higher education, in addition to relevant experience which can be accredited—something I thought this House was in favour of—together with a full training programme leading to qualified teaching status for key stage one children? How patronising to write off that kind of expertise in our community. I for one do not do that. I believe that there are many people who cannot afford four years out of their lives to obtain the Bachelor of Education qualification but who have all the qualities and expertise that can be properly accredited, with full training, so that not a poor quality teacher but a teacher fully qualified according to the criteria set out for that course emerges at the end of the day.
The noble Baroness, Lady Williams of Crosby, stated that in future there would be fewer, not more, nursery schools. I do not know on what evidence the noble Baroness bases that statement. The number of nursery places in this country has increased inexorably, though perhaps not so fast as many noble Lords would wish. There is no basis whatsoever for the remark of the noble Baroness. We are not closing down nursery schools. Where proposals come forward for such schools, they are given very serious consideration. We take into account proper targeting of those nursery places where they are most needed.
I believe that my noble friend Lord Renton made an excellent analysis of the amendment. It is difficult to know what it adds up to in practice. Under the Bill there is an obligation to consider the matter within three months. But it would be dishonest of me on behalf of the Government to agree at the Dispatch Box to this amendment. In view of the advice given by Her Majesty's Government to the Select Committee on Education in 1990—advice that we argue still stands—it would raise expectations quite unnecessarily. I do not believe that that would be appropriate for the Government.
Perhaps I may say to the noble Baroness, Lady Warnock, that it is not my style at the Dispatch Box to "fob off" this House in any respect. I like to think that any matter that I argue in this House is based upon the following two principles: first, that I believe the case for the Government is a strong one; secondly, that I believe what I am saying has intellectual validity. There happens to be a difference of opinion between both sides of the House, but I resent the

41
phrase "fob off", because the Government believe that a professional association should come from the teachers themselves and not be born out of statute or trade unionism.
The noble Earl, Lord Russell, and others made reference to the NHT. I believe that the behaviour of members of the NHT towards my right honourable friend the Secretary of State at their conference recently was absolutely disgraceful. How much more dignified it might have been for those members who felt strongly about the issue at the time to have responded quietly—and how much more effective. Flow much more difficult for those people in that audience who regard themselves as professionals to go back to their schools and teach tolerance to the young people in front of them in the classrooms.
Perhaps I may say to the right reverend Prelate who made a reference to Questions today and to the noble Lord, Lord Spens, that I believe—and if he reads Hansard tomorrow he will agree too—that the noble Lord, Lord Spens, was out of order as regards a large proportion of the Question that he posed in this House. This House jealously guards its traditions and I believe that it was right to show its feelings on that occasion.
The amendment would require the Government to engage in an inquiry into the development of the teaching profession, with special attention being given to the setting up of a general teaching council. The essence of my reply is that such development should be for teachers themselves to take forward. As to looking again at the merits of a teaching council, we have already looked long and hard at all the arguments, and have not been persuaded. Accordingly, an inquiry can serve no useful purpose and I urge the House to reject the amendment.
Lord Renton: My Lords, before my noble friend sits down, will she confirm that the noble Lord opposite who corrected me was quite right in pointing out that the expression "special measures" is used in several clauses in the Bill, and that unfortunately there is no definition of it in Clause 282 which contains more than 50 definitions? Various references are defined, such as "special educational need", "special educational provision" and "special purpose grants" but, alas, not "special measures". My research therefore was not thorough enough and I am grateful to the noble Lord.
Lord Dormand of Easington: My Lords, I am not sure whether I am in order, but perhaps I may say that with all those definitions and not one for "special measures", about which the noble Lord feels so strongly, his criticism should be directed to the Government and to the effect that there ought to be a definition of "special measures".
Baroness Blatch: My Lords, with the leave of the House perhaps I may say that my noble friend is absolutely right. There is no such definition and there are so many "special measures" that one can think of in relation to education. As I understand it, the inquiry would be in regard to setting up a general teaching council. I cannot believe that any general
42
teaching council, if it were set up, or any special body in education that was set up, would not be concerned with all education, whatever measures were required.
Lord Judd: my Lords, it has been a helpful debate and for the third time in our consideration of the Bill it is quite clear that there is a great deal of goodwill in all parts of the House towards the general proposition of a teachers' council. I would be foolish to forecast that it will prevail at this particular stage in our deliberations. But it is an issue which will not go away and I am confident that in due course the logic of what is being proposed, in one form or another, will be accepted and we shall move to the establishment of such a council. I hope that those in the profession who are so keen for this will take heart from the seriousness with which the issue was debated in this House.
Because of the importance of the debate I should like to reply to a number of points that have been made. First, I must genuinely—because it is important—thank the Minister for her clarity. Each time the issue was put forward she was absolutely adamant and categorical in regard to her position. That demonstrates that whatever positive feeling is building up in the House as a whole, it is not at this stage shared by the Minister. We should welcome the fact that she does not try—I almost said to "fob us off", which would be unacceptable—to suggest that she is on our side when she is not. At the end of a long Bill one comment shall wish to make to the Minister is that her candour is exemplary.
The Minister made a reference to attitudes towards mature students. I hope that away from the House she will take the opportunity to look in a relaxed way at what I said when introducing the amendment. I endorse what I said then and repeat that I can think of nothing better for the teaching profession than an infusion of energy and experience from the wider world. That would be a tremendous asset for the future of education. The point that I made in introducing the amendment was that that should not be instead of preparation and proper training, but coupled with it. To bring those two factors together would be a terrific investment in the future of the course.
One of the privileges that we have had during our deliberations of the Bill has been to listen to the wise interventions by the noble Viscount, Lord Eccles. What he has said on several occasions, not least his strictures about the importance of trying to build consensus into the future of education, is something we should all take extremely seriously. I am sorry that he does not feel that Amendment No. 242F meets the need. All I can say—I hope that the right reverend Prelate will forgive my making the point—is that if all those who stood and said that they were in favour of the proposition were to come forward with their ideas about how it could be carried forward, we might get a strong amendment which would command even more support in all parts of the House. But I am glad that there is goodwill both on the part of the noble Viscount, Lord Eccles, and the right reverend Prelate, towards what is being proposed.
The noble Baroness, Lady Williams, with all her experience, made a couple of points which we should

43
all ponder. She referred to the importance of the positive attitude of the teachers' unions and representative bodies. Of course, that is what is different about the situation at the moment. They have all come together and done a lot of work, and are a long way forward in finding a common approach as to how such a council should be established.
The noble Baroness also made what I felt to be an incredible point regarding the European Community. I find it sad that in this important dimension of our nation's life we should be not merely lagging behind but setting our face against what is seen as absolutely logical and healthy in the development of education in the rest of Europe. It is one of those situations in which we would do well to look at what our partners have done, why they have done it and what they are thereby achieving.
The noble Baroness, Lady Warnock, emphasised the point by saying that the difficulty in the present situation when we are discussing the future of education is that there is no proper body with which to consult. That begs the question of whether there is a real wish to consult. I am afraid that that is my lingering anxiety. For me to be convinced that the Government really wanted to consult, they would have to be in the vanguard for establishing some kind of convincing arrangement by which that consultation could meaningfully take place. That is the problem.
That brings us to the point made by my noble friend Lady David who said that the idea of a "Mums' Army", thought up rapidly for quick implementation with little consultation, is again an illustration of why we need a body of this kind. It is frankly distressing that we can see yet another lurch forward affecting the whole future of the teaching profession in this country with no proper arrangements having been made to take the full analysis, thought, experience, wisdom, and goodwill of the profession into account in working out how that should be done. Of course, a council would help greatly in that respect.
The noble Lord, Lord Renton, raised the point that three months was rather a short time in which to set up such an inquiry. The noble Earl, Lord Russell, made the point that an inquiry of this kind would take time to complete its deliberations and therefore it would not suddenly happen three months after the passage of the Bill. But perhaps what should be emphasised is that it is strange for the noble Lord to be concerned about doing something so quickly after the passage of the Bill when what disturbs us is that there was no consultation or arrangement for consultation before the Bill was prepared and introduced. That is the real criticism. Not to have raised his voice about that rather detracts from any strength that there might have been in the rest of his case.
The references made by the noble Lord, Lord Renton, to special measures led to an interesting exchange. I was very glad that the noble Baroness, Lady Warnock, and my noble friend Lord Dormand made the observations that they did because they were right. This is a very specific reference to special measures because we support the concept that the
44
profession will be contributing to the strength and health of our educational system and will therefore be in the forefront of any consideration and deliberation about what needs to be done to put right what is wrong. We have thought about this amendment and we are glad that it has been introduced in this part of the Bill with this particular priority.
The noble Lord, Lord Elton, is always very gentle about the way he does things, but rather sadly he shared his anxieties about the state of the profession. Because he is a very generous and fair man, I put it to him that of course we are all concerned when there are eruptions of militant action of any kind in the teaching profession. But we have to understand the frustration which is there. We also have to understand that, because there are so many strong people within the profession wanting to contribute to its future and the future of education, and who feel that they are being denied the opportunity to do so, they erupt emotionally. If only we could give them the status and standing which we are arguing for here the situation would be transformed and they would be drawn into a constructive relationship.
From every angle and standpoint on education which we have been considering in our deliberations on the Bill so far, it has become clear—and on this there is no difference between me and the Minister—that we are agreed that the teaching profession is fundamentally important. It is because we on this side of the House believe that it is no good just saying that but that, if we really believe it, we have to establish the means to enable the profession to play the full and constructive part it should, that yet again we want to pursue this particular point which is argued in our amendment. Therefore I press the amendment to a vote.
5.2 p.m.
On Question, Whether the said amendment (No.242F) shall be agreed to?
Their Lordships divided: Contents, 93; Not-Contents, 142.

Division No. 2

CONTENTS

Addington, L.

Fisher of Rednal, B.

Airedale, L.

Gallacher, L.

Archer of Sandwell, L.

Galpern, L.

Ardwick, L.

Geraint, L.

Aylestone, L.

Gladwyn, L.

Baldwin of Bewdley, E.

Graham of Edmonton, L. [Teller.]

Beaumont of Whitley, L.

Blackstone, B.

Granville of Eye, L.

Bonham-Carter, L.

Guildford, Bp.

Boston of Faversham, L.

Hampton, L.

Bottomley, L.

Hamwee, B.

Bridge of Harwich, L.

Hanworth, V.

Broadbridge, L.

Harris of Greenwich, L.

Carmichael of Kelvingrove, L.

Henderson of Brompton, L.

Castle of Blackburn, B.

Hilton of Eggardon, B.

Cledwyn of Penrhos, L.

Hooson, L.

Clinton-Davis, L.

Howie of Troon, L.

Cocks of Hartcliffe, L.

Hughes, L.

David, B.

Hunt, L.

Dean of Beswick, L.

Irvine of Lairg, L.

Desai, L.

Jay of Paddington, B.

Donaldson of Kingsbridge, L.

Jeger, B.

Dormand of Easington, L.

Jenkins of Hillhead, L.

Eatwell, L.

Jenkins of Putney, L.

Falkender, B.

John-Mackie, L.

45

Judd, L.

Richard, L.

Kilbracken, L.

Ritchie of Dundee, L.

Kirkwood, L.

Seear, B.

Llewelyn-Davies of Hastoe, B.

Sefton of Garston, L.

Lockwood, B.

Serota, B.

Longford, E.

Shackleton, L.

Lovell-Davis, L.

Stedman, B.

McIntosh of Haringey, L.

Stoddart of Swindon, L.

Mackie of Benshie, L.

Strabolgi, L.

Mallalieu, B.

Taylor of Blackburn, L.

Masham of Ilton, B.

Thomson of Monifieth, L.

Mason of Barnsley, L.

Thurlow, L.

Mayhew, L.

Tordoff, L.

Morris of Castle Morris, L. [Teller.]

Turner of Camden, B.

Wallace of Coslany, L.

Mulley, L.

Warnock, B.

Nathan, L.

White, B.

Nicol, B.

Williams of Crosby, B.

Ogmore, L.

Williams of Elvel, L.

Parry, L.

Williams of Mostyn, L.

Pitt of Hampstead, L.

Wilson of Rievaulx, L.

Ponsonby of Shulbrede, L.

Winchilsea and Nottingham, E.

Prys-Davies, L.

NOT-CONTENTS

Abercorn, D.

Henley, L.

Aberdare, L.

Hesketh, L. [Teller.]

Aldington, L.

Hives, L.

Alexander of Tunis, E.

HolmPatrick, L.

Allenby of Megiddo, V.

Hood, V.

Annan, L.

Hooper, B.

Archer of Weston-Super-Mare, L.

Howe, E.

Hylton-Foster, B.

Arran, E.

Johnston of Rockport, L.

Astor, V.

Kimball, L.

Barber, L.

Knutsford, V.

Bessborough, E.

Lane of Horsell, L.

Blatch, B.

Lauderdale, E.

Blyth, L.

Lindsay, E.

Boardman, L.

Lindsey and Abingdon, E.

Borthwick, L.

Liverpool, E.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lucas, L.

Brentford, V.

Lyell, L.

Cadman, L.

McColl of Dulwich, L.

Caithness, E.

Mackay of Ardbrecknish, L.

Campbell of Alloway, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Campbell of Croy, L.

Carnegy of Lour, B.

Macleod of Borve, B.

Carnock, L.

Manton, L.

Chalfont, L.

Marsh, L.

Chalker of Wallasey, B.

Merrivale, L.

Chelmsford, V.

Milne, L.

Clark of Kempston, L.

Milverton, L.

Cochrane of Cults, L.

Montgomery of Alamein, V.

Constantine of Stanmore, L.

Morris, L.

Cranborne, V.

Mottistone, L.

Cumberlege, B.

Mowbray and Stourton, L.

Davidson, V.

Moyne, L.

Denton of Wakefield, B.

Munster, E.

Eccles, V.

Murton of Lindisfarne, L.

Eccles of Moulton, B.

Nelson, E.

Elibank, L.

Norrie, L.

Ellenborough, L.

Northbourne, L.

Elles, B.

O'Cathain, B.

Elliot of Harwood, B.

Oppenheim-Barnes, B.

Elliott of Morpeth, L.

Orkney, E.

Elton, L.

Orr-Ewing, L.

Ferrers, E.

Oxfuird, V.

Foley, L.

Park of Monmouth, B.

Fraser of Carmyllie, L.

Pearson of Rannoch, L.

Fraser of Kilmorack, L.

Peel, E.

Gainsborough, E.

Pender, L.

Geddes, L.

Peyton of Yeovil, L.

Goschen, V.

Porter of Luddenham, L.

Greenhill of Harrow, L.

Pym, L.

Haig, E.

Quinton, L.

Harmsworth, L.

Reay, L.

Hayhoe, L.

Rennell, L.

Hayter, L.

Renton, L.

46

Renwick, L.

Suffield, L.

Rippon of Hexham, L.

Swinfen, L.

Rodger of Earlsferry, L.

Terrington, L.

St. Davids, V.

Teviot, L.

Salisbury, M.

Thomas of Gwydir, L.

Saltoun of Abernethy, Ly.

Trefgarne, L.

Sanderson of Bowden, L.

Trumpington, B.

Savile, L.

Ullswater, V.

Seccombe, B.

Vaux of Harrowden, L.

Selborne, E.

Wade of Chorlton, L.

Selkirk, E.

Wakeham, L. [Lord Privy Seal.]

Simon of Glaisdale, L.

Skelmersdale, L.

Westbury, L.

Stanley of Alderley, L.

Whitelaw, V.

Stewartby, L.

Wise, L.

Strange, B.

Wynford, L.

Strathclyde, L.

Young, B.

Strathmore and Kinghorne, E. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.
5.11 p.m.
Clause 214 [School conducted by education association acquiring grant-maintained status]:
[Amendments Nos. 242G to 242J not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 243:
Page 132, line 16, after ("to") insert ("the head teacher of the school").
The noble Baroness said: My Lords, this was discussed with Amendment No. 46. I beg to move.
On Question, amendment agreed to.
[Amendment Nos. 243A and 243B not moved.]
Clause 215 [Discontinuance of school conducted by education association]:
[Amendment No. 243C not moved.]
Clause 216 [Winding-up of education association]:
[Amendment No. 243D not moved.]
Clause 217 [Reports showing school no longer requires special measures]:
Viscount Astor Viscount Astor moved Amendment No. 244:
Page 133, line 32, after ("to") insert ("the head teacher of the school").
The noble Viscount said: My Lords, this amendment was spoken to with Amendment No. 243. I beg to move.
On Question, amendment agreed to.
Clause 218 [Regulations for the purposes of Chapter II]:
[Amendments Nos. 244A and 244B not moved.]
[Amendment No. 244C not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 244D:
Before Clause 219, 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.

47
(4) The authority to whom subsection (2) applies shall be determined by the Secretary of State and shall include:

(a) any local education authority;

(b) any local authority to include Social Services;

(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 organisations, charities or on a private basis.
(6) The cost of such residential schools to meet social needs shall normally be met jointly by the Education and Social Services Department; but, in exceptional cases, when such funding is not available, by Government grant.").
The noble Baroness said: My Lords, on 29th April this year, I moved Amendments Nos. 74, 193AC and new clause 159. Those amendments were supported by all sides of the Committee. I withdrew them, hoping that my noble friend the Minister would reconsider her position. I am grateful to members of her department for seeing me, but nevertheless I am left to move this amendment.
This amendment concerns children whose education is suffering due to adverse social conditions, disruptive family circumstances, and mental and/or emotional disturbances, including child sexual abuse. These children may be intelligent, but their personal problems exhibit themselves by poor behaviour in school; particularly, by non-school attendance; and by delinquent behaviour. Such children can severely disrupt a class.
The amendment recommends that such cases should be the joint responsibility of the local authority education department and the social services department under Section 31(2) of the Children Act 1989. We all support the concept that children should be integrated into their local school and community and live with their family where it is possible and practicable. But experience has taught me that a proportion of such children can be helped only by a certain type of residential school.
Many of these residential schools, independent and non-maintained, are run by charities or the private sector. Such schools are expensive. Why are they expensive? First, because the staffing ratio needs to be high. Secondly, psychiatric services have to be paid for by the governors due to the breakdown of the child guidance clinic service and the psychiatric services for children in this country. Thirdly. many such schools now have children for 52 weeks of the year whereas, in time gone by, children used to go back to their local authorities during the holidays. Finally, I regret to have to say that many of the children needing these schools have no help from their social services departments in terms of aftercare. Therefore, a number of schools have had to pay for outreach workers themselves.
There are a number of local authorities which cannot (or perhaps will not) meet the fees of such schools. It is true, as my noble friend Lady Blatch has said, that if the children are statemented and the school is named in the statement, nothing can stand in the way, but many of the children who need to go to these schools are not statemented. Regrettably I have
48
to say—I know that this is not supposed to be the case, but I am bound to tell your Lordships—that treasurers take part in the statementing process.
If local authorities do not use these schools, they must close. That means that they are sold off and a valuable resource is lost. Furthermore, local authorities have to offer a service to such children and I am informed by the Social Care Association that they are in no position to do so in local authority homes. If these children's needs are not properly met, ultimately they fall into the penal system and that is even more expensive to the country.
I am bound to draw the attention of your Lordships' House and of my noble friend the Minister to the Statement on juvenile crime that was made in your Lordships' House on 26th May. My noble friend Lord Ferrers, answering for the Home Office, said:
"I tell my noble friend"—
that is me—
"that … £10 million is to help schools to tackle truancy".—[Official Report, 26/5/93; col. 382.]
My noble friend said that that sum was to be given to 74 local education authorities. Presumably, therefore, the education authorities must have some extra money for these particularly difficult children.
The amendment recommends that the fees of the residential schools which meet the needs of the most difficult and disruptive children in the country, many of whom are non-school attenders, should be met by education and social service departments jointly. If local authorities cannot pay the full fees, it is recommended that the Department for Education should meet part of the fees. After all, there is a precedent for this. Under the assisted places scheme, the department meets the fees of some children attending public schools whose parents cannot afford to pay. Why not meet the needs of disturbed and disruptive children? Surely, their needs should be met for the children's sake, the country's sake, and from the financial point of view also. I beg to move.
5.15 p.m.
Baroness David: My Lords, perhaps I may ask a question. Is the noble Baroness going to speak also to Amendment No. 244E which is grouped with this?
Baroness Faithfull: My Lords, with the leave of the House, I believe that it is possible for one to disagree with the Marshalled List and I do, in fact, disagree with the grouping. Although Amendment No. 244E contains similar points, it is altogether different.
Baroness Warnock: My Lords, I strongly support the amendment on two grounds. First, it is often easily assumed that the integration of a child into a mainstream school is always the best solution for that child, but there are many children whose problems arise simply because they cannot manage or be managed in a mainstream school. Moreover, their problems arise more or less directly from their home situation. For such children, being able to go away to school as a weekly boarder, a full boarder or even for 52 weeks in the year is essential as a preliminary to education. Without education, such children have literally no hope of not ending up behind bars.
On Friday I was in what was probably the best

49
school that I have ever been in. It was a charity school run by the Roman Catholic Church. It took in children who had been turned out of every other school they had attended. It had recently opened a unit for psychiatric children who had left psychiatric hospitals and who would otherwise receive no education. None of the classes was larger than eight or nine in number. The children were surrounded by love and support, which carried them through their education. Some of the children will return to the mainstream but those who will not, because they are severely schizophrenic, are taking GCSEs. Arrangements are being made for them to go into colleges of further education with the continued support of the school.
Such schools are expensive and it is only reasonable that the local education authority should collaborate with the social services for providing the fees when one or other service cannot do so alone. It is undoubtedly true that at present even the statements which are being drawn up for children refuse to mention such schools because of the expense. This is yet another case in which, if money is spent now, jointly and seriously after discussion, money will be saved later. That is apart from the benefit to the children themselves.
Baroness David: My Lords, the noble Baroness has identified a real problem; there are children who need special treatment. Equally, it is true that the local education authority may not have the funds or that it and the social services department are not collaborating as well as they should. It may well be that in present circumstances the local authority—be it education, social services or jointly—may not have sufficient money to pay for these inevitably expensive places. Therefore, it is up to the Department for Education to contribute to the funding if it hopes to return children to their mainstream schools.
Lord Northbourne: My Lords, I am a governor of a school in the East End of London for emotionally and behaviourally disturbed children. They live at home and attend the school. Therefore I know that that arrangement by no means costs nothing. The cost per child in such a specialist day school is of the order of £10,000 per year. The cost of fostering such a child could be as much as £250 per week, including specialist psychiatric services and so forth. Added together, the cost is almost as much as that for a residential school for which the child leaves home. There is a forceful logic in bringing together the Department for Education and the Department of Social Services because often the problems of such children are social problems resulting from a lack of support at home.
Lord Addington: My Lords, I support the amendment. As the noble Baroness pointed out, a great variety of people have special educational problems. Socially fed problems are a part of the situation but we can never decide what the relationship is between them; for example, educational problems sometimes lead to behavioural problems, which in turn lead to more social problems at home.
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We need a variety of educational establishments to deal with the variety of problems. I suggest that the Bill should contain provisions as suggested in the amendment in order to guarantee a place for children who cannot, almost by definition, be educated in the mainstream. There are not many such children but many of the educational and social failures in our classrooms end up in our prisons.
Lord Mottistone: My Lords, I too support the amendment most strongly. There is a school such as that described by my noble friend Lady Faithfull in the Isle of Wight. Those running the school are deeply worried that, under the terms of the Bill, it will fall between two stools and that no one will provide the extra funding. The school is a charity and it does its best to raise money but the costs are so huge that it must have support. It is dreadful to think that young children and teenagers will not receive the kind of education that that school can give. The school must be kept going. One of the problems is that people come to the Isle of Wight from elsewhere but the local county council does not necessarily have the money to support them all. I believe that as the Bill evolves it will be even more difficult for the money to be available locally. The provision of such money needs to be more widely-based, which is what the amendment provides. I hope that my noble friend will be sympathetic to the principle behind it. Whether she agrees with its detail is another matter altogether.
Lord Campbell of Alloway: My Lords, I too support the amendment. It is near and dear to the heart of my concern, which is the implementation of Part III of the Bill. The amendment has two elements but I shall not repeat any of the contributions made by noble Lords more competent than I to make them. Subsections (1) to (5) of the amendment are implementation machinery. Subsection (6) relates to cost. I can see no reason why subsections (1) to (5) should not be incorporated as guidance in a code of practice. I seek the assistance of my noble friend the Minister as to whether cost can be adequately dealt with by guidance or whether it would have to appear in primary legislation. I strongly support the incorporation into the Bill of such concepts of guidance for implementation, as they are utterly requisite.
Baroness Blatch: My Lords, the new clauses before us raise important issues which were, of course, debated fully during the progress of Part III of the Bill both in this House and another place. We must be clear as to the context in which we are discussing these issues. The background to the debate on the amendments is the wide-ranging measures in Part III of the Bill which will strengthen the provision of education to meet children's special educational needs. It is important to stress that all children with special needs will benefit from the new measures in the Bill, including those whose needs are based on emotional or behavioural difficulties.
The measures which we have taken in the Bill include strengthened duties on local authorities in respect of the assessment and statementing processes. Parents will have rights over the school placement

51
which they wish their child to attend, be it at a maintained, grant-maintained, ordinary or special school or, indeed, a school outside the maintained sector, such as one of the schools with which my noble friend is so closely associated.
Coupled with these strengthened duties on local education authorities are strengthened rights of appeal by parents against an LEA's decision over their child's special education. Those appeals will go to a new independent special needs tribunal whose decision will be binding on the local authority. For instance, should a parent have reason not to be satisfied with the decision taken by the local authority over a school placement for his child he may appeal to the tribunal which may, if it thinks fit, direct the LEA to name the school for which the parent has made a case, even if it is a non-maintained or an independent school. The LEA will have to accept that decision and pay the full costs of educating the child at that school.
Part III of the Bill also requires the Secretary of State to issue a code of practice covering the role of the school and the LEA towards pupils with special educational needs. That code is a completely new initiative by the Government. The thoroughness in carrying out procedures and consistency of approach which the code will promulgate, together with its sound practical advice, will be of particular benefit for all children with special educational needs. We shall also be issuing new guidance on a range of matters which will complement the code and the legislation. I shall say more about that in a few moments.
Let us be clear. We are not debating these matters in the context of the existing legislation, which may lie at the heart of some of the anxieties expressed. We are debating them in the context of the 1993 Bill and the complementary initiatives that are being taken by the Government. We must consider these issues squarely within the new regime and not the old.
Both the new clauses are concerned with ensuring the proper co-operation among the various agencies involved in identifying and assessing a child's special educational needs and in making the provision required to meet those needs. There is no doubt that we are all agreed that the health authorities and the social services departments have an integral part to play in those processes. Their role is essential if an authority is to gain a full picture of a child's needs. We are also agreed on the need for those agencies to co-operate fully with the LEA for the benefit of the child.
As I said earlier, the Secretary of State will be required under Part III of the Bill to issue a code of practice. That code will apply to schools, to LEAs and to other bodies assisting an LEA in its duties under Part III. The code will give substantial guidance on the identification, assessment and statementing processes which the agencies involved cannot ignore. It will cover the role of the health and social services agencies in those processes, including the assessment of and provision for children who may have emotional or other behavioural problems and on which I shall say more in a few moments.
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As I said in Committee, the code will firmly address the issues of proper and effective co-operation between local authorities and the health and social services agencies. Therefore the code which your Lordships agreed will be subject to the affirmative procedures of Parliament will be applicable to district health authorities in so far as they are assisting local education authorities to carry out their functions under Part III of the Bill; in other words, in all aspects of the identification, assessment and statementing processes. The code will help parents understand what they can expect of all the agencies concerned with children with special educational needs and should therefore both improve practice and enhance accountability. If parents are dissatisfied with provision made by the health service, they should of course use the rights of redress set out clearly in the Patient's Charter.
I want to give an example of a further important aspect of the guidance in the code of practice where the co-operation among the various agencies is particularly needed. That is the importance of early identification of a child's needs, including the fundamental role of the health authorities in the early stage of a child's development. It is to the child's lasting benefit that his or her needs are identified as early as possible, and this applies very much to those who may have emotional or behavioural problems which are a particular concern of my noble friend Lady Faithfull.
Such early identification can alleviate greater problems at a later stage. It is also more conducive to the efficient use of the substantial resources available for children with special educational needs. I believe that an increasing trend towards more effective early identification of a child's needs resulting from proper co-operation and action by all the agencies involved will be a major improvement resulting from Part III of the Bill.
I mentioned that we would be issuing new guidance. Close contacts between my department and the Department of Health will themselves become increasingly important over the coming months. We shall be co-operating as regards drawing up guidance for consultation. We shall be consulting on guidance which will cover a range of related issues. They include the difficult question of advising schools in their dealing with disciplinary problems; the effective operation of the new duty on LEAs to provide education otherwise than in a school where necessary, with the aim of returning the child to school as soon as is practicable; and the effective and sensitive care of children who are being looked after by local authorities, in the light of the recommendations of the Warner and Utting reports. Those will be complementary to our code of practice which, as I said, will cover guidance on all aspects of identifying and assessing children with special educational needs.
This debate has drawn out the difficult issues which lie behind the amendment. Those issues are particularly complex when dealing with children with emotional and behavioural difficulties, as my noble friend said, and she has been supported in that by other noble Lords.

53
I suggest that the amendments before us do not go as far as the Government's own proposals in directly addressing the challenges which face the various agencies involved in assessing and providing for children with special educational needs. Our aim is to help those bodies on how they can best exercise their functions for the benefit of all children with SEN. I believe that the extensive guidance in the code which will apply to the agencies involved, together with the additional substantive guidance that we are developing, will be far more effective in fostering genuine co-operation and a problem-solving approach.
We should not ignore the fact that there are already good examples of well-managed and negotiated co-operative arrangements among the various agencies around the country. Nevertheless, when we debated this issue in Committee I said that we were aware that many respondents to our consultative document on the SEN legislation, Access to the System, saw the need for greater assurance about the effective operation of those co-operative processes. I said in Committee that the Government accepted that view in principle, and that the Department of Health was therefore conducting a consultation exercise on how best to give that assurance.
There were two issues on which suppliers and other interested bodies were consulted: how health authorities and sccial services departments could ensure that their contributions to assessments and the preparation of statements were made in a timely and efficient manner; and how the same levels of co-operation among health, social and education services in supporting children with special educational needs could be achieved as are provided for in other circumstances under the Children Act.
The consultation exercise conducted by the Department of Health, on which I promised to report, elicited a wide range of responses. There was a variety of views as to the best way forward towards the commonly agreed aim of ensuring closer co-operation between agencies concerned with children with special educational needs. My right honourable friends the Secretaries of State for Education and for Health are considering with colleagues the extent to which it would be possible to bring forward an amendment at the next stage. If that does prove possible, we shall do so.
As we have seen, my noble friend Lady Faithfull is particularly concerned for her amendment to ensure the proper identification, assessment and provision for children who have emotional difficulties and those who demonstrate disruptive behaviour. There is absolutely no difference among us in our desire to ensure that such children get the proper help and provision they need If I may, I should like to add my own words of appreciation for the professionals who teach and care for these children. It is one of the most demanding and challenging jobs in the field of education. I am well aware also that those children can be among the most demanding group of children that teachers and carers have to work with. Many who have not had first-hand experience of such children may find it difficult to appreciate just how difficult the handling of these children can be, and I know how
54
much dedication and experience is called for. I pay warm tribute to all who have dealings with those children.
I suggest to your Lordships, however, that here too the action the Government are taking in this Bill and propose to take over the next year will prove more effective for these children than my noble friend's amendment. The Bill does not refer specifically to pupils with emotional or behavioural difficulties and I think that is right. It does not refer to any particular group of children or to any specific need but to all children who have some special educational needs. The children that we are discussing fall clearly within that group. Therefore, they will benefit from the strengthened provision for children with special needs generally.
As with other aspects of special needs provision, the code of practice will cover the role of schools, LEAs, health and social service agencies in assessing and providing for children with emotional and behavioural difficulties. In addition to the code, as I informed the Committee on 29th April, my department, together with the Department of Health, will over the coming months issue for consultation draft guidance specifically on the provision for children with emotional and behavioural difficulties. I know that your Lordships will welcome the appearance of such guidance and will welcome opportunities to comment upon it. The guidance will be based on a clear understanding and recognition of the difficulties which face such children, their families and those who make provision and care for them. We shall seek to emphasise the role of the family and the need to strengthen and reinforce family structures wherever it is possible and sensible to do so. Nevertheless, the guidance will recognise that the family structure alone will, in many cases, be inadequate, even with support, and will offer ways forward to help the child. The guidance will also help schools in the teaching and handling of such children, and offer guidance on intervention strategies.
The guidance will complement the code of practice in relation to children with emotional or behavioural difficulties who need a statement. Together they will address the placement of such children, including circumstances where a residential placement should be considered.
My noble friend's amendment includes a role for central government in the funding of such placements. Residential placements for those children are a matter for the LEAs, social services departments and, of course, district health authorities, which should be involved from the outset in any case where the health of a child is an issue. All those authorities are funded to meet their respective responsibilities. They must also act responsibly in using those public funds. The provisions in the Bill, and guidance which I have foreshadowed, will clarify the agencies' responsibilities in respect of children with special educational needs. They will, therefore, make them more accountable to parents and to those involved in caring for pupils with emotional and behavioural difficulties.
Mention was made of the funding of special placements and of the assisted places scheme. Again,

55
the assisted places scheme makes provision for parents to send pupils to independent schools of their choice where they could not otherwise pay the fees. That is not a parallel to the situation of parents with children who have a statement of special needs. We have strengthened the rights of parents to make representations about an independent school placement. If the local authority agrees, the local authority must pay all of the fees and also, where necessary, board and lodging. However, where the local authority does not agree, it must, nevertheless, make provision appropriate to the needs of the child. On an appeal, a special needs tribunal may direct the LEA to name an independent school or non-maintained special school. Again, the local education authority would have to pay all the fees and the board and lodging where necessary.
I turn now to the point made by the noble Lord, Lord Northbourne, about improved collaboration and better use of resources. I absolutely agree with him. It is my view that the requirements of the Bill ensure that all the agencies actually work together and think about the child with special needs; for example, the social services, with their responsibilities, spending their little pocket of money, and education, with its responsibilities, spending another pocket of money. It makes a good deal of sense for them to come together in the interests of the child. Where it makes better sense to have a residential placement to address the needs of the child, both educationally and emotionally, the framework of the Bill, underpinned by the code of practice, may well enable precisely that kind of provision to be made. I believe that there are better prospects for collaborative working and funding under the Bill as currently set out than is the case under the present arrangements which, as we all know, are wholly inadequate.
Baroness Faithfull: My Lords, I should like to thank all noble Lords who have spoken. I should especially like to thank my noble friend the Minister who has obviously given great thought to the matter. Nevertheless, I remain deeply worried. Many of the points made by my noble friend are structural; for example, the question of assessments, parents and appeals. They are structural matters which will not affect the children, the type of child or the behaviour.
Various provisions put forward by my noble friend the Minister may well apply in two to three years' time. However, they will not apply for some considerable time. There is a real problem in the country at present, not only in connection with the Department of Health and the Department for Education but also in connection with the Home Office in relation to the number of juvenile delinquents.
As regards the question of costs, one has to face reality. I agree with my noble friend the Minister that it is the role of the local authority to pay. However, if the local authority does not have the money, how can it pay? That is the problem. As I said during the last stage of the Bill, one place has already closed in Birmingham. It was very good; indeed, it was absolutely splendid. It was run by a voluntary
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organisation but it had to close because the local authority withdrew the grant which meant that it could not continue.
I still believe that the amendment meets the conditions that prevail here and now. It may not do so in one, two or three years' time when the Bill comes into operation; but that will be too late. Such places will have closed by that time. We shall then find ourselves in real difficulties as regards the children and the parents and financially as regards the local authorities. For that reason, I must test the opinion of the House.
5.45 p.m.
On Question, Whether the said amendment (No. 244D) shall be agreed to?
Their Lordships divided: Contents, 95; Not-Contents, 120.

Division No. 3

CONTENTS

Addington, L.

John-Mackie, L.

Airedale, L.

Judd, L.

Annan, L.

Kinloss, Ly.

Archer of Sandwell, L.

Kirkwood, L.

Ardwick, L.

Lockwood, B.

Aylestone, L.

Longford, E.

Baldwin of Bewdley, E.

Lovell-Davis, L.

Beaumont of Whitley, L.

McIntosh of Haringey, L.

Blackstone, B.

Mackie of Benshie, L.

Bonham-Carter, L.

McNair, L.

Boston of Faversham, L.

Mallalieu, B.

Bruce of Donington, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Castle of Blackburn, B.

Meston, L.

Cledwyn of Penrhos, L.

Milne, L.

Clinton-Davis, L.

Monkswell, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Craigavon, V.

Mottistone, L.

Cross, V.

Nicol, B.

Darcy (de Knayth), B.

Northbourne, L.

David, B. [Teller.]

Ogmore, L.

Dean of Beswick, L.

Park of Monmouth, B.

Dormand of Easington, L.

Parry, L.

Eatwell, L.

Peston, L.

Elliot of Harwood, B.

Pitt of Hampstead, L.

Faithfull, B. [Teller.]

Ponsonby of Shulbrede, L.

Falkender, B.

Portsmouth, Bp.

Fisher of Rednal, B.

Prys-Davies, L.

Fitt, L.

Richard, L.

Gallacher, L.

Seear, B.

Gladwyn, L.

Sefton of Garston, L.

Graham of Edmonton, L.

Serota, B.

Guildford, Bp.

Simon of Glaisdale, L.

Halsbury, E.

Stedman, B.

Hampton, L.

Stoddart of Swindon, L.

Hamwee, B.

Taylor of Blackburn, L.

Hanworth, V.

Thurlow, L.

Henderson of Brompton, L.

Tordoff, L.

Hilton of Eggardon, B.

Turner of Camden, B.

Hollis of Heigham, B.

Wharton, B.

Hooson, L.

White, B.

Howie of Troon, L.

Williams of Crosby, B.

Hughes, L.

Williams of Elvel, L.

Hunt, L.

Williams of Mostyn, L.

Jay of Paddington, B.

Wilson of Rievaulx, L.

Jeger, B.

Winchilsea and Nottingham, E.

Jenkins of Hillhead, L.

Wise, L.

Jenkins of Putney, L.

NOT-CONTENTS

Abercorn, D.

Archer of Weston-Super-Mare, L.

Aberdare, L.

Aldington, L.

Arran, E.

Alexander of Tunis, E.

Ashbourne, L.

Allenby of Megiddo, V.

Astor, V.

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Barber, L.

Lucas, L.

Blatch, B.

Lyell, L.

Borthwick, L.

McColl of Dulwich, L.

Boyd-Carpenter, L.

Mackay of Ardbrecknish, L.

Brabazon of Tara, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brentford, V.

Bridgeman, V.

Macleod of Borve, B.

Brougham and Vaux, L.

Mancroft, L.

Cadman, L.

Marlesford, L.

Caithness, E.

Merrivale, L.

Campbell of Alloway, L.

Milverton, L.

Campbell of Croy, L.

Morris, L.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Carnock, L.

Moyne, L.

Chalfont, L.

Murton of Lindisfarne, L.

Chalker of Wallasey, B.

Nelson, E.

Chelmsford, V.

Norfolk, D.

Clark of Kempston, L

Norrie, L.

Cochrane of Cults, L.

Orkney, E.

Colwyn, L.

Orr-Ewing, L.

Constantine of Stanmore, L.

Oxfuird, V.

Cranborne, V.

Pearson of Rannoch, L.

Crickhowell, L.

Peel, E.

Cumberlege, B.

Perry of Southwark, B.

Davidson, V.

Peyton of Yeovil, L.

Denham, L.

Quinton, L.

Denton of Wakefield, B.

Reay, L.

Dudley, E.

Rennell, L.

Eccles, V.

Renton, L.

Eccles of Moulton, B.

Renwick, L.

Ellenborough. L.

Rodger of Earlsferry, L.

Elles, B.

St. Davids, V.

Elliott of Morpeth, L.

Salisbury, M.

Fraser of Carmyllie, L.

Saltoun of Abernethy, Ly.

Gainsborough, E.

Sanderson of Bowden, L.

Goschen, V.

Savile, L.

Haig, E.

Seccombe, B.

Harmar-Nicholls, L.

Stanley of Alderley, L.

Harmsworth, L.

Stewartby, L.

Hayhoe, L.

Strange, B.

Henley, L.

Strathclyde, L.

Hesketh, L. [Teller.]

Strathmore and Kinghorne, E. [Teller.]

Hives, L.

HolmPatrick, L.

Suffield, L.

Hood, V.

Teviot, L.

Hooper, B.

Thomas of Gwydir, L.

Howe, E.

Torrington, V.

Hylton-Foster, B.

Trefgarne, L.

Johnston of Rockport, L.

Trumpington, B.

Kimball, L.

Ullswater, V.

Knutsford, V.

Vaux of Harrowden, L.

Lane of Horsell, L.

Wade of Chorlton, L.

Lauderdale, E.

Wakeham, L. [Lord Privy Seal.]

Lindsay, E.

Lindsey and Abingdon, E.

Whitelaw, V.

Liverpool, E.

Wynford, L.

Long, V.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.53 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 244E:
Before Clause 219, insert the following new clause:
("Co-operation between authorities
.—(1) Where it appears to a local education authority that any authority mentioned in subsection (3) 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.
(2) 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.
(3) The authorities to whom subsection (1) applies shall be determined by the Secretary of State and shall include—

(a) any local education authority

(b) any local authority

58

(c) any health authority or National Health Service Trust.

(4) Regulations shall determine—

(a) the means by which the authority shall co-operate in assessing the special educational and non-educational needs of the child where the local education authority is making an assessment under section 160 or making or maintaining a Statement under section 161,

(b) the grounds on which a decision shall be made as to what needs shall be described as educational and what needs shall be described as non-educational.

(5) A Statement made under section 161 shall—

(a) give details of the authorities assessment of the child's non-educational needs,

(b) specify in terms of type and amount the non-educational provision which the authority either intends to make under section 161(5) (a) (ii) or is satisfied will be made available by a district health authority, a social services department or some other body and of which, in their opinion, advantage should be taken if the child is properly to benefit from the special educational provision specified in section 161(3)(b).

(6) In respect of either educational needs as detailed in section 161(3) (a) or non-educational needs as detailed in subsection (5) (a) of this section the Statement shall state which authority shall make the provision to meet those educational or non-educational needs.").
The noble Baroness said: My Lords, this amendment is grouped with Amendment No. 244D which we have just discussed, but I still wish to speak to it as it is a slightly wider amendment. Amendment No. 244E seeks to ensure that authorities co-operate with each other in meeting the social and special needs of children. The first three subsections of the proposed new clause set out a duty on statutory agencies to co-operate with the local education authority, as the lead agency, in carrying out its duties towards children with special educational needs. The wording echoes that of Section 27 of the Children Act 1989 where health and education authorities are required to assist social services departments in carrying out their duties in respect of children in need.
But there is a clear need for increased co-operation between agencies in the following areas: the early identification of young children with special educational needs by health or social services departments and the early notification of such children to local education authorities. I speak with special feeling on behalf of health visitors. They are somehow rarely mentioned and they provide splendid services to young children. Often health visitors' views are not sought and there is not often a channel through which their views can be given. GPs also have much to give in this area but they often take little part in the matter, not because they do not wish to assist but because the structure to enable them to do so does not exist.
We have already spoken about joint funding with regard to education authorities and social services departments. Therefore I need not elaborate on that. The previous amendment was particularly concerned with children with emotional difficulties. However, we must also consider physically handicapped children and those with medical needs. We must consider the provision of speech therapy, physiotherapy and occupational therapy for children with special educational needs. Often those therapies are not taken into account and are not even thought about. There

59
must he a structure to allow those therapies to be taken into account. There is a clear need for clarification of duties in respect of that matter.
Following recent court cases and the publication of the addendum to Circular 22/89, there is, if anything, increased confusion, in particular as regards whether health or education authorities should provide speech therapy. Clause 161(5)(a) makes it clear that there is a duty on local education authorities to make special educational provision for a child, and a power to make non-educational provision. Following recent judgments, most speech therapy is now technically deemed to be educational provision. Yet the clear perception of most authorities is that the health service is funded to carry out this work, not the education service. Indeed this was recognised in the Audit Commission/HMI report entitled Getting in on the Act. That report was published last summer. While there is any room for uncertainty we face the continuing unedifying spectacle of children going without speech therapy while health and education authorities each wait in the hope that the other will provide something.
At this juncture I should also speak about the child guidance clinic service. That was a wonderful service which made splendid provision for education authorities, social services departments and health authorities. A child guidance clinic consists of a social worker employed by a social services department; a psychologist who is employed by an education department; and a psychiatrist who is employed by a health authority. Those services have decreased and in some parts of the country there are no child guidance clinics at all. That must be a great loss especially when it comes to assessing children who have special educational needs.
An important aspect of provision to meet special educational needs concerns low-incidence disabilities. It often makes sound economic sense for services to be based on an area which is larger than one local education authority and which might include three or four local education authorities where that makes geographical sense. I feel very strongly about the matter because, as a director of social services, I had to contact more than one district health authority and more than one regional health authority. It was very difficult to get them to co-ordinate the provision of the necessary services for the physically handicapped and those with low-incidence disabilities.
The problem is recognised in the current GEST-funded arrangements for provision for dual sensorily impaired children (deaf-blind children) under which consortia of LEAs receive supported grants to enable them to develop their provision. The ability of a local education authority to call on another local education authority to assist in meeting a special educational need is therefore an important measure. The effect of subsection (4) would be to clarify which agency would provide which service.
I could go on, but I shall not. I believe that provision must be made not only for the emotionally
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disturbed children we have been talking about but also many others with physical and sensory disabilities. I beg to move.
6 p.m.
Lord Campbell of Alloway: My Lords, I found the speech of my noble friend the Minister in response to the previous amendment utterly convincing. When I heard it I realised that so much was being done, with the code of practice (which will now have legal efficacy) and guidance circulars, and that my noble friend had considered in great depth the practical problems involved. That was why I supported the Government on the last Division, although such was not my intention. For the same reason, and because of that explanation, I would not be able to support the present amendment.
I should like to raise one point which worries me. I take the point of my noble friend the Minister that she is concerned about all children with special educational needs, without categorisation. I agree with that point. However, I am very worried about speech therapy, which has been mentioned. Can my noble friend the Minister say something about the shortage of speech therapists, the provision of their services, and so forth?
Baroness David: My Lords, my name is attached to the amendment and I should like to support it. However, I should like to follow up immediately what the noble Lord, Lord Campbell of Alloway, said about speech therapy.
As I was driving to London this morning I heard that there were half a million children needing speech therapy. That statistic was produced by AFASIC, which is the society which deals with speech-impaired children. Such children are not receiving the treatment they need because of the lack of co-operation between the education and health services. That is an extremely important matter and we ought to take note of it.
The noble Lord also said that a great deal could be included in codes of practice. The National Association for Special Educational Needs—which was constituted in 1992 following a merger of the two leading professional bodies in the area of special educational needs and is the largest professional body in this field—says that:
"An important—indeed central—consideration is whether the necessity for appropriate and effective collaboration between the relevant authorities should appear in primary legislation or should simply be a matter for the Code of Practice".
That association, which is a strong professional body, believes very firmly that the principle involved should be a matter for primary legislation. It endorses the approach taken in the Children Act 1989 that, wherever possible and practicable, central and essential features of good practice should be enshrined in legislation. Therefore, I believe that we should take note of what the association says, because it has wide knowledge of the field.
In so far as concerns delays in the assessment and statementing process which may be attributable to delays in the submission of health or social services' advice, the Department of Health states that there is

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no evidence on that point. On the other hand, anecdotal evidence which the association has received from its members in particular areas in response to previous DfE consultations, emphasises that problems of this nature exist. That is an important matter. If statements are held up it means that there is a delay in providing children with the education that they need.
For those various reasons I support the amendment of the noble Baroness very strongly.
Lord Northbourne: My Lords, I put my name to the amendment because I was worried particularly about the issue of early identification of young children with special educational needs. In her reply to the previous debate the noble Baroness covered those issues very fully in terms of a code of practice. The only point on which I remain unhappy is whether local authorities will spend the money which is necessary to fulfil their obligations under the code of practice. My impression of local authorities is that, being highly politicised as they are, they are much more interested in spending money on street lighting and items which are vote-catchers than on financing very expensive provision for children with special educational needs. Perhaps the noble Baroness can give some comfort on that point.
Lord Addington: My Lords, the name of my noble friend Lady Williams is attached to the amendment. We on these Benches support the amendment and the approach it proposes. I should like to add my personal support to this very worthwhile amendment.
Baroness Blatch: My Lords, I recognise that there is anxiety that responsibility for the delivery of some services should be clarified and that there should be greater assurance of co-operation between the agencies involved. In relation to the previous amendment, I outlined the measures which the Government are taking to ensure that co-operation and to ensure that it takes place.
There are more complex issues than the amendment might suggest. It is simply not feasible for a local education authority to be expected to have the necessary expertise to make professional judgments about a child's medical needs. That is why we have to involve the health services. Of course in many cases those needs impinge on the child's special educational needs. That is why the health service's input to the assessment process is so important. To answer specifically the point made by my noble friend Lord Campbell of Alloway, in many cases a child with special educational needs may have medical or other non-medical needs which are well beyond the competence of an education authority to assess or reach professional decisions concerning appropriate provision.
Existing regulations made under the 1981 Act make it absolutely clear that an LEA should always be satisfied that non-educational provision will be delivered when that provision is specified in a statement. I do not see how the proposed new clause of itself will address the difficult issues which we have discussed in relation to determining and subsequently
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arranging the proper provision, educational or non-educational, to meet the specific needs of an individual child.
I believe that the Government's proposals face those difficult issues. In short, we can and will take steps to ensure that all agencies concerned co-operate to the closest possible extent in identifying, assessing and providing services for children with special educational needs. The code of practice will give guidance as to when a service is educational, which is the specific point made by my noble friend Lord Campbell of Alloway, although the final decision—as I hope he will agree—in a particular case must always be taken by qualified professionals on the ground. We shall ensure that parents who are dissatisfied are made fully aware of the means of redress open to them.
The noble Lord, Lord Northbourne, was concerned about whether LEAs would spend the money necessary. One of the strengths of this framework is that there are requirements on local authorities to provide for all children, particularly children with special educational needs. Therefore, unless the provision they make is appropriate and consistent with the needs of the child, there are a great many sources of redress, including the tribunal for statemented children and other forms of redress for children, short of statements.
It seems to me that the system is now more exposed and the framework makes clear the position of all the agencies within it. It is my view that they will not be able not to spend the money if the provision they make is inconsistent with the needs of the child.
Baroness Faithfull: My Lords, I thank my noble friend the Minister for her reply. As my noble friend Lord Campbell of Alloway said, we hope that this matter will be included in the code of practice. That being so, I recognise that it will be difficult to work out the structure with so many different departments involved. I did not mention the DSS which comes into this matter, although that is seldom realised. Under the circumstances, as this matter will be in the code of practice, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull moved Amendment No. 244F:
Before Clause 219, insert the following new clause:
("Welfare of the Child
It shall be the duty of the Secretary of State and of the funding authorities, local education authorities, and the governing bodies of grant maintained schools and of voluntary schools in the exercise of functions conferred upon them by or under this or any other enactment to ensure in any decision concerning a child that the welfare of the child shall be a primary consideration.").
The noble Baroness said: My Lords, the amendment requires that the welfare of the child shall be a primary consideration. If there is a class of children, one of whom is difficult while the rest want to learn, it is difficult to think of the one child having primary consideration. If that requirement were to be written into the Bill it would be a simple small clause which would merely underline the necessity of considering the importance of every child, however difficult or whatever that child's problem. I beg to move.
Baroness David: My Lords, perhaps I may ask the noble Baroness yet again whether she is linking this amendment with Amendment No. 244H which is in the grouping, or is she taking them separately?
Baroness Faithfull: My Lords, I am taking them separately.
Lord Campbell of Alloway: My Lords, I support the amendment because—if my noble friend the Minister will bear with me for a moment—it is relevant to the argument on parental veto which took place on Clause 154. I believe that it was the noble Baroness, Lady David, who was concerned primarily with that matter. If, as I am led to believe now, Clause 154 does not involve a parental veto—notwithstanding certain legal opinions to the contrary—if one looks at Clause 154(2) one sees that it provides certain safeguards for the child. Those safeguards would be made far more effective if the amendment were accepted. It squares with the requirements of Section 1 of the Children Act 1989. Therefore the requirement should be on the face of primary legislation, because it does two things. First, it makes the welfare of the child a primary consideration, which marries with the requirements of the Children Act. Secondly, it saves a submission being made—I have done it myself and heard it done—"Oh, but this is all subject to Section 1 of the Children Act; the primary consideration is the welfare of the child". That is a safeguard which it is proper to import into this legislation.
If my noble friend the Minister cannot find her way to incorporate it in the legislation—it would be useful to resolve the doubt about the parental veto which has arisen—then my hope would be that it could be incorporated in the code of practice. It is a matter of principle which should be dealt with somehow. That is why I support the amendment.
6.15 p.m.
Baroness David: My Lords, my name is again attached to the amendment which I support. The importance of a best interest principle has been recognised widely in child welfare legislation. The Children Act places courts under a duty, when considering any issue relating to a child's upbringing, to give paramount consideration to the welfare of the child. Local authorities and social services departments are under a duty to safeguard and promote the welfare of the children in their area who are in need. That principle is central to the philosophy of the legislation, and to its recognition that children and their interests must come before all other considerations.
It is accepted that there is a need for a framing principle within which all decisions relating to children are taken. The amendment does not ask for paramount consideration; it asks for a primary consideration. We have done that because the LEAs, governing bodies and head teachers are often faced with the task of balancing the needs of the individual child against those of the rest of the children in a class or in the school as a whole. It is for that reason that the wording of the new clause requires that the welfare of the child is the primary and not the paramount
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consideration, as under the Children Act. The wording ensures that the interest of the child must be considered in all circumstances, and recognises that there will be occasions when the best interests of an individual child cannot be met without damaging the interests of other children. I hope that it can be taken into account that the framing principle should be embodied in the Bill. I hope that the Government will support the amendment.
Lord Addington: My Lords, the welfare of the child being a primary consideration is a longstop that should be included in the Bill at some point.
Baroness Blatch: My Lords, I should first like to consider Amendment No. 244F. I assume that my noble friend will be moving Amendment No. 244H separately.
Baroness Faithfull: My Lords, yes.
Baroness Blatch: My Lords, Amendment No. 244F requires the welfare of the child to be a primary consideration in any decision affecting that child. The education system of course aims to provide for the educational needs of all children, but it is not appropriate for the Bill to extend the role of the education system to embrace all aspects of children's welfare. Children's welfare is already fully covered by the provisions of the Children Act which deals with parental responsibility, care orders, fostering and so on. The education service and the Bill are concerned predominantly with meeting children's educational needs.
The Education Bill includes provisions to ensure that parents play an active part in choices about children's education. This autumn the department will be issuing a revised and updated Parent's Charter setting out the many ways in which parents can work as active partners with schools to obtain the best education for their children. In that sense, we are very concerned about meeting children's needs.
The Government are committed to ensuring that parents have all the information that they want and need about their children's education. That includes the right to choose the appropriate school, and, beyond 16, to choose the best course of education or training at school or college. Where a child has special educational needs, the child has a right to education to meet those needs and the Bill contains important changes which will benefit such children and their parents.
Improvements are being made in the way appeals are made. Appeal committees on admission and expulsion cases will include an independent member as well as those chosen by the local council or governors. That will ensure that parents obtain a fair and independent hearing about their child's case.
Parents also have the right to complain if they believe that their child is not being taught the national curriculum as required. If the head teacher decides that the child should not follow the national curriculum for the time being, and the parents disagree, they can appeal against the head teacher's decision. Parents can ask for the school's support in

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querying examination results which seem not to do justice to their child's ability. Those rights all centre on the best interests of the child.
I recognise that what underlies my noble friend's concern is that in all cases the full needs of the child are given a prime place when considering the provisions for their needs. The whole Bill, but in particular Part III, is concerned exclusively with meeting the needs of the child. The role that we have given parents and local authorities and the requirement we have made under the Bill are designed so that they all collaborate in the interests of the child. I believe that what we have in place will meet those needs and will allay the fears of my noble friend and other noble Lords who have put their name to the amendment. Therefore, I hope that the amendment will not be pressed.
Baroness Faithfull: My Lords, I thank the Minister for that reply. I am sorry that she cannot accept the amendment. It would cost only a few extra words in the Bill, or in the guidance to teachers and all those dealing with such children. However, I shall not press the amendment. I hope that the spirit of the amendment will be reflected in the guidance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Faithfull Baroness Faithfull moved Amendment No. 244G:
Before Clause 219. insert the following new clause:
("Notice of intention to close School
.—(1) Where subsection (2) below applies to a school, the governing body or, as the case may be, the proprietor shall give the Secretary of State not less than three months notice in writing of any intention to close the school.
(2) This section applies to—

(a)an independent school approved under section 180 or

(b)a non-maintained special school

which provides accommodation for any child.").
The noble Bareness said: My Lords, I refer your Lordships to Amendment No. 244D which was lost on the Division. Amendment No. 244G costs nothing. It seeks from the Minister the exact duties of Ofsted and its inspectors. When they inspect, are the inspectors looking at standards? Do they believe that it is their duty to support and help schools which need support, help and guidance? Do they believe that it lies within their role to ensure that the schools sustain their numbers?
I have tabled the amendment because the Ofsted inspectors inspect schools only every four years. I believe I am right in saying that, but the Minister will correct me if I am wrong. Inspection every four years does not keep the inspectors in touch with those schools. I refer to an independent or non-maintained school run by a charity which finds itself in financial difficulties and now has to close. Four have had to do so. Would it not have been better for them to have informed the Department for Education that that would occur so that advice and help could be given? The schools might not—I do not say would not—have had to close. Knowing the situation in the country, would not the inspectors be able to help the staff and governors in keeping such schools open?
It is a small amendment, but it would greatly support schools run by charities that are non-maintained and independent. We might not then lose valuable resources which we now have. I beg to move.
Baroness Blatch: My Lords, if my noble friend will forgive me, is she speaking to Amendment No. 244H, which is before Clause 219?
Baroness Faithfull: My Lords, I moved Amendment No. 244G.
Baroness David: My Lords, I asked the noble Baroness whether she was speaking to Amendment No. 244H with Amendment No. 244F. She stated that she wished to move it separately.
The Lord Bishop of Guildford: My Lords, I express some anxiety about the amendment moved by the noble Baroness, Lady Faithfull. I fully understand the intent. However, I have recently been associated with an independent school which had to close. It cared for people with special needs. The prospect of having to give three months' notice with no guarantee of any financial support from anywhere could leave the school footing bills for staff and other costs, which can mount up rapidly. Had such a provision been in force at a time when the specific school that I have in mind was closing, the financial consequences would have been even more disastrous than they were. That is my anxiety. I hope the noble Baroness will take it into account when she replies.
Lord Campbell of Alloway: My Lords, I hope that the noble Baroness will not press the amendment. It is the mandatory "shall" which is impracticable and could work to the injustice to which the right reverend Prelate referred.
Baroness Blatch: My Lords, I apologise to my noble friend. I knew that the two previous amendments were disaggregated but I had forgotten that another amendment had slipped into the middle. Please forgive me.
The right reverend Prelate makes an important point on flexibility. I believe that existing regulations already make adequate provision for the Secretary of State to be notified of closures.
Notification of the closure of any independent school is covered by the Education (Particulars of Independent Schools) Regulations as amended by the Education (Particulars of Independent Schools) Regulations 1991. Those require the proprietor to give written notice forthwith to the Registrar of Independent Schools if at any time a registered school is discontinued.
Any decision to discontinue a non-maintained special school is a matter for the governors, not the Secretary of State who must withdraw his approval of the school if the governing body requests him to do so in writing.
The regulations do not require the governors of a non-maintained school or the proprietor of an independent school to give the Secretary of State any period of notice of an intention to close the school. I

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do not think that it would be necessary or helpful to include on the face of the Bill a provision which requires a specific period of notice to be given.
Those schools have chosen to be autonomous. They are operating out in the market and we are not going to impose extra restrictions or controls on them by means of provisions in the Bill or by regulations. We believe that when such schools decide that closure is unavoidable they should not be subject to more controls than they are at present.
A period of notice could prove unnecessarily restrictive, as we have already heard. Schools close for a variety of reasons. They may be financial, or because of falling standards, or serious child abuse. In different circumstances, a period of three months' notice could be either too long or too short. For arranging alternative placements for pupils it could be too short. On the other hand, the governing body or the proprietor of a school might need to close a school without delay for financial reasons or because of child abuse. I do not think that their right to decide on the future of their schools should be restricted in the way proposed in the clause. They are responsible for running the schools and should not be subject to such a condition.
Once a decision has been taken to close a school by those responsible for running it, a delay of three months could create problems. If a school were in serious financial difficulty such a delay could drive the school even deeper into debt, as the right reverend Prelate said. There would be no question of any government funding if, for example, any one of those schools were on the verge of bankruptcy.
As regards the transfer of pupils to other schools, it is their responsibility to inform parents about closure. It is also their responsibility to inform local authorities and social service departments about closure so that those authorities can make suitable alternative arrangements.
In cases of child abuse which are so serious that closure is inevitable, a delay of three months would be unacceptable. Local social service departments can take swift action to ensure the welfare of the pupils and placing authorities might need to seek alternative arrangements as a matter of urgency.
I understand the anxiety again underlying the amendment of my noble friend Lady Faithfull who wishes local authorities and parents to be given as much notice as possible so that adjustments can be made. However, I hope that for the practical reasons given she will not press the amendment.
Baroness Faithfull: My Lords, I thank the Minister for that explanation. Perhaps I may say to the right reverend Prelate that I understand his point on timing. I sought to make a strong plea that there should be a good relationship between the Ofsted inspectors and all those running residential schools. At one stage I was worried about a school for which I am responsible. I had great difficulty in obtaining an inspection of the educational side, which worried me. A school might be enriched and helped by inspectors visiting and forming a good relationship with the school. The inspectors might see where matters are
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going wrong, and that might save the school. However, I shall not press the amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness David Baroness David moved Amendment No. 244H:
Before Clause 219, insert the following new clause:
("Pupils' views
The governing body of schools and local education authorities shall use their best endeavours to secure that—

(a) on any matter which affects a pupil the views of the pupil are given due consideration, having regard to the pupil's age and understanding,

(b) where reasonable, steps are taken to ascertain these views, and

(c) pupils are provided with the opportunity to be heard in any administrative proceeding which affects the pupil, either directly or through a representative.").

The noble Baroness said: My Lords, the amendment was tabled by the noble Lord, Lord Elton, to come before Clause 10 and my name was put to the amendment. Unfortunately, the noble Lord was not in the Chamber to move the amendment and it has been reinstated at the beginning of Part VI, which deals with miscellaneous provisions. That is an equally sensible positioning. Last week the noble Lord, Lord Elton, gave the Minister a copy of an opinion by Allan Levy QC, so I hope that she is in a position to respond.
The amendment is a less prescriptive version of the duty that is imposed on the local authority social services under the Children Act to ascertain and give due consideration to the views of children in their care. The amendment does not seek to empower children to determine every aspect of their education, nor does it seek to place a duty on schools to discover the views of children on every matter that affects them. It requires schools and LEAs to use their best endeavours to consider any views expressed by children, where it is reasonable to ascertain those views and to give them an opportunity to be heard in any administrative proceeding—for example, an appeal against an exclusion.
The purpose of the amendment is twofold. First, it would bring UK legislation into line with the UN Convention on the Rights of the Child, which the Government are committed to implement, and, secondly, it would create more effective schools. Article 12 of the UN convention provides:
"States parties shall assure to a child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child".
At Committee stage the noble Lord, Lord Elton, moved a similar amendment and asked about the relevance of the UN Convention. The noble Lord, Lord Henley replied:
"My advice is that there is no conflict between the Education Bill and the UN convention. Article 12 of the convention states that the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child. We believe that the provisions of the Children Act should cater for that. Therefore, I believe that my noble friend's amendment is unnecessary to bring us within the ambit of article 12". [Official Report, 20/4/93; col. 1547.]
Allan Levy QC is a very well known expert in children's law. In his Opinion, he makes it clear that

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the Children Act does not cater for most administrative proceedings in education, nor does it govern the action of schools or LEAs. He states:
"For the reasons set out below I am firmly of the view that the Children Act 1989 does not provide for Article 12 to have effect in respect of any of the relevant education matters."
The Government have indicated in the White Paper Choice and Diversity and in their commitment to writing the principle into the codes of practice on special education their support for the principles that are set out in the amendment.
The amendment does not place onerous or all-embracing duties on schools or LEAs. It reflects existing good practice; that, if children speak on matters affecting them, they have a right to be listened to; that reasonable attempts should be made to discover what they think and that their views should be heard in any administrative proceeding. Unfortunately, in many schools those principles are not respected: the schools should be reminded that those principles are a part of effective education. A brief mention of the principles and guidance relating only to special education procedures is not sufficient. I beg to move.
Lord Renton: My Lords, we all wish pupils to be properly treated at school and for there to be even a sense of justice. However, we should bear in mind that the amendment would apply to the whole of school life, to everything that could happen in a school. I am doubtful whether writing into the statute the need to provide an opportunity for the pupil to be heard at any administrative proceeding affecting the pupil, either directly or through a representative, is necessary or wise.
In any good school there must be discipline. The pupils must learn to obey authority. I doubt whether to give an almost continuous opening to every pupil to—if I may use a rough expression—bellyache, and to be supported by statute in doing so, would be conducive to either the benefit of the pupil or the good of the school. Although only a minority of pupils might take advantage of the situation, it could become a troublemakers' charter.
If there is a difficulty in the school, if any pupil feels that he is not being treated properly, his parents will hear about it soon enough. I agree that a pupil may not be courageous, strong minded or self-confident enough to complain within the school, but it would be best for those kinds of matters to be dealt with in the future as they have in the past, for the most part effectively. I should be most surprised if my noble friend Lady Blatch thought it wise or sensible to accept the amendment.
Lord Simon of Glaisdale: My Lords, it is advisable arid sensible to consult the pupil in appropriate cases. It is much less advisable or sensible to clutter up the statute book with instructions about such matters. In appropriate cases, obviously, a pupil should be given the opportunity of expostulating before, say, he or she is expelled from school, but not if he or she is told to change his or her shoes. There must be a limit to the statutory enactment of a series of instructions to grandmother on how to suck eggs. I deprecate, with great respect, such administrative admonitions.
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Reasonable people must be left to act reasonably. If they cannot act reasonably, they should not be in charge of a school, either as teachers or as a local education authority. I hope that the noble Baroness, having made a convincing case that, in appropriate cases, the pupils should be consulted, will not press the amendment.
Lord Parry: My Lords, yesterday afternoon, by a curious irony, television presented "The Winslow Boy". I hold the noble Lord, Lord Renton, and the noble and learned Lord, Lord Simon of Glaisdale, in great respect. They have spoken with deep conviction. They could have appeared for the prosecution.
Lord Addington: My Lords, the amendment has my name to it. It asks that account be taken of pupils' views on administrative procedures.
The noble Lord, Lord Renton, spoke about discipline. It is often stated that rules and regulations are made to be broken. That is said because they may have no relevance and no one can see the point of them. That is why they are broken.
We are talking about young adults. Teenagers can impose a great deal of stress on everyone concerned with them; they are not quite sure whether they are adults or children. If they are totally restricted in relation to a decision-making process, more trouble will be created. If there is an inflexible limit against a door, when pressure is put on it that door will either stand firm or burst and cause trouble on the other side. If there is a little valve by means of which people's views are heard and pressure is released, more tension will be relieved than will be created.
Baroness Young: My Lords, in moving the amendment, the noble Baroness, Lady David, said that it was based on good practice. I believe that to be the case. Where such matters are being considered, a wise person, if appropriate in a particular case, will consider the pupil's view. I very much share the views that have been expressed by both my noble friend Lord Renton and the noble and learned Lord, Lord Simon, that this would not be a sensible or wise provision to put on the face of the statute.
I believe that evidence will come—and I regret to say this—that the law has in some respects swung too far in supporting the child. There have been cases where children have brought allegations against teachers which have subsequently been shown to be completely false. We must be careful to recognise how important it is to maintain discipline in the school and the support of the teachers in all matters; otherwise no one will learn anything.
The other point I wish to make is that many schools have internal arrangements for consulting pupils over a whole range of matters—perhaps a school council or something similar. Those organisations are much to be welcomed. They give pupils the opportunity to express their views about all kinds of matters going on in the school and it is useful to hear what they have to say. I am not at all against that; it is a good idea. However, to put the proposal on the face of the Bill

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could make things difficult for schools, and not necessarily benefit the child. For those reasons, I hope that the amendment will not be pressed.
Lord Annan: My Lords, I support my noble and learned friend Lord Simon of Glaisdale. In many cases in universities, where action is being taken against students arbitrarily, without giving them an opportunity to express their views, the courts have found that it was against the principles of natural justice. It would be exactly the same in the schools. We do not need anything extra; the remedy is there for anyone who has been treated unjustly.
Baroness Faithfull: My Lords, I wish to make two points. It is always wise for the child to be consulted, and that is the case under the Children Act 1989. I once took a child to court when the mother was asking for the child to be returned to her. The child was not heard and she said, "It's my life, why can't I be heard?" It transpired that the mother had a mental illness which was not known to the court nor to me, and the child wanted to tell somebody. Under Part III of the Bill, the child should be heard. That is not to say that the child's views need necessarily be accepted, but at least they should be heard.
Secondly, I agree with my noble friend Lady Young. The all-party parliamentary group for children asked representatives from eight schools to give evidence on the matter at one meeting. We found that six of the eight schools had set up councils so that staff and children could consult and discuss administrative procedures. I therefore support the spirit of the amendment, but I agree with the noble and learned Lord, Lord Simon, that it might be more effective for it to be in the code of practice than on the face of the Bill.
6.45 p.m.
Baroness Blatch: My Lords, perhaps I may say to the noble Lord, Lord Parry, that the world has moved on considerably since the time of "The Winslow Boy". Certainly, the law on the protection of children has made great strides.
Amendment No. 244H aims to incorporate the requirements of Article 12 of the United Nations Convention on the Rights of the Child into the Bill. I say to the noble Baroness, Lady David, that we have now seen the opinion of Allan Levy QC, and we do not disagree with what he says. The primary purpose of Article 12 is to ensure that the child or his representative shall be afforded the opportunity to be heard in any judicial or administrative proceedings which affect the child, consistent with the procedural rules of national law. In the United Kingdom, that provision already exists in education legislation which enables children or their parents to play an active part in choices regarding their children's education.
For example, we have long exhorted local authorities to take into account the wishes of the child when carrying out their duties in respect of his special educational needs. Circular 22/89, which we issued jointly with the Department of Health, stated that:
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"The feelings and perceptions of the child concerned should be taken into account, and older children and young persons should be able to share in discussions on their needs and any proposed provision".
Where a child's age and understanding make it possible, his attitude to the choice of school—be it special or ordinary—is a very relevant consideration. But that does not mean giving the child a veto over a particular course of action. The present circular offers guidance. Clause 151 requires the Secretary of State to issue a code of practice giving practical guidance to local authorities about the discharge of their functions in respect of children with special educational needs. That will differ from our current circular in that the Bill will give it statutory backing.
More generally, as I indicated in my comments on Amendment No. 244F, parents also have the right to say which school they would like their child to attend and to appeal to a separate appeals committee if the local council or school governors refuse the school place of their choice. Parents also have rights of complaint on the teaching of the national curriculum. If the child is permanently excluded from school, the parents or the child—if he is 18 or over—can appeal against that decision.
I agree with my noble friend Lord Renton, the noble and learned Lord, Lord Simon, and the noble Lord, Lord Annan, about the importance of understanding the needs and feelings of the child and allowing opportunities for the child to express them. As my noble friend Lady Young said, that can be done in an informal setting, which is often the best in terms of eliciting the real feelings of children. However, I do not believe that the proposal is appropriate for the face of the Bill and I hope that the amendment will not be pressed.
Baroness David: My Lords, I am glad about one thing: that the Minister agrees with the opinion of Allan Levy that the Children Act does not cover the education Acts.
The noble Lord, Lord Elton, originally put down this amendment and moved a similar amendment at Committee stage. He conducted an inquiry into discipline in schools and it was part of his recommendations that the views of children should be heard more often. The amendment simply asks the schools and LEAs to use their best endeavours to consider any views expressed by children and, where reasonable, to ascertain those views and give them an opportunity to be heard.
I am sorry that we in the House today have not taken a more modern view; it is a disappointment to me. But in view of the opinions which have come from all parts of the House, I should not be wise to press the amendment. Therefore, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Judd Lord Judd moved Amendment No. 244J:
Before Clause 219, insert the following new clause:
("National Curriculum Testing
.—(1) It shall be the duty of the Secretary of State in the exercise of the functions conferred upon him by this or any other enactment to deliver the requirements of the National Curriculum to have regard to the principles of national curriculum testing described in this section.

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(2) The principles of national curriculum testing are that—

(a) the tests assess pupils' progress in English, Mathematics and Science against nationally agreed attainment targets;

(b) the tests, based on materials produced by teachers, support teachers' continuous assessment and are carried out when a teacher judges the pupil to be ready;

(c) the arrangements for testing give schools as much flexibility as possible in choice of content, application and timing as is consistent with an effective system of testing which does not put pupils under undue pressure;

(d) the tests are selected, administered and marked by the teachers themselves to ensure that they are an integral part of the teacher's professional judgement of a pupil's progress;

(e) an individual pupil's performance in the tests is communicated only to the pupil and the parent, and recorded in the Pupil Progress Report.").

The noble Lord said: My Lords, I wish in advance to apologise to the House because in the interests of expediency, in trying to accommodate rapid progress through the night's business, I have favoured large groupings. There are a number of amendments in this grouping to which I must speak. I shall therefore have to speak for slightly longer than I had wished and I hope that the House will bear with me.
First, I wish to address Amendment No. 244J. It deals with the principles of national curriculum testing. Perhaps I may start with a quotation:
"Assessment is the means of obtaining information which allows teachers, pupils and parents to make professional judgements about pupils' progress. The starting point for this is the curriculum and the processes of learning and teaching. Although assessment has many facets, its essence is determining what a pupil is actually achieving in relation to expectations of attainment and drawing conclusions from that comparison…
"National tests are part of the overall 5–14 assessment strategy. Teachers will report on pupils' progress and attainment across I he whole curriculum, using their professional judgement and the evidence available to them from their own continuous assessment throughout the year. National tests will provide an additional and important source of evidence about pupils' attainment in Reading, Writing and Mathematics in relation to nationally agreed and understood standards. Teachers will use the tests to check their own assessments and to ensure consistent interpretation of what the levels of attainment described in the 5–14 guidelines mean in practice …
"The headteacher should provide teachers with clear advice on assessment and determine when and how assessment information will be collected, and how it can be used most effectively at whole school level. Effective assessment policy and practice in each school will improve the quality of learning and teaching. These guidelines are designed to help schools produce effective policies and develop good practice, in assessment".
The Minister should recognise the opening words of this speech. They were not written by me; nor indeed were they written by Labour Party researchers—although I would wholeheartedly endorse them. They were not written by teachers' unions, although they are supported by the major unions in England, Wales and Scotland. They were written by the Government themselves in Curriculum and Assessment in Scotland—National Guidelines in October 1991 which was published through the Scottish Office Education Departrnent.
This amendment almost exactly mirrors Section 3 of the Scottish Examination Board 5-to-14 units, the "framework for national testing"; namely, the system
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of assessment agreed by the Government for Scotland. The key points of that system are these: the curriculum areas in the Scottish curriculum guidelines are assessed by teachers using their own professional judgment and the evidence available to them from their own continuous assessment throughout the year; each curriculum area has five levels of attainment; the working definitions of levels are that most pupils are expected to achieve the next level once every two years; national tests in reading, writing and mathematics are selected, administered and marked by teachers themselves; they are used when the teacher's own assessment indicates that each pupil is ready and if the teacher deems them appropriate; the tests are flexible and easy to use, and are written by groups of teachers; teachers choose test units from an external bank or catalogue of tests to suit the topic area of the curriculum that they may be working on; teachers provide evidence of attainment to senior staff in the school and to parents; neither test results nor continuous assessment results in the curriculum areas are published; there is national monitoring of standards by the Scottish examination boards of 5-to-14 assessment units; there are special arrangements for the tests for pupils with special educational needs involving head teachers, parents and class teachers.
We simply do not understand why, if this system is progressing and developing so well in Scotland, the same principles cannot be applied in England and Wales. We have heard no rational explanation for that.
That brings me to Amendment No. 254, which deals with what have been described as the draconian powers of the Secretary of State. Clause 229 significantly extends the Secretary of State's power over national curriculum, assessment and testing exactly at the time when such powers should be held in abeyance prior to the results of the review of the national curriculum and assessment being conducted by Sir Ron Dearing. The use of the powers outlined in the Bill would exacerbate an already inflamed situation.
That the Secretary of State intends to press ahead with such powers at an early stage is characteristically indicated in a letter to local education authorities dated 20th May last. The letter says:
"Subject to the agreement of Parliament to the Education Bill which is currently before it, the Secretary of State would intend to make use of the powers sought in Clause 227 of that Bill to specify arrangements for verifying assessment standards—whether by external examining arrangements or an external audit—and to make explicit the duties of local education authorities, governors and headteachers in this regard".
The new subsection in the Education Bill provides what have been described as draconian powers for the Secretary of State. He will be able to target governors, local education authorities and head teachers, in general or individually, for direction in terms of assessment arrangements should he so choose. In addition, as we argued at Committee stage, the assessment audit arrangements have been tightened to the point of absurdity. The auditor will have statutory powers to enter the premises of a school, to stand behind the teacher while the tests or SATs are taking

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place, and to take away any material that the auditor chooses. This gives the auditor the status and powers of an Ofsted inspector. However, Ofsted inspectors and registered inspectors have to go through rigid procedures of consultation before they are able to enter schools. The auditor, in contrast, will have "lightning, flying squad" powers which will only serve to alienate schools still further.
It must be emphasised that the Secretary of State has chosen wilfully to misread the anger of the profession over the current national curriculum assessment arrangements. In teachers' eyes the excessive workload has been caused by the removal of teachers' professional judgment over assessment and by the fact that the assessment load occurs in a few short months at the end of Key Stages 1 to 3. The introduction of external auditing or examination boards further removes from teachers' professional discretion the use of assessment and, as such, further de-professionalises the work of teachers. Rather than using these draconian auditing powers and thereby undermining teachers even more, the answer is surely to introduce an assessment system which allows teachers' professional discretion and accountability to parents; hence the relevance, as we see it, of the experience in Scotland. Such a system already exists over the Border, where teachers are able to use external tests in mathematics and English when they deem each pupil is ready, and the tests are used to validate teachers' own assessments. Such tests are also, as I have said, written by the teachers themselves.
The 1988 Act currently reads:
"An order under subsection 2(c) above may authorise the making of such provisions giving full effect to or otherwise supplementing the provisions made by the order as appear to the Secretary of State to be expedient; and any provisions made under such an order shall, on being published by Her Majesty's Stationery Office, have effect for the purposes of this Chapter as if made by the order".
While these powers are, in themselves, too general, the practice that the Secretary of State has adopted for consultation on each year's assessment order is one that has the broad agreement of the consultees, even though they might argue that the Secretary of State does not always seem to listen to what they have to say.
The Secretary of State intends to drop the specific requirement for consultation on the draft assessment orders for 1994 because, in his view, Sir Ron Dearing's recommendations will be enough. That is not, in our view, acceptable as it stands. The Secretary of State could introduce new controversial assessment arrangements for 1994 without any consultation whatever, claiming that they will be in line with the Dearing recommendations but in fact interpreting those recommendations in a way that will not encourage a consensus on assessment among teachers, parents and governors.
Perhaps I may briefly move to Amendments Nos. 254B to 254J. The effect of these amendments would be to replace the proposed fixed three-year life of the provisions as described in the Government's new clause as set out in Amendment No. 254A with a one-year term, renewable for a maximum of two
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further one-year terms by affirmative order. The temporary provisions of the Government's new clause are said to be needed to give rapid implementation of recommendations from the Dearing review. But it is still wholly unclear why such a waiver of normal consultation arrangements should persist for three years. It appears to us to be excessive. Such a power to bypass normal consultation arrangements for a prolonged period gives rise to reasoned fears that the recent habit of order and counter-order will continue unchecked.
We believe that sound arguments in favour of the principle of the new clause are based exclusively on the advisability of rapid implementation of the new consensus which it is hoped will emerge as the outcome of the Dearing review, precisely so as to achieve a period of stability and calm. Nevertheless, there might perhaps be an exceptional case that deserves to be heard and the amendments therefore offer affirmative order procedure to cover that (arguably unlikely) exceptional case. The consequential amendments—those between the first and the last of the group—merely aim to preserve the sense of the existing drafting where in accordance with the new subsection (4) the provisions expire before 1st September 1996.
While dealing with these amendments perhaps I may raise one supplementary point. The meaning of subsection (3) seems unclear. It covers consultation on matters already in hand when the fast track provisions lapse. The point of uncertainty is whether:
"arrangements under this section for consultation about the proposals were made before that date"
means either cases where substantive consultation on written proposals had started or, in addition, cases where the Secretary of State had only announced his intention to consult. It would be helpful if, when replying, the Minister could confirm that its effect is limited to cases where consultation is solidly in hand rather than in prospect.
In conclusion, I must speak to Amendment No. 256A. The National Association for Gifted Children argues very strongly that it should be incumbent upon schools to publish their policy of provision for the brightest 2 per cent. to 5 per cent. of pupils whose needs may be as specific as those pupils defined as having special educational needs. Indeed, that percentage includes a core of exceptionally able children whose needs are extreme.
It seems to be the case that all relevant literature, including the Scottish Inspector's report, indicates that the best way to obtain proper provision by schools is to have those children named. It is a whole school policy that is called for, not one which depends upon the goodwill of individual teachers alone.
Many of the issues which give rise to concern were raised during the debate in Standing Committee in the other place on 26th January last, when considerable sympathy seemed to be expressed by Members of all parties. Nevertheless, the reference in the White Paper to the particular needs of exceptionally able children are still not clearly translated into this Bill. The frequently repeated comment of the Department for

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Education is that the national curriculum will meet the needs of gifted children. However, we should all note the NCC's advice to the Secretary of State that:
"depth of learning is being sacrificed in pursuit of breadth and the lack of rigour and challenge is not resulting in the necessary improvements in standard … At Key Stage 2, teachers consider that the collective weight of content in subject Orders is leading to superficial teaching".
Where teachers interpret too literally the obligation to guarantee all children the same body of essential knowledge, understanding and skills, the curriculum becomes a reason for not finding time for high ability children. That prevents the individual strengths of teachers being used fully. The publications of the levels reached by children at Key Stage 1 demonstrates clearly that attention is concentrated on the average. That was a fear expressed by the NAGC in its submission to the Secretary of State on the initial consultative document on the national curriculum:
"A major concern, from bitter experience, is that many teachers make a generalised provision for classes aimed at a theoretical "average" child within an age-locked system. Such provision rarely provides a suitable challenge to the very able. Nor does it present opportunities for failure, which are very important for the psychological and moral welfare of the gifted".
Tests of attainment alone may have very little value in motivating bright children if their ceiling of attainment is too low. I beg to move.
7 p.m.
Baroness Williams of Crosby: My Lords, I support the amendment which stands in the name of the noble Lord, Lord Judd, and myself. I shall not detain the House for very long. I believe that in many ways the amendment is at the heart and core of the Bill. Your Lordships have already spent a great deal of time on the Bill and it is growing quite late in the evening. However, I believe that this clause and the amendments to it deserve very careful attention. They concern not only the needs of children and the education system of the United Kingdom. I believe that the effects of subsection (4), which the amendment seeks to remove, will be extremely serious in terms of beginning to destroy the whole basis of education by consent in this country.
The clause deals with the very heart of education—what long ago used to be called "the secret garden". It deals with the issue of the national curriculum, its core and foundation subjects. It deals with the issues of how one tests and assesses the achievements of children and how teachers are to be involved in those tests and assessments and in the national curriculum. I believe that teachers have become profoundly concerned about the present Secretary of State. If we do not amend this part of the Bill, they will become yet more concerned, since their ability to be consulted on these crucial issues will be largely withdrawn as a result of the clause. We need a way out of the quite desperate confrontation that we now see in front of us.
The first of those major issues concerns the national curriculum. I believe that it was right to move towards a national curriculum. When I was Secretary of State we talked about a core curriculum and issued a Green Paper along that line. The Secretary of State for Education, Mr. Kenneth Baker, moved towards a
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national curriculum. He had a great deal of cross-party support in moving towards a national curriculum, although many people felt that it went a little too far and left too little flexibility for teachers to feed in their own creativity and for schools to meet their own needs. Nevertheless, it commanded a very wide degree of consensus.
Testing and assessment handled in a sensitive way might also carry behind it quite of wide level of consensus. But there were two great problems. The kind of testing and assessment to which the noble Lord, Lord Judd, referred—that carried out by teachers in the light of their own personal knowledge of pupils at a time when the child should be assessed because of his or her development—is wholly desirable. The imposition of formal testing and assessment, crudely applied without consultation with teachers, indeed without even listening to their experience and knowledge, can be very dangerous. But when that emerges in the form of raw data, unaffected by the background, experience and family structures of those children, it is not just dangerous: it could be destructive of the self-confidence that children need to develop.
Children who come from socially disadvantaged homes—perhaps from the inner cities, broken homes or families where there is a single parent at the head. where there are few advantages and few books at home or parents who work long hours and can give the children very little attention —achieve a remarkable amount by being able to learn the basic subjects of education at the age of eight or nine years old when a child from an advantaged background would have reached the same standard at the age of seven or even six years.
There is evidence from the Government's assessment of Stage 1 in 1992 of the key testing system to show that children who come from a disadvantaged background start much further back in the race. Raw data that simply distinguish or compare one child with another, without the slightest regard to that background, are of no benefit at all. They wholly discourage the struggling child, who is trying to overcome major difficulties, from attaining some kind of reasonable educational standard. One only has to read the publication of the Church of England, Faith in the City, to see the kinds of disadvantages that children in some parts of our cities are still struggling against. They need encouragement, not the discouragement that goes with the publication of raw league tables which compare one school with another.
The proposals made by the Government in the 1988 Act, which I have in front of me, at least recognised the crucial role of the teachers in being consulted on these sensitive and indeed critical matters. Section 20 of that Act refers to the fact that the National Curriculum Council (as it was then called) should afford a reasonable opportunity of submitting evidence and representation from the wide number of bodies to be consulted: local education authorities; school governing bodies and organisations representing school teachers. All of those are listed in the 1988 Act. Furthermore, at that time the Secretary of State went on to set out in great detail how his own opinions

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should be published and the consultations conducted. He even went so far as to say that the results of those consultations should themselves be published to enable due consideration to be given to his proposals.
The 1988 Act is to be replaced by the Education Bill that we are presently discussing. The Education Bill contains a very different set of words. Section 4 will refer to the right to confer or impose such functions upon the governing body and head teacher in the case of maintained schools. It goes on to speak about specifying assessment arrangements as may for the time being be made by a person specified in the order. It also refers to the imposition of duties and gives the auditor the right to enter the premises of the school, observe the implementation of the arrangements and inspect and take copies of documents and other articles. Having spent a good deal of the past two years of my life in Eastern Europe, I have to say that the role of the auditor in the Bill is not very different from the role that was given to party secretaries in that part of the world. It is a very strong phrase to use but I ask noble Lords to read for themselves the role of the auditor, who has to pass through none of the examinations or requirements that members of Ofsted are required to do.
The noble Lord, Lord Judd, said that in Scotland, which had witnessed the same kind of uproar that had taken place in England and Wales in the past few months, an attempt had been made to reach a consensus between the Government and teachers. Your Lordships will know well the dramatic background. Ninety-six per cent. of the National Union of Teachers, 88 per cent. of the National Association of School Masters and Union of Women Teachers (not a very radical union) 82.7 per cent. of the ART, and 64 per cent. of parents in an NOP survey all rejected the present proposals for assessment and testing.
Also, despite what was said by the Secretary of State, the NOP survey made it plain that the great majority of parents rejected the testing of children at seven years and feared the publication of league tables. It went further than that. It went to such unexpected quarters as the Independent Schools Association, whose chairman referred at a conference earlier this year to the fact that in his view the Secretary of State's proposals were too prescriptive, too overloaded and too simplistic. He went on to say that testing of seven year-olds was utterly odious. One of the members of that association—a headmistress, Miss Norma Williams—referred to the insensitivity of the Secretary of State. There can have been few occasions when such a wide spectrum of opinion has been so forcefully expressed on matters of this kind.
I come back to the precise provision suggested by Her Majesty's Government in respect of Clause 229(4). I have already quoted some parts of the legislation and the extraordinarily prescriptive powers given to the Secretary of State. Those powers cannot now be altered by consultation for three years because the Government have chosen to remove the safeguards of Section 20 of the 1988 Act by their proposal that the safeguards should be suspended
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until 1996. The amendment put down by myself and the noble Lord, Lord Judd, proposes, modestly enough, that that suspension should be for one year only and that it should be able to be extended only by affirmative order one year at a time, not, sweepingly, for three years all at once, because we are frightened of the consequences of not consulting teachers on those issues that lie closest to their hearts.
I quote two speeches that were made in the 1988 debates, one by the Minister of State, Mrs. Angela Rumbold, and the other by the Secretary of State, the right honourable Kenneth Baker. In speaking about the curriculum, the Minister of State said:
"The Secretary of State will look at that advice and will publish draft orders showing how he intends to proceed. He will allow for another period of consultation before the orders are laid before Parliament. That seems to be a sensible way to proceed". [Official Report, Commons, 12/1/88; col. 404.]
Those were the words of the Minister of State in the debates on the Education Reform Bill only five years ago.
I conclude with perhaps the most disturbing quotation of all. I refer to the words of the then Secretary of State, Mr. Kenneth Baker. In responding to Opposition challenges about whether there would be adequate consultation on the national curriculum, he said that it would not be the Baker curriculum. I ask noble Lords to listen carefully to the next sentence:
"I would find it constitutionally unacceptable for the holder of my office to impose his own national curriculum. The Bill builds in the essential checks and balances. Only after the most thorough statutory consultation … will the new arrangements be introduced into the schools". [Official Report, Commons, 28/3/88; col. 799.]
This evening we are discussing the removal of that statutory consultation. We are discussing what the right honourable Kenneth Baker himself described as constitutionally unacceptable. I beg to support the amendment moved by the noble Lord, Lord Judd.
7.15 p.m.
Baroness Blatch: My Lords, as the noble Baroness has spoken eloquently to my amendment but I have not spoken to it and presented it to the House for discussion, perhaps I may speak to it now. As regards the new clause introduced by the amendment, our intention is to substitute temporarily simple statutory requirements for public consultation on proposals for the national curriculum. The Statement of my right honourable friend the Secretary of State of 11th May—which I repeated to this House—announced the Government's intention to suspend for a period the two-stage consultation procedure specified in Sections 20 and 21 of the Education Reform Act. This would allow my right honourable friends the Secretaries of State for Education and for Wales to adopt a less complex consultative procedure where they considered it appropriate. This reflects our concern that we should be able to respond quickly and positively to recommendations arising from Sir Ron Dearing's current review of the curriculum and testing arrangements and the concerns of teachers.
The amendment preserves during the interim a duty on my right honourable friends to consult about changes but is designed to enable them to proceed to

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make changes after a single stage of public consultation in cases where the need for change is widely recognised and the changes themselves are the product of extensive prior debate. Without this amendment we would not be able to respond as quickly as we would wish to teachers' real concerns about the curriculum. A practical effect of the two-stage process required by Sections 20 and 21 is that. even if it takes only a month or two months for a one-stage process, that extra month or two can result in a year's delay in the implementation of a new curriculum order. This is because new curricula can be introduced only at the start of a new school year.
The noble Baroness, Lady Williams of Crosby, overstated her case. It is inconceivable that coming before this House for affirmative resolution could be an order for modification of the national curriculum which had been the subject of no consultation whatsoever. I believe that she has scaremongered in the extreme. What we said at the time of the Statement and have said since is that, together with the teachers, we have come to believe that there is a need for modifications. Sir Ron Dearing is carrying out a review at the moment. The intention is to obtain the widest possible consensus for changes. There is to be extensive consultation. Indeed, Sir Ron Dearing is in the process of talking to thousands of teachers. He will bring together all the expertise upon which he can call in that process.
There will therefore be considerable prior consultation. When that talking stops, he has to convince my right honourable friend to accept any modification that he recommends. Even after that there is no question of no consultation. Once the formal procedure starts, we are saying that we will allow the flexibility for one round of consultations. If that is considered to be enough, and if the timing is important to have it implemented in schools, then atleast we will have the flexibility to curtail the consultation—but not to eliminate it completely.
The noble Baroness, also in speaking to my amendment, talked of children who came from disadvantaged homes and made the important point, which I have no difficulty in accepting, regarding the importance of education for those young and vulnerable people. She scoffed, I think rather disparagingly, at raw data. Raw data is the starting point for knowing what it is that children have learnt. It is that data which forms the database. As a child progresses it will be possible, by recognising and recording the progression of young people, to determine how much value has been added to a child's educational achievement.
I make no apologies for repeating, because I believe it so fervently, that it is just as important to recognise and record the progression of pupils whether they start at the bottom or the top end of the ability stream. It is patronising in the extreme to speak of all such children as though they are incapable of making considerable educational progress. We know, from the results that we have seen so far, the remarkable work done by schools and the remarkable learning
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achievements which have been recorded of children in the most difficult of circumstances. If we are about anything at all, it is to see that that continues.
Baroness Williams of Crosby: My Lords, before the noble Baroness sits down, perhaps I may ask what in my speech led her to think that I do not believe that children are capable of advancing and achieving great educational progress because they come from disadvantaged homes? I am sure that when she reads Hansard the Minister will see that nothing bears out her comments.
Baroness Blatch: My Lords, with the leave of the House perhaps I may respond to the noble Baroness by saying that I took that view because the noble Baroness dismissed the importance of raw data. Raw data has to be the starting point. Without that we cannot build up the recording and progression of young people.
Baroness Seear: My Lords, I am sure that the Minister will agree that of course we must have raw data. But it does not need to be published for all to see without making allowances and adjustments for the different starting points in different schools. That has been the complaint all along. It is a statistical nonsense to publish raw data in different schools without making the proper adjustments. If those adjustments could be properly made and the proper estimate of the value added, it would be a different matter. But nobody so far has said that that is what they intend to do unless the Minister is now going to tell us that they have discovered a way of doing it.
Baroness Blatch: My Lords, I believe that we are out of order, but with the leave of the House perhaps I may respond to that point also.
I have lived through the time with all of my children in the state system where we were denied contextual information. There is no question of child-by-child publication of results. We have not done that, nor will we. We are publishing school-by-school information. It is important for me as a parent to know how my child fares in relation to others in his class; in relation to the department; in relation to others in the school; and how the school that I have chosen for my children compares with other schools in the area. It is that kind of data that builds up. The raw data forms the basis for that information.
As that data builds up it is possible to be able to say, in a more sophisticated way, the value added by a school that starts with children lower down the ability stream compared perhaps with less progress made by schools which start with children higher up the ability stream. All I am saying is that there is a real place for raw data in the system. Without it I suspect that we will have doctored information which would not give a true reflection of what was happening in our schools.
Lord Skidelsky: My Lords, perhaps I may at last speak briefly to Amendment No. 244J moved by the noble Lord, Lord Judd. The amendment seeks to entrench a specific view of the testing system, which is

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not only inappropriate in a Bill dealing largely with structure, but which is also something which many of us would not accept.
Fundamentally, the amendment seeks to destroy any chance of using the national testing system for the purpose of making schools answerable to parents and the taxpayer for their academic performance. That is its whole purpose. For example, tests are to be based on teachers' materials and carried out whenever the teachers want in whatever time period the teachers choose. Tests are to be selected, administered and marked by the teachers and, of course, the results are not to be published.
I accept that there are many things wrong with the national testing system as it now is. I have been a strong critic of that system. It is over-centralised and excessively bureaucratic. I hope that, as a result of the fundamental review which the Government have started and which in fairness it must be said was the result of the teachers' boycott, a much leaner, more manageable and more coherent system will emerge. But I have always stuck by the principle that schools must he accountable for their performance and that testing is one of the chief instruments for making them so. It is precisely that which the noble Lord's vision of testing is designed to destroy. There cannot be any return to the 1970s when much of the school system effectively escaped from accountability for its academic performance to the wider community.
The noble Lord referred to Scotland. I suggest that the confidence in the Scottish system has never declined to anything like the same extent as did confidence in the English system because Scottish teachers were never so subject to the intellectual fads and fashions which swept through many English schools in the 1960s and 1970s.
The noble Baroness, Lady Williams of Crosby, referred to teachers' concerns about government policy. However, I emphasise parents' concerns about teachers' policy, which has triggered much of the move towards a national curriculum and testing system—a move which would not have been necessary were it not for a widespread public perception that schools were not doing the job that parents wanted them to do.
I wish that I could feel that I could entrust my child to a teacher's professional judgment. I hope that in due course that might again be possible, but experience has taught me that that is not the present situation. A major exercise in retrieval has been made necessary by educational folly and that exercise in retrieval is still taking place. Until there has been a clear retrieval we need an externally robust testing system. For that reason I hope that the amendment will be either withdrawn or rejected.
Lord Dormand of Easington: My Lords, I speak briefly to Amendment No. 244J moved by my noble friend Lord Judd. My contribution is in the nature of a query to the Minister.
The noble Baroness may recall that when she repeated the Statement made in another place by the Secretary of State in regard to testing—it had arisen because of the controversy relating to the teachers'
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unions—I asked what would happen if, as would seem likely at that stage, the teachers refused to conduct the tests. At that point two or three of the major unions had refused, by conference decision, to undertake them. The National Union of Teachers, the biggest union, had not done so but did later.
The Minister's answer was that the tests must be organised and conducted by the governing body and the head teacher. The House may recall that I raised the matter again at Committee stage because it seemed obvious at that stage that few of the tests had taken place. I say that because of the massive publicity which accrued at the time in newspapers, on television, radio and so forth. At that stage the noble Baroness's answer to me was that she did not have the figures. Presumably that was a reasonable answer because she did not have them at the time, even though it seemed as certain as anything can be that there had been very few schools which had undertaken the tests.
So I ask again: how many schools did take the tests? I hope that the noble Baroness has the figures now because it must be three or four weeks since the events I have described took place. My reason for asking is this: I think we must accept at this stage that few tests were taken. Do the Government intend to introduce any legislation either in this Bill, under the amendments which have already been tabled, or in the content of the Bill and, if not, in any other Bill, to deal with this fundamental matter?
All speakers have said how important the teachers are. They are crucial in so far as they have to organise the tests and do follow-up work on them. I believe that everyone in your Lordships' House will agree that unless we get the co-operation of the teachers then the tests will not take place, or what does take place will be of very little value. I hope that the Minister will be able to deal with that specific point when she replies.
7.30 p.m.
Baroness Young: My Lords, it is very important to remember the background to these particular amendments. It is very helpful to have heard from my noble friend the Minister in discussion on both Amendment No. 244J and her new amendment. As my noble friend Lord Skidelsky pointed out, the fact is that teachers have been given more freedom in Britain than in any other industrialised country in the world. The tragedy of it all is that so much in the 1960s and 1970s crept into the curriculum which was really extraneous and contentious that the Government were forced to look both at the curriculum and at testing to get some kind of measure—particularly teacher accountability—as to what they were actually doing.
It is a matter of great regret to me that there has been confrontation with the teachers. I do not believe that that is helpful to the pupils or the education system. I share many of the doubts which have been expressed about some of the tests that are currently taking place. I have looked at the test papers myself and I can see the difficulties. It is no use people complaining about the tests without saying what they would put in their place. That is what the noble Lord,

85
Lord Judd, has done for us. He has put down what he would like to see. But what does it mean? Subsection (2)(b) of the new clause states,
"the tests, based on materials produced by teachers, support teachers' continuous assessment and are carried out when a teacher judges".
What is that going to measure? The very bright will take A-levels and will get into university. So they will have an objective measure. But that will mean that the average, and certainly the less average, will not have an objective test at all. No one will know how they are progressing. No one will be sure at 16 that they are capable of getting a job. It is not in the interests, particularly of the average and less average pupil, to have an assessment of that kind. Indeed, the tests are selected, administered and marked by the teachers. There is again no objective standard to say whether the tests are valid and good. One has different standards in different schools. Unless there is some cross-referencing so that all schools are obliged to publish their results, they will be absolutely meaningless.
I believe it was the noble Baroness, Lady Williams, who said that parents had rejected testing. Yes, I have seen the published figures which she has seen. But when the surveys were done I wonder how much the parents really understood on how important all these matters are for their children. It is very easy to be frightened by the teachers saying "You are going to be published in the press. I can tell you that if your child does not do well everybody will know about it". That is not what is going to happen. What is going to be shown up by the tests is what the child is able to do. It is in the interests of parents and of people who really care about education to make that point to parents.
Amendment No. 256A is quite interesting. It is concerned with high ability pupils. I was not quite sure what that meant, but it struck me as introducing a form of selection into the local authority schools. They would have to pick out those whom they thought were of high ability and give them something special. That is probably a very desirable thing to do, and I am very pleased to think that the party opposite might agree.
What is very important is what my noble friend said in moving her amendment. Extensive consultation is now going on under Sir Ron Dearing. It is very important that some agreement is reached on modification of the tests to try to get a version on which there can be agreement. However, the Government must stand firm on the question of accountability and objectivity. That is absolutely essential—curiously, not for the very bright children because they have their measure—but it is essential for the average and less average. In all these matters we should be thinking of all the children and what is in their best interests.
Lord Lucas: My Lords, I wish very briefly to say that I hope that the noble Lord, Lord Judd, will not press his amendment. It would be extraordinary to replace months of consultation with many thousands of people with an hour's debate in your Lordships' House. I am delighted to see Amendment No. 256A and also to have confirmation that all sides of the
86
House agree how important it is to look after the more able pupils. But ability is very wide. We should not think of it in narrow academic terms. Many children have individual, exceptional abilities and it is important to nurture and to value them all.
Baroness Blatch: My Lords, I deal first with Amendment No. 244J. I cannot accept that we should move away from a system of national testing at fixed ages. Of course, teacher assessment is important, but testing at fixed ages based on nationally devised materials allows us to have confidence that the judgments arrived at are consistent right across the country.
Arrangements in Scotland reflect the different traditions and the differing statutory provision. As my noble friend Lord Skidelsky said, they start from a very different standpoint from that which applies in England and, in addition, they do not have a national curriculum. What is in common is the need for assessment. But there is no argument for dispensing in England and Wales with a system related to the national curriculum and with the advantages that it brings.
We accept that the present system of testing needs refinement and slimming down. That is the purpose of Sir Ron Dearing's review. We do not accept that the system is flawed and needs wholesale replacement. Amendment No. 254 seeks to remove subsection (4) of Clause 229 from the Bill. This subsection is designed to clarify the Secretary of State's powers to specify appropriate assessment arrangements and, in particular, the arrangements which may be made to verify the results of assessment and testing. There is nothing new or controversial here.
Local education authorities, governors and head teachers have a duty to secure the implementation of the national curriculum. The arrangements for the verification of results are a necessary part or the assessment process. I ask the noble Lord to withdraw Amendment No. 254.
Amendments Nos. 254B to 254J seek to change two aspects of government Amendment No. 254A. Amendment No. 254C would leave in place the more complex consultation procedures for amendments to Section 3 of the Education Reform Act relating to foundation subjects and key stages. The other amendments would limit the suspension until 1st September 1994, while allowing for an extension of that period by orders subject to the affirmative resolution procedures. I have to say that we would almost have to have reported Sir Ron Dearing's conclusions yesterday in order even to achieve the date of September 1994.
The remit to which Sir Ron Dearing is working is a wide one. It is essential that we are ready to respond to the recommendations which he makes, and if such recommendations include amendments to the foundation subjects required at particular key stages and command the support of teachers, we should be able to respond quickly and effectively. Of course, such changes would be important matters, but they would result not from a whim but from extensive prior consultation with teachers. For that reason, it is

87
entirely appropriate that orders made under Section 3(4) of the Education Reform Act should be included within this suspension.
Amendments Nos. 254B and 254D to 254J would limit the suspension of the two-stage consultation process to 1st September 1994, subject to resolutions of Parliament to extend that date by up to a further two years.
I understand noble Lords' concerns that full consultation should take place, but the changes which we are discussing will follow extensive consultation with teachers.
We must plan for changes over an extended period. Schools should not be expected to take on large-scale change across the whole curriculum all at once. That is why we should allow for a longer period of suspension, and I ask the noble Lord to reconsider his amendment.
The noble Earl, Lord Russell, is not in his place, but in Amendment No. 256, which has been spoken to in passing by other noble Lords, he raised a question of the balance to be struck between matters of principle and matters of detail in legislation. This amendment seeks to shift the present balance in respect of assessment orders made under Section 4(2)(c) of the Education Reform Act. The assessment orders are concerned with detailed and technical matters such as the balance between teacher assessment and national tests, the means of arriving at an overall subject result and arrangements for pupils who do not take a test paper. They do not address the nature of the tests themselves—their format and the style of questions they use. I do not see that Parliament needs to concern itself with scrutiny of operational decisions of this sort. Parliament has had no control, for example, over public examinations such as the GCSE and A-levels which are at least of equal importance to the pupils taking them.
There is a further reason for rejecting this amendment. The effect of subsection (1) would be that the tests themselves could no longer be published separately but would have to form part of the order itself. That is simply unworkable. The tests need to remain confidential until taken by pupils. To include the tests for each subject as part of the order would put them in the public domain. It would also make the order a remarkably unwieldy document.
Amendment No. 256A should enable all pupils, including the brightest, to develop their full potential. The national curriculum will play a crucial role by ensuring that all pupils have specific goals at which to aim at each stage of their career. It is right that, within this statutory framework, schools should think carefully about the education of children who demonstrate high ability and that parents should know broadly what steps will be taken to ensure that these pupils receive appropriate challenges and development.
It would clearly not be appropriate to go into such detail on the face of the Bill. These issues, and the need to publish policies, is a matter which should be addressed through guidance from the Department for Education to local authorities. The department and
88
Ofsted plan to hold two national conferences during the autumn on the subject of education for particularly able children to which local authority representatives, teachers and other professionals will be invited. In the light of the discussion at the conferences, we expect to publish guidance on the key issues and good practice which will be circulated to all local authorities. With that assurance, I hope that the noble Lord will withdraw the amendment.
As a tailpiece to that, perhaps I may comment on the importance of identifying ability. There is no agreement among professionals about what is and what is not high ability. That is a difficult issue to deal with on the face of the Bill. It can much more appropriately be dealt with on the back of the national conferences, by talking to professionals and then developing guidance.
Finally, as it relates to schools, the new clause is wholly unnecessary. Prospectuses have been required by law in maintained schools since 1980. The initial requirements for the content of prospectuses, set out in 1981, have been added to gradually over the last few years, and most recently by the School Performance Information Regulations.
Finally, I turn to Amendment No. 426. This is finally, finally. This amendment seeks to prevent the publication of annual tables of performance information for all the schools in each locality. The noble Lord, Lord Judd, having failed in his previous efforts to alter the scope of the tables, and the type of information which must be published in them, is now trying to get rid of them altogether. I have to tell him that we in Government are proud of our achievements in making more information available to parents and the wider community about the standards attained in our schools, and the work which goes on within them—nor do I think he would find any public support for this Luddite measure. The 1992 school performance tables were extremely popular: nearly 1.2 million copies of the tables have been distributed to date, and we are still receiving requests for them.
The noble Lord, Lord Dormand of Easington, asked for some information. I have to surprise him by saying that I do not have that information, but we do know that there was very widespread—and I mean very widespread—testing at Key Stage 1 for seven year-olds. We do not know how much of that will be reported—there is a responsibility to report it—but we do know that there was extensive testing in those schools. The testing has only just finished, so we do not have information for other schools. On his final question, I am not prepared at the Dispatch Box, on demand, to speculate about future legislation.
As I have said before, information about the achievements of an individual child is information for the particular parent alone and is not for wider publication. However, public information on whole-school performance, on local authority performance and on whole-country performance provides an important context for the information that parents receive. Again I repeat—and make no apology for it—that we, as a country, cannot stand back, wringing our hands about our performance when we are told

89
that other countries are performing better than we are. Not to know what our performance is, is simply not acceptable.
I end by saying that three principal factors are absolutely crucial and are not negotiable. One is the framework of the national curriculum. The second is a system of assessment and testing; and the third is public information on performance. There is to be no return to the "secret garden" in education. My noble friend Lady Young made that point very well. However, what is negotiable is the means to those ends. We shall explode the mystique of the "secret garden". We shall put as much information out into the public domain as possible and we shall go on until we make sure that this country stands proud and can fend off all challengers when they say that we do not perform as well as our international competitors.
7.45 p.m.
Lord Judd: My Lords, perhaps I may start by referring briefly to Amendment No. 254A. I had hoped that the Minister would recognise that we were trying to be helpful in bridging the gaps that exist and in trying to ensure a smooth operation. After listening to her, I am rather concerned about the fact that she is not aware of the degree of anxiety that exists out there in the world of education—in schools, among teachers, parents and the rest. The fear is that the Dearing review will report at the end of July; that during the summer holidays the Secretary of State will set out the 1994 testing arrangements; that teachers and governors will not be consulted because of the holidays; and that consequently there is every likelihood of an unnecessary dispute about the assessment arrangements for 1994. The review will then not have achieved its purpose of settling the assessment dispute. I am just sorry that, when we tried to find a way through that tonight, the Minister was not able to respond.
The noble Lord, Lord Skidelsky, referred to Scotland. I am always perplexed by the way in which we dip in and out of Scotland. On the one hand, the noble Lord said that Scotland has a system to be envied but, on the other hand, we are told that what Scotland does is not applicable. If he had been present for our earlier debate, he could no doubt have talked about the General Teaching Council which in Scotland enhances and underwrites the status of teachers in its system. It is clear that in Scotland more confidence is placed in the teachers.
The noble Lord, Lord Skidelsky, also said that the main issue of which we must not lose sight—and other noble Lords have referred to it—is that the purpose of assessments is to make schools accountable. In fact, the test results as proved performance indicators are absolutely useless. They do not measure the child's progress from entry into the school to where he is at various points during his school career. Neither do they reflect the full range of pupil achievement.
The Government already have in force structured and effective accountability measures; those of Ofsted inspections. In mixing up crude performance indicators—the test results—with comprehensive
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measures of school effectiveness—the Ofsted inspection results—the Government have only served to confuse parents and to anger teachers. The Government should now draw up an assessment model which diagnoses pupil achievement and gives parents valuable and relevant information. They should separate measures of school effectiveness from the purposes of assessment. They should adopt a system based on the Scottish model which would gain support from parents, teachers and governors.
Everyone with whom I have spoken is in favour of testing; it is the form of testing which is the issue. We are arguing that testing should seriously take account of the role of the teacher; it should be related to the creative, ongoing work of the teacher in the school, as has been recognised in Scotland; and it should be meaningful in the sense that it should demonstrate how the child has moved forward from the point at which he started. It is also essential that in the whole operation of the system we do not demoralise some of the most dedicated teachers in the country who are doing some of the most demanding work that it is possible to imagine in some of our most deprived inner city areas. As a result of the ham-handedness of the Administration opposite those teachers not only end up with no plaudit for their sense of service and dedication to their children but also have a published sense of failure, which is absolutely disastrous. That is why we are so implacably opposed to the position of the Government and why we are determined to pursue the amendment to a vote tonight.
7.52 p.m.
On Question, Whether the said amendment (No. 244J) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 113.

Division No. 4

CONTENTS

Airedale, L.

Judd, L.

Archer of Sandwell, L.

Kagan, L.

Attlee, E.

Llewelyn-Davies of Hastoe, B.

Baldwin of Bewdley, E.

Lockwood, B.

Beaumont of Whitley, L.

McIntosh of Haringey, L.

Carmichael of Kelvingrove, L.

Mason of Barnsley. L.

Cocks of Hartcliffe, L.

Monkswell, L.

David, B.

Morris of Castle Morris, L. [Teller.]

Donoughue, L.

Dormand of Easington, L.

Nicol, B.

Eatwell, L.

Ogmore, L.

Ennals, L.

Parry, L.

Galpern, L.

Pitt of Hampstead, L.

Geraint, L.

Ponsonby of Shulbrede, L.

Graham of Edmonton, L.

Richard, L.

Grey, E.

Seear, B.

Hampton, L.

Sefton of Garston, L.

Hamwee, B.

Stallard, L.

Hilton of Eggardon, B. [Teller.]

Stedman, B.

Hollis of Heigham, B.

Stoddart of Swindon, L.

Hooson, L.

Warnock, B.

Houghton of Sowerby, L.

Williams of Crosby, B.

Howell, L.

Williams of Mostyn, L.

Howie of Troon, L.

Winchilsea and Nottingham, E.

Jay of Paddington, B.

Young of Dartington, L.

Jeger, B.

NOT-CONTENTS

Ailesbury, M.

Arran, E.

Archer of Weston-Super-Mare, L.

Ashbourne, L.

Astor, V.

91

Barber, L.

Lucas, L.

Belstead, L.

Lucas of Chilworth, L.

Blatch, B.

Lyell, L.

Blyth, L.

McAlpine of West Green, L.

Borthwick, L.

McColl of Dulwich, L.

Boyd-Carpenter, L.

Mackay of Ardbrecknish, L.

Brabazon of Tara, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brougham and Vaux, L.

Buxton of Alsa, L.

Macleod of Borve, B.

Caithness, E.

Marlesford, L.

Caldecote, V.

Milne, L.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Carnock, L.

Moyne, L.

Chalker of Wallasey, B.

Munster, E.

Chelmsford, V.

Napier and Ettrick, L.

Clark of Kempston, L

Nelson, E.

Cochrane of Cults, L.

Norfolk, D.

Coleraine, L.

Norrie, L.

Colwyn, L.

Northbourne, L.

Craigavon, V.

Orr-Ewing, L.

Crathorne, L.

Oxfuird, V.

Cross, V.

Park of Monmouth, B.

Cumberlege, B.

Pearson of Rannoch, L.

Denham, L.

Peel, E.

Denton of Wakefield, B.

Pender, L.

Eccles, V.

Perry of Southwark, B.

Eccles of Moulton, B.

Perth, E.

Elles, B.

Portsmouth, Bp.

Elliot of Harwood, B.

Rennell, L.

Ferrers, E.

Renton, L.

Flather, B.

Rodger of Earlsferry, L.

Fraser of Carmyllie, L.

St. Davids, V.

Gainsborough, E.

Saltoun of Abernethy, Ly.

Gisborough, L.

Sanderson of Bowden, L.

Glenarthur, L.

Savile, L.

Goschen, V.

Seccombe, B.

Greenway, L.

Selkirk, E.

Guildford, Bp.

Skelmersdale, L.

Haig, E.

Skidelsky, L.

Harmsworth, L.

Stanley of Alderley, L.

Hayter, L.

Stewartby, L.

Henley, L.

Strange, B.

Hesketh, L. [Teller.]

Strathclyde, L.

Hives, L.

Strathmore and Kinghorne, E. [Teller.]

HolmPatrick, L.

Hooper, B.

Teviot, L.

Howe, E.

Teynham, L.

Jeffreys, L.

Thomas of Gwydir, L.

Kenilworth, L.

Trefgarne, L.

Kilmarnock, L.

Trumpington, B.

Kimball, L.

Ullswater, V.

Kinloss, Ly.

Wakeham, L. [Lord Privy Seal.]

Lane of Horsell, L.

Lindsay, E.

Wynford, L.

Liverpool, E.

Young, B.

Long, V.

Resolved in the negative, and amendment disagreed to accordingly.
8 p.m.
Viscount Goschen: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion I suggest that the Report stage begins again at 9 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Local Government (Overseas Assistance) Bill
Report received.
Licensing (Amendment) (Scotland) Bill
Read a third time, and passed.

Forth Ports plc (Rateable Values) (Scotland) Order 1993
8 p.m.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) rose to move, That the draft orders laid before the House on 11 th May be approved [30th Report from the Joint Committee].
The noble and learned Lord said: My Lords, if I may, I will deal first with the orders for Forth Ports plc and Caledonian MacBrayne Ltd. These two orders prescribe the rateable values for 1993–94 for the operational lands and heritages of these companies. For all other statutory dock and harbour authorities in Scotland rateable values are calculated each year by regional assessors according to a formula prescribed by the Secretary of State in an order approved in 1990. Forth Ports and CalMac are treated separately because in each case the lands concerned span more than one valuation area. Consequently, it would be awkward to have their valuations carried out by different regional assessors acting independently.
We have therefore arranged for the valuations for these two undertakings to be calculated by officials following the same method as is applied to the other statutory port authorities, then to be apportioned among the local authorities concerned and for the resulting rateable values to be prescribed by order.
The method of valuation is to assess rateable value at 9 per cent. of the relevant income of the authority. Relevant income is the total income for the year less that for certain defined activities which are not related to the occupation of property or are connected with property separately assessed. This method is the same as that used for assessing other statutory ports in Scotland and south of the Border. The apportionment of the rateable value of each undertaking among the relevant local authorities is made on the basis of its relevant income in each area.
The assessments and provisions contained in these orders have been the subject of consultations with the two authorities concerned—with the Convention of Scottish Local Authorities and with the Scottish Assessors' Association. I believe they present fair and reasonable assessments for these two undertakings and I commend them to your Lordships.
I now turn to the order which relates to the valuation of Alcan Aluminium UK Ltd. (formerly British Alcan Primary and Recycling Ltd.)
This order would normally have been included with the bulk of the formula valued orders which were debated and approved by this House in March. However, a change in the company's name required the original draft to be withdrawn, amended and re-laid. Notification was received too late for this order to be included with those orders.
The order prescribes the rateable value for qualifying lands and heritages of the company for 1993–94. It updates the prescribed rateable value for the defined lands and heritages for this year to take account of material change of circumstances and the revised level of industrial derating.
Prior to the 1990 revaluation, in the consultation which took place on the review of formula valuation, agreement was reached with the undertaking, with the Scottish Assessors' Association and with the Convention of Scottish Local Authorities, on the method by which the value should be updated in the years subsequent to 1990–91 to reflect material change of circumstances. The value in the order before you today is the result of calculations reflecting the agreed method of updating and also the reduction in industrial derating to 17.5 per cent. There is no need to apportion the rateable value as the lands and heritages are contained within a single local authority area.
This order has been subject to consultation with the company, CoSLA and the Scottish Assessors' Association and no substantive comments have been received. I believe that this order also presents a fair and reasonable assessment for this undertaking and I commend it to your Lordships. I beg to move.
Moved, That the draft orders laid before the House on llth May be approved. [30th Report from the Joint Committed]—(Lord Fraser of Carmyllie.)
Lord Carmichael of Kelvingrove: My Lords, we are aware that the valuations have been arrived at on an agreed basis. I am grateful to the noble and learned Lord for his full explanation of the Alcan Aluminium UK Ltd. order. I have received no comments from any source that anything has been found wrong with that order. The same applies to the Forth Ports plc valuation.
As regards the Caledonian MacBrayne Limited order, the Minister mentioned the figure of 9 per cent. of the turnover. The noble and learned Lord may remember that when the order was dealt with in another place, and particularly in Committee, there was a certain amount of anxiety that the Government had decided to look into the question of the ownership of Caledonian MacBrayne. A great deal of worry about that has been expressed in our Scottish newspapers this morning. Had that anxiety not been reiterated in the fairly serious Scottish press this morning, I should have accepted the order. However, I wonder whether the Minister has anything to add to the statements made in another place by the Under-Secretary of State for Scotland.
That matter is causing considerable anxiety. Will the order be affected in any way by any change of
94
policy towards Caledonian MacBrayne? I wonder whether the islanders would exist without having Caledonian MacBrayne to moan about. Does the noble and learned Lord wish to add anything to what has been said in a number of places?
Lord Fraser of Carmyllie: My Lord's, the noble Lord is extremely skilled and has a long experience of managing to take advantage of an order to raise a political issue of wider import. Again, I congratulate him on his ability with which he managed to move us away from a valuation order to the wider issue of the potential privatisation of CalMac.
Of course the order would not have any impact on a privatisation proposal, were there such a proposal on the table at present. Indeed, the basis for the valuation would be the same whether the company remained in the public sector or moved to the private sector.
The short answer to the noble Lord's substantial query is that, in answer to a question from the Member for South Aberdeen, Raymond Robertson, the Secretary of State for Scotland indicated that he had decided to review the present arrangements under which he provides financial assistance to maintain life-line shipping services to Orkney, Shetland, the Outer Hebrides and the Clyde Estuary. He indicated that he also proposes to review options for the future organisation and structure of Caledonian MacBrayne, including possible scope for introducing private sector participation in the provision of Caledonian MacBrayne's services. Options are to be studied and at this time that is the position. I assure the noble Lord that his agreement to the order will not influence that decision one way or the other. I commend the orders to your Lordships.
On Question, Motion agreed to.
8.10 p.m.

European Communities (Definition of Treaties) (Agreement on Customs Union and Co-operation between the European Economic Community and the Republic of San Marino) Order 1993
Baroness Trumpington Baroness Trumpington rose to move, That the draft order laid before the House on 13th May be approved [30th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move a draft Order in Council specifying the EC-San Marino Agreement on Customs Union and Cooperation as a European Treaty under Section 1(3) of the European Communities Act 1972. The procedure is necessary, as it is a mixed competence agreement requiring approval by EC member states and the European Parliament. The European Parliament gave its assent on 9th July 1992.
The essence of the agreement is the establishment of a customs union and co-operation in a number of other fields, including the commercial, economic, social and cultural sectors. The agreement was signed

95
by the European Community and the member states on 16th December 1991 and was the subject of Foreign and Commonwealth Office Explanatory Memorandum 9377/91 on 21st November 1991. The House of Lords' Select Committee on the European Communities considered the agreement, but did not report on it.
The content of the agreement falls under four headings. The first and most important element concerns the customs union between the Community and San Marino earlier established under the Interim Agreement. That is desirable, both in terms of liberalising trade fully within the geographical area of the Community, and to ensure that San Marino does not become an unregulated customs zone within the EC.
In addition to its provisions on trade, the agreement establishes co-operation between the Community and San Marino in the industry and services sector, the environment, tourism and culture. A section on social matters provides for equal treatment for workers from San Marino and from the Community with regard to working conditions, remuneration and social security. Declarations attached to the agreement deal with matters such as transport, teacher and student exchanges, services, intellectual, industrial and commercial property, recognition of qualifications and technical regulations.
The agreement is straightforward, and is based largely on the customs union with Andorra (5963/90) which was signed in June 1990 and is now in effect. The Government welcome the agreement. It sets co-operation between the Community and San Marino on a more formal footing and strengthens existing commercial, economic, social and cultural links. San Marino plays its part in various international organisations, including the Council of Europe and the CSCE and has just become a full member of the United Nations. This EC agreement will complement that by establishing the Community's relationship with San Marino on a more formal and mutually beneficial basis. I therefore commend the instrument to the House.
Moved, That the Draft Order laid before the House on 13th May be approved [30th Report from the Joint Committee]—(Baroness Trumpington.)
Lord Morris of Castle Morris: My Lords, there is nothing controversial about the order. It is not a matter of Maastricht proportions and its provisions are not particularly profound—unless, of course, you happen to be one of the 22,000 inhabitants of San Marino for whom it does have rather more considerable interest. As the noble Baroness said, it deals essentially with a customs union. But, in addition to the provisions on trade, the agreement which lies behind it establishes a useful co-operation between the Community and San Marino on a number of matters; for example, tourism, culture, student exchanges, services and industrial and commercial property. The order will help to place
96
co-operation between the Community and San Marino on a better footing. We believe that it should be approved.
Lord Brabazon of Tara: My Lords, can my noble friend remind me of exactly where San Marino is to be found?
Baroness Trumpington: My Lords, I can tell my noble friend that it is near Rimini. It has three armies, two police forces and a great many souvenir shops. It also has two presidents who do not serve for more than six months at a time because it was thought, in the original agreement, that they had not sufficient time to remunerate themselves. But, on the other hand, their neutrality was welcomed both by the British and by Mussolini during the war when they took in 100,000 refugees, which is quite a large number compared to their own population and greatly to be applauded.
On Question, Motion agreed to.

Merchant Shipping (Registration, etc.) Bill
8.15 p.m.
Lord Brabazon of Tara: My Lords, I understand that no amendments have been set down to the Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged—(Lord Brabazon of Tara.)
On Question, Motion agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until 9 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.16 to 9 p.m.]

Education Bill
Consideration of amendments on Report resumed.
Viscount Astor Viscount Astor moved Amendment No. 245:
After Clause 220, insert the following new clause:
("Nursery education in grant-maintained schools
.—(1) No person may—

(a) publish proposals under section 46 or 47 of this Act for the establishment of any nursery school, or

(b) publish proposals under section 94 or 95 of this Act, or give notice of proposals under section 175(3) or (4) of this Act, for a school to become a nursery school.

(2) Subject to subsection (1) above, proposals under sections 46, 47, 94, 95 or 175(3) or (4) of this Act may, in particular, be made for the purpose of securing the provision of education for junior pupils who have not attained the age of five years.").
The noble Viscount said: My Lords, this amendment was spoken to with Amendment No. 59. I beg to move.
On Question, amendment agreed to.
Lord Wilberforce Lord Wilberforce moved Amendment No. 246:

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Before Clause 221, insert the following new clause:
("Corporal punishment
.—(1) Without prejudice to section 47 of the Education (No. 2) Act 1986, no corporal punishment shall be given in any school which is inhuman or degrading or which would constitute an interference with the physical or moral integrity of the pupil concerned.
(2) In considering whether any corporal punishment comes within the description in subsection (1) of this section regard may be had to decisions of the European Court of Human Rights.").
The noble and learned Lord said: My Lords, in moving this amendment I wish also to speak to Amendments Nos. 269ZG and 287B which are government amendments. We are here dealing with corporal punishment in schools: a subject which was debated at good length in Committee on 10th May. I shall not go over the arguments again but I shall recapitulate the situation. When this Bill came before Parliament there was no reference in it at all to the subject of corporal punishment in schools. Therefore the position would have been that that matter would be regulated by the Education (No.2) Act 1986 which, putting it broadly, proscribed corporal punishment in the state sector while leaving it open to free decision in independent schools.
In that situation there were two new clauses introduced in Committee. The first, which was introduced by the noble Lord, Lord Henderson of Brompton, had strong cross-party support. It would have eliminated corporal punishment altogether in all schools, including independent schools. I then proposed an amendment which I hope I may term a three-quarter way house which did not proscribe corporal punishment altogether but proposed to do so in so far, and only in so far, as it would fall foul of the European Convention on Human Rights. As I explained, that convention does not ban all corporal punishment in education establishments but only bans it if it goes beyond a certain threshold of inhumanity.
The Government opposed the amendment of the noble Lord, Lord Henderson, as going too much against the principle of choice and independence. The amendment was put to a vote and was narrowly defeated on a large vote. I then proposed my amendment and the Government, in the person of the noble Lord, Lord Henley, said that they were favourable to the principle behind my amendment but did not like the express reference to the European Convention on Human Rights because they do not favour the doctrine of incorporation of that convention into our law. Therefore, I said that I would try to find a formula which had the same effect as my amendment without a direct incorporation of provisions of the European convention. I have tried to do that in Amendment No. 246 which contains the words "inhuman or degrading", which come from Article 3 of the convention, and "physical or moral integrity", which come, in effect, from Article 8.
Since then the Government late last week tabled Amendment No. 269ZG. I am sorry that that amendment was not tabled earlier because if it had been I might not have included my amendment. That amendment works in rather a different way. It works by way of amending the Education (No.2) Act 1986 instead of introducing, as my amendment does, a
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freestanding section. The Government's amendment is slightly difficult to follow as it is in the form of amendments to an existing text which your Lordships do not have.
The proposed new subsection (1A) of the Government's proposed new clause in Amendrnent No. 269ZG contains the words "inhuman or degrading". That conveys the same thought as Article 3 of the European Convention on Human Rights. The proposed new subsection (1B) of the Government's proposed new clause contains a reference to "mental and physical effects". Those latter words reflect the thought behind Article 8 of the European convention. I commend this alternative text to your Lordships as it achieves in substance, although in a somewhat different form, the same effect as I seek to achieve in my amendment.
I propose—subject to hearing what the noble Lord, Lord Henley, has to say, and other noble Lords who may hold different views—to withdraw my amendment in due course and to leave the field open to the government amendments which achieve the same result as my amendment.
Finally, I find the Government's amendments slightly difficult for lay people to understand. The provision will have to be administered by magistrates and county courts. I wonder whether the Government would consider helping them by inserting a Keeling schedule which would show the effects of the amendments in one text. I was very grateful to the noble Lord, Lord Henley, for sending me such a unified text, which I found very helpful in trying to understand the effect of the amendments. Without such a schedule, if the matter were simply left to an amendment in this way, the job of those seeking to administer the provisions would be more difficult. I beg to move.
Lord Henley: My Lords, as my name is down to the other two amendments in this group, perhaps I may speak briefly to my two amendments. I appreciate that two noble Lords wish to speak, and I do not deny their right to come in after me. Of course I shall respond in the usual way at the end of the debate.
As the noble and learned Lord, Lord Wilberforce, stressed, during the course of the debate on 10th May I gave an undertaking to the House to consider whether we might return at Report stage with amendments which would achieve the effect which the noble and learned Lord desired. These are the two government amendments which we now bring forward.
We remain of the opinion that parental choice should be respected as concerns corporal punishment of privately funded pupils in independent schools. We are, however, prepared to take steps to ensure that any punishment given does not lead to a contravention of Article 3 of the European Convention on Human Rights. The government amendment, Amendment No. 269ZG, is therefore designed to ensure that, where corporal punishment is being administered by a school, the punishment should not be inhuman or degrading—the words used in Article 3 of the convention.

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The amendment also sets out some considerations which need to be taken into account when determining whether such punishment is inhuman or degrading. These include the reason for administering the punishment, any delay between the offence and the punishment it brought about, the nature of the corporal punishment administered, the manner and circumstances in which it is given, the persons involved and its mental and physical effects.
I referred in the previous debate to the difficulties inherent in referring expressly in domestic legislation to the European Convention on Human Rights. The noble and learned Lord's amendment does not entirely remove those difficulties since we believe that his subsection (2) still comes slightly too close to express incorporation and so does not meet our concerns of principle. On grounds of practicality we also think it more helpful to users of the statute to give direct guidance as to the matters to be considered rather than to rely on reference being made to case law giving that guidance, which may not be readily accessible to courts around the country.
I note also the noble and learned Lord's point about it being rather difficult to interpret this particular amendment as it amends further legislation. I thank the noble and learned Lord for what he had to say about the letter I sent to him, and to one or two other noble Lords, explaining how the amendment works and setting out its relationship to the other legislation. I take note of his suggestion and I shall put it to those who advise me that we bring in a Keeling schedule later to give that effect.
We recognise the need for a similar amendment to Section 48 of the 1986 Act to cover the position in Scotland. We undertake to bring back a further amendment at Third Reading for that purpose. We shall also be discussing with colleagues the making of appropriate provision for Northern Ireland in due course.
We believe that the amendment that we propose secures the essential aims of the noble and learned Lord. I therefore commend it to the House.
I appreciate that the noble Lord, Lord Henderson, and others may wish to speak. I shall sit down at this stage and respond at the end of this short debate to any particular points which the noble Lord wishes to make.
Lord Henderson of Brompton: My Lords, I am grateful to both the noble and learned Lord, Lord Wilberforce, and the noble Lord, the Minister for what they have said. I wish particularly to thank the noble Baroness, Lady Blatch, for writing to me, and I believe to others, with her intent in regard to the amendment. It was most helpful that she gave in her letter a Keeling schedule. It helped me to find a way through the rather complex amendment, which I would not otherwise have been able to do.
As the noble and learned Lord, Lord Wilberforce, said, at Committee stage I and my colleagues from all parts of the House tried unsuccessfully to persuade the Government and the House to accept the straightforward, non-discriminatory solution of extending the existing abolitionist legislation in the Education (No.
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2) Act 1986 to cover all private school pupils. That solution would have had general support from organisations concerned with children's welfare and child protection, all of which strongly oppose any use of corporal punishment in institutions. It would also have had support from the reputable end of the independent sector which has no wish to retain corporal punishment or to have discriminatory legislation applying to it. Indeed, I gather that it is rather embarrassed that discriminatory legislation applies to it and would like to be disembarrassed of that legislation if possible. I believe that if the Government were of that mind such a step would receive a welcome from the private sector.
In addition, the amendment which I moved at Committee stage would have satisfied the spirit as well as the letter of the latest judgment of the European Court of Human Rights. In that judgment all nine judges—the majority as well as the minority—stated very clearly that:
"the Court did not wish to be taken as approving in any way corporal punishment as part of the disciplinary regime of a school".
The Government have disregarded that observation of the court. Instead of accepting that simple, popular and humane solution, as urged upon them by the noble and learned Lord, Lord Wilberforce, the Government have taken the minimalist approach. They have drafted a complex amendment intended to meet their commitments under the European convention.
I should like to reiterate the noble and learned Lord's plea for the insertion of a Keeling schedule so that he who runs may read. At the moment, one needs to be a retired Lord of Appeal in Ordinary to be able to understand what the Government have put in their complex amendment. I am also glad to hear from the Minister that legislation applying to Scotland will be incorporated on Third Reading.
The result is better than nothing, but only marginally. Article 3 of the Convention on Human Rights states that corporal punishment must not be "inhuman or degrading". But what of Article 8, which was mentioned by the noble and learned Lord in Committee, whose implications were also considered in the Costello-Roberts judgment? I find that an odd omission. Paragraph 36 of the judgment stated:
"The Court does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3".
To avoid potential breaches of Article 8, the amendment would need to refer to respect for the physical and moral integrity of the pupil, as did the amendment tabled by the noble and learned Lord, Lord Wilberforce, in Committee. I wonder why that is not incorporated in the Government's amendment.
What of the United Nations Convention on the Rights of the Child which the Government ratified in December 1991 and which states in Article 28(2) that the Government must ensure that school discipline is administered,
"in a manner consistent with the child's human dignity and in conformity with the Convention"?

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In conformity with the convention includes conformity with Article 19, which obliges the Government to protect children from,
"all forms of physical or mental violence".
I and my colleagues from all parties have not at this stage tabled amendments to the new clause to add respect for Article 8 of the European convention and Articles 28 and 19 of the United Nations convention, but we shall consider whether to do so on Third Reading. I hope that, as a result of the criticisms of the improved draft which the Government have put before the House, they will have second thoughts and adopt the logical approach, which is what we proposed in Committee, and extend abolition to cover all pupils. That happens to be simple, as against the complex solution which the Government have offered us, and is what the overwhelming majority of private schools want.
9.15 p.m.
Earl Attlee: My Lords, I regret that I was not present in Committee when the noble Lord, Lord Henderson, moved his Amendment No. 245. Unfortunately, I was sitting on the Committee dealing with the Leeds supertram at the time. I thought that it was far better to cut out corporal punishment altogether, and I regard the amendment moved by the noble and learned Lord as a second-best proposal.
Most noble Lords are considerably older than I am, and so my prep school memories are much more recent and vivid than theirs. What is the purpose of corporal punishment in schools? In Committee, the noble Lord, Lord Monson, suggested that the ultimate sanction of corporal punishment was for really serious bad behaviour. That assumes that corporal punishment deters genuinely bad behaviour. But does it? An independent school has the option to expel or suspend undesirable pupils. In that event the parents can find another school. If corporal punishment is very rarely used, for that reason alone it is degrading and humiliating. Once it is accepted as a sanction, who knows how often and how severely it will be applied? It is a secret world that no one knows a great deal about.
My greatest difficulty concerns the use of an implement for inflicting corporal punishment. In England the implement is normally a cane which is quite a vicious device. The reason for using an implement must be either to inflict more pain than can be achieved by hand alone or for the purpose of increased degradation and humiliation, or perhaps both. There are other reasons, which are even less palatable, and I shall address those later.
If the object of using an implement is to increase the level of pain over that achieved by hand spanking, weal marks will be left. If a child at a state school is found with such marks, the abuse procedure, according to DES Circular 4/88, will be implemented. That is something that has happened recently. The father concerned found himself in court, but I believe that he was acquitted. Parents have the choice of permitting that which they cannot do to their children themselves. The Minister may say that corporal
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punishment is not so severe that weal marks will result. If that is the situation, I repeat the question: why use an implement at all?
I should like to turn to the problem of over-severe or over-frequent punishment. There is remote chance of detection by the parents or authorities. Parents may approve of such treatment, although it is unlikely; or they may fondly imagine that corporal punishment is reserved for really bad behaviour—for example, setting fire to a haystack. In fact, their little mite may be being beaten for something like lamp-posting his friend's bed. Of course, I never did anything like that when I was at school. The child will not complain to his parents because he will assume that they approve, or he may know that they approve. He may not realise that his parents would not approve of punishment of excessive frequency or severity. The child will not complain to the police because of uncertainty as to reception of the complaint, ignorance of the law or possible further repercussions at school. The child will not complain to other teachers, again because he is uncertain of the reception that he will receive and because of repercussions. When the child reaches the age of 18, he realises, as I did, what he has been put through but, naturally enough, he wants to forget about it and so he does not proceed with the matter.
I should like to refer to an unpalatable topic that has not been mentioned by any noble Lord. It is well known that their are sexual connotations to this subject. One only has to look inside some London telephone kiosks for the evidence. Any headmaster or housemaster with immoral tendencies is able to indulge himself. There have been many reports, including one last week, of men who are in charge of children abusing their position of trust.
The headmaster at my prep school was as bent as the proverbial nine-bob note. To what extent, one may ask. In my case, fortunately, it was not very great. He suffered from a wandering hand, when I was washing at the basin or drying off at the bath; but the worst time was when he was about to punish me. I lived in constant dread of his wandering hand and of being punished. What of the other teachers? Is it statistically impossible that in the five years that I attended the school, they never caught him indecently assaulting one of the boys? My parents thought that I was homesick and they never knew the situation. I do not blame them. They made their choice and put their trust in the headmaster. I have already explained to noble Lords why a child who suffers in the way that I did is unable to cry for help.
The noble Lord, Lord Elton, at Committee stage, stated that corporal punishment had done him no harm. The noble Lord, Lord Dormand of Easington, pointed out the arrogance of that remark. The noble Lord is a very highly respected Member of your Lordships' House. But who is to say that the offender would not be even better without the benefit of corporal punishment?
With so few independent schools using corporal punishment one has to ask why the few which do so need to. It is vicious, degrading, humiliating, unnecessary and unhealthy. It should be completely banned everywhere in the UK. We should not rely on

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the European Court finally telling us that enough is enough. I implore the Minister to accept the suggestion of the noble Lord, Lord Henderson.
Baroness David: My Lords, I am extremely sorry that the noble Earl, Lord Attlee, was not present on the previous occasion on which we discussed the provision. We might have had his vote and he might have persuaded another five or six noble Lords to vote for the provision. We might have won, and that would have finished the matter. Therefore I regret that he was not present.
I thank the noble Baroness, Lady Blatch, for having sent me not only her amendment but also the clause as it would stand, so that it is much easier to understand the position. I am grateful to her for that. However, I still believe that it is misguided to have followed that route. In their determination to cling on to the right of some teachers in some schools to use some level of corporal punishment, the Government have characteristically taken the complex, illogical and unpopular route. (I do hope that noble Lords on the Benches opposite are listening; it does not seem as though they are.) The noble Lord, Lord Henderson, has already indicated that this "better than nothing" amendment does not even achieve its limited objective of satisfying international obligations under the European Convention on Human Rights and the United Nations Convention on the Rights of the Child.
The reason, we were told at Committee stage, for rejecting the simple and obvious solution of extending abolition to cover all pupils was respect for parents' rights—parents' rights to pay to have their children beaten. At Committee stage I quoted a letter from the Master of Haileybury, David Jewell, a former chairman of the Headmasters' Conference. Since that debate I have been sent a press cutting headed, "Caning for Lords' decision", in which Mr. Jewell argues that the narrow defeat of our attempt to abolish corporal punishment for all private school pupils was "a very great pity". He continues:
"I don't know of any reputable independent school that retains corporal punishment".
That surely should be the voice to which the Government listen. No reputable independent school allows parents to pay to have their children beaten.
We have not yet been told why Department for Education policy remains out of line with the established policy of the Children Act and the Department of Health that corporal punishment has no place in the child care environment outside the family home. How does the Minister explain that divergence? Allowing some level of corporal punishment to persist in obscure and isolated independent schools is a recipe for abuse. Have we not had enough scandals involving physical and sexual abuse of children in such schools to convince the Department for Education that they should stop defending this sordid practice altogether?
Like the noble Lord, Lord Henderson, I hope that even at this late stage the Minister will reconsider the matter and will listen in particular to the reputable voices in the independent sector. They do not want
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this last ditch defence of some level of corporal punishment. I hope very much that attention can be paid to what has been said today.
Lord Annan: My Lords, I thank the noble Baroness very much for responding to the initiatives of the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Henderson of Brompton. I am bound to say that I feel slightly like teasing the noble Lord, Lord Henley. In the good old days, of course before he can even remember, some of us ribald characters used to wait for the Conservative Party conference to note the response to motions of that conference to bring back the birch and, preferably, the cat if possible. I feel that something of the Old Adam is still there in the Conservative Party. There is a difference between the amendment of the noble and learned Lord, Lord Wilberforce, and that produced by the noble Baroness. The former amendment starts by saying that:
"no corporal punishment shall be given in any school which is inhuman or degrading".
The noble Baroness's amendment suggests, however, that corporal punishment is there but, of course, it must not be inhuman or degrading. I shall let that be. I welcome the noble Baroness's amendment and very much hope that the House will endorse it.
Before concluding, I wish to draw attention to a notable example of consistency on the part of the noble and learned Lord, Lord Wilberforce. Some of us well remember a much-loved Black Rod, General Sir Brian Horrocks. In 1945 he was in command of 30 Corps in Germany and he issued an order that any German youths who mocked or, indeed, stoned British troops or British vehicles should be summarily caned on the spot. Two weeks later, an instruction came down to the whole of the British zone saying that we had come to Germany to institute the rule of law and that summary punishment of this kind was totally against the rule of law. It was signed by Mr. Wilberforce, the head of the legal division in Berlin.
That is what the amendment is about. However much we shy away from it, there is a rule of law which exists in the European Community. We know perfectly well that it condemns corporal punishment and it is that rule of law which we ought to accept. Having said that, I go no further and will willingly vote for the noble Baroness's amendment.
9.30 p.m.
Lord Henley: My Lords, unlike the noble Lord, Lord Annan, I do not remember the Conservative Party conferences of old, probably back in the days when I was a Liberal—and look where that has got me.
I point out to the noble Earl, Lord Attlee and, for that matter, other noble Lords, and the noble Baroness, Lady David, that we had a full debate on this matter, or rather the wider matter, at Committee stage. The Committee then came to a decision, after considerable discussion and after I had said that I would come forward with an amendment on the lines of the milder version, as the noble Lord, Lord Henderson, put it at that time.

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The Committee then having come to that decision, I, like the noble and learned Lord, Lord Wilberforce, have also come forward with amendments which go some way—I appreciate that it is only some way—towards meeting some of the demands made by supporters of the amendment of the noble Lord, Lord Henderson.
Having said that, I must point out that we had a full debate on this and we were all, to some extent, of one mind. The example given by the noble Earl, Lord Attlee, was not really relevant to the debate we are having today. I suspect that the examples that he was giving, examples where weal marks were left which were highly visible, would almost certainly amount to punishment that was both inhuman and degrading.
Let me also say that I am grateful to the noble Lord, Lord Henderson, and the noble Baroness, Lady David, for their grudging—and I appreciate in the case of the noble Baroness, Lady David, even more grudging—thanks for both the amendment and the letter which my noble friend Lady Blatch sent to them.
Baroness David: My Lords, I do not want to disagree with the noble Lord but my thanks for the letter were not grudging at all.
Lord Henley: My Lords, it is not for me to say whose thanks were more grudging than others; I leave it for the HoLse to interpret the degrees of grudgingness that emanated from the mouths of both the noble Lord, Lord Henderson, and the noble Baroness, Lady David. I appreciate that our amendment does not go so far as the one which the noble Lord. Lord Henderson, moved in Committee. I do not intend to rehearse the arguments that we put forward on that occasion. I stress again that we believe that here there must be an element for parental preference where possible. The Committee, after considerable debate, decided not to accept the amendment of the noble Lord, Lord Henderson. We therefore brought forward our amendment which, as the noble Lord and the noble Baroness, Lady David, put it, was "better than nothing". That is the amendment that we bring before the House, and that is the amendment that I hope the House will accept later.
I make two further points. First, the noble Lord, Lord Henderson, asked whether we could consider a Keeling schedule, as did the noble Baroness, Lady David, in thanking us for the letter. As I said in response to the noble and learned Lord, Lord Wilberforce, at the beginning, that is certainly something that we shall consider, if it can be done and if it will be of use to those who have to interpret this new clause of the 1986 Act in due course.
As regards Article 8, I can only say that our view is that the Costello-Roberts case has left the matter unclear. Until the European Court has clarified that matter, there is in the Government's view nothing which can be usefully done to ensure compliance with Article 8 in this field.
I turn lastly to the United Nations Convention on the Rights of the Child, which the noble Baroness, Lady David, raised. We do not believe that this convention creates obligations as regards the use of
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corporal punishment in schools which go beyond those imposed by the European Convention on Human Rights. Therefore we see no need to amend domestic law in respect of the United Kingdom's international obligations. I wait to see what the noble and learned Lord will do. I hope very much that he will feel able to withdraw his amendment. I will then, in due course, move the two amendments in the name of my noble friend.
Lord Wilberforce: My Lords, if I thought that my amendment went any further in the way of giving effect to the European Convention on Human Rights than does the government amendment, I would certainly consider insisting upon it. But I do not believe that it does. I think it covers exactly the same ground, though in somewhat different language, as the government amendment. The only difference in language relates to Article 8. As the noble Lord has just said, the decision of the European Court is far from clear; and in any case Article 8 does not refer, as is suggested, to physical or moral integrity. It has a different language altogether of a much vaguer character. I do not think that it can be said satisfactorily or convincingly that Article 8 is reflected either in my amendment or in the government amendment, or could be reflected in any useful concrete language. I am quite satisfied that the government amendment goes as near as possible to giving effect to the European convention. I repeat that the European convention does not ban all forms of corporal punishment. The European Court has not set itself against all corporal punishment; it leaves an area open. That is the decision which the House made in Committee when it decided not to accept that whole-hogging amendment of the noble Lord, Lord Henderson. I am therefore willing to withdraw my amendment. I ask leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 223 [Publication of proposals by the Secretary of State]:
Lord Henley Lord Henley moved Amendments Nos. 247 to 250:
Page 138, line 22, leave out ("include particulars").
Page 138, line 23, at beginning insert ("include particulars").
Page 138, line 26, after ("school") insert ("or relate to a special school—
( ) include particulars").
Page 138, line 29, at end insert ("and
( ) if, in the case of a grant-maintained school, pupils are proposed to be admitted for nursery education, give the prescribed information").
The noble Lord said: My Lords, I move Amendments Nos. 247 to 250 en bloc. These were spoken to with Amendment No. 69.
On Question, amendments agreed to.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 250A:
Page 138, line 29, at end insert:
("( ) Proposals made under this section shall have regard to the principle that children with special educational needs should where possible be educated in schools which are not special schools.").
The noble Lord said: My Lords, I shall speak to this amendment and Amendment No. 279A extremely

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briefly. These amendments are put forward by way of probing amendments in the light of the changes the amendments to the Bill carried this time last week.
The purpose of the amendments is to see whether the Secretary of State will recognise responsibility for planning as he makes proposals for the establishment, alteration or discontinuance of schools, particularly in regard to special educational needs where the planning role in the Bill as amended is no longer important.
The Bill repeats the principle of the 1981 Act that there should be a preference for integration of the child. With this pair of amendments we seek to probe the Secretary of State's responsibilities which flow from the amendments passed last week. I beg to move.
Baroness Darcy (de Knayth): My Lords, I support very warmly this pair of amendments. I shall not repeat the speech that I have made at least twice on this Bill about the benefits of mainstream education to the individual child with educational special needs and the spin-off benefit to the ordinary child that derives from such daily contact.
The amendments seem very sensible. Given the Government's duty, albeit a qualified duty, to secure mainstream education for the individual child with special educational needs, the LEAs and the funding authorities should think and plan for integration in general terms to ensure its maximum possible success in the case of the individual child.
I should like to echo what the noble Lord, Lord Ponsonby, said about this amendment being linked to Amendment No. 206A, to which he spoke among a bunch of amendments last Monday. When I supported that amendment on 14th June I said:
"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".—[Official Report, 14/6/93; col. 1344.]
I hope that the Minister will agree to the amendments and perhaps feel that he can reunite them with the other one so that the triplets form part of the Bill.
Lord Renton: My Lords, I, on the other hand, hope that my noble friend will not agree. The effect of these two amendments would be to place an emphasis on integration; that is to say, for example, that mentally handicapped children would be required whenever possible to go to ordinary schools.
I apologise to your Lordships for repeating what I have said on more than one recent occasion—I speak with some knowledge as many noble Lords will know—namely, that if mentally handicapped children are sent to ordinary schools they are at a disadvantage and it can cause a psychological problem in addition to their mental handicap problem. Moreover, owing to the conscientious efforts of teachers to give special education to those who are mentally handicapped, trying to help them to catch up, on occasions it could be to the disadvantage of children who are not handicapped.
My noble friend Baroness Blatch, who possibly is not handling this amendment, knows that at Huntingdon there was a rather glaring case which illustrates the desirability of avoiding integration in
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those circumstances. There was a special school which taught about 30 mentally handicapped young people. It was built some time ago and I remember it being opened nearly 30 years ago. The premises were very badly in need of repair. The local authority thought that they would solve the problem by simply sending all the children into ordinary schools. The parents were furious. In fact, they paraded outside the door of their local MP (noble Lords may guess who that was). I am happy to say that under persuasion the local education authority changed its decision and made other arrangements so that those children could continue to be taught together. The compulsory or probable integration by way of sending them to ordinary schools was avoided. I hope that my noble friend who is to reply will try to avoid any such situation in the years to come.
9.45 p.m.
Lord Pearson of Rannoch: My Lords, I should like to support in the strongest possible terms what has been said by my noble friend Lord Renton. I do not want to re-run all of the arguments which have been advanced at this and earlier stages of the Bill. The amendment seems to me to perpetuate the presumption in favour of educating all special educational needs children in ordinary schools. Like my noble friend Lord Renton, I have to declare an interest as the parent of a mentally handicapped child. I am absolutely sure that that presumption is wrong in the case of mentally handicapped children, and therefore I oppose the amendment in the strongest possible terms.
Lord Addington: My Lords, I do not feel that there is as much antagonism in the Chamber on this subject as would appear from most of the discussions. Surely, what is important is the best interest of the child. Does the expression "where possible" exclude the idea of the child's best interests being the overriding consideration? Perhaps when the Minister comes to answer that can be dealt with. That is probably the most important issue. Certain children with special educational needs will benefit from integration; others will not. Even in the case of those who will not benefit it will depend on the period of time that they may need to be withdrawn from and put back into the special education system. The primary consideration on every count should be the best interests of the child.
I agree with those people who favour integration. It would be beneficial if all of them could be correctly taught in the mainstream. Referring to the group I know best, dyslexics, there are certain situations where, because the mainstream has not suited them they need a period of sheltered education. This is happening in a vast variety of spheres. I have yet to be given a very good reason why somebody in a wheelchair should not be in a mainstream classroom. There is virtually no reason why that should not be the case. Perhaps the Minister can tell us exactly what "wherever possible" means in terms of the best interests of the child. I feel that that should be the starting point.
Lord Henley: My Lords, the noble Lord, Lord Ponsonby, in introducing the amendment described it as a probing amendment. I find that rather extraordinary for an amendment that deals with some fairly well covered ground and has given rise to another shortish debate on the subject. As I and my noble friend have made clear on many occasions during the passage of the Bill, the Government are committed to the principle that where it is appropriate, practicable and consistent with the wishes of parents—a point that I underline—children with special educational needs should be educated in mainstream schools. We therefore have a positive and constructive policy on integration, but we recognise that some pupils will continue to need special schools; and in some cases parents of children with special needs will choose that form of provision. That must be a matter for them where it is practical and possible in line with their preference. There should be a wide range of provision in both mainstream and special schools for pupils with special educational needs. Therefore, there should be a healthy diversity.
In regard to Amendment No. 250A, Clause 223(4) makes clear that any proposals published by the Secretary of State under this provision will be accompanied by a statement describing the effect that the implementation of the proposals will have on provision at the school for pupils who have special educational needs. It is self-evident when the Secretary of State has a duty to provide such a statement, and when he has a policy to encourage integration, that he will consider in broad terms whether proposals under Clause 223 will affect such policies. We believe that Amendment No.250A in the name of the noble Lord, Lord Ponsonby, is therefore completely unnecessary.
As regards the noble Lord's second amendment, paragraph 3(2) of Schedule 2 provides in terms that the funding authority, when performing its duty to secure sufficient school places at stage 2, is to have regard to the need for securing that special educational provision is made for pupils who have special educational needs.
We have also pointed out to the House that the funding authority will, in future, have a considerable role in encouraging self-governing schools to apply for capital grants to secure better access for disabled people. That is something I made clear as long ago as Committee stage on 29th April.
Again, for similar reasons to those I have already adduced, we believe that Amendment No. 250A is superfluous. I therefore ask the noble Lord to withdraw the amendment.
Lord Ponsonby of Shulbrede: My Lords, when I introduced the two amendments as probing amendments I went on to say that they were probing amendments in the light of the defeat of the Government this time last week; that is, to look at the planning role for special educational needs provisions. I am sorry that the noble Lord, Lord Henley, failed to hear me say that.
The noble Lord has not addressed himself to the intent of the amendments and we have had a mini re-run of the full debate we had last week. I do not propose to pursue the matter but perhaps I may table
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an amendment at another stage making the intent slightly more clear. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved Amendments Nos. 251 and 252:
Page 138, line 31, leave out ("the") and insert ("a maintained").
Page 138, line 32, leave out from ("disregarded") to end of line 35 and insert ("and section 149(4) to (5A) of this Act applies for the purposes of that subsection as it applies for the purposes of Part II of this Act").
The noble Viscount said: My Lords, Amendments Nos. 251 and 252 were previously debated with Amendments Nos. 69 and 221. I wish to move them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 225 [Adoption of proposals and approval of related proposals]:
Viscount Astor Viscount Astor moved Amendment No. 253:
Page 140, line 49, leave out ("or Part II") and insert ("Part II or section 177").
The noble Viscount said: My Lords, Amendment No. 253 was spoken to with earlier amendments. I beg to move.
On Question, amendment agreed to.
Clause 226 [Supplementary provisions]:
Lord Henley Lord Henley moved Amendments Nos. 253A and 253B:
Page 141, line 14, leave out ("or implementing").
Page 141, line 19, at end insert:
("( ) Where—

(a) proposals made by the governing body of a voluntary school in pursuance of an order under section 221 or 222 of this Act are approved, or

(b) proposals adopted by the Secretary of State under section 225 of this Act have effect as mentioned in subsection (3) (a) (ii) of that section,

then, notwithstanding anything in section 13(5) of the Education Act 1980, the local education authority shall defray the cost of implementing the proposals.").
The noble Lord said: My Lords, these are no more than minor technical amendments to explain more fully the intended coverage of this subsection of the clause. Amendment No. 253A removes a reference to the LEA reimbursing costs incurred by the governors of voluntary schools in implementing proposals made in response to a direction by the Secretary of State, and Amendment No. 253B reinserts it in a slightly different form. Amendment No. 2538 also makes it clear that if any proposals of a similar nature made by the Secretary of State after the expiry of the appropriate period are implemented, the responsibility for defraying the costs will rest with the LEA in a similar way. I beg to move.
Lord Judd: My Lords, perhaps I may seek one point of clarification on Amendment No. 253A. As I understand it, the LEA has to pay for approved changes to voluntary schools. The original plan in the choice and diversity White Paper was to allow LEAs to make statutory proposals for necessary changes of character to voluntary schools. As I recall, that proposal was in the first print of the Bill. However, as the Minister indicated, it now seems to have changed.

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Perhaps the Minister could enlighten me as to how far the LEAs were consulted and what their reaction was. I have heard reports that they were not altogether on board in the arrangement, and that would be unfortunate. It would be helpful to have further information from the Minister.
Lord Henley: My Lords, at the present time I am not aware to what degree the local education authorities or associations concerning them were consulted on these matters. Perhaps it would be helpful for me to write to the noble Lord. I was not aware that they were not "on board" with regard to the amendments.
It was always our intention that the costs of implementing the proposals would be met by the local education authority. The amendment merely makes that more obvious on the face of the Bill. The proposals in question are for local reorganisation to remedy an excess in provision and should be seen in the context of the supply of places in the area as a whole. It is right, therefore, as was our original intention, that the LEA should bear the costs.
I was not aware that they were unhappy with the amendments but we do not anticipate any frequent resort to the powers. Only where surplus places in the area are excessive and sensible rationalisation proposals have not been brought forward will the Secretary of State have to consider issuing a direction. I hope that explanation is sufficient. If it is not, it is probably best that I write to the noble Lord.
Lord Judd: My Lords, before the Minister sits down perhaps I can say that it would be helpful if he were to write to me. The point in which I am specially interested is whether the LEAs were consulted about the arrangement to which they are to be a party and if not, why not?
Lord Henley: My Lords, whether or not they were actually consulted I cannot help the noble Lord. I have given an assurance that either I or my noble friend will write to the noble Lord on that point.
On Question, amendments agreed to.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 253C:
After Clause 226, insert the following new clause:
("Right to choose denominational education
.—(1) The Education Act 1944 shall be amended as follows.
(2) At the end of section 55(3) there shall he inserted "and
(b) to the wishes of a parent who, on religious grounds, desires that his child be educated in a school or institution of his denomination."").
The noble Duke said: My Lords, during the Committee stage an amendment standing in my name and that of the noble Lord, Lord Northbourne, sought to amend Section 55 of the 1944 Act. We did so because of the growing concern among the Catholic Bishops, the parents of Catholic children and, indeed, our colleagues in the Church of England in respect of their own schools that after nearly 50 years we perceived a likely erosion in the long-standing rights in the matter of home to school transport provision.
In her response, my noble friend the Minister said by way of introduction, to paraphrase the words of Huckleberry Finn: "we have been here before". We sure have.
In debating what was then Clause 53—it subsequently emerged as Section 55 of the 1944 Act, and although consequently amended, it still retains the very provision to which I am now making reference—the then President of the Board of Education, Mr. R.A. Butler, in a speech in the other place when moving a government amendment to the clause during Committee stage in May 1944 said:
"nor could I make it any clearer that it is our desire that children belonging to a particular denomination should go to a school of that denomination. That is the whole object of that clause".
Later, in response to a question, he stated of the clause:
"It is all for the purposes of enabling children to attend schools which are suited to the beliefs and desires of their parents. I can give a definite undertaking about that".—[Official Report, Commons, 9/5/44; cols. 1752-3.]
Noble Lords will note that I have done a lot of homework on this matter. We have moved some way from what was set out in my Amendment No. 191A. There have been some most useful exchanges and meetings with both my noble friend the Minister and her right honourable friend the Secretary of State, for which I thank them both very much. As a result, I have focused the debate expressly on the denominational provision as was so clearly the intent of the author of the 1944 Act, but in so doing I feel obliged to draw attention to the agreement or undertakings reached or given concerning the siting of so many of the schools.
It is an important point. They were sited, believing that the provision would be so and it was so, but that has now been reneged on. This amendment to Section 55(3) is, I would argue, a modest addition but one which fits well both with the undeniable intent of government when the transport provisions were first created, and with current needs. The amendment requires that a local authority shall have regard, in considering its transport arrangements, to a denominational preference, sincerely made. for a child to be educated in a school or institution of that denomination.
I should perhaps explain that, in referring to "institution", I am taking account not only of the revised wording of Section 55(1), following the passage of the Further and Higher Education Act 1992, but also of the existence of the Catholic sixth-form colleges. There are some 18 such sixth-form colleges, all of which were created as a consequence of Catholic secondary school reorganisations.
The catchment areas of these colleges are much larger than those of the former 11–18 schools; but in many instances the removal of sixth-form provision from the Catholic secondary schools concerned was accompanied by an agreement or undertaking that "home to school" transport costs would be met by the maintaining authority for the sixth-form pupils thus displaced. As I have mentioned previously, such arrangements were similarly made for many of our schools.
I have not pursued the more general points I made earlier, but I would hope that my noble friend the Minister might be minded to issue a timely reminder to all LEAs, setting out again the importance which the Government attach to the preservation of such agreements or undertakings.
We are only too well aware that, as the Minister remarked on 27th April:
"Free transport does not come cheap".—[Official Report, 27/4/93; col. 335.]
The figure of £350 million was quoted, representing, I believe, something of the order of 1.6 per cent. of the total education budget. Of that £350 million, almost a third is quite properly expended on a minority of pupils—namely, those requiring special education. But I should make it quite clear that our intention here is not to increase the transport cost total; it is to preserve the existing provision. We do not wish to increase it at all; we just want to have what was previously agreed.
I would wish to make one final point, and it is this. We would hope that local authorities would continue to meet the transport needs of those genuinely seeking to secure denominational education for their children in line with the terms of this amendment, but that the holder of the office of Secretary of State for Education would, as was set out in the Board of Education's explanatory memorandum, Cmd. 3492, December 1943, and again, I quote:
"deal with any cases in which transport facilities are unreasonably withheld".
That will be the duty of the Minister for Education.
That very point was reinforced in your Lordships' House when during the Committee stage of the Education Bill in June 1944, the then noble Earl of Selborne, speaking for the Government, said:
"I would also draw your Lordships' attention … that under Clause 53 the Government, for the first time, are taking power to direct authorities to provide transport where circumstances render it appropriate".—[Official Report, 22/6/44; col. 414.]
I beg to move.
10 p.m.
Lord Northbourne: My Lords, in supporting this amendment, I should like to draw attention to the fact that the references are to the amended 1944 Act—that is, as amended by the Further and Higher Education Act 1992, which also includes references to "institution". I do not think that I can add a great deal to what the noble Duke, the Duke of Norfolk, has just said.
Lord Harvington: My Lords, I am afraid that I cannot resist the temptation of being able to stand here tonight and say that I attended every sitting in another place when the 1944 Act was being considered and heard Rab Butler say the words which my noble friend the Duke of Norfolk has just quoted. What he has said was the Government's intention then. In supporting him, I say to my noble friend the Minister that I am sure she will understand that point and that we shall have to hear from her something that will be satisfactory not only to us, but also to the House.
Lord Dormand of Easington: My Lords, while supporting the amendment generally, I hope that the Minister will comment on the transport costs
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involved. I have received a letter from the director of my local authority, Durham, who in principle supports what is said. However, he draws attention to the great difficulties which will arise as a result of costs. He states:
"The costs of transport, particularly in a rural area such as Durham, are significant already. Durham spends over £6 million annually on school transport".
This is a serious matter. If the Government agree to the amendment, presumably the Minister will say whether extra money will be made available to local education authorities in the circumstances that have been described.
The Lord Bishop of Guildford: My Lords, although the issue is more for the Roman Catholic Church, it is becoming a problem within the Church of England. I hope that the Minister will respond positively to the amendment. I am sure that she recognises that the Churches have to carry out their own strategic planning in the geographical disposition of schools, which involves transport costs. I fully take the point raised by the noble Lord, Lord Dortnand of Easington. It is not our wish to increase these costs, although a realistic appraisal of the situation must be made. I hope that the matter can be considered positively.
Baroness Blatch: My Lords, I am grateful to my noble friend the Duke of Norfolk and to other noble Lords who have spoken, including the right reverend Prelate, for their diligence and forbearance with the Government on the matter of home-to-school transport to Church schools. My noble friend the Duke and his advisers have essayed various drafts of a form of words designed to capture the spirit of a policy on which we were in principle agreed. We have debated one or two of those drafts and we have discussed a number of others between debates.
I am happy to say that I can accept in principle the amendment which has now been tabled. Noble Lords will understand that the parliamentary draftsman will need to look at it. If in the light of that scrutiny my noble friend the Duke is able to table an amendment at Third Reading, the Government look forward to being able to accept it.
I should add for the record that the Government stand by the statement of policy which the department issued in its circular letter of 15th December 1981. Now, as then:
"the Secretary of State recognises that local education authorities are at present under pressures to make expenditure savings and that they are in consequence scrutinising all aspects of their provision. Moreover, since the circumstances of each authority vary widely, it must continue to be a matter for each authority to decide what policies to adopt in respect of travel to and from school."
The circular letter went on to make a point to which I know my noble friend the Duke attaches particular importance. It stated:
"Most local education authorities give assistance with transport or travel expenses to pupils attending the nearest voluntary school of the parents' denomination if it is beyond the statutory walking distance. The Secretary of State hopes that local education authorities will think it right not to disturb well-established arrangements of this kind, some of which have been associated with a local agreement or undertaking about the siting of voluntary schools. The Secretary of State attaches importance to the preservation of

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the opportunity to choose a school in accordance with religious convictions which is provided by the presence of voluntary schools in the maintained system of education".
In answer to the noble Lord, Lord Dormand of Easington, perhaps I may repeat and emphasise what was said by the right reverend Prelate; that there is nothing in the amendment that increases expenditure. It asks local authorities to think very hard when they consider transport policies, because, historically, meeting denominational choice has long been an important objective in the provision of local government transport. That is not to say that there are not tensions; there always are, and transport costs are high for local authorities. However, they have honoured the principle not just to the letter throughout the years and I believe that my noble friend the Duke is hoping that they will continue to think seriously about denominational choice.
I am happy to reaffirm the Government's commitment to the words which I quoted. I hope that, in the light of my undertaking, we can settle the issue with an appropriate amendment at Third Reading.
The Duke of Norfolk: My Lords, the noble Baroness has made me a very happy Member of your Lordships' House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 227 [Incorporation of governing bodies]:
Lord Henley Lord Henley moved Amendment No. 253D:
Page 142, line 29, at end insert:
("( ) The application of the seal of any such governing body must be authenticated by the signature—

(a) of the chairman of the governing body. or

(b) of some other member authorised either generally or specially by the governing body to act for that purpose,

together with the signature of any other member.
( ) Every document purporting to be an instrument made or issued by or on behalf of any such governing body and—

(a) to be duly executed under the seal of the governing body, or

(b) to he signed or executed by a person authorised by the governing body to act in that behalf,

shall he received in evidence and be treated, without further proof, as being so made or issued unless the contrary is shown.").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 253E to 253R. The amendments are to Clause 227 and Schedule 12 and are largely of a technical nature.
Amendment No. 253D affects Clause 227. It provides a procedure for incorporated governing bodies to affix their seal to documents and thus to execute them in their corporate name. The circumstances in which the incorporated governing body of a LEA-maintained school will need to affix its seal to a deed or document will be rare. But it is right that the Bill should provide for such circumstances.
Amendments Nos. 253E and 253F are technical and simply provide for greater precision in the wording of paragraphs 4 and 5 of Schedule 12.
Amendments Nos. 253G to 253Q also affect Schedule 12. I shall deal with them in two groups. The first group covers Amendments Nos. 253G to 253M.
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In tabling these amendments we are fulfilling our undertaking to the right reverend Prelate the Bishop of Guildford during Committee. We undertook to provide that Schedule 12 would treat land and other property of incorporated governing bodies of voluntary schools in a similar way to those of county schools. I trust that this group of amendments is acceptable to the right reverend Prelate.
The second group of amendments to Schedule 12—Amendments Nos. 253N, 253P and 253Q—serves a technical purpose. The Bill does not at present deal with the effects on land and other property, rights and liabilities attributable to governing bodies in all the various circumstances which might arise when a governing body conducting a group of schools is dissolved, or when a school leaves an existing group or discontinues but the group remains. I shall briefly outline the principles behind these amendments.
The first set of circumstances arises where a governing body of a group of schools dissolves. Land and other property of the governing body held for the purpose of a particular school will, if the school continues, transfer to its new governing body in accordance with the Instrument of Government. If the school does not continue, the Instruments of Government of the continuing schools may provide that the land and other property held for the purpose of the discontinued school should transfer to the governing bodies of the continuing schools. Instruments of Government may also provide for land and other property held collectively for all the schools in the former group to transfer to the continuing schools. Rights and liabilities will be treated in the same way as land and other property.
Where the governing body of a group of schools does not dissolve, the circumstances may arise where a school leaves the group. Any land and other property held for the purposes of that school would transfer to its new governing body. It may also happen that a school within an existing group closes. In those circumstances, the land and other property held for the purposes of that school would be held by the governing body for the purpose of the remaining schools in the group.
Those principles do not apply to property held by a governing body on trust for the purposes of a voluntary school which discontinues. Such land and other property would transfer to the trustees of the school.
I shall now turn to Amendment No. 253R on data protection and land registration. The effect of the first part of the amendment would be that existing registrations by governing bodies would automatically transfer to the new incorporated governing body on incorporation under Clause 227. The amendment will therefore obviate the need for the incorporated governing bodies of over 20,000 schools to apply for fresh registrations under the terms of the Data Protection Act.
Lastly, I should like to mention briefly the dual use of school premises provisions of Schedule 12. The Sports Council has suggested that it would be helpful to make a further amendment to those provisions, the effect of which would be to give legal effect to transfer

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of control agreements that have been made by LEAs with the consent of governing bodies, although, through oversight, the governors may not have been a formal party to the agreements. The House should be aware that I am considering this suggestion and propose, if appropriate, to bring forward further amendments at Third Reading. I beg to move.
10.15 p.m.
Lord Ponsonby of Shulbrede: My Lords, in relation to the present group of amendments, can the noble Lord confirm that on no occasion will any property be returned to the local education authority? In other words, can he confirm that, if a local education authority has put money into a voluntary school, when such a school comes to be wound up it will not regain any of that money because it will go to the trust, the Church or whatever?
Lord Henley: My Lords, where appropriate, there could be instances where property returns to the local education authority. There is nothing in this particular raft of amendments that precludes it.
The Lord Bishop of Guildford: My Lords, in so far as some of the amendments do indeed meet the points that we raised with the Government, I should like to express our gratitude to them for meeting our concerns.
On Question, amendment agreed to.
Schedule 12 [Incorporated governing bodies for county, voluntary and maintained special schools]:
Lord Henley moved Amendments Nos. 253E to 253R:
Page 212, line 54, leave out ("them") and insert ("that body").
Page 214, line 43, leave out ("them") and insert ("that body").
Page 217, line 23, after ("of") insert ("( )").
Page 217, line 24, leave out first ("school") and insert ("voluntary").
Page 217, line 25, after ("conduct") insert ("or
( ) in the case of a governing body conducting two or more such schools, the discontinuance of each such school conducted by them").
Page 217, line 28, leave out from ("are") to end of line 30 and insert ("so dissolved").
Page 217, line 37, at end insert:
("( ) Sub-paragraphs (1) and (2) above do not apply to any land or other property held by the governing body on trust for the purposes of a voluntary school; and any such land or other property so held shall be transferred to and, by virtue of this Act, vest in the trustees of the school").
Page 217, line 38, leave out paragraph 10.
Page 217, line 47, at beginning insert ("This paragraph applies").
Page 217, line 47, leave out ("so dissolved") and insert ("dissolved by virtue of paragraph 8 above").
Page 217, line 49, leave out from ("and") to end of line 5 on page 218 and insert:
("(2) Where none of the schools in the group are discontinued, then in the case of each school formerly a member of the group—

(a) all land and other property which, immediately before the date of dissolution, was property of the governing body used or held for the purposes of that school, and

118

(b) all rights and liabilities of the governing body subsisting immediately before that date which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body of the school in accordance with the order providing for the instrument of government for the school.
(3) An order made by virtue of sub-paragraph (2) above may provide that—

(a) the whole or any part of any such land and other property which was property of the governing body used or held for the purposes of the schools in the group, and

(b) any such rights and liabilities of the governing body which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body of the school.
(4) Where not all of the schools in the group are discontinued, then in the case of each school formerly a member of the group which is not discontinued—

(a) all land and other property which, immediately before the date of dissolution, was property of the governing body used or held for the purposes of that school, and

(b) all rights and liabilities of the governing body subsisting immediately before that date which were acquired or incurred for those purposes.

shall be transferred to and, by virtue of this Act, vest in the new governing body of the school in accordance with the order providing for the instrument of government for the school.
(5) An order made by virtue of sub-paragraph (4) above may provide that—

(a) the whole or any part of any such land and other property which was property of the governing body used or held for the purposes of any school which is to be discontinued or the schools in the group, and

(b) any such rights and liabilities of the governing body which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body of the school.
(6) Sub-paragraph (5) above does not apply to any land or other property held by the governing body on trust for the purposes of a voluntary school; and any such land or other property so held shall be transferred to and, by virtue of this Act, vest in the trustees of the school.
.—(1) This paragraph applies in relation to the governing body of two or more schools grouped in pursuance of a resolution under section 9 of the Education (No. 2) Act 1986.
(2) Where one or more schools conducted by the governing body discontinue but the governing body are not dissolved by reason of the discontinuance, then in the case of each school formerly a member of the group which is discontinued—

(a) all land and other property which, immediately before the date of dissolution, was property of the governing body used or held for the purposes of that school, and

(b) all rights and liabilities of the governing body subsisting immediately before that date which were acquired or incurred for those purposes,

shall be held by the governing body for the purposes of the schools in the group.
(3) Sub-paragraph (2) above does not apply to any land or other property held by the governing body on trust for the purposes of a voluntary school; and any such land or other property so held shall be transferred to and, by virtue of this Act, vest in the trustees of the school.
(4) Where, in the case of one or more schools conducted by the governing body, new governing bodies are constituted under the Education (No. 2) Act 1986 to conduct those schools but the governing body are not dissolved by reason of the constitution of such bodies, then in the case of each school formerly a member of the group—

(a) all land and other property which, immediately before the date of dissolution, was property of the governing body used or held for the purposes of that school, and

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(b) all rights and liabilities of the governing body subsisting immediately before that date which were acquired or incurred for those purposes,

shall be transferred to and, by virtue of this Act, vest in the new governing body of the school in accordance with the order providing for the instrument of government for the school.").
Page 218. line 14, at end insert:
(".—(1) Where personal data are transferred under section 227(3) of this Act to a governing body incorporated by virtue of that section—

(a) any entry made in respect of the governing body constituted immediately before the appointed day as a data user in the register maintained under section 4 of the Data Protection Act 1984, or

(b) any application for registration as a data user made by that body under section 6 of that Act,

shall have effect as if it were made in respect of or, as the case may be, by the governing body so incorporated.
(2) Expressions used in sub-paragraph (1) above and in that Act shall have the same meaning in that sub-paragraph as in that Act.
Where a transfer under section 227 of this Act or this Schedule relates to registered land, it shall be the duty of the transferor to execute any such instrument under the Land Registration Acts 1925 to 1986, to deliver any such certificate under those Acts and to do such other things under those Acts as he would be required to execute, deliver or do in the case of a transfer by agreement between the transferor and the transferee.").
The noble Lord said: My Lords, I spoke to these amendments when I dealt with Amendment No. 253D. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 229 [National Curriculum]:
[Amendment No. 254 not moved.]
Viscount Astor Viscount Astor moved Amendment No. 254A:
After Clause 229, insert the following new clause:
Temporary procedure for making certain orders
(".—(1) Where this section applies in relation to any proposals by the Secretary of State to make an order under section 3(4) or 4(2) (a) or (b) of the Education Reform Act 1988 (orders relating to foundation subjects, key stages and attainment targets), or regulations under section 17 of that Act (exceptions from National Curriculum)—

(a) the Secretary of State shall make such arrangements for consultation about the proposals as he considers appropriate, and

(b) sections 20 and 21 of that Act (procedure for representations in relation to England and Wales) shall not apply.

(2) Where, at any time after the commencement of this section and before 1st September 1996, the Secretary of State proposes to make such an order or such regulations, this section applies in relation to the proposals unless, at any time before the commencement of this section—

(a) they were referred under section 20(2) of that Act, or

(b) notice of them was given under section 21(2) of that Act.

(3) Where the Secretary of State proposes, at any time on or after 1st September 1996, to make such an order or such regulations. this section applies in relation to the proposals if arrangements under this section for consultation about the proposals were made before that date.").
The noble Viscount said: My Lords, the above amendment was spoken to with Amendment No. 244J. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 254B to 254J not moved.]
Lord Stallard Lord Stallard moved Amendment No. 255:
After Clause 229, insert the following new clause:
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("Sex Education
.—(1) In the Education Reform Act 1988, at the end of section 4(2) (duty to establish National Curriculum by order) there is added—
"provided that—

(a) no programme of study specified in or pursuant to any such order shall include study of any sexually transmitted disease, and

(b) if such study has been included in any such programme such inclusion shall be of no effect."

(2) in section 18 of the Education (No. 2) Act 1986—

(a) in subsection (2) for "every such school" there is substituted "every primary school"; and

(b) after subsection (2) there is inserted—

"(2A) The articles of government of every secondary school shall provide for it to be the duty of the governing body—

(a) to ensure (while having regard to the local education authority's statement under section 17 of this Act) that sex education, including study of sexually transmitted diseases, forms part of the secular curriculum for the school; and

(b) to make, and keep up to date, a separate written statement of their policy with regard to the content and organisation of the relevant part of the curriculum.".

(3) In subsection (3) of that section, there is inserted at the end—

"(d) If a parent of any registered pupil at the school has strong objections on religious grounds to that pupil being taught in accordance with any programme of study included in the secular curriculum of the school pursuant to subsection (2) or (2A) of this section and requests the headteacher of the school in writing that the pupil be excused from that programme, then to ensure that the pupil is excused accordingly."

(4) In section 46 (sex education) of that Act after "sex education" there is inserted—
", including study of sexually transmitted diseases,".").
The noble Lord said: My Lords, the above amendment also stands in the names of the noble Earl, Lord Halsbury, the noble Lord, Lord Stoddart of Swindon and the noble Earl, Lord Perth. Before I begin, I should like to point out that one of the original sponsors, the noble Baroness, Lady Cox, has had to absent herself from the proceedings because she has been called away on a special mission to deliver a consignment of medical supplies to Nagorno Karabach. I am sure that the House will understand why she is unable to be here. Much as we would have liked to see her this evening, I believe that she is probably more needed there. We wish her God speed and much success.
Having said that, I return to the amendment. Since the 1944 Act was passed there have been 18 major education Bills. In fact, it has become the norm for all new Secretaries of State to introduce a new Bill, with hundreds of regulations and scores of secondary pieces of legislation to support it. It is no wonder, therefore, that our education system appears to be in a permanent state of confusion and frustration.
It is true that sex education was discussed in many previous Bills. However, I do not intend to concentrate on those of the past, except for those that are immediately relevant to the present amendment. As regards a little history, Clause 18 of the 1986 Act granted school governing bodies the right to decide whether or not sex education should be taught in their

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schools and, if so, what form and content such sex education should have. Clause 46 of that Act was quite clear. It stated:
"The local education authority by whom any county, voluntary or special school is maintained, and the governing body and head teacher of the school, shall take such steps as are reasonably practicable to secure that where sex education is given to any registered pupils at the school it is given in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life".
The Department of Education Circular 11/87 dated 25th September 1987 gave (in paragraph 9) a right to parents, subject to the discretion of governors, to withdraw their children from any sex education to which they may have religious objections. Therefore, under the 1986 Act there was—and, indeed, there still is—some governor and parent involvement in the content, the method and in the right to withdraw.
Without exception, those provisions were working satisfactorily until, in 1988, the Education Reform Act introduced the national curriculum. Certain elements of sex education were included in the science curriculum and became compulsory. So the rights of parents and governors granted only a few months before in September 1987 were already eroded by the beginning of 1988.
In 1991 the science curriculum was again revised. Normal consultation was carried out. However, at the last possible stage, almost at the end of the consultation period when the final consultation was about to take place, the then Secretary of State made teaching about HIV and AIDS compulsory for all 11 to 14 year-old children in state education. To achieve this five words were obscurely inserted in brackets in the middle of a sentence within a bulky 40-page document. Given all the legislation and regulations that pass through Parliament it is no wonder that that provision was missed by most Members in both Houses. However, a number of Members in another place spotted it and they tried to have the matter debated but to no avail. I should have thought it is almost an abuse of secondary legislation constantly to override primary legislation, as was happening in this case. The secondary legislation of 1988 and 1991 was quite clearly overriding the firm commitments given in the primary legislation of the 1986 Act.
In March 1992 the noble Earl, Lord Liverpool, raised the matter in a Starred Question in your Lordships' House. He commented on some of the material being used in school lessons. A lively and interesting debate ensued on that occasion and it was evident that many noble Lords in all parts of the House were deeply apprehensive about the fresh dangers such teaching would present to school children.
On 6th May 1992 I tabled a "Motion to resolve", calling for an amendment to the order, to provide for consultation between parents, teachers and governors and to provide for the insertion of a Christian conscience clause. After an excellent debate the Minister promised to acquaint the Secretary of State with the views expressed so that he could carefully consider the concerns that had been mentioned and how or whether they could be met. However, because of apparent inaction on the part of the department, a
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number of honourable and right honourable Members in the other place decided to try to amend this Bill. An all-party group of Members of Parliament tabled a new clause and an amendment covering the issues raised by concerned parents, teachers and religious groups. But neither the clause nor the amendment was selected for debate. Those of us who have served in another place know that that is the end of that.
We return again to this important subject of sex education. We had an excellent two-hour debate on the subject during the Committee stage of the Bill when I and other noble Lords introduced some amendments to try to meet the concerns of many parents about the arrangements for sex education in the light of the Government's science order which made education about HIV and AIDS compulsory within the national curriculum. Since that Committee stage I have thought long and hard about whether to raise the issue again. I have decided to do so for two reasons. First, I have received a great deal of correspondence, and I have received a great deal of support and encouragement from it. Secondly, I have also received masses of recommended material that is being used in some cases in classrooms to teach sex education.
I also raise this matter again because I believe I can meet many of the concerns that were expressed in Committee and provide the Government with a better, simpler solution to this issue than the Civil Service platitudes on which the Minister largely had to rely in Committee. I should emphasise that I believe the noble Baroness is personally concerned about this issue. She has been extremely kind and thoughtful as I have made life difficult for her in constantly raising this issue over the past year. However, like all government Ministers, she is constrained by previous decisions and by her Civil Service brief.
I have also read again the Government's draft guidelines and my verdict on them has changed little. I believe they are excellent in terms of the controls they propose on the content of sex education but extremely weak as regards simple procedures and clear arrangements for governors and parents. The amendments we are now discussing seek to sort out those procedural difficulties.
First, they make sex education compulsory in all secondary schools. Sex education will, as under the 1986 Act, be under the control of governing bodies, but it will no longer be an option. Previously secondary schools could decide to have a policy on sex education which amounted to: "We will have no sex education". In future that would not be possible if the amendments are passed. For primary schools the situation will not change. Sex education will remain voluntary. I believe that that is appropriate, given the younger age of children attending primary schools.
Secondly, the amendments specifically require secondary schools to provide education about sexually transmitted diseases, but within the framework of compulsory sex education rather than the national curriculum. The important point here is that I have sought to meet the desire of many people in this House that education on HIV and AIDS in particular

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as well as other sexually transmitted diseases should be given in all schools. My amendment ensures that that will happen but has shifted such education from the national curriculum, which many people believe is overloaded anyway, to the new compulsory sex education element of the curriculum. I have ensured that such education will have priority because it is specifically mentioned in the amendment.
Thirdly, I have established a new statutory right for parents to withdraw their children from sex education lessons. That builds on a discretionary right of withdrawal given in the old guidelines—11/87—which state that the governors:
"will also have the discretion to accept or reject requests from parents for their children to be withdrawn from any sex education to which they object. There is no statutory right for parents to cause their children to be withdrawn from sex education provision. However, some parents will have strong objections on religious grounds to their children receiving sex education and governing bodies should fully appreciate this in exercising their discretion".
That provision is already in existence. Therefore, I was intrigued that the new draft government guidelines make no mention of any right of withdrawal or even discussion of the matter. That seems strange when it has already been in existence for the past six years. I simply repeat it, in exactly the same words, while the new circular omits it. It does not seem to add up. I believe that that is so because civil servants recognise the inconsistency between having a possible arrangement allowing parents to withdraw their children from some sex education lessons outside the national curriculum and no right to withdraw them from lessons within the national curriculum. To avoid the inconsistency they decided not to mention it at all. I said at Committee stage that that was a backward step and I still believe that to be true.
I shall not go over all the arguments—although I would love to—as to why I believe a statutory right to withdraw is so important. However, I stress that by taking education about sexually transmitted diseases outside the national curriculum I have ensured that if parents withdraw their children from sex education lessons no precedent is established for withdrawal from other elements of the national curriculum. What I propose is much closer to the arrangements currently in force for religious education where the right of withdrawal exists. I support that entirely.
I am supported in my views by a letter I received this morning from the Conservative Family Campaign. I can do no better than quote from that letter, which states:
"There are deep parallels between sex education and religious education, and there can be no doubt that similar principles of withdrawal on religious grounds apply. It cannot be right that parents be forced by legislation into exposing their children to material to which in conscience they hold deep objection. This is a rare opportunity to address this scandal and I hope and pray that you and your Lordships' House will seize it, to the benefit of all our nation's children"
I simply add that I do not envisage that such a right would he exercised frequently—it has not been all the time that it has existed. However, by creating such a right we would be giving comfort to many parents who are anxious, and establishing a backstop
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provision which could be used on what one hopes will be the rare occasions when something goes badly wrong with school sex education policy and practices.
I stress that by making sex education compulsory outside the national curriculum and increasing the importance of governors I am not removing the opportunity for standardising the curriculum on these matters. It is open to the School Curriculum and Assessment Authority to issue guidelines, after discussion, to schools about how sex education might be taught. It has that right. That could build upon the experience within the national curriculum and outside it, and ensure that such education is of a high standard. We talk about a high standard: we have been flooded with all kinds of material from various education authorities. I should love to be able to go through it all, but I shall take just one example. At age eight children should be able to talk about and discuss the following questions. There is a whole list of questions, and I am picking out just a few.
"How do you get AIDS? How do children get AIDS? Why do you need a condom? Could my mum or dad have AIDS?"
Then, when he or she is nine:
"What makes the penis go hard? What is a period? If you are HIV positive, does it mean you have to get AIDS?"
That is age nine. At 10, of course, it gets even better:
"Sexuality - what is it and what words describe it? Does sex always lead to having a baby? Discuss that question. When is it OK for people to touch me? When is it OK for me to touch other people?"
The document becomes more and more bizarre as it goes on. Then, at age 11:
"Why are girls called 'slags' and boys called 'studs'?"
I must say that I do not know the answer to some of those questions. Then:
"Can a girl get pregnant when she is having a period? Contraception: how does contraception work? Whose responsibility is it? Can you get addicted to the pill? What does the coil do? Where can you get confidential advice?",
that is, if one cannot get it at home. It goes on and on. I shall not go any further. There is enough there to give your Lordships the flavour of the material that is being recommended for teaching in schools.
I said that the SCAA should issue guidelines, but in fact that is a matter of urgency, if we, governors and parents, are to have any control over the kind of material that is being taught.
The only bright thing on the horizon comes from correspondence I received from America which says that there is a group there which has become aware of the fact that the kind of sex education that I have just read out, and which has been permitted there for many years now, is counter-productive. A new movement has sprung up and is gaining in momentum, as far as I can see. It is described as the abstinence movement. That is not a joke, because abstinence is a serious matter to most of us. It is said that:
"American schoolchildren are learning the A to V of a new kind of sex eduction—A for abstinence and V for virginity … Students are being told to 'just say no', in an estimated 5,000 of the country's 16,000 districts, according to the National Association for Abstinence Education … In California, teenagers following a course called Sex Respect chant a 'chastity pledge'—'Do the right thing! Wait for the Ring!'—while in New York the city school board, which earlier this year voted to hand out condoms in schools"—

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something one of our junior Ministers not long ago suggested should happen here—
"has just demanded that health educators going into schools to teach about AIDS must sign a commitment to emphasise abstinence over safe sex in their classroom presentation … It teaches students that 'the only safe sex is no sex,' and stresses the fallibility of contraception and the consequent risks of AIDS, sexually transmitted diseases and teen pregnancy. It emphasises traditional family values, and the benefits of idealism and self-discipline".
We copy so much that comes from the United States, so would it not he a good idea to copy some of that instead of some of the stuff that I have read out earlier?
I therefore commend these amendments to the House. They have the advantage of simplicity and
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ensure that no longer will there be any confusion about the responsibility of governing bodies for different parts of the curriculum. I believe that they will help schools better plan their sex education in an integrated policy. They will ensure better education about HIV and AIDS and other sexually transmitted diseases by highlighting them in that way. Finally, I believe that they give additional responsibility to parents. Above all, sex education must be a partnership between parents and schools. The approach I propose in these amendments better achieves that partnership than the current arrangements. I beg to move.
Lord Pearson of Rannoch: My Lords, I should like to support Amendments Nos. 255 and 289B because I am among many of your Lordships who were angered when we discovered that what we regarded as over explicit AIDS education had somewhat surreptitiously appeared in the national science curriculum for 11 year-olds. We had assumed that AIDS and the detailed sexual topics which can accompany that problem would be discussed at a somewhat later stage in the curriculum.
I specifically support these amendments this evening because I have been sent some teaching manuals other than the ones mentioned by the noble Lord, Lord Stallard, which deal with sex education. I think it is worth putting on the record, by way of example, some passages of a teaching manual called Knowing Me—Knowing You, which describes itself as "Strategies for Sex Education in the Primary School". This manual was published in 1990 and was reprinted in 1991, which is an indication that it may be fairly widely in circulation. Indeed, I am advised that it is fairly typical.
The manual is published by an organisation called LDA, of Wisbech in Cambridgeshire, and I make no criticism of that organisation; indeed, from its general catalogue I would say it appears to produce some perfectly respectable teaching materials. But as regards health education, including AIDS and sex education, some of its material appears distinctly worrying. So I mention Knowing Me—Knowing You because it is very disturbing in its attitude to sex education. It reveals that there is still an element, perhaps a strong element, in our teaching fraternity that wishes to discuss some aspects of sex education with children whose age indicates that they may not be ready for them.
The manual also demonstrates a distinctly cavalier approach to the interpretation of the law on sex education. For instance, in Part 6, Clause 28 of the 1988 Local Government Act is discussed. The manual rightly draws the distinction between the promotion of homosexuality in primary schools, which is outlawed by the 1988 Act, and the discussion of homosexuality, which, I suppose, may be unavoidable. But I take issue with the manual when it advises as follows:
"Whilst the law does say that local authorities may not support anything which promotes or encourages homosexuality, this does not apply to sex education in the school curriculum. This means that teachers may give information and allow discussion about it."
The manual then goes on to show how discussion on homosexuality can get round the terms of the 1988 Act. Indeed, page 153 of the manual shows how. The manual discusses the provisions of the 1986 Education Act as follows:
"In doing this, we must be aware of the law. In the 1986 Education Act we are told that children need to be taught about sex in such a manner as to encourage those pupils to have due regard to moral considerations and the value of family life.
Unfortunately, those who worded the Act omitted to go on to explain what they meant by a family. It might be comforting to have in mind the idea of a nuclear family—mum, dad and a couple of children—when we are talking about families in the classroom, but it would not be realistic and it might well be downright offensive to some. There may be a few geographical areas left where the majority of families are of the type already mentioned, but they are decidedly not
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in the majority when we look at the country as a whole. Statistics show that one family in seven is now headed by a single parent."
I do not know what your Lordships will make of the mathematics of the authors of this paper, but the content as far as this amendment is concerned must be deeply disturbing.
I should have thought that your Lordships had precisely the normal family in mind when this House passed the wording of the 1986 Education Act and the 1988 Local Government Act—and how right you were. Much of the rest of Part 6 of the manual, which is entitled "What's Love got to do with it?", goes on to undermine the intentions of the 1986 and 1988 Acts.
It is perhaps too late in the evening to quote more of this manual, but I would be happy to put a copy in your Lordships' Library so that your Lordships may read Part 6 at your leisure. I do know that one widely used manual does not make a failing system, and I am sure we are all very grateful for that.
There is much other material in a similar vein, some of which the noble Lord, Lord Stallard, has mentioned and more of which I have with me now, and other noble Lords may wish to refer to it. But I believe that it all lends support to the wisdom of these amendments and so I very much hope that the Government can accept them.
Lord Addington: My Lords, I admire the way in which the noble Lord, Lord Stallard, presented the amendment and the courteous way in which he informed me of what he was going to do, explaining his reasoning to me. However, I cannot agree with him for one simple reason. I regard the rights of young people—the pupils, the children—as being paramount to the rights of their parents. I believe that they have the right to this information.
When one makes a moral point one is immediately immoral if the other person does not share one's moral starting point. We are all waiting to hear the Minister state exactly what she believes the correct position to be. I cannot think of any excuse why children should not have the information at puberty because that is when sexuality becomes a real issue for the vast majority of them.
We have heard much about what are deemed to be acceptable standards of behaviour and, as the noble Lord, Lord Pearson of Rannoch, stated, acceptable families. Indeed, there are single parent families. I was raised in one myself. Therefore the moment we suggest certain norms that should be taught we shall offend someone. Present the facts, my Lords. The moment one starts to present opinion—be it politically correct or religiously based—one will always offend someone. One must merely ensure that those young people have the facts available to them. If the moral standpoints are present in the home they will have effect if the child is receptive to them. If they are not, the moral objections will not matter.
In our society everything from coffee to cars is sold through sex appeal. Sexuality is part of our art and culture. We cannot avoid it. Indeed, one would have to live on the top of a mountain somewhere to avoid knowing what sex is in our society. Therefore let us

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provide the facts. We have had an example of a campaign of abstinence. That may possibly be the way in which one will be absolutely 100 per cent. safe—yes, that is true. But I cannot think of any period in history when abstinence has been the social norm. Indeed, prostitution was so common in Victorian Britain that we had to bring in the contagious diseases legislation because so many of our home-based forces were affected by syphilis. Indeed, it is difficult to find a period during which moral pressure was more strongly against promiscuity in our history than the Victorian period. We had to introduce an Act which locked up women considered to be prostitutes.
I suggest that a more realistic approach is to provide information.
10.45 p.m.
The Lord Bishop of Guildford: My Lords, at Committee stage I admired the sensitivity and care with which the noble Lord, Lord Stallard, introduced his amendment on the subject. We have heard the noble Lord again today speaking with equal sensitivity, and with clarity and wisdom on what I believe is an improved amendment. At Committee stage I said that I could not support him. I do now. I still have some hesitations; I shall come to them. However, first, I wish to note the improvements. The noble Lord has pointed them out.
First, he makes sex education compulsory at secondary school level. I was surprised to hear the noble Lord, Lord Addington, imply that people would not have a right to the information. They will indeed be given the information because under the amendment sex education becomes compulsory. That surely is right. The noble Lord, Lord Stallard, brings all sex education together and does not leave HIV and AIDS in the science curriculum. Surely that is right. Sex education undoubtedly has roots in biological science but its tap root is in personal development and personal relationships. It needs to be taught not just in a moral context, which is essential, but also in the context of personal fulfilment.
Again, if I may be greatly daring, I wish to take issue with the noble Lord, Lord Addington, because I do not think it is true that we can have facts independent of values. The way in which we select facts indicates what we think the values are. So we would mislead ourselves if we thought that we could just put facts in front of people and by doing so are not giving them values, whether or not we are explicit about them.
I suggest that sexuality is a complex and mysterious gift. It has to be explored and understood as an element in our need to create and sustain fulfilling and deep personal relationships. That is far better done as a coherent whole than coming at it in bits and pieces through different parts of the curriculum. So to my mind the amendment achieves serious improvements.
I have to say I have some hesitations. Most of the concern about contemporary sex education centres round the printed material which is being used in the classroom. Examples of it have already been referred to. Of course, the amendment does not deal directly with that. It is no criticism of the amendment; an
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amendment cannot do that; but I think it is one of our primary concerns and we need to tackle the issue, though not through legislation. It is quite clear that there is some unsatisfactory material about, though I add that there are also some scare stories about. We need to try to take a detached and balanced view.
Furthermore, it is no criticism of the amendment, but it does not and is not able to touch the training of teachers in handling this material. I have to say that the normal training of teachers does not necessarily equip them for dealing with this, which must he one of the most sensitive and difficult of all issues to handle in a classroom. I do not have criticisms of the amendment but I have hesitations because the amendment does not take us to the heart of our anxieties. I also have hesitations—and here I recognise that the noble Lord, Lord Stallard, will not agree with me—about the right to withdrawal which is included in part of his amendment. Of course, I understand why it is there and I have considerable sympathy with it, particularly in so far as it might apply to children at primary level. But there are three reasons why I find the withdrawal provisions less than satisfactory. I recognise that it is difficult for me, because there is explicit reference in the amendment to withdrawal on religious grounds. Nonetheless, I put to the House my hesitations. First, sex education, particularly at primary level, does not necessarily happen in self-contained blocks at predictable moments in the timetable. It arises in response to events, comments, questions and anxieties. So withdrawal will not be easy to achieve; nor will it be watertight.
Secondly, if the teaching is so unsatisfactory that parents want to withdraw their children from it, then it may be better that the teaching should be criticised and improved, rather than sidestepped. We shall not improve the teaching which ought to be given if we merely pull our children out of it. We have rather to work together in order to improve it.
Thirdly, we must be realistic and recognise that however bad the teaching of sex education may be in the classroom, it will probably be better than the murky sex education of the playground. We cannot isolate or insulate our children from the stuff they pick up in the playground and behind the bicycle shed. So we cannot withdraw children from that, and withdrawal from the classroom may mislead children into thinking that everything they learn in the playground is acceptable. For that matter, withdrawing children from sex eduction in the classroom may mislead parents into thinking that their children are unsullied by the grubby half-truths of the playground.
For these reasons I have to say that I am less than convinced about the withdrawal provisions of the amendment. But on balance I support the noble Lord. If he divides the House I shall certainly vote with him—although my own preference would be for the Government to take away the spirit of this amendment and perhaps come back with an even better version at Third Reading. But I do not wish the House to be in any doubt that I am now with the noble Lord, Lord Stallard.
Lord Eatwell: My Lords, I suggest that despite all the rhetoric about compulsory sex education, there is

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one, and only one, objective in this amendment: that is, quite simply to create a framework which will allow parents to remove their children from classes on sexually transmitted diseases.
These classes are currently compulsory as part of the national curriculum. In other words, the amendment seeks to create a situation in which information which some of this country's children receive about sexually transmitted diseases—and most notably about HIV and AIDS—should be from their parents, from newspapers and from playground gossip. That is the objective of this amendment. Their information would not come from formal and informed sources at school. I believe this to be—particularly today—an extremely dangerous amendment.
Let us first consider the facts. The report of the Department of Health on HIV infection, the Day Report, published last week, raised the estimate for HIV infection in this country from 19,000 to somewhere between 24,000 and 27,000. It also confirmed the fact to which I referred in Committee that at present 28 per cent. of HIV infections in England and Wales are heterosexual.
In Committee, the noble Lord, Lord Stoddart of Swindon, doubted the figures that I gave. I hope that he will now accept that they have been confirmed by the Day Report.
Lord Stoddart of Swindon: No, I would not.
Lord Eatwell: My Lords, in addition to the Day Report, a report presented 10 days ago by the public health laboratory service showed that rates of sexually transmitted diseases in teenagers are increasing.
Finally, another report, again from the public health laboratory service, has shown that not only do half of those who are HIV positive not realise that they are infected until shortly before developing AIDS, but that among heterosexuals who are infected 80 per cent. of them are ignorant about their infection. Ignorance was greatest among teenage girls who were infected. Let us remember that HIV infection may precede AIDS by 10 years or even more.
These three authoritative reports establish the background to our consideration of this amendment. They establish that HIV infection is still rising. Notably, it is rising in the heterosexual population. They also establish that ignorance about HIV infection is widespread. These facts mean that it would be highly irresponsible to entrust education about HIV and AIDS to those parents who withdraw their children from sex education, as this amendment does.
Let us consider the impact of relying on parents, even a minority of parents, to educate their children on the facts about HIV and AIDS. The first obvious point to make is that it is vital to society as a whole that everyone should know the facts about HIV and AIDS. A lack of knowledge is quite simply life-threatening. Let us suppose, for example, that a young person is not aware that heterosexual activity can be a source of AIDS and cheerfully informs a new partner—perhaps someone who is to become a permanent partner—that there is nothing in his or her
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personal sexual history that could be a threat, not realising the contrary to be the truth. That is why it is vital that every child should receive a clear, accurate education in the facts about HIV infection. The health of each of our children is dependent on the information available to all our children.
My second point follows from the first one about the need for general education. In the case of some children, this amendment would place society's confidence concerning HIV and AIDS education in the hands of some parents. I have asked the movers of the amendment: "Are you totally confident that those parents who might withdraw their children from sex education are well informed as to the characteristics of HIV infection? Are you confident that they will keep themselves up to date? Are you equally confident that they will instruct their children fully and accurately?" In the current climate of fear, prejudice and misinformation, I submit that no reasonable person can hold those opinions with confidence. How could they in circumstances in which the Secretary of State for Health is reported as suggesting that AIDS is now a threat only to "target groups"?—a suggestion that the Day Report has conclusively demonstrated to be without foundation.
I am sure that everyone in this House respects the argument that matters concerned with sexual education should not only contain a clear moral dimension, but also that such matters should be closely attuned to the views of parents and families. I believe that we all support the principles of individual choice and individual responsibility in these matters. Indeed, the Government have devoted great efforts to promoting those virtues. We all know that individual choice and individual responsibility can only be exercised effectively on the basis of clear, unambiguous information.
Without information no one can make sensible choices for themselves or their families. Nor can they assess properly their responsibilities to society as a whole. That is why it is vital that the facts about HIV and AIDS are accurately presented to every one of our children without exception. That can only be done by including those facts within the national curriculum.
We owe it to our children to ensure that they are informed—accurately and fully informed—about the threat of HIV infection. The teaching of those facts to every child is not a threat to family life. It is a defence of life itself. I urge the Government to be true to their principles of individual choice based on full information and to reject this amendment.
Lord Ashbourne: My Lords, I share the view of the noble Lord, Lord Stallard, that these amendments clarify and simplify the current sex education arrangements. They combine the best of the old and the new sex education guidelines.
Secondary schools will have to provide sex education and education about sexually transmitted diseases. They will have no option about that. That meets the concerns of those—I have some sympathy with them—who say that education about AIDS in particular is so important that schools must teach it. But such education will now be outside the national curriculum. I am sure that that is sensible and gives

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greater freedom for schools to organise such lessons across the curriculum. It also means that an opt-out provision can be given for the few parents who would want to use it. That is very important for some parents for religious and other reasons.
The noble Lord, Lord Stallard, should be commended for his perseverance and flexibility. I, for one, will join him in the Lobby tonight should he press Amendment No. 255 to a Division.
Baroness Perry of Southwark: My Lords, I too support the spirit of the amendment of the noble Lord, Lord Stallard. But, like many other noble Lords, I have some difficulty with some of the way in which it is worded and the detail of what is expressed.
I spent many years helping teachers prepare themselves to teach sex education. Indeed, in the light of the discussion tonight, I am ashamed to confess that I am the author of a textbook on sex education used many years ago in schools in the 1970s. It now seems very old fashioned. I am rather proud that it does seem old fashioned. Nevertheless, I am extremely sad that we are having this debate tonight in the context of the awful feeling of failure that we experience. All who have spoken say it is important that children have as much information as possible and are protected from the dangers of ignorance but feel that they cannot trust the teachers in schools to present the facts in a way acceptable both to those who debate it here and crucially to the parents of those children. I hope that in future the main thrust will be to help teachers present the facts of sex education as well as the importance of the continuity of relationships and understanding of feelings—which after all are the most important aspects—in a way that we all seek. Surely, that should be the main thrust in future rather than an urge to give parents the right to withdraw their children.
I should very much like to know on what grounds parents were withdrawing their children and why they could not put sufficient pressure on governing bodies or LEAs to make sure that sex education was of such a nature that they felt happy for their children to be included. I would also want to know that if a parent excluded his or her child from any part of sex education the parent would be required to assure the school authorities that he or she would provide acceptable alternative ways of informing the child. As we have all agreed, the dangers of ignorance are very real.
I hope that neither the amendments nor any part of the legislation is drafted in such a way that it makes it impossible for children to have their question responded to in a natural way by teachers in other subjects of the curriculum and other discussions. Having taught in the United States, I have some experience of the situation where religious education and any discussion of religious matters is expressly forbidden by law. One finds that extraordinarily inhibiting in one's relationship with those being taught. One may have a lively and interesting discussion on many topics but as soon as anyone asks a question about religion one has to say, "I am sorry; I am not allowed to answer that". I hope that we will never put teachers in a similar situation as regards sex
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education when such matters arise in the middle of personal and social education or a talk about history, politics or anything else.
Those are my two concerns about the wording of the amendment as it stands. Nevertheless, like other noble Lords, I feel strongly that the spirit of the amendment is right. Sad as I am that it is necessary, I support the spirit of what the noble Lord, Lord Stallard, is asking for.
11 p.m.
The Earl of Perth: My Lords, I rise to do two things. First, I am wholly behind the amendment of the noble Lord, Lord Stallard. As he told you, the noble Baroness, Lady Cox, has rightly felt that she should take medical supplies to Nagorno-Karabakh. She wrote to me to say that she knew of many other valiant peers who would share her concern at Report stage. I felt that this was such an important amendment that it should not be diminished by having only three people taking part, so I put down my name. I and I am sure all your Lordships would otherwise have wished that the noble Baroness, Lady Cox, was here and able to speak to it.
I need not develop the reasons for the amendment. They have been fully and very well gone into by the noble Lord, Lord Stallard. I feel very strongly that the role of parents should be enshrined in the Bill.
Secondly, I should like to explain Amendment No. 289B which stands in my name and is grouped with the amendment moved by the noble Lord, Lord Stallard. I hope that it is in order for me to touch on that because it is of great importance. I know that the amendment looks extremely complicated, and indeed almost unintelligible, but its purpose is simple. I hope that in developing it I may, to a degree, answer the noble Lord, Lord Eatwell, who was anxious that every child should be given full educational information.
The amendment seeks to bring the Secretary of State under the same constraints as other educational bodies if, under his authority, there is produced an objectionable HIV or AIDS teaching programme. In Committee, at col. 1116, the noble Baroness, Lady Blatch, said:
"I know—not just I believe or I have a feeling that—that some of the AIDS organisations … have been responsible for making available to schools wholly inappropriate literature which I understand has been used in the classroom—and for some children at the young age of 11 years who are studying at the beginning of key stage 3. That is not defensible".
Then she went on to say that if a complaint was pursued, it would not be upheld. I found that distressing and wrong. The amendment seeks to put that right. Therefore, under advice, I have sought to do just that.
At the same time, at col. 1117, the noble Baroness, Lady Jay, said that the vast majority of teachers, AIDS bodies and health authorities have behaved very responsibly, and I accept that absolutely. But what about those who do not, as we heard from the noble Baroness, Lady Blatch. It is essential that in such cases they can be called to book I need not go into examples of what I have in mind because so many of your Lordships have quoted them or know them. I

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only say that some teaching has been wholly wrong and corrupting, especially when it applies to the young who may be only 11 years of age.
Amendment No. 255 goes a long way to correct that irresponsibility. But I am advised that there are still gaps. The purpose of Amendment No. 289B is to stop up or fill in any such gaps and to ensure that all sex education is under appropriate constraints. The main thrust of my point is that if a complaint is pursued, it can be upheld.
I support the amendment of the noble Lord, Lord Stallard, and I hope that the noble Baroness, Lady Blatch, will be able also to accept my Amendment No. 289B, because they hang together.
Lord Renton: My Lords, I wish to make two points on Amendment No. 255, subsection (3). These points are important and should be dealt with.
In subsection (3) it says,
"If a parent of any registered pupil";
but there are orphans. Orphans have guardians, and so the words, "or guardian", should be inserted after "parent".
My next point concerns the next line, where it refers to,
"strong objections on religious grounds".
I am not an atheist or agnostic, but I can imagine that there could be atheists or agnostics who have strong objections who are qualified, experienced parents or guardians who may feel that they do not wish their child to be taught in accordance with a specific programme of study. The words "on religious grounds" limit the wise effect of the amendment and I hope that they will be taken out in any further consideration of the matter.
Lord Kilmarnock: My Lords, the Biblical text in this matter has to be Section 1(2) (b) of the Education Reform Act 1988 which requires the curriculum to prepare pupils,
"for the opportunities, responsibilities and experiences of adult life".
Another relevant document is the Government's recent strategy paper issued the other day along with the latest communicable diseases report (the Day Report) to which the noble Lord, Lord Eatwell, referred.
The Government's paper shows that the British record in achieving a relatively low incidence of HIV and AIDS is rather impressive. The United Kingdom now has one of the lowest estimated prevalence rates in Western Europe, with around six times as many cases in France, four times as many in Spain and three times as many in Italy. This is a league table where one wants to be at the bottom and to remain there. Prevention rightly remains at the heart of government policy.
As the noble Lord, Lord Eatwell, mentioned, the other important point is the increasing share, as emerged from the Day Report, of HIV and AIDS cases transmitted by heterosexual intercourse. I can well understand the impassioned views of noble Lords as expressed by my noble friend Lord Tonypandy, and which I believe the noble Earl, Lord Perth, touched on, that young children should not be deprived by the
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education system of their innocence. But quite young children who come out onto the playgrounds at primary schools have already lost their innocence through confused and mixed messages from their surrounding culture; a point which I believe was made by the right reverend Prelate. If they are to be deprived of innocence it is surely better that it should be done accurately and sensitively rather than by innuendo and hearsay.
On those grounds I voted against the previous amendment proposed by the noble Lord, Lord Stallard, and his friends at Committee stage. Noble Lords will recall that it was defeated by 56 votes to 27. I believe that this amendment has some technical difficulties which I have no doubt the noble Baroness, Lady Blatch, will elucidate more ably than I can. The implication that there is something called "the secular curriculum" which stands apart from the national curriculum and is not subject to the same constraints seems to me to be misleading. Indeed, the latest draft guidance issued by the Department for Education states clearly that,
"there is no statutory right for parents to cause their children to be withdrawn from any part of the secular curriculum, whether within or beyond the requirements of the national curriculum".
I think that the crunch this time round and what we have to get to grips with is that the noble Lord, Lord Stallard, rather cleverly, seeks to impale us on the horns of a dilemma. He removes HIV and AIDS, and indeed all sexually transmitted diseases, from the national curriculum thus removing the statutory minimum. But he offers in compensation mandatory sex education in secondary schools qualified by his provision for an opt-out.
There is some attraction in that. Some voluntary groups and others who want mandatory sex education might accept a trade-off whereby sex education is introduced nationally, together with an opt-out, on the grounds that this would only produce some flaking off at the edges and that the package, on aggregate, will produce more sex education than at present, including HIV education.
That would seem to be the likely outcome which would be welcomed in some quarters although I am not sure that all supporters of the noble Lord, Lord Stallard, want that. It must be clear, if we pass this, what we are actually doing. The 64,000 dollar question is whether the Government are prepared to accept the trade-off of removing something from the national curriculum and overturning the current non-mandatory nature of sex education in the 1986 Act in return for mandatory sex education plus a conscience clause, on the ground that sex education is so intimately linked to religious education that it should have the same opt-out. That was the point which the noble Lord, Lord Stallard, was making.
I shall be completely frank. I find it difficult to choose. If we go along with the noble Lord, Lord Stallard, there is the problem that no choice will be allowed to schools that do not want to go down that route. It is estimated that 4 per cent. of schools have formed a conscious policy against teaching sex education and another 2 per cent. have no plans to introduce it. It is also arguable that consultation with

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parents in the spirit of the Parent's Charter, as recommended in the draft circular to which I have referred (paragraphs 15 and 17), is preferable to a stark alternative between compulsory sex education and voluntary withdrawal. But there is also evidence of increasing pressure against sex education owing to funding and other problems. A continuing expansion of sex education by voluntary action simply may not take place.
We have a difficult choice to make, and I await with great interest the Minister's summing up of the dilemma and her statement of the Government's view of this amendment. I listened with great interest to the right reverend Prelate and I think that he may have a point. Perhaps we have not reached the end of the road and a government amendment at Third Reading may improve on this one.
11.15 p.m.
Lord Judd: My Lords, I think that it would first be appropriate from this Bench to say how much I and, I am sure, all my colleagues appreciated the way in which my noble friend Lord Stallard introduced this debate. He did so with moderation, character, integrity and sensitivity, and that has been reflected in the quality of the response and in the debate as a whole. It has been a serious and good debate.
In considering the response to his introduction, I turn first to the remarks of the right reverend Prelate. I thought that he brought to bear, in his usual way, a cool, sharp and penetrating analysis about the reality of what was being proposed. He drew attention to his misgivings about the consequences of withdrawal. He talked about the dangers of the playground and the bicycle sheds. Having listened to such a clear exposition of the dangers inherent in the amendment, I was perplexed by the firmness with which he came down in his warm but, I believe, emotional conclusion to say that he would nevertheless support my noble friend. That did not seem to me to be the kind of logic to which I have become accustomed in appreciating his contributions to our deliberations on this Bill so far.
I have been approached by a very significant number of fellow Christians working in the front line of social work and education. They have told me in very anxious terms how worried they are about the perhaps unintended consequences of the direction that might be set if this amendment were passed tonight. They have to deal every day with the realities of children often in acutely deprived areas—children who do not have the kind of parental support that we should like all our children to have and who do not have the kind of caring, loving and intelligent home environment that we should like all our children to be certain of enjoying. They have put it to me that very often teachers in the front line of that reality are looking to people like us, in this House, for our support for what they are trying to do with children on behalf of society as a whole.
In a powerful speech, the noble Lord, Lord Addington, referred to his deep commitment to the right of the child to the facts. The right reverend Prelate took issue with the principle of facts—if I am
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not wrong to refer to the "principle of facts". Perhaps the noble Lord would have been better to speak on the right to reliable information because that worries me most in this situation.
I hope that noble Lords will forgive me if I say that I have been troubled by a lack of awareness in the debate about the reality of the pressures confronting so many children in our society today. They are not living in a neutral environment; they are living in an environment in which they are bombarded by advertising, videos and the exploitation of sex. Somewhere or other there is a need to shore them up, to help them to weigh and evaluate that and to see it for what it really is.
For those reasons I urge your Lordships to examine very carefully the wording of this amendment. I have heard a number of noble Lords say that they do not agree with all its wording but they will vote for it because they agree with the principle. We are dealing with grave, far-reaching and sensitive matters and the wording is significant. Therefore, I suggest that as regards an issue of so much importance it would be unwise to vote for the amendment if there were an unhappiness about the wording. If noble Lords believe that there is a need for change it would be wise to call for a comprehensive review of policy in this respect, or something of that kind, but not to vote for an amendment in specific terms about which there have been honestly expressed reservations.
I conclude by saying that if we are talking about the need to support our children in a turbulent and exploitative world, if we are really taking that issue seriously, every bit as important as sex education is education which surrounds that; the education about values, ethics and so forth. I can do no better than to conclude with the words of Cardinal Hume in his letter of June 1992 to John Patten. He stated:
"Of course the governors have the right in their statement of policy to exclude this subject altogether from the school. This is a course of action we would greatly regret in any Catholic school and we would hope that no parents, or governors, out of misplaced anxiety would regard sex education in a Catholic school as inappropriate or damaging to children.
Such education should prepare children how to respond positively to the needs of people with AIDS and should dispel myths about health and safety together with prejudices or discrimination against particular groups".
It is because of the strength of that and other messages which I have received that I, personally, am not able to support this amendment tonight, although I genuinely applaud the sincerity of my noble friend in having put forward his anxiety—
Lord Stanley of Alderley: My Lords, is the noble Lord speaking on behalf of the Labour Party or on behalf of himself?
Lord Judd: My Lords, I am sorry, I hope that I heard the noble Lord correctly. I am not, of course, from the Front Bench speaking in a personal capacity; I am speaking for the official position of my party.
Baroness Blatch: My Lords, perhaps the House will forgive me if I speak now. We have been discussing this amendment for an hour and seven minutes and it

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might be helpful if noble Lords will hear me out. I have made clear on many occasions that the Government fully understand—
Lord Stoddart of Swindon: My Lords, will the Minister confirm that if she makes her speech now, under the rules of order it will not be possible for any other noble Lord to speak after her? This is the Report stage.
Baroness Blatch: My Lords, I understand that that is true. I am in the hands of the House as to whether I should now sum up on the amendment.
Noble Lords: Yes.
Baroness Blatch: My Lords, as I said, I have made clear on many occasions that the Government fully understand and appreciate the nature of the concerns about sex education and education about HIV, and why some parents consider education about HIV to be inappropriate to the needs of their children.
Sex education is a sensitive and often difficult issue for parents and I have much sympathy with the views of those who argue that parents should have the option of deciding whether their children should receive teaching at school about HIV. As I understand the amendments in the name of the noble Lord, Lord Stallard. he is putting HIV, as a disease of the body, into mainstream sex education under the 1986 Act along with other sexually transmitted diseases. He intends to remove the right of governors to determine whether or not sex education will be taught in schools.
He is also making sure that sex education is a compulsory subject in the curriculum. Further, he introduces the right for a parent to withdraw a child from sex education. The noble Lord, Lord Eatwell, concluded his speech on the amendment by saying that he wanted to see individual choice based on sound factual information. I believe that that is what is behind the amendment in the name of the noble Lord, Lord Stallard.
I have listened carefully to the arguments put by all noble Lords this evening and I am convinced that parents should have the right to withdraw their children from sex education in much the same way as they have the right at present to withdraw them from religious education. Therefore, the Government accept in principle the thinking behind the amendment and I shall bring forward on Third Reading an appropriate amendment to put those principles into effect.
Perhaps I may refer to three points which have been raised in the course of the debate which are important. Reference has been made by my noble friend Lord Renton to the issue of "parent or guardian". I should say to my noble friend that, as I understand it, a guardian is a parent for the purposes of the education Acts. Section 114 of the 1944 Act defines a parent to include any person who has parental responsibility. Therefore, that point is well covered.
The other point which was raised to which I should like to give more thought is the grounds on which a parent may exercise that right to withdraw a pupil. Religious grounds are named in the amendment but
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the point was well made by my noble friend Lord Renton and others that there may well be people with strongly held beliefs, whatever they may be, who feel that they have a case to apply for a child to be withdrawn from sex education.
I wish to conclude by saying that I believe the amendments recognise the importance of the subject of sex education. I believe that he addresses the issue of compulsion—in other words, that it should be a compulsory subject—in the curriculum. He makes a serious suggestion of placing sex education together with sexually transmitted diseases, which subsumes HIV education, within mainstream education as a subject in its own right. I believe that to be right. The noble Lord also introduces parental choice.
Moreover—and this has not been mentioned this evening—the noble Lord resolves the issue of having two pieces of legislation which are in conflict with each other: the 1986 Act and the 1988 Act. If noble Lords will allow me to address the principles in an amendment tabled on Third Reading, I shall do so.
As regards Amendment No. 289B, I appreciate the thinking behind it. It is designed to counter the situation which I described in Committee on 10th May in referring to the use in the classroom of inappropriate materials in the teaching about HIV. At col. 1117 I said:
"I am sad to say that if a complaint was pursued it would not be upheld because it is permitted under HIV education in the science curriculum".
There is a difficulty in this regard because if there were a complaint about the suitability of the literature referred to by the noble Lord, Lord Stallard, and my noble friend Lord Pearson, it would not be upheld because it deals with HIV as a subject. Therefore, it might be difficult to make a complaint. Nevertheless, having looked closely at the complaints procedures provided for under Section 23 of the 1988 Act, I am advised that sufficient mechanisms and safeguards exist to ensure that if any complaint about inappropriate instruction or the use of inappropriate materials were made, it could be the subject of a complaint to my right honourable friend the Secretary of State, whether or not the subject was part of the national curriculum.
Of course, a complaint that there was teaching about HIV as such would not be upheld because the science order requires that there should be teaching about that topic. Indeed, if it is not in the science order under these amendments, it would still be compulsory under the other part of the curriculum.
I should like to take the opportunity to clear up a confusion which appears to be creeping into common parlance: a distinction is being drawn between sex education provided under the national curriculum, and any additional sex education provided as part of a school's wider programme of personal, social or health education. The point was made by the noble Lord, Lord Kilmarnock. The latter is being described as part of the secular curriculum, and the former is assumed not to be. In fact, both are part of the secular curriculum, the only difference being that the aspects under the national curriculum are statutory and any additional sex education provided is at the discretion

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of the school's governing body under the provisions of the Education (No. 2) Act 1986 which would change under the amendments.
My right honourable friend the Secretary of State has no powers to prescribe precisely how teachers should teach particular subjects, how classes should be organised or what teaching materials should be used. Those are matters for individual schools to determine. But parents should pursue with the head teacher or governors of their children's school any anxieties they may have about what is taught, or the form in which it is to be taught. In the event that parents fail to obtain satisfaction by those means, it is open to them to pursue matters through the complaints procedures established under Section 23 of the 1988 Act, first of all with the LEA, and then, if needs be, with the Secretary of State. The fact that HIV education is part of the statutory national curriculum does not guarantee a school's immunity against a complaint, if one were brought, about the use of inappropriate materials or inappropriate instruction.
We have stressed in the draft revised circular on sex education the duty laid by the 1986 Act upon governing bodies, head teachers and their staff to ensure that sex education is given within a clear moral framework. It is for governors and staff to consider in that light what materials they should use. Indeed, we emphasise in the draft circular that, in considering the school's choice of teaching materials from the wide range available, governors should satisfy themselves that those selected are of high quality, are appropriate to the needs and ages of pupils, and conform with the overall requirements in Section 46 of the 1986 Act relating to moral values. Governors should also determine how parents should be given opportunities to see for themselves teaching materials before they are introduced into the classroom, together with explanations of the way that it is proposed they are to be used.
In that way, I believe that we shall have sensitive, factually and morally based sex education which will reduce the numbers of parents who will use the right to withdraw their children from sex education lessons. Nevertheless, the safeguard of a complaints procedure is already in place if parents' anxieties are not allayed, in the first instance, through discussions with the governors and head teacher. With that reassurance, I hope that noble Lords will agree to withdraw the amendment and await my amendments on Third Reading.
11.30 p.m.
The Earl of Perth: My Lords, before the Minister sits down, perhaps she can clarify a point. In relation to my amendment, can she confirm that if there is a complaint, it can be pursued and that that is a new consideration of the department, whereas earlier the probability was that it could not be?
Baroness Blatch: Yes, my Lords. A complaint can be pursued. However, the local machinery would first have to be exhausted before it would come before my right honourable friend the Secretary of State. But, in relation to a complaint, I believe that there will be
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considerable debate about what is inappropriate. There are many views about what is inappropriate when teaching sex education and particularly when teaching about HIV and AIDS.
Lord Orr-Ewing: My Lords, can my noble friend give the House an assurance that when the Government's new propositions come forward, she will perhaps first take the opportunity to consult with the noble Lord, Lord Stallard, and others, who have conceived the present amendment so that the main points are incorporated in the Government's amendments which are to be tabled on Third Reading? Can my noble friend confirm that she will do so?
Baroness Blatch: My Lords, I believe that I covered that aspect when I replied. It will be very difficult to do so because there are so many interested people. However, I shall talk directly with the noble Lord, Lord Stallard, those who attached their names to the amendment and key Members from each of the Benches in the House. I shall rely upon those people to disseminate it among their own Members.
Lord Stallard: My Lords, I am grateful to the noble Baroness for her reply. I shall have to study it in detail, including the assurance that the noble Baroness just gave to the noble Lord, Lord Orr-Ewing. I am grateful to all those who have participated in the debate irrespective of the angle from which they spoke. I await with interest the Minister's amendment on Third Reading. For the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments. Nos. 256 and 256A not moved.]
Clause 231 [The School Curriculum and Assessment Authority]:
Earl Baldwin of Bewdley Earl Baldwin of Bewdley moved Amendment No. 256B:
Page 145, leave out lines 33 and 34 and insert:
("(4) In appointing the members of the Authority, the Secretary of State—

(a) shall include persons who appear to him to have experience of, and to have shown capacity in, the provision of education or to have held, and to have shown capacity in, any position carrying responsibility for the provision of education, and

(b) shall include persons who are currently engaged in the provision of—

(i) primary education, or

(ii) secondary education.").

The noble Earl said: My Lords, after the excitements of sex education it is not surprising if the temperature in the House goes down a little bit, but nevertheless I hope that we can keep our concentration to study the next item on the agenda which is an important one. In the grouping that we have here I am speaking to Amendment No. 256B only. I put forward a fairly similar amendment in Committee, which was eventually not moved. The reasoning behind it was that the SCAA was a, if not the, crucial body in the field of primary and secondary education, the place where it all starts in terms both of teaching and testing. In a field where, unfortunately, there is at present much conflict and suspicion, and where the political pendulum is all too likely to swing vigorously on any

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change of government, it is doubly important not to leave the authority's membership to chance. We owe it to future generations of children and teachers to get this right, in providing for proper levels of experience and capacity in the councils that matter.
The other day, when speaking on an amendment to which I had put my name, the noble Lord, Lord Renton, commented that the phrase we had used about the need to have
"experience of local education authorities"
was so imprecise as to be almost worthless. The more I thought about it, the more I agreed with him. I feel that subsection (4) in Clause 231 has something of the same drawback: it is not really specific enough for the important task that this clause must do. The words,
"relevant knowledge of or experience in education"—
and please note that it is "or", not even "and"—require a bit more fleshing out. Even funding bodies under other Acts, as well as the FAS under this Bill, are more precise about their educational membership.
In Committee my amendment had another sub-sub-clause (c) to it requiring the Secretary of State to consult over further appointments to SCAA. The noble Lord, Lord Henley, who was replying, did not much like this suggestion but he did say,
"I freely acknowledge that we have no particular problems with paragraphs (a) and (b) of the amendment".
He went on to point out that subsection (4) as drafted had the words "shall include" in it, as distinct from my own milder
"shall have regard to the desirability of including"
under the then paragraph (b). I hope that I picked up his hint correctly in omitting the "desirability" phrase and strengthening somewhat my present paragraph (b).
Recognising the importance of the role of the new authority, and the need to give to all those in the world of education what I described last time as a,
"healing signal in a time of strife",
I sincerely hope that the Government can accept the modest but sensible provisions in Amendment No. 256B. I beg to move.
Lord Judd: My Lords, I wish to speak to Amendments Nos. 256B, 257, 258ZA, 258ZB and 257A. I wish first to address Amendment No. 256B. The Secretary of State has conceded that the new SCAA should have at least one head teacher and one teacher on the SCAA council. This House during the Committee stage inserted new clause 2(3) (c) which stated that the funding agency should include persons with "experience and capacity" in special educational needs. Here and in the Secretary of State's concession, important precedents are being set. In the Secretary of State's case, he recognised that the SCAA should be representative of the head teacher and teacher constituencies. In the case of the funding agency membership, this House recognised that the funding agency ought to have a representative of a very important constituency on its body. There is now a necessity to outline the constituencies that make up the SCAA.
The current councils of the NCC and SEAC have been constructed on the basis of the personal will and political inclination of the Secretary of State. There
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has been no way of balancing out the shape of the council so that the balance of representatives from the entire service could give the DfE and Secretary of State a clear perspective on each issue.
The Dearing review may yet yield recommendations which gather the support of the constituencies which make up the educational community—for example, parents, teachers, governors and LEAs. No one hopes more than I that that will be the case. However, those recommendations will be meaningless if the community does not own the subsequent changes arising from that review. A SCAA council which is more representative of those constituencies would help to prevent a repetition of this summer's national curriculum testing crises. Therefore, I am glad to support that amendment.
Turning to Amendment No. 257, since the 1988 Act, the Government and their agencies—SEAC and the NCC—have never, so far as I know, asked the fundamental question: "what is assessment for?" At various times it has been asserted that national curriculums are diagnostic, that they can contribute to national standards and that they can give information about school performance. Giving the three tasks to the current tests, which in themselves simply give a numbered subject level as a result, has led to tests which are flawed as diagnostic measures, cannot determine national standards and produce crude, ineffective and discriminatory measures of performance.
The issue of defining effective schools and publishing information about them is a separate debate and in no way should be connected with the issues of how to develop an entitlement curriculum or how to construct appropriate forms of assessment.
The Education Bill should focus on putting in place an assessment system which can raise standards. If national standards are to be raised, then there has to be in-depth national research into the causes of educational under achievement. Crude, aggregated subject level assessment results, either at school or LEA level, indicate little about standards.
As a way of evaluating school effectiveness, test results tell parents nothing about the range or extent of pupils' achievements from the point at which pupils enter school—a subject we dealt with earlier this evening. Neither do they take into account background factors. For example, the National Union of Teachers and Leeds University research, Testing and Assessing 6 and 7 year olds: The Evaluation of the 1992 Key Stage 1 National Curriculum Assessment, provided significant evidence that social deprivation, class sizes, nursery education and whether a child was a summer- or winter-born child influence significantly such outcomes.
It is essential that the Government state what testing and assessment should be for. Assessment should recognise the positive achievements for pupils, allow for appropriate next steps to be planned and diagnosed and analyse learning difficulties so that appropriate individual help and guidance can be provided. Above all, it should provide full information to all concerned with the pupils' education, especially parents.

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Turning to Amendments Nos. 258ZA and 258ZB, the credibility of the Secretary of State for Education surely depends to a great extent on the independence of the new School Curriculum and Assessment Authority. The current situation, where he has had to review radically the national curriculum and its assessment arrangements as a result of parent and teacher pressure, arises from the fact that both he and his predecessors have refused to listen to the view of parents and teachers to the extent that they should have done. The role of the SCAA must be to act as a conduit for those views and it must also be able to conduct research and development which provides a sound basis for future decisions by the Secretary of State in this area.
Clause 232, as it currently stands, prevents the SCAA from carrying out research unless the Secretary of State requests it. There is abundant evidence from the Secretary of State's recent relationship with the NCC and SEAC which demonstrates the need for the SCAA to have an independent research role. Some of that evidence indicates that, for example, a positive initiative by the NCC in 1990 led it to review the introduction of the national curriculum core subjects in schools. That exercise was never continued. As a consequence, teacher opinion, now so vital to the Secretary of State's review of curriculum and assessment, has never been consistently recorded.
Controversies over the revision of particular subject orders could also have been avoided if the National Curriculum Council had been able to commission independent research. One good example is research into the implementation of the English order. Warwick University conducted such research for the NCC but was prevented from publishing its research results. As a result of that lack of public scrutiny, teachers were unable to evaluate the validity of that research and subsequent proposals for English from the Secretary of State have been met with implacable hostility.
Research conducted by Leeds University into the 1991 Key Stage 1 standard assessment tasks was delayed by government for over a year. Researchers and SEAC members were forbidden to discuss its content.
The evaluation of the 1992 2 per cent. pilot for the Key Stage 3 English tests has never been published, even though the noble Lord, Lord Griffiths, chair of SEAC, felt able to quote selectively large chunks of it in a copy of a speech which he sent round to all secondary schools.
It would have been immensely valuable for all the Secretaries of State, since the Education Act 1988, to have been able to rely on research commissioned by the NCC and SEAC, however politically uncomfortable that research might have been at the time, in order to inform government policy on curriculum assessment. It must be emphasised that the amendment does not prohibit the Secretary of State from asking the SCAA to conduct research. Neither does it allow an open-ended research budget commitment. The Secretary of State will have
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legitimate requirements for research. The remainder of the budget outside the Secretary of State's requirements will be defined for SCAA purposes.
The amendment to Clause 232, page 146, line 26, which leaves out paragraph (a) is also about asserting the SCAA's independence. As it stands, the current line in the Bill
"comply with any directions given by the Secretary of State",
is both unnecessary and completely undermines the SCAA's independence. The SCAA is not the Department for Education. DfE officials would, of course, have to comply with any directions given by the Secretary of State; that is their job. The SCAA's role is to carry out the requirements of legislation such as the 1988 Act and, when it receives Royal Assent, the Education Act 1993.
There are plenty of examples of the NCC and SEAC having had to alter plans which had the consent of the profession as a result of interventions by the Secretary of State. For example, pupils with learning difficulties will not be able to take the GCSE because the Secretary of State has only allowed the GCSE to be assessed from levels 4 to 10 inclusive. Had SEAC been able to develop a proper relationship with schools, assessment at Key Stages 1-3 would have proceeded in an entirely different way, and yet still have retained the Secretary of State's criteria of rigour and accountability. For example, neither the NCC nor SEAC has initiated school or LEA-based research into alternative methods of assessment, although Section 16 of the 1988 Act allows both authorities to suspend 1988 Act curriculum requirements for such research.
Clause 232(3) (b) provides adequate political parameters for the relationship of the Secretary of State to what should be an independent advisory body.
The amendment to Schedule 13, page 220, line 43, which leaves out subsection (1), is also a vital amendment which would contribute to the independence of the SCAA. The DfE's role is to present a range of policy options to the Secretary of State. The role of the School Curriculum and Assessment Authority is to carry out the requirements of agreed legislation. Where there are situations where the role is blurred—for example, where DfE officials have a right to attend every SCAA meeting—then the Secretary of State will not be clear where defined sets of advice are coming from.
It should be a matter of course that, in the normal run of things, the SCAA invites officials from both organisations to its meetings since both office and department have invaluable advice to offer. However, there may be situations where the presence of DfE officials will inhibit or obstruct the SCAA council from discussing frankly advice on curriculum and assessment.
Because of the hour, and not least because I see that our Chief Whip is anxious about time, and rightly so, I shall leave it with those three amendments. However, I take the opportunity formally to commend Amendment No. 257A, which on page 145 at line 39 inserts:
"undertake consultation with OFSTED, local education authorities and those organisations considered to represent

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parents, teachers and governors and other appropriate bodies to determine measures of school effectiveness and the publication of information on schools",
because, of course, as we have emphasised several times during the debate, consultation is the key to the success of it all.
Lord Kilmarnock: My Lords, I should like to speak briefly to Amendment No. 256C, which is included in this group of amendments. It replaces amendments that were tabled by the noble Lord, Lord Skidelsky, and myself at Committee stage, which were discussed but not voted upon. The general object of the amendments was to give the new School Curriculum and Assessment Authority more of an arms' length status vis-à-vis the department and the Government.
Clause 231 gives the Secretary of State power to appoint all of the members of that body—not less than 10 and not more than 15 members. The Secretary of State not only appoints the chairman, but he can appoint a deputy chairman if he so wishes. The noble Lord, Lord Skidelsky, and myself felt that that situation put an excessive curb on the activities of the new authority. Perhaps I may use an equestrian analogy. As the Secretary of State not only appoints all the members but is then able to insist on who may attend to represent him. he is using a double bridle on its activities; that is to say, a snaffle and a curb. We contended that it was not necessary to have both a snaffle and a curb. Our intention was that a representative of the Secretary of State would be entitled to attend by invitation of the chairman of the authority, and that the same situation should apply to a representative of Her Majesty's Chief Inspector and to the chairman of the Curriculum Council for Wales: in other words, they should not be able to attend as of right but only by invitation of the chairman of the authority, either to a full meeting or to a meeting of any of the committees.
I hope that the noble Baroness will be able to give me some comfort on the matter. If she will not remove the curb entirely, can she at least remove the curb chain? I look forward to hearing her response.
Baroness Blatch: My Lords, I trust that noble Lords will allow me to speak to my amendments in this group. It is a very large group: Amendments Nos. 256D. 258ZD to 258ZH, 271F, 288A and 289A. They are government amendments and technical amendments which confirm the status of the SCAA and the Curriculum Council for Wales as exempt charities. They allow for the orderly transfer of NCC accommodation and some other property via the Secretary of State to the Funding Agency for Schools, without delaying the winding-up of NCC. The Government's amendments also bring the functions of' the Welsh curriculum body into line with the functions of the SCAA.
I should also like to signal that we may have to return to the matter of charitable status at Third Reading in respect of a minor technical query that has arisen over the charitable status of grant-maintained schools. We are considering whether recent changes to charities legislation, specifically the Charities Act 1993, have had an unintended effect on the status of
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those schools. If that is the case the Government will seek to rectify the situation at Third Reading by tabling an amendment to ensure that there can be no doubt as to the charitable status of grant-maintained schools. Such an amendment would do no more than preserve the existing arrangements as set out in the Education Reform Act 1988. I shall speak first to Amendment No. 256B, which deals with membership; moving on to Amendments Nos. 256ZB and 256C, relating to the attendance of non-members at meetings of SCAA. Finally, I shall consider the group of amendments to the functions of SCAA; that is, Amendments Nos. 257, 258, 257A, 258ZA and 258ZB.
Noble Lords may remember that Amendment No. 256B was tabled as part of a more far-reaching amendment during Committee. At that time I acknowledged that I had no particular difficulty with adopting the proposed wording, which is similar to that used in the section on membership of the Funding Agency for Schools. I do, however, believe that Clause 231(4) makes the same point more succinctly. Perhaps I may remind noble Lords of the wording of subsection (4). It states that,
"The Secretary of State shall include among the members of the Authority persons with relevant knowledge of, or experience in, education."
Given that the authority's predominant concern is with the education of pupils in schools, I cannot imagine that any Secretary of State would fail to have regard to the desirability of one or more of these members being currently engaged in primary or secondary education. The amendment therefore strikes me as unnecessary.
I shall now address Amendments Nos. 256ZB and 256C. The question of the attendance at meetings by representatives of Her Majesty's Chief Inspector, the chairman of the Curriculum Council for Wales, and, in particular, the Secretary of State, is one that has been discussed at some length during Committee. Amendment No. 256ZB focuses on the Secretary of State alone, and seeks to remove his entitlement to send a representative to meetings of the authority or its committees. I have no intention of tiring your Lordships by rehearsing in detail the same arguments as have been heard before. I must nevertheless repeat our conviction that the free flow of information between the authority and the Secretary of State, and mutual understanding about the conduct of business, are essential to a productive relationship. The best way of achieving that is to provide for the Secretary of State's representative to be a regular attender at authority meetings. Our experience with the predecessor bodies has served to reinforce that view.
Having said that, I would like to emphasise that it is not the Secretary of State's intention to prevent the authority, or one of its committees, from ever meeting in private. I do understand that, perhaps particularly where advice is being contemplated but has not been explicitly requested by Ministers, the authority or a committee might want to meet privately and less formally in order to discuss the way forward. So I am happy to give the House an assurance now that the Secretary of State would not unreasonably withhold his consent if the chairman of the authority indicated

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occasionally that it would be useful for the authority or one of its committees to meet privately and less formally.
Turning briefly to Amendment No. 256C, it is already the case that no one other than the representatives of the Secretary of State, Her Majesty's Chief Inspector and the chairman of the Curriculum Council for Wales can attend unless invited or authorised by the chairman of the SCAA. I agree with the noble Lord, Lord Kilmarnock, that we should not alter that position, but, since it is already the position in law, the amendment is not needed.
I now turn to Amendments Nos. 257 and 258, concerning the role of the SCAA in reviewing assessment procedures. As your Lordships are aware, the Secretary of State has set up a review headed by Sir Ron Dearing to consider the curriculum and assessment framework. The review will include consideration of the purposes of assessment. It would be quite wrong for us to anticipate the conclusions of the review, as the first amendment proposes to do, by requiring now that the assessment system should cover all aspects of a subject, or that it must be formative as well as diagnostic. If we arrive at that conclusion after the review is completed, and all necessary consultation has taken place, there is nothing to prevent the making of the orders to put that conclusion into effect, and directing the SCAA accordingly. Indeed, the thousands of teachers who have been consulted at present would take a very dim view if we at this Dispatch Box tonight pre-empted the work of the Dearing review.
There is no need to circumscribe the functions of SCAA in the way proposed. In reviewing assessment procedures the authority will wish to take all kinds of considerations into account. Clearly the SCAA will wish to ensure that national curriculum assessment is soundly based and provides a good means by which to judge pupils' abilities accurately and fairly. We need national curriculum assessment for several reasons—to help the individual child, to allow teachers to spot any weakness and to promote the accountability of schools. Assessment under the national curriculum must relate directly to the subject orders for each subject. It therefore already serves the purpose of informing and supporting teaching and learning.
Turning to Amendment No. 258, nobody would wish to suggest that SCAA ought not to consult, or to commission research, before it gives advice to the Secretary of State. The history of the NCC and SEAC shows a very close concern with consultation and research, and those of us who are following Sir Ron Dearing's work upon his review will have noted his personal commitment to widespread consultation. But it is for the SCAA itself to decide how best to consult, and when it wishes to commission research. This amendment will unnecessarily tie the SCAA's hands, and may delay the timely provision of advice on curriculum change.
Amendment No. 258ZA also addresses the question of research. If I may draw noble Lords' attention to paragraph 2 of Schedule 13, which sets out the powers of the SCAA, they will see that this section empowers the SCAA to undertake such
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activities as it thinks necessary for the discharge of its functions, including entering into contracts. Noble Lords will understand from this that we do not need any amendment to empower the SCAA to do research or to commission research.
I now turn to Amendment No. 257A. I have to say that this amendment is totally misconceived. The primary purpose of the School Curriculum and Assessment Authority is to advise on the curriculum and assessment. It would have to be staffed quite differently, and given a far wider remit, if it were to have a duty laid on it to deliver advice on measures of school effectiveness, or on what information about schools ought to be published. School effectiveness is not just a matter of curriculum. It includes questions of the use of capital and recurrent resources, of standards of behaviour and discipline, of truancy, of the quality and appropriateness of buildings and equipment. I will not bore noble Lords with a full list but there is a great deal more. The Government are quite prepared to consider whether an independent body such as the Audit Commission, or Ofsted itself—both of which have previously been mentioned in this context—might in future be made responsible for devising and publishing comparative tables of information about schools. But SCAA would not be a suitable candidate for that function.
There is nothing to prevent the Secretary of State from seeking SCAA's advice on aspects of this matter. But it would be a nonsense to lay down a duty for it to take the lead on the question. I must ask the House to reject the amendment.
The final amendment of this group is Amendrnent No. 258ZB. Clause 232, which lays down the functions of the School Curriculum and Assessment Authority, includes a requirement for the SCAA to comply with any directions given by the Secretary of State. The amendment would release the authority from this requirement.
As I have said at the Committee stage of this Bill, it is not our intention to set up a free-standing body which can ignore the national priorities signalled to it by the Secretary of State. If the SCAA is released from the requirement to comply with directions given by the Secretary of State then it will be free to do as it pleases without reference to any authority and free also not to undertake work which the Secretary of State wishes it to undertake. This is surely a recipe for chaos. The Secretary of State needs this clause to require the SCAA to operate effectively and to ensure that Parliament's wishes are fulfilled.
I consider these amendments to be either unnecessary or inappropriate. I ask the House not to accept them if they are pressed.
Midnight
Earl Baldwin of Bewdley: My Lords, before the noble Baroness sits down, I wonder whether she could clarify one point in respect of my Amendment No. 256B. Could she tell me whether it would make any difference if I undertook to change back (b) to read: "shall have regard to the desirability" and therefore to soften the wording slightly? Would that affect her view of the amendment?
Baroness Blatch: My Lords, I have learnt of the dangers of trying to interpret legislative drafting on the hoof and I shall not do it tonight. I shall think about what the noble Earl said and write to him.
Earl Baldwin of Bewdley: My Lords, I am grateful for that, but I must say that from the Minister's response I am rather disappointed as regards the comeback on this. When we discussed it in Committee, there was no feeling or argument from that side that this was an unnecessary amendment. The words were something like, "We have no problem with it" or "We have no difficulty with it". I must say that that led me to suppose that if we put something very much in line with what the Government had no problem with, it might be acceptable. I still think that it ought to be acceptable because I am worried about Clause 231 which seems to pose no problems to the noble Baroness. I still do not feel that it is man enough for the job. It says:
"The Secretary of State shall include among the members of the Authority persons with relevant knowledge of or experience in education".
That means that the whole of the SCAA could be composed of people who had no experience in education but who simply had relevant knowledge of it. The word is "or" not "and" and that is distinctly worrying.
Nevertheless, having made that point—and I think it is an important point—I do not see any future in pursuing this at this particular stage and, regretfully, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 13 [School Curriculum and Assessment Authority]:
[Amendments Nos. 256BZ and 256C not moved.]
Clause 232 [Functions]:
Baroness Blatch Baroness Blatch moved Amendment No.256D:
Page 145. line 36, after ("shall") insert (",so far as relevant for the purposes of advancing education").
The noble Baroness said: My Lords, this amendment was debated with Amendment No. 257. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 257 to 258ZB not moved.]
Lord Judd Lord Judd moved Amendment No. 258ZC:
After Clause 232, insert the following new clause:
("Scope of religious teaching
The Schools Curriculum and Assessment Authority shall ensure that the number of religions studied at each stage in the religious education curriculum shall he at least three.").
The noble Lord said: My Lords, this amendment seeks to ensure that at all stages of the curriculum, including GCSE, at least three religions are studied.
The amendment, if accepted, would halt the proposed limiting of GCSE religion to the study of two religions alone—a proposal which has alarmed quite a number of people as we have come to hear about it. Clearly one of those religions would be Christianity. Since it would be difficult to study Christianity without studying Judaism, that would in all probability be the other. It would therefore be impossible for some children to study GCSE religion
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in the context of their own religion. Surely this is something which, in a religiously tolerant society, none of us would want to happen.
I do not believe that it is necessary to say more than that, except, if I may, to conclude by making these observations about the study of religion in our schools. On this side of the House—and I would have thought that this view was shared equally warmly on the other side—we would like the principles to be: inclusiveness, not exclusiveness; breadth, not narrowness; truth, not dogma; perspective rather than myopia; understanding rather than indoctrination. Above all, we would like to see religious studies in our schools based on a manifest spirit of tolerance suitable to the excitement of living in a multi-cultural society such as the United Kingdom. For these reasons we believe that this small amendment is relevant and timely, and we hope that the Minister will feel able to accept it.
Baroness Seear: My Lords, I strongly support the amendment. Many of us must be aware of the anxiety felt by the Moslem community that its particular interests and concerns are not adequately covered. This would at least be some contribution in that direction.
Lord Sefton of Garston: My Lords, speaking entirely in a personal capacity, I shall not oppose the amendment moved by my noble friend Lord Judd. But I would like to say that there should be no restriction at all on teaching of religion. Whatever one does, one marginalises all the other religions—and there are many of them. As we get into the European Union (as we now have to call it) the problem will get worse and worse. I do not think there should be any restriction at all.
The Lord Bishop of Guildford: My Lords, I do not disagree with the principles which the noble Lord, Lord Judd, put forward. But I would want to use a slightly different perspective, and some different words. It is not a question of breadth or narrowness; it may be a question of superficiality or depth. I have to say that the Church of England Board of Education, when consulted by SEAC about the criteria for GCSE syllabuses, indicated that in its view not more than two subjects should be studied—precisely because, if one asks people to study more than two religions, one risks a superficiality and a drift towards a general study of world religions.
Furthermore, in a statement which I understand is probably being published during the time that I have been in the House, the Church of England Board of Education has put out a general statement that it recommends that no more than three religions should be studied at any one key stage. Again, that is in the interests not of narrowness but rather of the depth of study.
I take the House back to the point raised in Committee, when this issue was raised on the basis of an amendment tabled by the noble Baroness, Lady Cox. I said that a parallel could be taken in the matter of languages. If one tries to study a multitude of languages, one ends up speaking a kind of Esperanto

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and not able to communicate thoroughly in any one language. However, if one studies a limited number of languages in depth, one picks up a facility for other languages.
I do not believe that our purpose or intention differs. But I would want to put more emphasis on studying any two religions in depth. If not more than two religions are studied at any one key stage, it is possible for children over a period of time to study a number of different religions and in that way gain an understanding of the diversity of different religious traditions. I myself cannot agree with the precise proposal put forward by the noble Lord, Lord Judd.
Viscount Brentford: My Lords, I endorse what the right reverend Prelate has said on this subject. In Committee we talked a little about a mishmash of religions which meant that pupils would not get a thorough grasp of any religion at all. To me it is important that they obtain an understanding—I pick up that relevant word used by the noble Lord, Lord Judd—of both the Christian faith and the other faiths relevant in that area.
I should be very happy for pupils to learn up to three faiths. But I do not believe that it would be right for them to be taught a mishmash of half a dozen faiths. That seems to me to be very superficial, as the right reverend Prelate said. Therefore I should like to endorse what he said about the amendment.
Baroness Blatch: My Lords, when we discussed the amendment of my noble friend Lady Cox in Committee, late at night on the 10th May, we considered the question in relation to the locally agreed syllabus, as had already been suggested, for religious education, which sets out the RE curriculum for children in county or equivalent self-governing schools. Although not altogether clearly formulated, the noble Lord's new clause appears to touch partly on that same issue.
I said then that the Government were committed to the position of religious education as a subject for local determination. Local agreed syllabus conferences should enjoy flexibility in drawing up a syllabus that best meets the needs of their local community. The requirements of the 1988 Act with regard to content complement that local flexibility. As well as securing the place of Christianity, the 1988 Act required that local conferences should take account of the practices and teachings of the other principal religions of this country in drawing up a syllabus. That is an important requirement. It ensures that, in the spirit of this country's belief in religious tolerance, all our schoolchildren are able to learn and appreciate something of each other's beliefs in an atmosphere of mutual respect. Depending on how one reads the amendment of the noble Lord, Lord Judd, I believe that it covers more religions than the original amendment.
At present the law requires syllabuses to include all principal religions. An agreed syllabus should ensure that by the time children reach the end of their school education, they have at least a basic knowledge of all the major religions, with a greater knowledge of Christianity, which lies at the heart of British culture.
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As I said in Committee, I accept, however, that at any particular stage of education it may be appropriate for children to concentrate on fewer religious traditions. That seems to me more likely to ensure that they will learn about each religion as an integral study, rather than acquiring undifferentiated notions about all religions but being unable to distinguish between them. In the two years available at Key Stage 1, for example, a syllabus conference may decide, on these educational grounds, that only two religions ought to be covered. Again, depending on how one reads the amendment, there is no differentiation between syllabuses, other than a reference to three religions being covered at each key stage.
I have not changed my mind that we should not restrict local autonomy more than is necessary by specifying the maximum or minimum number of religions to be covered in a syllabus. That is not an appropriate matter for legislation.
The noble Lord, Lord Judd, also raised the question of the number of religions to be studied in relation to the School Examinations and Assessment Council's criteria for GCSE religious studies. These criteria are currently decided by council and will in due course be a matter for the School Curriculum and Assessment Authority. Indeed the right reverend Prelate has already suggested how the SEAC went about its work in preparing advice to give to my right honourable friend the Secretary of State. GCSE religious studies are distinct from the statutory religious education which all pupils must study. It provides an opportunity for those pupils who choose to do so to pursue the subject as an academic discipline. The question therefore is one of the rigour of the qualification. The SEAC has considered this question carefully and advised that, in order to avoid the superficial study of religions, GCSE courses should be limited to the study of two religions. I am pleased to note that that was supported by the right reverend Prelate's colleagues in the Church. I am content with their decision, as is my right honourable friend the Secretary of State. This clause is an unnecessary restraint on the authority which will draw on such professional experience and expertise as it needs to decide these matters for itself. I hope that the noble Lord will not press the amendment.
12.15 a.m.
Lord Judd: My Lords, I am grateful to the Minister for her reply and the spirit in which she made it. I do not believe that there is a yawning gap between us. I am sure that together we can work out a satisfactory common approach.
However, the point I emphasise is that it seems to me that the study of religion, particularly in our secondary schools, should above all be an understanding of the complex nature and diversity of religion. This is no longer simply an international matter but something that goes to the very heart of our society. I believe that, unless we have that as a primary objective in the syllabus, we will be sending our children out into the world ill-equipped to live positively and fully in a multi-cultural society.

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It is in that spirit that I ask the right reverend Prelate, whom I greatly respect—we have been privileged to have him constantly with us in our deliberations on the Bill—to ponder his own remark about depth and superficiality. There are different ways to look at depth and superficiality. I argue that to send youngsters into the world unaware of the complexities of religion and the passionate sincerity and different experiences of people in their own society is a superficial approach to education. If we take the question of depth seriously we must give the understanding of religion as a whole a very high priority. I understand that in that sense the Minister is not against that objective and will be looking for ways of pursuing it. Taking her words in that sense, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 234 [Transfer of property]:
Baroness Blatch Baroness Blatch moved Amendments Nos.258ZD to 258ZG:
Page 147, line 6, leave out ("this section") and insert ("subsection (1) above").
Page 147, line 9, leave out ("this section") and insert ("subsection (1) above").
Page 147, line 11, leave out subsection (4) and insert:
("(4) Where immediately after the end of the period within which an order under subsection (1) above may be made any property, rights or liabilities remain vested in the National Curriculum Council or the School Examinations and Assessment Council, they shall forthwith vest in the Secretary of State.").
Page 147, line 13, at end insert:
("(5) The Secretary of State may by order provide that there shall he substituted for the period mentioned in subsection (2) above such shorter period as he may specify in the order, being a period ending no earlier than the day on which the order comes into force.").
On Question, amendments agreed to.
Clause 235 [Transfer of stuff]:
Baroness Blatch Baroness Blatch moved Amendment No.258ZH:
Page 148, line 3, at end insert:
("(8) The Secretary of State may by order provide that there shall be substituted for the period mentioned in subsection (6) above such shorter period as he may specify in the order, being a period ending no earlier than the day on which the order comes into force.").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No.258A:
Before Clause 241, insert the following new clause:
Duty to reconvene conference on agreed syllabus of religious education
(".—(1) Within six months of the commencement of this section the local education authority shall reconvene any conference—

(a) which they have convened for the purpose set out in paragraph 1 or 12 of the Fifth Schedule to the Education Act 1944 (procedure for preparing and bringing into operation an agreed syllabus of religious education) or section 11(8) of the Education Reform Act 1988 (standing advisory councils on religious education), and

(b) to which subsection (2) below applies.

(2) This subsection applies to any conference—

(a) which has not made a recommendation under paragraph 9 or 13(2) of that Schedule, and

(b) in respect of which the authority have not made a report under paragraph 10 or 13(4) of that Schedule.

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(3) Where a conference is convened (or reconvened) after the commencement of this section, paragraph 2 of that Schedule shall have effect as if at the end of the proviso there were inserted "and the number of persons appointed to any committee under that sub-paragraph to represent each denomination or religion required to be represented shall, so far as consistent with the efficient discharge of the committee's functions, reflect broadly the proportionate strength of that denomination or religion in the area".").
The noble Baroness said: My Lords, in moving Amendment No. 258A, I should like to speak also to Amendments Nos. 258B, 258C and 259A. I promised to give further consideration to the points raised by my noble friend Lady Cox and other noble Lords and to return to them if necessary at Report stage. Amendments Nos. 258A and 258B will put into practice the principle that faith groups on local bodies concerned with religious education should be represented in broad proportion to their local strength. Amendment No. 258A amends paragraph 2 of Schedule 5 to the Education Act 1944 and changes the way in which the other denominations and faiths committee of an agreed syllabus conference is selected. Similarly, Amendment No. 258B amends Section 11(5) of the Education Reform Act 1988, which deals with the way in which the same group on a Standing Advisory Council on Religious Education is selected.
Currently, the law requires LEAs to appoint members to those groups and committees so that they,
"appropriately reflect the religious traditions of the area".
Under these amendments the members of the group or committee will be selected in broad proportion to the strength of a particular religion or denomination in an area.
It is clearly desirable that local bodies concerned with the vital subject of religious education, along with collective worship, should reflect the composition of the local community. I am aware that, in some areas, the present composition of the group does not sufficiently reflect the proportion of non-Anglican Christian denominations and other religions in the area.
In framing the amendments, we have had three purposes in mind. First, to ensure that all relevant groups are represented. Secondly, to ensure that the number of representatives of each group are broadly in proportion to the strength of that group in the local area. Thirdly, not to require arrangements which would make those committees unmanageably large.
At the same time, those bodies will become still more accountable to the community they serve if their meetings are open to the public. That is dealt with by Amendment No. 258C. As I explained when we debated my noble friend's amendment on this point, while we were sympathetic to the aims of the amendment, we were not sure that the detailed provisions of Part V of the Local Government Act 1972, which the amendment applied to those bodies, were appropriate to local bodies whose members are unelected. The amendment gives powers to make regulations governing those matters, rather than setting out the detail on the face of the Bill. That is appropriate since we are essentially dealing with administrative matters.
I can, however, give the House an indication of what we would expect to require under such

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regulations. First, that all meetings of SACREs and agreed syllabus conferences, and sub-committees or sub-groups of those bodies, should generally be open to the public and press. Secondly, we would describe those occasions when this provision was not to apply. Generally, that will be occasions where the meeting is dealing with confidential matters. Thirdly, we would expect to provide for similar requirements as to notice of meetings as are set out in the Local Government Act. Fourthly, we would expect to require copies of agendas and papers for meetings to be available for inspection by the public, and for arrangements to be made for copies of such papers to be made available at an appropriate fee.
Amendment No. 259A, standing in the name of the noble Lord, Lord Judd—if I may anticipate that amendment to save time at this hour of the night—seeks to ensure that the Secretary of State is satisfied that sufficient funds are being provided to LEAs for SACREs and agreed syllabus conferences to carry out their functions.
When we debated this matter in Committee on 10th May, I made the following important points that we must revisit. It is already the case that the various duties of local authorities are taken into account when their standard spending assessments are calculated. My right honourable friends the Secretary of State and the Secretary of State for the Environment must already satisfy themselves that sufficient resources are available for local authorities to carry out all their functions, including their duties to provide for SACREs and agreed syllabus conferences.
The duties of an LEA towards its SACRE and its syllabus conference will remain, along with other residual duties, even when the Funding Agency for Schools has acquired responsibility for school provision in an area. Those duties will continue to be taken into account in calculating SSAs for local authorities.
But the precise relationship between LEAs and their own bodies is, quite rightly, a matter for them. I understand the wish of the noble Lord to see that those vital local bodies remain financially secure. I am confident that the current position adequately covers that. SACREs and agreed syllabus conferences are local bodies, charged with local duties. It is appropriate that they are catered for at local level. As LEA bodies, the onus is on the LEA, and will remain with the LEA, to ensure that they are properly financed to fulfil their duties.
The aim of the government amendments in this group is to ensure SACREs and agreed syllabus conferences are more representative of, and more accountable to, their local community. I am confident that the current position adequately provides for those bodies to be properly funded by their LEAs. I therefore cannot accept amendment No. 259A. However, I commend Amendments Nos. 258A, 258B and 258C to the House.
I hope the noble Lord will forgive me for anticipating his amendment, but he now knows what I would have said to him had I heard his presentation of the amendment in the first place. I beg to move.
Lord Judd: My Lords, I hope that the noble Baroness will forgive me when I say that I rather feared what she was going to say in answer to my amendment even before she said it and before I moved my amendment. That is the difficulty of this kind of proceedings.
Before I move my own amendment, perhaps I may say a word or two about Amendment No. 258A. In the limited amount of time which has been available for proper consultation, I gather that these amendments are not being universally welcomed. For example, it may not be possible to complete an agreed syllabus revision within six months. That provision will require a new one to be started which will be costly on the time of people participating in the syllabus and on the finances of the LEA.
The proportionate strength restriction will, for instance, prevent Jewish participation in most RE agreed syllabus conferences although Judaeism is vital to the understanding of Christianity and Islam. This issue was raised previously by noble Lords opposite in our proceedings.
As it comes before my amendment, perhaps I may say something about Amendment No. 258C. There is a good deal of anxiety about that amendment. It has been very well summarised in a letter, a copy of which I received from the Reverend Professor Marratt on behalf of the Free Church Federal Council. Perhaps I may quote from it because I believe that it is important that such a representative body, if it has views, should be heard in this House:
"The education committee of the Free Church Federal Council is completely opposed to any legislation of the above kind which would make such an action mandatory upon every LEA. A decision on any such action should be left in the hands of each local conference or committee.
"We fully support proper accountability for, and the full reporting of the work of, these two bodies (i.e. ASC and SACRE), but the detailed and sensitive discussion on matters of pupils' education and development at local level should not he conducted in the glare of a public gallery, with all the consequent temptations to adopt intransigent positions or to make statements for public consumption, which could he designed to champion causes rather than deal with complex issues. These two bodies should be left free to use the best means possible to foster mutual concern for the highest and deepest in the Religious Education of pupils at school, and to seek, by discussion, honest objectivity and personal commitment, the most effective curriculum, methods and means to achieve such Religious Education.
"There might be occasions at the end of, or even during, such a process when one or other of these bodies would find it useful to meet the press, but we are convinced that such a decision should be left to those who have the responsibility on behalf of the constituencies which they represent, to achieve agreement and action to meet the religious, moral and spiritual needs of pupils".
I turn very briefly to my Amendment. No. 259A with which the Minister has dealt, as I feared she might. As we have said so often, if we will the ends we really must will the means. There is genuine anxiety up and down the country about the available resources. The Minister will recall that during Committee stage I mentioned the demands of the national curriculum and the way in which our religious education is being squeezed. I gave the example of a grant-maintained school in a South-West LEA which has gone from 70

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candidates for GCSE to zero in one year because pupils can now choose only one subject from a huge option list.
I also gave other examples of how syllabuses are being produced on a shoestring. One such example was that of a northern LEA which had seconded an A-allowance teacher for one year, with no budget, to be administrator to an agreed syllabus conference. She had been asked to set up and resource from scratch. In one northern secondary school with more than 1,000 pupils the religious education teacher was given an initial capitation of £900 for the year but then had £300 clawed back part-way through the year. That allowance had to pay for exercise books, photocopying, textbooks and so on.
The point is that out there in the schools the evidence of sufficient resources is just not available. There is already real hardship. We need more reassurance on this than the Minister has been able to give us this evening. In that spirit, I hope that the Minister will take the amendment seriously although I shall not pursue it tonight, and shall beg leave to withdraw it.
12.30 a.m.
Lord Dormand of Easington: My Lords, I wish to speak to Amendment No. 258B. It is disappointing once again not to see any provision to consider the views of those who do not have any religious faith. In fact, we are talking not so much about religious faith as about the type of faith or the lack of it. It surely cannot be disputed that there is a substantial number of atheists, agnostics, humanists—whatever they choose to call themselves—in the country. Indeed, there may be a majority of non-believers. It is difficult to ascertain whether that is true, but for my part, I remember about a year ago an opinion poll on religious beliefs (about the only one that I have seen) which said that 39 per cent. of people did not have any religious faith. Admittedly, that is a minority, but I think that your Lordships will agree that it is a substantial minority.
One could comment on the great decrease in church attendance over recent years, on the number of closed churches and the number of churches which are now supermarkets, minimarkets, takeaways or factories. But the central issue is that our children ought to know that a large number of people do not and cannot accept the fact that there is a supernatural being whose existence cannot be proved. A comprehensive and honest religious education curriculum would include accounts of the cruelty, killings and torture which have taken place over the centuries in the name of religious faith. Unfortunately, those terrible acts still take place in many parts of the world. That fact, in all truth, would need to be taught, as would the undoubted good which has been brought about by religious teaching and religious faith. I find it inconceivable that such serious and fundamental matters are not brought to the attention of school children.
It may be argued that humanism is not a religion and cannot therefore be included in religious
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education. I would say at once that that is probably the case, but I also have to say that I think that that is a very narrow view indeed. If that is accepted, it then has to be asked: if not in the religious education curriculum, where can it be placed? In my view, the incontrovertible point is that it ought to be in some part of the curriculum.
Subsection (2) states:
"'and the number of members appointed to any representative group under paragraph (a) of that subsection to represent each denomination or religion required to be represented shall, so far as consistent with the efficient discharge of the group's functions"'—
and the following is the important part—
"'reflect broadly the proportionate strength of that denomination or religion in the area"'.
I have argued that there is at least a substantial minority of people without a religious faith—perhaps more than those who profess to some of the recognised religious denominations. I hope that their representatives can be included in the new Standing Advisory Council on Religious Education. It is an appropriate occasion to recognise at long last that many people base their lives on what might be called the "Christian ethic"—although I recognise similar phrases in other religions—without accepting the whole of any faith.
I am fairly sure that the Government are not too sympathetic towards the view of people like myself, but I have to say that it seems to be the view of an increasing number of people in the country. In something as important as education, provision should be made to ensure a balanced view, especially when, as I say yet again, so many people take that view.
My noble friends and I have not tabled amendments in respect of this issue because we believe that they should come from the Government. If any sympathy were shown perhaps we should take action. I look forward to hearing the Minister's reply.
Lord Sefton of Garston: My Lords, following that speech it would be wrong for me to gild the lily on the importance of recognising the human approach to ethical problems. Nevertheless, I support my noble friend wholeheartedly. I was dying to speak in an earlier debate today in respect of which my forecast came true. We spent an hour and a half on the subject and at the end of the day the amendment was withdrawn, as I had forecast. Exactly the same happened on the previous occasion that we debated this issue. I said that the noble Baroness, Lady Cox, would withdraw her amendment and that subsequently the Bishops would bring forward another amendment. I have no objection to another amendment being brought forward after careful consideration and therefore I shall address myself to the government amendment and deal with the words which we have heard.
The amendment refers to:
"the proportionate strength of that denomination or religion in the area".
That seeks to find a way of determining what kind of religion or non-religion should be taught in our schools.

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The Minister shakes her head. That may not be in words but it is implicit. Perhaps I may put the matter this way; the Minister may not believe it to be so, but I believe that in a democratic society it is implicit that if a certain proportion of people indicate that they do not want something in their schools it is right that they should be listened to and taken notice of. There is nothing wrong with that; no one is quarrelling with it or shaking their head.
Having seen the amendment for the first time today I sought to propose an amendment to it, which would have been in manuscript form. I took advice and was told that that would be unfair. I was told that it was not fair to expect a department to answer quickly like that. In complete knowledge of where the Minister comes from, I said that I was sure that she would be able to answer off-the-cuff.
My questions are, first, will the Minister tell us unambiguously how we, the Government, the governors or the committee responsible are to determine:
"the proportionate strength of that denomination or religion in the area"?
Secondly, what is the area and does it have any relationship to electoral boundaries, county borough boundaries or any other boundaries? When I hear the explanation and the definition of how it will be done I will then be able to give some thought to tabling an amendment on Third Reading.
The Lord Bishop of Guildford: My Lords, I rise to comment briefly on the amendment and in some measure I have been provoked by one or two of the previous speeches. I have some sympathy with the point made by the noble Lord, Lord Dormand of Easington. I recognise the strength of the humanist tradition; in fact, many of us would call ourselves Christian humanists, if not secular humanists.
However, I would not wish the noble Lord to go far on the statistics of the number of churches which have been closed and are now supermarkets because I can assure him that more new churches have been opened than old churches have been closed. There is a movement of population and to that extent that particular statistic may be misleading. I recognise that there has been a decline in church attendance. The Churches are sensitive to that issue and have no wish needlessly to thrust, as it were, their own convictions down other people's throats. Furthermore, we are well aware that the history and tradition of the Church is not impeccable and are aware of certain such elements of history—for example, the Inquisition and the crusades. People need to be taught about that and about the failures which resulted. Nevertheless, because of the power of religious conviction, it is important that people should have an understanding of its force.
I turn specifically to the amendments. I was surprised to hear the noble Lord, Lord Judd, say that the effect of Amendments Nos. 258A and 258B might be to exclude Jews from membership of agreed syllabus conferences or SACREs. That is not my understanding of the amendment because it says those bodies shall reflect the proportionate strength of the denominations or religions in the area. Therefore, if
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there were Jews in the area, the expectation would be that the local authority would appoint them to the appropriate group or committee.
Perhaps I may respond to the noble Lord, Lord Sefton. This amendment merely reflects the wording of the 1988 Act, which requires that a local authority should appoint members of those groups which will appropriately reflect the principal religious traditions of the area; that is, the area of the local authority concerned.
There is a difficulty in that regard and a difficulty in the amendment; but I cannot suggest anything better. The amendment refers to the "proportionate strength". I see that there will be difficulty in multi-ethnic areas if the predominant religion is Islam but there are also Buddhists, Hindus, Jews and Christians present. If all those are put in a Christian and other denominations group, it may he necessary to add in a rather high proportion of Moslems in order to achieve that proportionate strength. I am not sure that that would contribute to the aims of the amendments. For that reason, I was glad to see the phrase—and I imagine that that is what the Minister will use—which states:
"so far as consistent with the efficient discharge of the group's functions".
Therefore, I hope that the idea of proportional representation in that strict sense of the word will not be carried too far to its logical conclusion.
I express some anxiety also about Amendment No. 258C. I listened carefully to the assurances which the Minister gave but I was not altogether encouraged by what she said. It must be said that in some areas the SACRE is the only effective place where people of different faiths meet together in mutual understanding. If that meeting must take place in public, there will be a risk that the people there will not be able to explore one another's hopes and fears. They will feel at risk that others are noting down what they are saying and perhaps exploiting their comments elsewhere. Negotiations are often best undertaken away from the television cameras and the shorthand writers. There should be occasions when people who have work to do in these sensitive areas are left free to meet away from public scrutiny.
I recognise of course that there are occasions when SACREs and agreed syllabus conferences are accountable, when the members should own their statements and agreements and, therefore, the meetings should be public. But I think there needs to be a rather more subtle distinction than that which the Minister gave us when she indicated the broad lines that she was expecting to use. If too much is required to take place in public, participants start saying things for the record, as we know only too well in this House. We start saying things to achieve political ends. We start saying things to make debating points and to satisfy our supporters. All that becomes a risk if we are overmuch required to meet in public. Therefore, I hope that when the Minister responds she will say that before issuing the regulations, she will consult with the principal religious traditions concerned in order that the regulations which are issued will have as great a consensus as possible.

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I have considerable sympathy for the amendment moved by the noble Lord, Lord Judd. I recognise that it is indeed the duty of the LEAs to ensure that those matters are properly funded but that we have good evidence to think that the funds are not there or, if they are there, are not being made available. That is a area of concern. I am glad, therefore, to know that he is pressing the case, although I recognise that that particular amendment is unlikely to find its way on to the face of the Bill.
12.45 a.m.
Lord Judd: My Lords, before the right reverend Prelate sits down, will he accept that the point about Jewish representation is that there will not be sufficient Jewish population to ensure representation and yet understanding Judaism is vital to an understanding of Christianity and of the Islamic religion? Therefore, it will be unfortunate if there are not representatives of the Jewish community present to develop the syllabus.
The Lord Bishop of Guildford: My Lords, I certainly accept that if there are no Jews in the area it could be that a SACRE or an agreed syllabus conference would he impoverished. To that extent, I agree with the noble Lord.
Lord Northbourne: My Lords, I support the right reverend Prelate in what he said about meetings in public. For all the reasons that he outlined, that provision causes me considerable concern.
Baroness Blatch: My Lords, as regards the point made about Judaism by the noble Lord, Lord Judd, I should like to point out that there really is no reason—that is, even if there was no Jewish representation in an area—for a SACRE not to select Judaism as one of the principal religions to be studied. It is just that the people deliberating about such matters should reflect the religions of a local community.
While I respect absolutely the seriousness with which the noble Lord, Lord Dormand of Easington, puts his points, I have to tell him that we are talking about religious education. Atheism, agnosticism and humanism are not religions. Therefore, it would be very difficult to include them in proportionate representation on the SACRE committee or, to include any of them as one of the principal religions to be studied.
I believe that the noble Lord, Lord Sefton, asked how we could possibly determine the proportionate strength of religions in the area. It will not be easy. It will, of course, be for local authorities and their SACRE committees to know their local area. They know those areas best; they know whether there are groups of religions; they know where the Churches and the meeting houses are; they know who the local Church leaders are; and, indeed, most local authorities have very good relationships with faith leaders in their areas. We would expect them to use their best endeavours and local information in order to get representation on those committees.
I turn now to the point about open government. I understand what the noble Lord, Lord Northbourne,
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and the right reverend Prelate are saying. However, I remember the same arguments being deployed in local government when we were told that all our committees had to be open to the public. To some extent, some of the things we were warned about did come true. For example, there was a great deal more playing to the gallery as is the case now in another place because of television coverage. I believe that—
Baroness Seear: My Lords, I am sorry to interrupt the Minister especially at this time of night. However, I was most interested in her reply to the noble Lord, Lord Dormand, in which she said that humanism and agnosticism could not be included. It is not proposed that we study religions in the sense of propagating a faith; we are studying them—are we not? —as religions. That must surely involve criticism of them and challenges to them. It must he essential to introduce the attitudes of humanists and others who do not accept religions. Otherwise, it is indoctrination and not, as I understood it, religious education; that is, an academic study of religions. Am I wrong in that assumption?
Baroness Blatch: My Lords, my understanding—which may he simplistic—is that we are talking about religions and not about "isms" of all and sundry; for example, not about humanism, agnosticism, atheism, communism, fascism or anything similar. We are talking about religions and about gaining an understanding of the different religions (the principal religions) and the bringing together of representatives of particular faiths in a local community who reflect the local community to make judgments about how the religious syllabus should he compiled. But it is religious education, and humanism is not a religion—
Lord Sefton of Garston: My Lords, I have been very patient tonight and I do not see why anyone else should not be. How can we study the Christian religion without studying the formation of the Christian Church when the issue to be debated concerns which kind of religion was accepted as the state religion of 300AD? How could one possibly discuss the Christian religion without realising that its antithesis is paganism?
Baroness Blatch: My Lords, the study of Christianity would involve the birth of Christianity. I am not going to stand here tonight and go through the syllabus for studying Christianity. But clearly we are talking about religious education and that is education that seeks to expand young people's knowledge not only of their own heritage religion—that is Christianity —but also of other principal religions of the country and in particular of local areas.
Lord Dormand of Easington: My Lords—
Baroness Blatch: My Lords, this is Report stage—
Lord Dormand of Easington: My Lords, my name was mentioned in the debate. That is why I am standing up now—
Noble Lords: Order!
Lord Dormand of Easington: My Lords, it is no good noble Lords shouting "order". This is a debate on religious education. If the noble Baroness will listen to what I have to say, perhaps she will not shout "order". The Minister will recall that in my contribution I recognised that humanism was not a religion. I said that that implied there was a weakness in the case we are discussing. But what worries me is where will this substantial body of opinion appear? For example, it might appear as part of the history curriculum, but I think the noble Baroness would agree that it would not be relevant to a large part of that. Where it would be relevant is—I am glad to have the support of the noble—
Baroness Trumpington: My Lords, I am sorry—
Lord Dormand of Easington: No, my Lords. I must finish.
Noble Lords: Order!
Lord Dormand of Easington: My Lords, the noble Baroness—
Baroness Trumpington: Please sit down.
Lord Dormand of Easington: My Lords, with great respect, the noble Baroness has no more authority in this House—
Noble Lords: Order!
Lord Dormand of Easington: My Lords, I ask the noble Baroness to sit down. I shall be finished very shortly and then she can make her point.
Baroness Trumpington: My Lords, the noble Lord is out of order.
Lord Dormand of Easington: My Lords, the noble Baroness has no more authority in this House than I have. I have a great personal regard for her and I ask her to let me finish my point and then she can comment. I have almost finished.
Baroness Trumpington: My Lords, is the noble Lord asking a question?
Lord Dormand of Easington: My Lords, I am asking a question.
Baroness Trumpington: You are asking a question. Very well.
Lord Dormand of Easington: My Lords, I am asking for clarification from the Minister. If we do not include a provision on humanism in the present amendment—I recognise the problem on that—where would we put it? I referred to the difficulty with the history curriculum. Perhaps the noble Baroness can tell us whether the Government would be sympathetic to an amendment at Third Reading which would seek to include a provision to suggest that the point of view which my noble friend and I and a number of other noble Lords hold, could be discussed?
Baroness Blatch: My Lords, that intervention was out of order. The noble Lord made his point very clearly when he spoke the first time. He said he held
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very strong views on humanism and he felt that, although it was not a religion, it had a place in education. Today I am addressing amendments on religious education. I do not regard humanism as a religion and therefore it should not be related to these amendments before the House this evening.
I turn again to the points that were raised in the course of the debate on open government. As I have said, I remember these same arguments being deployed when it was proposed that local government committees should be open to the public and when it was proposed that the business of this House and another place should be televised. I understand what the right reverend Prelate and the noble Lord, Lord Northbourne, have said, but the important point to remember in all of this is that the work of SACRE impacts on the lives of all the children in an area and indeed on their families. I believe we should do away with secret gardens and open up healthy debate and allow local people to know what is being deliberated in their name. I hope that my amendments will be accepted and that these points will be no more than noted.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 258B:
Before Clause 241, insert the following new clause:
Duty to constitute new standing advisory council on religious education
(".—(1) Within six months of the commencement of this section the local education authority shall constitute a new council under section 11 of the Education Reform Act 1988 (standing advisory councils on religious education).
(2) For the purposes of the constitution required by subsection (1) above (and of any subsequent constitution) that section shall have effect as if at the end of subsection (5) there were inserted "and the number of members appointed to any representative group under paragraph (a) of that subsection to represent each denomination or religion required to be represented shall, so far as consistent with the efficient discharge of the group's functions, reflect broadly the proportionate strength of that denomination or religion in the area".").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 258C:
After Clause 242, insert the following new clause:
Access to meetings and documents of standing advisory council and conference on agreed syllabus of religious education
(".—(1) This section applies to—

(a) any conference convened for the purpose set out in paragraph 1 or 12 of the Fifth Schedule to the Education Act 1944 (procedure far preparing and bringing into operation an agreed syllabus of religious education) or section 11(8) of the Education Reform Act 1988 (standing advisory councils on religious education), and

(b) any standing advisory council constituted under that section of that Act.

(2) Regulations may make provision—

(a) for meetings of conferences or councils to be, subject to prescribed exceptions, open to members of the public,

(b) requiring conferences or councils to give notice, in such manner as may be prescribed, of the time and place of such meetings, and

(c) requiring conferences or councils, at such time or times as may be prescribed,

(i) to make available for inspection, or

(ii) to provide on payment of such fee as they think fit (not exceeding the cost of supply),

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copies of the agendas and reports for such meetings to members of the public.
(3) Regulations made under subsection (2) above may apply to—

(a) committees appointed by local education authorities under paragraph 2 of the Fifth Schedule to the Education Act 1944,

(b) sub-committees appointed by conferences under that Schedule, and

(c) representative groups on councils appointed under section 12(4) of the Education Reform Act 1988,

as they apply to conferences and councils.").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 259:
After Clause 242, insert the following new clause:
Inspection of religious education
(".—(1) Section 13 of the Education (Schools) Act 1992 (religious education) is amended as follows.
(2) For subsections (1) to (3) there is substituted—
"(1) It shall be the duty of the governing body of—

(a) any voluntary school, or

(b) any grant-maintained school,

in which denominational education is given to any pupils to secure that that education is inspected under this section.
(2) It shall be the duty of the governing body of—

(a) any voluntary school, or

(b) any grant-maintained school falling within subsection (3) below,

to secure that the content of the school's collective worship is inspected under this section.
(3) A grant-maintained school falls within this subsection if—

(a) it was a voluntary school immediately before it became grant-maintained.

(b) it was established in pursuance of proposals published under section 47 of the Education Act 1993 and either any trust deed relating to the school or the statement required by paragraph 8 of Schedule 3 to that Act makes provision as to the religious education for pupils at the school, or

(c) it is a school in respect of which proposals for the required provision for religious education to be provision for religious education in accordance with the tenets of a particular religion or religious denomination are approved under section 96 of that Act.

(3A) In this section—

(a) "denominational education", in relation to a school, means any religious education which—

(i) is required by section 2(1) (a) of the Education Reform Act 1988 to be included in the school's basic curriculum, but

(ii) is not required by any enactment to be given in accordance with an agreed syllabus,

(b) "the required provision for religious education" means the provision for religious education for pupils at the school which is required as mentioned in paragraph (a) (i) above, and

(c) references to collective worship are references to collective worship required by section 6 of that Act."

(3) For subsection (7) there is substituted—
"(7) It shall be the general duty of a person conducting an inspection under this section—

(a) if the inspection is conducted by virtue of subsection (1) above, to report on the quality of the denominational education provided by the school for pupils to whom denominational education is given by the school, or

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(b) if the inspection is conducted by virtue of subsection (2) above, to report on the content of the school's collective worship,

and any such person may report on the spiritual, moral, social and cultural development of pupils at the school."").
The noble Baroness said: My Lords, I beg to move.
The Lord Bishop of Guildford: My Lords, if the noble Baroness is not to speak to the amendment on inspection of religious education perhaps I may say on behalf of the Church of England that we are very grateful to the Minister for arranging the amendments, which meet many of the anxieties which we expressed and which were discussed at some length in Committee. I was very grateful that the Minister said then that she was prepared to take the matter away and to bring it back at Report stage. That is precisely what she has done. I do not need to trouble the House with the details, but I am grateful to her.
Lord Northbourne: My Lords, I am commissioned to say from the point of the view of the Roman Catholic Church that we are most grateful for the amendment.
Baroness Blatch: My Lords, I am grateful for those comments. The amendments are a direct response to anxieties expressed about Section 9 and 13 inspections.
On Question, amendment agreed to.
[Amendment No. 259A not moved.]
Clause 243 [Arrangements for admissions]:
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 259B:
Page 151, line 17, leave out subsection (3).
The noble Lord said: My Lords, in moving Amendment No. 259B I shall address also Amendments Nos. 259C to 259H. The purpose of the amendments is to ensure that the local education authority has a common admissions policy, with the Secretary of State's approval.
The issue was debated at Committee stage, when I moved an amendment that the local education authority should make arrangements for coordinating the admission of pupils to all schools in its area rather than the Secretary of State having that responsibility. In proposing the amendment I noted that the LEA had been responsible for co-ordinating admission arrangements for county voluntary schools for nearly 50 years and that that had been done successfully on the whole, with over 90 per cent. of parents achieving their first choice of secondary school. The creating of the grant-maintained sector had produced unfortunate consequences, such as occurred in Bromley and Hillingdon last summer when children were offered places at schools often many miles from home when it was likely that a place would eventually be found at a much nearer grant-maintained school.
In replying the Minister, the noble Baroness, Lady Blatch, said that as a result of the problems in Bromley and Hillingdon valuable lessons had been learnt. She said that the Government preferred the idea of voluntary arrangements with the Secretary of State having the power to impose arrangements as a last

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resort. She criticised the proposed amendments because they would remove all the Secretary of State's powers relating to co-ordinated admission arrangements and would transfer them to the local education authority. (Col. 1169 of Hansard for 10th May.)
The amendments now proposed would deal with that problem as proposals by the local education authority would require the Secretary of State's approval or modification so that there would be no question of removing the Secretary of State's powers. The amendments would introduce a sensible system with a co-ordinating role for the local education authority. I beg to move.
Baroness Williams of Crosby: My Lords, in supporting the amendments moved by the noble Lord, Lord Ponsonby of Shulbrede, perhaps I may underline one point which he made.
There is no substitute for the degree of local knowledge which is required for a common admissions policy. Quite often the department is too far removed to know local details as fully as it should. Given that the noble Lord has responded to the point made earlier by the noble Baroness regarding the problem of cutting out the Secretary of State by recognising that he or she would have to approve any modification, the amendment sensibly leaves the initiative for a common admissions policy with the LEA, subject to the Secretary of State's approval. It seems to me to be a reasonable compromise and one which I hope that the Minister will feel able to accept.
1 a.m.
Baroness David: My Lords, Amendment No. 262 is, for some reason, linked with this group of amendments. I am not sure why, because it does not seem to me to fit in with the others. As it is, I suppose that I had better speak to it. The amendment is designed to allow the local commissioner to investigate complaints of maladministration in schools. Schedule 5 to the Local Government Act 1974, as amended. is entitled "Matters not subject to investigation". Paragraphs 5(1) and (2) provide:
"(1) Any action taken by a local education authority in the exercise of functions under section 23 of the Education Act 1944 or sections 17 to 19 of the Education (No.2) Act 1986 (secular instruction in county schools or voluntary schools).
(2) Any action concerning—

(a) the giving of instruction, whether secular or religious, or

(b) conduct, curriculum internal organisation, management or discipline, whether in any school or other education establishment maintained by the authority".

By deleting those sub-paragraphs, the Commissioner for Local Administration (the ombudsman) would not, for example, be able to investigate complaints about the content of the curriculum or poor teaching. As with all ombudsman investigations, the complaint has to relate to maladministration; that is, the body having acted in breach of its statutory duties or in excess of its statutory powers. So the complaint would have to relate, for example, to the school's failure to deliver the national curriculum under the Education Reform Act 1988 or a failure to respond to an inspector's report recommendation about the poor teaching, under the Education (Schools) Act 1992.
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Within those limitations, it is unreasonable that parents and others should not have recourse to the ombudsman. It could lead also to potentially expensive and disruptive litigation, as the only alternative remedy is through judicial review. Neither schools nor LEAs are obliged to provide complaints procedures, except under Section 23 of the Education Reform Act 1988 in relation to the national curriculum. Even that limited complaints procedure has no independent element as is, for example, provided in complaints procedures about social services under the Children Act 1989.
The local commissioner has complained consistently about the limitation on his jurisdiction. Every three years he has to publish a review of his work. In each of those reviews, he has called for an abolition of the fetters under Schedule 5 and, in particular, has highlighted the limitation relating to education since there are no alternative remedies available; unlike, for example, the Police Complaints Board. Given that his job is to look at the activities of local government, it is illogical and unjust to exclude such an important part of the local authority's functions from his scope. I understand that in this year's review he will again ask to have that restriction removed.
My noble friend Lady Serota asked me to say that she is sorry that she could not stay. She would have strongly supported the amendment. As a former ombudsman, she understands what it is all about. She moved amendments in 1986 and 1988 to try to have the position changed. She told me to say that she hoped that we might be lucky the third time.
Lord Northbourne: My Lords, I support the noble Baroness, Lady David, on this amendment. She has made the main points. It takes us back to the question of there being some form of ultimate appeal for parents. In our discussions on Amendment No. 255, the Minister mentioned Section 23 of the Education Reform Act 1988, which I have now had the opportunity to look at.
The appeal procedures under that Act are limited indeed. They give a right to appeal only on matters that relate to Chapter I of' the 1988 Act—religious education and worship —and even then for that purpose grant-maintained schools are excluded. It is, therefore, a limited right of appeal. As I understand it, the amendment would give a much wider possibility of having a complaints procedure for parents which they would not otherwise have.
Lord Henley: My Lords, I shall respond first to Amendments Nos. 259B to 259H, tabled by the noble Lord, Lord Ponsonby. We discussed a very similar group of amendments at Committee stage. I am glad to see that this time the noble Lord has acknowledged that the Secretary of State ought to have a role in determining co-ordinated arrangements where agreement cannot be reached locally. However, I cannot accept amendments which would give the LEA a key role even in areas where GM schools are in the majority.
I shall not describe in detail the background to and purposes of our policy on co-ordinated admissions since that was dealt with at the Committee stage.

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Suffice it to say that the Government continue to believe that the Secretary of State, not the LEA, should have a reserve power to impose co-ordinated arrangements, after suitable consultation, where agreement at local level has proved to be impossible.
I recognise that the amendments would give the Secretary of State the power to modify a scheme proposed by an LEA, but that is not enough. The LEA will, by that stage, have been involved in abortive negotiations with GM and possibly VA schools about voluntary co-ordination. It would be inappropriate to give it the power to propose arrangements which would be imposed on GM and VA schools. In our view, it is far better that the Secretary of State, as an impartial external observer, should be responsible for deciding when and how co-ordinated arrangements should be imposed.
Turning finally to Amendment No. 262, tabled by the noble Lord, Lord Northbourne, and the noble Baroness, Lady David, I appreciate the desire to add to the complaints mechanisms which are already available to parents. However, I am not persuaded that the amendments are necessary.
The Government are very keen to extend the jurisdiction of the local government ombudsman to cover appeal committees appointed by aided and GM schools. We accept that it is something of an anomaly that parents can invoke the ombudsman if they are unhappy with the handling of an appeal by an LEA-appointed committee, but not if they are unhappy with the handling of a similar appeal by a committee appointed by a GM or VA school. That is why Clause 248 is in the Bill.
That increase in the ombudsman's powers will leave his office at full stretch. There will be no scope for it to investigate any additional education-related complaints. Even if there were scope, I do not believe that it would be necessary to give the ombudsman the new powers which are sought. There are statutory appeals and complaints mechanisms covering the national curriculum as well as other aspects of education. Those are being improved in various ways; for example, by introducing a greater lay element in the committees which deal with admissions and exclusions, and significantly enhancing parents' rights in the SEN field.
It is true to state that there is no general requirement on schools and LEAs to have established complaints procedures going beyond the areas for which statutory provision is made. However, some do set up and publicise arrangements for following up all kinds of complaints, and in the spirit of the Citizen's Charter we would expect more schools and LEAs to see the value of so doing. We may, however, want to look further at whether the Government should be doing more to improve or enhance complaints procedures once we have feedback from the complaints task force and the Charterline initiatives about existing procedures which my right honourable friend the Chancellor of the Duchy of Lancaster has established. I hope that the noble Lord, Lord Northbourne, and the noble Baroness, Lady David, will accept that the amendment is unnecessary.
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Amendments Nos. 260 and 261 fulfil pledges that I gave at Committee stage. Amendment No. 260 plugs loopholes in the 1980 and 1986 Education Acts. Under those Acts members of admission and exclusion appeal committees are personally liable for any costs that arise from a successful legal challenge against the decision of that committee. That is because appeal committees, although established by LEAs or governing bodies, are separate legal entities. I am grateful to the right reverend Prelate the Bishop of Guildford for bringing those loopholes to our attention.
The objective behind Amendment No. 261 is to ensure that the requirement to appoint a lay member to appeal committees fulfils the purpose which we envisaged when we committed ourselves to it in the Citizen's Charter. We shall certainly consult all interested parties before we make the necessary regulations.
Finally, Amendment No. 259L is purely a technical amendment which removes some unnecessary words from the text of the Bill. It will not in any way alter the sense of Schedule 15 which prevents members and employees of local authorities from serving as chairmen of appeal committees. Obviously I commend those three amendments to the House. I hope that the noble Lord will feel able to withdraw his amendment and that other noble Lords will not move their amendments.
Lord Ponsonby of Shulbrede: My Lords, I was disappointed with the noble Lord's response. Once again it demonstrates the Government's antipathy to the local education authorities which we have seen demonstrated time and again through many parts of the Bill. However, given the lateness of the hour I shall withdraw the amendment, as the noble Lord suggests, and consider whether it is worth returning to the subject at a later date.
Amendment, by leave, withdrawn.
[Amendments Nos. 259C to 259H not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 259J:
After Clause 243, insert the following new clause:
Restrictions on power to exclude pupils
(".—(1) The head teacher of any school maintained by a local education authority or grant-maintained school may not—

(a) exclude a pupil from the school for an indefinite period, or

(b) so exercise the power to exclude a pupil from the school for one or more fixed periods that the pupil is so excluded for more than fifteen school days in any one term.

(2) Subsection (1) above has effect, in the case of a school having articles of government, notwithstanding anything in the articles.
(3) Where, on the day on which this section comes into force, a pupil stands excluded from such a school for an indefinite period—

(a) he shall be treated as if he had been excluded from the school by the head teacher until the expiry of the period of one month beginning with that day and as if, in the case of a county, controlled or maintained special school, the local education authority had been so informed, and

(b) any direction given before that day—

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(i) under section 24(c) (ii) or 25(d) (ii) of the Education (No. 2) Act 1986 (pupil to be reinstated within period specified in direction), or

(ii) by a committee of the governing body of a grant-maintained school to the head teacher under a corresponding provision of the articles of government.

which specifies a period ending later than the expiry of the period of one month beginning with that day shall have effect as if it specified a period ending with that expiry.
(4) Subsection (1) (b) above does not apply to any exclusion of a pupil which has taken effect before the day on which this section comes into force; but in exercising on or after that day the power referred to in that subsection, account shall he taken of any school days on which the pupil was excluded from the school in the same term in pursuance of one or more exclusions which took effect before that day.
(5) In this section, "grant-maintained school" includes a grant-maintained special school.").
The noble Baroness said: My Lords, we have returned at various points in the debate to the issue of exclusions. It is a subject which is, I know, of particular interest to a number of your Lordships.
The Government are concerned about the number of pupils who are being excluded from school, the time taken to operate and complete exclusion procedures, and the provision made for pupils once they are excluded. Those concerns led us to issue a discussion paper on exclusions in November 1992. The paper set out what we believed should be guiding principles in this difficult area, notably that exclusions should be used sparingly and always—and I would emphasise always—as a last resort. The paper also raised a number of specific questions on which comment was invited and received.
I now bring forward a number of amendments as indicated in the Government's announcement on 23rd April.
Amendment No. 259J abolishes the category of indefinite exclusion. Widespread concern was registered by those responding to our discussion paper about the scope for abuse which the category offers and the uncertain position in which it leaves both the child and the parents. In some cases, children of compulsory school age were ending up in what might best he described as an educational limbo. We cannot allow that to happen.
In addition to abolishing indefinite exclusion, we are proposing that one or more fixed term exclusions may last up to 15 school days in any one term. This, we believe, allows schools the necessary degree of flexibility when dealing with cases which do not warrant permanent exclusion.
Amendment No. 287A to Schedule 18 also provides for a regulation-making power to ensure that procedural stages in the exclusion process are completed within specified periods. Information received by the department suggests that there can in some cases he long delays.
Amendment No. 259K provides for arrangements to be made for money to follow the child where a pupil is permanently excluded from an LEA or GM school. Those provisions are not quite complete and we shall return to the House with a further minor amendment at Third Reading. The amounts to be deducted from the excluding school's budget will be determined by
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regulations. We intend the sum concerned to be equivalent to the pro rata share of the age weighted pupil unit for the remainder of the financial year.
The changes I have outlined represent a measured and carefully considered response to the concerns expressed to us on exclusions and the provision made for excluded pupils. We believe that, coupled with the new duty on LEAs to provide for education otherwise than at school—Clause 274 of the Bill—they will lead to a better deal for excluded pupils while ensuring that head teachers continue to have an effective response to serious breaches of the school's disciplinary codes. I commend the amendments to the House.
Lord Judd: My Lords, will the Minister deal with four points on Amendment No. 259K? First, what is an appropriate amount? Presumably it will be a proportionate share of the cost of educating the pupil for a year. But that will differ between grant-maintained and LEA schools because of the allocation of central costs and double funding. Secondly, why have CTCs been excluded from the provisions? They surely receive public money and are widely thought to be large excluders of pupils. Thirdly, is the purpose of subsection (7) of Amendment No. 259K to take account of the pupil who is successively excluded from schools? Finally, should LEAs receive some recompense for the additional administrative work which they will have to undertake?
1.15 a.m.
Lord Kilmarnock: My Lords, before the noble Baroness rises to reply, can I ask her whether any calculations have been made about forecasts concerning the effect of the measures on the number of expulsions? We have had figures showing rises through the 1990–91 and 1991–92 academic years and have reached the figure of 6,743 permanent expulsions over that period. Can the Minister give any indication of how the figure might decrease as a result of the proposals that she has just made?
Baroness Blatch: My Lords, perhaps I may take the first question on the appropriate amount. I referred to the AWPU factor, the age weighted pupil unit factor—that is, the amount for a particular LEA for a certain age child. For the permanent exclusion, that sum would be the basis for the calculation.
The second question was on CTCs. My understanding is that there have been no exclusions at all from CTCs, which is some measure of their success, given the nature of the children whom they have to accept and admit by law. That is children from families who are not well supported and also children right across the ability range. Nevertheless, there have been no exclusions and my understanding is that the amendments do not cover CTCs.
On the question of recompense, my understanding is that there was consultation. The issue did not come up in the course of those consultations with the local authority associations. However, if I am wrong in saying that no representations have been made to us, of course I shall write to the noble Lord, Lord Judd. I see it as part of the administrative handling which local authorities carry out now, but without the

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framework of these amendments, dealing with children who are difficult in school. The authorities try to find ways and means of bringing them in from the streets, and liaising with local families. I do not believe that that factor will weigh heavily in terms of requirement for recompensing them.
On the calculation of full costs of the numbers of expulsions, I cannot be precise about the figures. There is an unhappy tendency for the numbers to increase, which gave rise to the survey in the first place and then the consultation document. We believe that that document was welcomed by most teachers who gave a healthy response. By and large, I think that the framework now suggested has been welcomed. However, if the noble Lord would like further facts and figures about that, I shall write to him.
Lord Judd: My Lords, before the noble Baroness sits down, could she give me an undertaking to look at those points further and write to me? I did not detect that her answers had quite the usual self-confident ring, and I quite understand that. If she were able to write to me more fully, I should deeply appreciate it.
Baroness Blatch: My Lords, let me put on my slightly more confident voice. On the age weighted pupil unit, the factor for local management of school schemes, a sum of money is attached to each child in school and that would be the basis of the calculation. On the second factor, CTCs are not included and to our knowledge there has been no exclusion from those schools. I believe that recompense is not an additional factor; LEAs are already dealing with exclusions under rather more difficult circumstances. It is my view that it would be a more streamlined position. On calculations, I promise to write with information about specific numbers. However, I can say that expulsions are worryingly high.
Lord Dormand of Easington: My Lords, the Minister kindly wrote to me on 19th May about exclusions, as she may remember, dealing in particular with this year's comparative tables of school performance. The letter states:
"They will for the first time include details of rates of unauthorised absence at individual schools: they will not however include exclusions data".
That is important. As I understand it, that is not related to these long amendments which we are discussing. However, the noble Baroness also kindly said in the letter:
"I will, of course, put the record straight at Report Stage".
That has not been done under these amendments. I have looked through all the amendments and cannot see where it occurs anywhere, and this is the last day for the Report stage. I repeat that it was a very helpful letter and because of its importance, I wonder whether the Minister would like to comment on it now.
Baroness Blatch: My Lords, I believe I dealt with this on the second day of Report stage but I am more than happy to put on record again—as I have already done for the noble Lord—that in response to a question on the issue of reporting data I answered on truancy but not on exclusions. But that was put right.
Lord Dormand of Easington: My Lords, I apologise. I have been present for the whole of the Report stage, so I must have missed it. I am very grateful for the confirmation. It is important.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 259K:
After Clause 243, insert the following new clause:
Exclusion of pupils: funding
(".—(1) Subsection (2) below applies where a pupil is permanently excluded from any school maintained by a local education authority or any grant-maintained school and, in the financial year in which the exclusion first takes effect—

(a) he is subsequently provided with education at a school maintained by a local education authority, education otherwise than at school provided by such an authority or education at a grant-maintained school, and

(b) the person accountable for that education (referred to below as "the new provider") is not the same as the person accountable for the education provided for him immediately before his exclusion (referred to below as "the former provider").

(2) The former provider shall pay to the new provider an amount determined in accordance with regulations as the appropriate amount of funding to be transferred to the new provider in respect of that pupil for that financial year.
(3) Every local education authority shall, where any scheme made by them under section 33 of the Education Reform Act 1988 (financing county and voluntary schools) does not make the provision required by subsection (4) below, exercise their powers to revise the scheme so that it makes such provision.
(4) The provision required by this subsection, in relation to a local education authority, is—

(a) provision requiring the authority, where a pupil is permanently excluded from a school and the exclusion first takes effect in a financial year in which the school is required to be covered by the scheme, to reduce the school's budget share for that year by an amount determined in accordance with regulations as the appropriate amount of funding in respect of that pupil for that year to be subtracted from the school's budget share, and

(b) provision requiring the authority, where a pupil admitted to a school in a financial year in which the school is required to be covered by the scheme has been permanently excluded from a school maintained by them or any other local education authority or any grant-maintained school and the exclusion (as well as the admission) first took effect in that year, to allocate for the purposes of the school in that year an amount determined in accordance with regulations as the appropriate amount of funding in respect of that pupil for that year to be allocated for those purposes.

(5) Expressions used in subsection (4) above and in Chapter III of Part I of the Education Reform Act 1988 have the same meaning in that subsection as in that Chapter.
(6) Subject to subsection (7) below, for the purposes of this section—

(a) the local education authority are accountable for education provided at any school maintained by them or education provided by them otherwise than at school, and

(b) the governing body are accountable for education provided at a grant-maintained school.

(7) Where a pupil is permanently excluded from any school maintained by a local education authority or grant-maintained school and, in the financial year in which the exclusion first takes effect, the following events subsequently occur—

(a) he is first provided with education for which a different local education authority or, in the case of exclusion from a grant-maintained school, any local education authority are accountable (referred to

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below as "the first new provider") and which is provided in a pupil referral unit or otherwise than at school, and, at any time afterwards

(b) he is provided with education at a grant-maintained school or for which a local education authority other than the first new provider are accountable,

then, in relation to the education mentioned in paragraph (b) above, the first new provider is to be treated as accountable for the education provided for the pupil immediately before the exclusion first took effect.
(8) Any dispute as to whether any local education authority or governing body of a grant-maintained school are entitled to be paid any amount under this section by any such other person shall be determined by the Secretary of State.
(9) In this section, "grant-maintained school" includes a grant-maintained special school.").
On Question, amendment agreed to.
Schedule 15 [School admission appeals]:
Viscount Astor Viscount Astor moved Amendment No. 259L:
Page 223, leave out lines 20 to 24 and insert:
(" "(5) A person who is a member of the authority or employed by the authority shall not be chairman of an appeal committee." ").
The noble Viscount said: My Lords, I have already spoken to this amendment.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendments Nos. 260 and 261:
Before Clause 248, insert the following new clause:
Indemnity for legal costs and expenses of members of appeal committees
(".—(1) This section applies—

(a) in the case of an appeal committee constituted in accordance with Part I of Schedule 2 to the Education Act 1980, to the local education authority or governing body of an aided or special agreement school required by section 7 of that Act or section 26 of the Education (No. 2) Act 1986 to make arrangements for enabling appeals to be made to that committee, and

(b) in the case of an appeal committee constituted for the purposes of paragraph 5(1) of Schedule 6 to this Act, to the governing body of a grant-maintained school required by the articles of government for the school to make arrangements for appeals to that committee.

(2) It shall be the duty of any local education authority or governing body to which this section applies to indemnify the members of any appeal committee required to be constituted for the purposes of arrangements made by that authority or body against any reasonable legal costs and expenses reasonably incurred by those members in connection with any decision or action taken by them in good faith in pursuance of their functions as members of that committee.").
Before Clause 248, insert the following new clause:
Duty to advertise for lay members for appeal committees
(".—(1) This section applies—

(a) in the case of an appeal committee constituted in accordance with Part I of Schedule 2 to the Education Act 1980, to the local education authority or governing body of an aided or special agreement school required by section 7 of that Act or section 26 of the Education (No. 2) Act 1986 to make arrangements for enabling appeals to be made to that committee, and

(b) in the case of an appeal committee constituted for the purposes of paragraph 5(1) of Schedule 6 to this Act, to the governing body of a grant-maintained school required by the articles of government for the school to make arrangements for appeals to that committee.

(2) The Secretary of State may by regulations require any local education authority or governing body to which this section applies—

(a) to advertise, in such manner and at such times as may be prescribed, for persons eligible to be lay members
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of any appeal committee required to he constituted for the purposes of arrangements made by that authority or body to apply to the authority or body for appointment as such members, and

(b) in appointing persons as such members, to consider any persons eligible to be so appointed who have applied to the authority or body in response to an advertisement placed in pursuance of paragraph (a) above.").

The noble Viscount said: My Lords, I beg to move these amendments en bloc. They were spoken to with earlier amendments.
On Question, amendments agreed to.
Clause 248 [Investigation ht' Local Commissioner of decisions of certain appeal committees]:
[Amendment No. 262 not moved.]
Clause 250 [Sponsor governors for aided secondary schools]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 263 to 265:
Page 153, line 32, leave out ("schoo l which provides secondary education") and insert ("secondary school").
Page 154, line 41, leave out ("schoo l which provides secondary education") and insert ("secondary school").
Page 155, line 6, at end insert:
("(8) In this section "direction" me ans a direction contained in an order made by the Se cretary of State.").
Page 155, line 16, leave out ("provide secondary education") and insert ("are secondary schools").
On Question, amendments agreed to.
Clause 252 [Power to make and deal with proposals in the case of schools eligible for grant-maintained status]:
Baroness Blatch Baroness Blatch moved Amendment No. 266:
Page 156, line 24, at end insert ("and where the procedure for acquisition of grant-maintained status is pending (within the meaning of Chapter III of Part II of this Act) in respect of any voluntary school, no notice of the governing body's intention to discontinue the school may be served under section 14 of the Education Act 1944.").
On Question, amendment agreed to.
Lord Ponsonby Lord Ponsonby moved Amendment No. 267:
Page 156, line 41, leave out from ("subsection") to end of line 48.
The noble Lord said: I wish to address Amendments Nos. 267 and 268 in the name of my noble friend Lady Blackstone. The purpose of these amendments is to remove the requirement of the Secretary of State to consider a proposal for grant-maintained status before considering a proposal to close a school.
This issue was raised at Committee stage in this House, when an amendment was moved by my noble friend Lady Blackstone. That amendment required the Secretary of State to consider any proposal from a local education authority to cease to maintain or make significant changes to the character of a school prior to considering the proposal for grant-maintained status.
In replying, the noble Baroness, Lady Blatch, said that in each of the 85 cases that had been submitted to the Department for Education for determination by the Secretary of State, the case for closure had been considered alongside the case for grant-maintained status.
Under Section 73 of the Education Reform Act 1988 the Secretary of State is obliged to consider both sets of proposals together. But he is not able to determine the closure of a school under Section 12 of the Education Act 1980 before he has made his determination as to whether the school should acquire grant-maintained status. Clearly this constrains the Secretary of State by requiring the decision about grant-maintained status to be made first.
The aim of this amendment is to remove that requirement to consider grant-maintained status before closure. As a result of the amendment the Secretary of State would be entirely free to make the decisions in the order that he considered the most appropriate under the circumstances. It is hard to see what objection the Government could have to such an amendment since it removes from the current legislation the constraints on the Secretary of State without requiring any alternative constraints. It would have all the advantages of flexibility without any of the disadvantages of the current legislation or the creation of a new constraint on the Secretary of State to look at the proposal for closure first if he thought this was not appropriate in a particular case.
If Ministers are keen to reduce the number of surplus places then they should be willing to assist local education authorities in making proposals for the closure of schools that are not viable, and schools that need to be closed, in order to reorganise education by deciding on closures before considering such schools for grant-maintained status where that is appropriate. This amendment would provide local education authorities with considerable reassurance as to Ministers' support for their attempts to reduce surplus places wherever that is possible. I beg to move.
Baroness Williams of Crosby: My Lords, I should like briefly to support the amendment. On a number of the issues that have been considered in the course of Report stage of the Bill there have been considerable divisions between the two sides of the House about what they want to achieve in education and the structure of education of which they approve.
In this case the discussion is one that the Government must have with themselves. Implicit in the amendment that has been moved by the noble Lord, Lord Ponsonby, is a question that needs to be addressed by the Government themselves. As the noble Lord pointed out, over recent years there has been a very large number of surplus school places. It is nobody's fault. It arises from the fact that the population in this country rose rapidly in the 1960s and began to fall in the 1970s. In consequence there were a great many surplus school places, especially in those parts of the country from which the population had moved. We all know that surplus school places are expensive.
As the noble Lord, my colleague, said, the 1988 Act allowing the Minister to take together the two issues—the closure of schools and applications for grant-maintained status—indicated that the decision over grant-maintained status should be taken first. That was obviously a way of getting that off the ground, because many of the early groups of schools
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that adopted grant-maintained status were schools that otherwise would have been closed by their local authority.
The situation has changed markedly in the past two years. By now much the most serious consideration that affects education is the effect of the £50 billion public sector borrowing requirement deficit which overhangs the whole country and which, as we all know, in the next few months will seriously affect expenditure on education as well as other aspects of public expenditure.
In those circumstances, to keep surplus school places available at considerable cost to the education service seems to be extremely unwise. Where places are clearly surplus, they should be considered as such and dealt with in order to save money for the purposes for which that money was originally voted; namely, the education of the children of this country. It should not go on maintaining empty surplus places in schools which without doubt should be closed down.
It seems to me that the priorities for education have changed very substantially. It would make every possible sense to allow the Secretary of State to consider these two issues side by side and decide which should take predominance: the issue of saving on public expenditure, which in present circumstances must be a very serious consideration for any responsible Member of this House or the other place, compared with the issue of opting out. I argue that the balance of priorities has substantially changed since the 1988 Act and that Members of this House should seriously consider this amendment, which allows that change to be reflected in the way in which the Secretary of State would now behave. I support the amendment.
Lord Henley: My Lords, it may be useful if I remind the House that the debate on this amendment is not in any way about surplus school places. We have said many times—I repeat it again now—that we shall not allow the grant-maintained process to become an escape route for failing and unpopular schools. All proposals will be considered and decided on their merits.
As the noble Lord said, we debated at an earlier stage amendments very similar to this one. They were discussed, I believe, on 22nd April at Committee stage. Again, something similar was moved at Report stage on 10th June.
Let me say briefly why we cannot accept the amendments. We cannot accept them because they would abolish the procedures established in the 1988 Act and re-enacted in Clause 252 of this Bill. Those require both sets of proposals to be considered together, but the grant-maintained proposals to be determined first. If the amendments were agreed, there would be no guidelines for joint consideration of grant-maintained and Section 12 proposals. As my noble friend said when we last considered such amendments, one cannot establish a grant-maintained school if one has decided to close it. It would be illogical to decide the Section 12 proposals before the proposals for grant-maintained status.
I do not believe that the existing arrangements are biased in favour of grant-maintained schools or that

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they make sensible reorganisation proposals more difficult. Both the grant-maintained and the Section 12 proposals are and will continue to be decided on their merits.
With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.
Baroness Williams of Crosby: My Lords, before the Minister sits down, if it is correct that this issue in no way affects the issue of surplus school places, why was there such a dramatic fall in the number of secondary schools affected by local reorganisation between 1987 and 1991 from 612 to 174? Would the Minister care to explain that?
1.30 a.m.
Lord Henley: My Lords, the noble Baroness makes a perfectly fair point. The question of surplus school places is very important. I was saying that these particular amendments had nothing to do with surplus school places but dealt with the processes by which these matters would be continued. I gave an assurance at the beginning that we would not in any way allow the grant-maintained process to become an escape route for what might be considered to be surplus school places, avoiding the necessity for those to be considered as surplus school places. I made it quite clear to the noble Baroness that all proposals would therefore be considered on their merits.
Lord Ponsonby of Shulbrede: My Lords, in thanking the noble Lord for his reply I believe that he has been slightly disingenuous about the content and purpose of the amendments. The purpose is partly to reassure local authorities that they have the Minister's full support in reducing surplus school places. As such, they streamline the Secretary of State's procedures for introducing school closures. Nevertheless, we have had a very full debate about the need to reduce surplus school places and I do not propose to continue it tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 268 not moved.]
Baroness Young Baroness Young moved Amendment No. 268A:
After Clause 253, insert the following new clause:
("Responsibilities of school governors
.—(1) The governors of a school shall be responsible for ensuring that all persons teaching in that school are not disqualified from teaching children by any Act of Parliament or exercise of the powers conferred on the Secretary of State, local education authority or other body under any Act of Parliament or, in the case of a citizen of another member state of the European Community, equivalent disqualification under the national law of that member state.
(2) The governors shall have discharged their responsibility under subsection (1) above when a member of the school staff or other person appointed by resolution of the governors produces a certificate in such form as may be prescribed by the Secretary of State and signed by a person authorised by the Secretary of State in respect of each person teaching in that school stating that that person is not disqualified from teaching and does not have criminal convictions or suffer from any medical condition which would put children at risk.
(3) Notwithstanding the provisions of subsection (1), when a school enters into a commercial contract for the supply of services and that contract specifies that the provider of such services shall be responsible for the production of certificates
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as under subsection (2) then all liability for the conduct of a person sent brought into contact with children on that school's roll as a result of that contract and not covered by a certificate shall lie with the contractor, not the governors or employees of the school.").
The noble Baroness said: My Lords, I raised this matter at the Committee stage on a short clause stand part debate. The issue at point is the qualifications of supply teachers. By "supply teachers" I mean a teacher who may possibly be employed for a term, or a period of that kind, or someone who comes in just for one afternoon. In the past, supply teachers were always supplied by the local education authority. That is not always the case now. There are a number of employment agencies who supply these teachers. It is important that they should be properly qualified and that their qualifications are checked to make sure that they meet the high standards required of teachers.
At this late hour I will not take up the time of the House. However, on reading the Official Report I was not entirely with what the Minister had said. She has told me that she has considered the matter further, and it will be helpful to have her views on the record. The matter is an urgent one. My attention has been drawn to the fact that there has already been one case of difficulty. This is what my noble friend said on Thursday 13th May:
"Critically, he or she must not have been excluded from teaching by the Secretary of State on health or educational grounds or on the ground of misconduct".
She went on to say:
"it is vitally important to ensure that pupils are not exposed to unsuitable teachers … It is entirely understandable that schools should wish to have teachers' credentials suitably checked by the employment agency before they work in the school … Any licensed agency is able to request such a check before accepting a teacher on to its books".—[Official Report, 13/5/93; col. 1408.]
The issue is whether all of that is happening. I have tabled the amendment in order to set out the responsibilities of governors and the local education authority and to make quite clear how a suitable check can be made on supply teachers.
Subsection (1) makes clear the responsibility of governors. Although it is generally thought that governors are responsible, there may be some doubt as to the responsibility of the local education authority in the matter. Subsection (2) provides a mechanism for ensuring that governors can easily discharge their responsibility. It will place the responsibility on the Secretary of State for making sure that the information needed is available. That seems to be right.
A difficulty arises with access to police records. But it is quite wrong that children and governors should be at risk because Ministers have failed to address the requirements that arise when we are changing from a system based on state provision—that is, from the local education authority—to one based on competition between agencies operating in the market. I believe that there are now some London boroughs where schools need to use agencies. I am not against that, but it is not right that the heads or the governors should be denied the certainty of knowing that the teachers who come from the agencies have been properly checked.
As far as I can see there is no reason why the issue of a proper certificate should be free. The costs of providing them could be recovered. I understand that in Hammersmith and Fulham schools have to pay £1,000 a year if they want the borough to conduct police investigations, List 99 checks, medical checks and to use the borough's vetting list of supply teachers. There is also no need for agencies to have access to police records. All that is needed is that they should obtain a statement by an applicant teacher of any convictions and be able to ask the police to confirm that the statement is complete and accurate. An applicant seeking to cover up any conviction is obviously unsuitable. Subsection (3) is to allow education authorities, agencies and other bodies, to contract with schools to undertake the responsibilities for schools.
I have set the provision out in full because it is an example of the kind of amendment which would meet what could be a serious problem and appears to be a loophole. Obviously at this time of the night I have no intention of pressing it, but I hope that my noble friend—I believe that she has considered this further—is able to give us a greater assurance than she was able to do in Committee, so that we can be quite certain that schools taking teachers from employment agencies can be sure that those teachers are not only suitably qualified academically, but have in fact passed the rigorous tests which teachers would have to do if they were full time. I beg to move.
Baroness Blatch: My Lords, I am grateful to my noble friend for raising again the important question of the responsibility for ensuring that teaching staff in schools, especially those provided through employment agencies, are fit and proper people to have care and control of pupils in schools. I wholeheartedly share my noble friend's concerns. The effect of the amendment that she has tabled would be to make it clear that the responsibility for vetting teachers rests with school governing bodies, but in effect to enable them to delegate that responsibility to an employment agency which supplies teachers to the school.
A number of different factors need to be checked when a teacher is appointed. First, and arguably most important, there is a need to make sure that the teacher has not been excluded from teaching by the Secretary of State. The Secretary of State has power to bar teachers or to make their employment subject to conditions, if they have been guilty of misconduct (and of course, particularly if they have committed any offences against children), or on the grounds of health. It is relatively infrequent that he has to exercise that responsibility; but where he does so, it is most usually on the grounds of misconduct. A confidential record of teachers who have been excluded is maintained in what is called List 99. Employers of teachers already have an implied duty under the education Acts to check all appointments against List 99, because they are prohibited from employing a barred teacher.
Employment agencies also have a statutory duty in that respect. Under the Employment Agencies Act 1973 they must take all reasonable steps to ensure that
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persons they supply for any employment are not disqualified from that employment under any Act of Parliament. My Lords, my department is consulting with the employment department. We plan to issue through that department a series of guidelines for employment agencies which supply teachers, to make it absolutely clear that their duty under the Employment Agencies Act includes a firm responsibility to make sure that the List 99 has been checked for every teacher whom they supply. The department's staff will undertake such a check, without delay, where agencies do not have access to List 99 themselves. The guidelines will make it clear that the agencies are required to secure the check before supplying a teacher to a school. The employment department has the power to withdraw an agency's licence if it is found to have failed in its statutory duties.
Employers also already have a statutory duty to ensure that all teachers have the health and the physical capacity to discharge the onerous task of teaching. Some teachers whose mental or physical health puts children at risk may have been barred by the Secretary of State and appear on List 99; but employers also need to be satisfied that teachers are fit enough to carry out their professional responsibilities. We propose that the guidelines for employment agencies should also cover their responsibilities in regard to checking the health records of those they supply to schools.
The amendment would also impose a statutory duty to ensure that no teacher has any criminal conviction. That goes far beyond the present position, and in my view much too far. The Secretary of State does not automatically bar a teacher because he or she has been found guilty of an offence. We need to take account of the nature of the offence and of the circumstances. Of course, any offence against children, and any but the most minor offence involving drugs or violence, for example, would cause the Secretary of State to consider very seriously whether the teacher should be excluded. But automatic, statutory exclusion in all cases goes too far.
My department and the Welsh Office, together with the Home Office, recommend that employers should seek a check of any criminal convictions in respect of all teachers and other workers who have substantial unsupervised access to children. If a teacher is found to have been convicted of an offence, but is not excluded from teaching by the Secretary of State, it is for the employer to decide what, if any, action to take. All intending teachers are required to disclose any criminal convictions when seeking appointment, if they are asked to do so. They should therefore be required by employment agencies to disclose any convictions; and we propose that the employment department guidelines should make that clear also.
In addition, under the Employment Agencies Act, employment agencies must be assiduous in taking up references from previous employers. That too should bring to light any doubts. Here again, we intend that our guidelines should make absolutely clear what the employment agencies' responsibilities are. At present the responsibilities of agencies must fall short of checking against police records. The police will not

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disclose information to agencies, though some agencies have arrangements for such checks, through the local education authorities for whose schools they provide teachers. We propose that in all cases the guidelines for agencies will make clear that they must tell the schools, when they supply a teacher, exactly how far they have been able to go in verifying the applicant's own statement of any criminal record. It will then be for the school to consider what further action, if any, needs to be taken through the local education authority.
We are also discussing with the Home Office and the police authorities whether any improvement on present arrangements for checking criminal records may be possible. As my noble friend knows, this is a very sensitive area, but we shall not let up on our efforts. I do not believe, with the greatest respect, that the sweeping proposals which my noble friend's amendment envisages are practicable, or would necessarily achieve the objectives which we share.
There are other questions which the amendment does not touch upon. There is, for example, the need for teachers to have the appropriate status and qualifications. Persons who have not been awarded qualified teacher status by the Secretary of State may not, except in very limited circumstances, be employed in maintained (including self-governing) schools. Employment agencies need therefore to be assiduous in verifying qualifications and status. That is not a difficult matter. All qualified teachers should be able to produce a letter from the department confirming that status. If they have mislaid their letter, the department will issue a duplicate on request. There is therefore no excuse whatever for an agency not verifying a teacher's status. This issue too we plan to cover in the proposed guidelines.
Noble Lords may think that issuing guidelines is not enough; that there can be no guarantee that all employment agencies will follow them. As I have said, the Department of Employment has power to revoke an agency's licence if it fails to fulfil its duty. But I recognise that something more is required; and in particular that schools themselves will want a means of enforcing their requirements. The department is therefore considering urgently the advice it might give to schools about their dealings with employment agencies. This guidance could recommend a contract or agreement that schools could enter into with any employment agency whose services they wished to use. The contract would specify in detail the checks the agency would need to undertake before providing a teacher. The requirements could extend to insistence that agencies have indemnity insurance to cover any liability that might otherwise fall on a school as a result of the action of a person supplied by an agency. They could include a certificate of competence, perhaps supplied by independent consultants, to confirm that agencies had the systems in place to undertake all that was required of them. Schools might then be advised not to make use of the services of any agency which would not sign up to a contract specifying such safeguards, and would have grounds for action against any failure to operate those safeguards.
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I believe that this approach could offer the schools, and more importantly the children, the protection they need. We are consulting the employment agencies themselves, and will consult the LEAs and schools, about these requirements. I do not believe that we need further legislation in this field, which is already covered by a plethora of regulation. But I can assure my noble friend that we are pursuing all practical ways and that we shall continue to pursue these issues vigorously within existing legislation.
1.45 a.m.
Baroness Seear: My Lords, before the Minister sits down, perhaps I may ask her about the reference to "criminal convictions". She confirmed that in certain cases teachers must not have criminal convictions, but that does not include spent convictions. I ask about this because I have seen reference in one or two places to ignoring the Rehabilitation of Offenders Act and requiring information about convictions even if they are spent. Surely that legislation binds everybody, including school authorities.
Baroness Blatch: My Lords, my understanding is that, if a teacher has been suspended from teaching because of having a criminal conviction and has appeared on List 99, there is no facility for removing him from List 99. Anybody checking List 99 will find that that teacher has been suspended from teaching for a particular offence. That will be made known. As for spent convictions with the criminal courts, I am not able to answer that technical question, but I shall write to the noble Baroness.
Baroness Young: My Lords, I should like to thank my noble friend the Minister very much. She has considered seriously the point that I raised in Committee and my amendment. It is very important that her department will issue guidelines and advice to schools and strengthen the provisions for making sure—I entirely accept this—that employment agencies will check the status and qualifications of teachers, as well as whether they are on List 99.
On the question of police records, I realise that this is an extremely sensitive issue to which have no very easy answer. If it were possible to have some system whereby the statement of the person who wishes to he employed could be checked by the Home Office, that would mean that no one would have to see those records. I see that that would be totally inappropriate.
I conclude by thanking my noble friend. I shall read carefully what she has said. I should be grateful if she could send me a draft of the provisions when they are drawn up so that I can have a look at them. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Seear Baroness Seear moved Amendment No. 268B:
After Clause 255, insert the following new clause:
("Schools acquiring grant-maintained status
.—( ) Where a school that is part of a scheme made under section 33 of the Education Reform Act 1988—

(a) acquires grant-maintained status, and

(b) and its expenditure has exceeded its budget for the financial year in which it acquires grant-maintained status,

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the amount by which the expenditure exceeds the budget shall be deducted from the amount recoverable under section 91 of this Act.").
The noble Baroness said: My Lords, the purpose of the proposed new clause is that, where a grant-maintained school, in the first year of its new status, runs up bills in excess of its budget, that cost should not fall on the local authority. That is obviously desirable not only in itself, but also because the new grant-maintained school should be strongly discouraged from operating outside its budgetary limits. I am sure that the Minister will not wish to give the impression that the Government want the local authority to carry the can for any excess payments entered into by a grant-maintained school. In order to ensure that, the provision should appear on the face of the Bill. I beg to move.
Lord Ponsonby of Shulbrede: My Lords, my name is attached to the amendment and I wish briefly to address it. As we heard from the noble Baroness, Lady Seear, the purpose of the amendment is to ensure that the amount of any debt in the revenue account of a school opting out may not be recovered from the local education authority.
There have been various allegations along those lines and the Secretary of State has admitted that some schools have run up their deficits after grant-maintained status has been granted. The Association of Metropolitan Authorities has begun to receive reports that a number of schools have cynically been setting out to create deficits during their final month under local education authority control in order to exploit this current loophole in the law.
It has also been alleged that some groups or individuals with an interest in promoting grant-maintained status have been encouraging schools to engage in that dubious moral practice and have advised them how it can be done in such a way that the local education authority does not discover what is going on until it is too late. In one extreme case the school placed an order for computer equipment with an advance payment of some £30,000. It was not until the end of the financial year that it was discovered by the local education authority.
The amendment tries to close that loophole, of which I am sure the Government are aware. I can see no reasonable ground for resisting it. It does no more than encourage prudent management and allow the recovery of proper debts. If there are technical objections to the drafting of the amendment, I shall be happy to withdraw it and to take on board any objections which the Minister may have on those grounds.
Lord Henley: My Lords, there are slightly more than technical objections to the drafting. I am not a draftsman but my advice is that the amendment does not make sense and does not achieve what the noble Lord or the noble Baroness wish. For that reason alone we would have to oppose it but, as the noble Lord so generously said, if we were opposing it only on those grounds he could take it away and come back with something better.
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We disagree with the intention as well as with the amendment itself. I am sure that the noble Baroness and the noble Lord will agree that all those assuming a responsibility for the management of public funds must discharge that responsibility with the seriousness and integrity that as taxpayers we have a right to demand.
Under the local management of schools it should not be possible for any significant deficit to arise without the knowledge of the local education authority. Many LMS-related deficits arise, for example, where the LEA has agreed a request of the LEA school to meet expenditure beyond the amount of the school's LMS budget share. It may be that this is done on the basis that the amount will be subtracted from the following year's budget share. However, we do not consider that fact to be sufficient to cause the GM governing body to be liable to repay those sums.
That is not to say that LEA schools should have a blank cheque on which to write overspending of their LMS budget share. Governors need to bear in mind that, unless they have express or implied authority from the LEA, and are as normal acting as agents of the LEA, spending above a school's LMS budget share is prohibited. But that is a different issue from the question of whether a liability falls to be met by a GM school following on.
I presume that the intention behind the amendment is that the Government should write off any deficit accumulated by an LEA-maintained school when it becomes grant-maintained. We believe that that intention would seriously undermine the proper financial management of LEA school budgets. Local authorities and their schools would no longer be accountable for the proper control of spending if they knew that the Government would cover any overspend. It would not be a proper use of Exchequer funds to support such spending, which would have been local authority spending, albeit through the agency of school governors, and which it properly falls to the local authority to meet. It would not do for local authorities to wash their hands of responsibility in this way, and we shall continue to recover from all authorities the full cost of AMG for schools in their areas.
Therefore, I hope that the noble Lord will accept that it is not the drafting of the amendment which is the problem—although, as I said, there are objections to that—but rather, the intention behind it.
Baroness Seear: My Lords, that is an extremely unsatisfactory response. The noble Lord, Lord Ponsonby, made it clear that there have been cases in which that excessive expenditure has been improperly entered into. It seems quite unreasonable that the local authority should have to carry the can for that school which is passing out of its control. I believe that the Minister agreed that that has happened on occasion. Will he take away the amendment and look at ways in which an agreed malpractice could be controlled, other than by requiring local authorities to pay bills on which they have entered into no commitment, having been incurred by a school for which ultimately they will have no responsibility but which will be the responsibility of the Government?
Lord Henley: My Lords, with the leave of the House, I must tell the noble Baroness that I am not prepared to take away the amendment. While a school has local management of its own funds it should not be possible for a deficit to arise without the knowledge of the LEA. The LEA has rights and responsibilities in those matters and the LEA must ensure that the school does not go beyond what it can spend in its budget. We feel that it is right that it should be a matter of responsibility for the local education authority.
Baroness Seear: My Lords, that is an extremely unsatisfactory reply. I am tempted to call a Division but I shall not do so at this time of night. I fear that the Minister has appreciated the point but, once again, he is determined to support grant-maintained schools and to do down local authorities. This is another example of that which has prevailed throughout our discussions on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 258 [Inter-authority recoupment]:
Baroness David Baroness David had given notice of her intention to move Amendment No. 268C:
Leave out Clause 258.
The noble Baroness said: My Lords, there alighted on my desk this afternoon a letter from the Minister together with a fairly bulky consultation paper on recoupment. I understand from the letter which was sent to chief education officers and chief finance officers with the consultation paper that the Government intend to alter the framework of inter-authority recoupment. Comments are not to be in until 15th October. Therefore, it seems stupid to begin discussion this evening on Clause 258 in the light of this paper, which is fairly bulky. I have not yet had an opportunity to look properly at it. It seems sensible to examine it and seek advice on it before the next stage of the Bill. I do not move the amendment.
[Amendment No. 268C not moved.]
2 a.m.
Lord Judd Lord Judd moved Amendment No. 268D:
After Clause 258, insert the following new clause:
("Grants for the Education of refugees and displaced persons
In section 210 of the Education Reform Act 1988 for paragraph (c) there is substituted—
"(c) he is a refugee or displaced person who is for the time being resident in a camp or other temporary accommodation or establishment".").
The noble Lord said: My Lords, Section 210 of the Education Reform Act enables the Secretary of State to make grants to local education authorities for educating the children of travellers and refugees resident in camps or purpose-built accommodation. The proposed new clause seeks to amend Section 210 of the Education Reform Act 1988 which currently restricts expenditure of grant to provision of people who are resident,
"in a camp or other accommodation or establishment provided for refugees or for displaced or similar persons".
The Government have argued that the amendment is unnecessary and unworkable and that Section 210 grant provides for those exceptional circumstances
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where significant numbers of refugees enter as a group and are temporarily accommodated in a dedicated camp or reception centre. Indeed, the noble Lord, Lord Henley, argued (Hansard, 13th May, col. 1427) that there is no reason to assume that people living in temporary accommodation have by definition any particular educational needs of the kind that Section 210 is intended to address.
However, the task of the education service, and more particularly each school, is to assist the assimilation of each child or young person into the classroom. That includes refugee children, whether or not they are housed in specific camps or in temporary accommodation. The task involved is considerable. The refugee children are already coping with a major change in circumstances and may also be dealing with the direct effect of persecution and death. Each child will have little or no knowledge of English and no experience of the UK education system. The cultural and religious background may be fundamentally different. The length of time of residence in the country is uncertain. Such matters present major challenges to the education authority, school and teacher as well as to the child.
The noble Lord, Lord Henley, also argued that LEAs receive allowance in their revenue support grant to meet such needs. However, the pupil count which determines the RSG takes place once a year and refugees and asylum seekers do not have the luxury of timing their arrival in the UK to coincide with the pupil count, or, for that matter, with the bidding timetable for the grant. Therefore, LEAs are often excluded from receiving resources to respond to the educational needs of children of nomadic communities, refugees and asylum seekers. It is, therefore, irrelevant to suggest that the possible abolition of recoupment between authorities will enable an authority to receive funding for refugee children based on the number of pupils in its schools, regardless of their authority of residence.
The situation is further compounded by the restricted eligibility for Section 210 grant which also requires communities to be housed in specific camps. It is not always appropriate for homeless people to be accommodated in camps or in hostels. The pressure on housing means that such accommodation is not available to housing departments. Besides, it is not considered to be desirable to locate people in a single unit where they may be subject to hostility. In fact, homeless people are normally accommodated within bed and breakfast hotel accommodation or in accommodation within the local authority pool.
The needs are particularly acute in London. London education authorities are required to respond to a year-on-year demand from the majority of those admitted to the United Kingdom. The London Research Centre has found that up to 90 per cent. of refugees come to the London area. It has also shown that 1,500 homeless households were accommodated by London boroughs in 1989–90; 2,500 in 1991; 2,500 in 1991–92; and an estimated 2,000 in 1992–93. In October 1992, a survey of London boroughs conducted by the ALA and the London Boroughs

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Association revealed that some 550 households were accommodated in temporary accommodation in the London area.
Each household is in priority housing need and will have a number of children. The London area receives a number of unaccompanied children each year—150 children from Eritrea in 1990 and an average of 25 each year are accommodated by the social services. Such accommodation falls outside the scope of Section 210 grant for the education of travellers and displaced persons. The provision of services to refugees and asylum seekers is also outside the scope of Section 11 of the Local Government Act 1966.
The London boroughs are therefore required to provide a range of services including education. A survey carried out by the ALA and LBA has identified some 7,000 refugee children being provided with intensive English language tuition. A further 3,300 adults were receiving intensive English language tuition. Hence the importance of these amendments. I beg to move.
Baroness Seear: My Lords, I would very much like to support the amendment which stands also in my name. It surely must be in everyone's interest for displaced persons and refugees who are in this country and are likely to stay in this country to have all the advantages of education and to learn the language and adjust to the country that they are in. That is bound to incur costs that it would be unreasonable to expect the local authority to bear without additional support. I very much hope the Government will be able to accept this modest amendment.
Lord Henley: My Lords, this amendment seeks, as we know, to extend the scope of Section 210 of the Education Reform Act 1988. At present the application of Section 210 of the Education Reform Act 1988, and of the regulations made under it, is limited to,
"those who are for the time being resident in a camp or other accommodation or establishment provided for refugees or for displaced or similar persons".
The accommodation should be such as is provided exclusively for displaced persons. Provision for those living in hostel accommodation, in the form of bed and breakfast arrangements, or council housing, falls outside the scope of the grant since that accommodation is not provided exclusively for displaced persons but for anybody whomsoever the authority considers to be in need of it.
As the noble Lord will be aware, Section 210 grant replaced an earlier arrangement known as the "No Area Pool", which enabled local authorities to claim additional funding from central government to meet the educational needs of people who were not ordinarily resident in their area. That included nomadic people, displaced persons and others.
Section 210 was never intended to provide the sole means of support for the education of travellers and of displaced persons. LEAs receive allowance in their revenue support grant to meet the basic educational needs of all pupils, including travellers and displaced persons, based on numbers recorded in the annual pupil count. Where local education authorities are
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making extra provision to meet the particular educational needs of travellers and of those displaced persons within scope of the grant, over and above what is normally provided in school, they may apply for funding from Section 210 grant.
As we have noted earlier, the education element of revenue support grant contains a generous weighting for the costs of meeting additional educational needs of all kinds—including needs that arise from social factors. Those authorities who benefit most from this weighting are those London authorities where the problem of housing in temporary accommodation is most acute. We believe that the noble Lord's amendment also defines the beneficiaries of grant rather more narrowly than Section 210 currently does. The present wording relates to,
"refugees or displaced or similar persons."
The wording of the noble Lord's amendment relates only to "refugees or displaced persons". It is possible this narrower definition could exclude some groups currently within scope of the grant, such as those given "exceptional leave to remain", or those who have recently been admitted to this country under the special arrangements for those previously held in detention camps in Bosnia, together with their dependants. The UK offered to take these people out of Bosnia, to give them temporary protection: they are not therefore regarded as "displaced" in the normal sense of that word.
I hope I may add two further points. First, the Department of the Environment announced two schemes in February to help local authorities facing unexpectedly heavy demands as a result of influxes of displaced persons—one for those from former Yugoslavia, and one for unaccompanied children.
Section 210 grant is not designed to deal with short-term needs: LEAs have to submit detailed project proposals well in advance of the start of the financial year for which funding is sought.
I should add a few words on the educational needs of refugees who do not qualify for Section 210 support at the moment. The main educational need of such displaced persons will be to learn English. Most local education authorities receive financial support from the Home Office under Section 11 of the Local Government Act 1966 for the provision of teachers of English as a second language for ethnic minority pupils.
I am conscious, as the noble Lord will be, that, for historical reasons, Section 11 is restricted to members of New Commonwealth ethnic minorities. The noble Lord will be aware that a Private Member's Bill is currently under consideration which would remove that current restriction. The Government have previously accepted that the removal of that restriction would be desirable. We believe that that could be a more appropriate way forward.
I hope that, in view of what I have said and my explanation of how we see the position, the noble Lord will feel able to withdraw his amendment.
Lord Judd: My Lords, I am always grateful for the gracious way in which the noble Lord replies to these points.

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There is an urgent need, and it has to be met. Pursuing the amendment at this hour of the night will not achieve the desired result. That is quite clear. I hope that Ministers recognise the need and, in the spirit in which the Minister spoke, will address it effectively. In the hope that that will happen, and with the observation that if it does not we shall find ways of returning to the question, which is a crucially important humanitarian issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
clause 260 [Grants by Secretary of State in respect of aided and special agreement schools]:
Baroness Blatch Baroness Blatch moved Amendment No. 268E:
Page 162, line 44, at end insert:
("( ) Without prejudice to any other duty of his, the Secretary of State shall, in performing functions relating to the exercise of the power under this section to make grants in respect of expenditure on—

(a) such alterations to school buildings as are referred to in section 15(3) (a) of the Education Act 1944 (alterations required by local education authority in order to comply with prescribed standards), and

(b) the repair of school buildings,

give priority to paying grant in respect of expenditure which is necessary for the performance by governing bodies of their duties; and the amount of any grant paid in the exercise of that power in respect of such expenditure on the repair of school buildings shall be 85 per cent. of the expenditure.").
The noble Baroness said: My Lords, Amendment No. 268E is grouped with Amendments Nos. 268F and 268G. I shall speak first to Amendments Nos. 268E and 268G, standing in my name.
We have had considerable discussions, both inside and outside this Chamber, with representatives of the Church of England and the Roman Catholic Church about the effect of Clause 260. This clause replaces the existing powers and duties relating to the payment of grant to voluntary aided and special agreement schools. It provides a new power for my right honourable friend the Secretary of State to pay grant to the governors of existing schools and to the promoters of new schools in respect of expenditure incurred by them on the provision, alteration or repair of premises or equipment for the school.
The Churches' anxieties about this clause have focused on three main issues. First, they have objected to the replacement of the current duty on the Secretary of State to fund repairs and alterations to school buildings with a power to do so, albeit in respect of all desirable improvement work rather than the limited category of alterations to which the current duty relates. Secondly, they have objected to the provision in Clause 260 to grant-aid repairs at up to 85 per cent. of expenditure rather than, as now, at 85 per cent. Finally, they have expressed concern about the scope of the power given to the Secretary of State to attach requirements to grant payments in respect of the return to him of funds should the premises cease to be used for the purposes for which such grant was paid.
I made it clear during our consideration of this clause in Committee on 13th May that the Government's policy is to fund repairs which the governors are obliged to undertake in order to comply with a duty, and to set the rate of grant at 85 per cent. of the expenditure which they incur. Nevertheless, in
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response to continuing concerns expressed at the time by the right reverend Prelate the Bishop of Guildford, and the noble Baroness, Lady Seear, I undertook to consider further whether we could introduce an amendment which placed some reassurance on the face of the Bill.
Amendment No. 268E is the result of that consideration, and I am confident that it should provide the reassurance which the Churches are looking for. The amendment requires the Secretary of State to give priority to grant-aiding governors' repair expenditure and their expenditure on certain alterations—the categories of expenditure which my right honourable friend is currently obliged to grant-aid—where the governors are required to incur the expenditure in order to comply with a duty in statute or common law. The amendment also sets the rate of grant in respect of such expenditure incurred on repairs at 85 per cent., as is the case now.
Amendment No. 268G is a technical one which corrects an inadvertent extension currently in Clause 260 of the Secretary of State's power to grant-aid governors' repair expenditure to that which they might incur in respect of repairs to the internal fabric of the school buildings. Under the Education Act 1944 such repairs are the responsibility of the LEA. Where governors voluntarily incur such repair expenditure they will need to look, as now, to the LEA or to their Local Management of Schools budget to support it.
The amendments go a considerable way towards meeting the Churches' apprehensions about the new funding arrangements for voluntary-aided and special agreement schools. In discussions with me, the right reverend Prelate was kind enough to pay tribute to the extent to which we have met almost all the points of concern of both main Churches in the course of the Bill's passage. I hope that he can accept the amendments in that spirit. I commend them to the House. I shall respond to Amendment No. 268F after it has been presented to the House. I beg to move.
2.15 a.m.
The Lord Bishop of Guildford: My Lords, I am most grateful to the Minister and to the Government for moving the amendment. The amendments go a long way towards meeting our anxieties. First, the amendment makes it clear that where there is expenditure necessary for repair or required alterations, the Government will continue to fulfil their responsibilities for making grants and give priority to them.
Perhaps I may ask just one question. It has been reported in the press recently that the Secretary of State may be withdrawing the prescribed standards. If that is to be the case, I wonder what the impact will be on sub-paragraph (a) of the amendment. That question was not in my mind when we met the Minister and discussed these issues.
Secondly, the amendment makes it clear that these grants will be at 85 per cent. That gives us reassurance and, furthermore, it helps us over the insurance problems which I outlined in Committee. When we discussed this in Committee, the Minister said that I shocked her. I am sorry about that, but I am sure she

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will understand when I say that the DfE smelling salts have worked wonders. I am immensely grateful for the amendments which have so reassured us.
There is, however, still a gap between us, and I hope that we can bridge it. The government amendments do not deal with recoupment grants. By Clause 260, Clause 82, and as a result of Amendment No. 111 moved on 10th June, the Secretary of State takes power to call in all grants if a school closes. In Committee, the Minister sought to reassure us. She said that this provision,
"will have a very limited application, where assets of voluntary-aided and special agreement schools are not otherwise recycled for educational purposes".
She went on to say:
"I should make it absolutely clear that no requirement for repayment will be attached to grant being paid in respect of school premises owned by the trustees".—[Official Report, 13/5/93; col. 1454.]
All that was reassuring, so far as it went, but I have to say—I hope that the Minister will not feel that I am still being difficult—that if the provision is intended for that limited purpose, then the powers taken by the Secretary of State are out of all proportion. If all that is intended is the narrowly defined recoupment of grant where a school is in third party ownership, why does the Secretary of State need to have the unfettered power to call in grants whenever he wants to do so? I accept that the present Administration will honour the undertaking that the Minister has given. But I must recognise that Ministers are reshuffled; Governments alter; circumstances change; policies shift. In the future, in circumstances which we may not be able now clearly to foresee, those wide-ranging powers could legitimately be used in a devastatingly different way.
My argument therefore is a simple one. If the Government want only limited clawback powers for use in strictly limited circumstances, that is all we need to have on the face of the Bill. My amendment is an attempt to provide just that. I hope that the Minister will at least accept the spirit of my amendment, even if the words present some technical difficulty.
Lord Dormand of Easington: My Lords, has the Minister seen the newspaper report about a letter which the Secretary of State for Education has sent to members of the Cabinet? The report states that Ministers are about to drop school building regulations in England and Wales because the repairs and improvements to bring schools up to standard would be too expensive. Mr. Patten stated that there was no realistic prospect of finding the capital expenditure to bring schools up to the standards of the Government's 1981 regulations. That report appears to be authentic. If that is the situation, then the proposals in the amendment will not arise.
Lord Lucas: My Lords, I should like to add my support to the concerns that were expressed by the right reverend Prelate, in particular about the wording of Clause 260(8) by which the Government give themselves a preference. It appears to be a "heads I win, tails you lose" arrangement. I should feel more comfortable with a "for richer, for poorer"
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arrangement, which could be achieved if subsection 8(b) stood alone; in other words, the grant would not be returned to the Government even if the item on which the grant had been spent had become worth less or worthless.
Lord Kilmarnock: My Lords, would it not be fairer if all creditors were put on the same footing?
Baroness Blatch: My Lords, we understand the concern of the right reverend Prelate the Bishop of Guildford about the effect of Clause 260(5). However, we feel that his amendment goes too far in that it would make the subsection inoperable. For that reason it is unacceptable.
It may be helpful if I reiterate briefly what I said during our consideration of this provision in Committee on 13th May. Clause 260(5) is intended to enable the recovery of assets which have been provided or enhanced by grant aid to voluntary aided and special agreement schools, should the assets cease to be used for the purposes for which grant was paid. Requirements to secure a recovery of assets will be imposed in strictly limited circumstances, where property which is made available for the purposes of a voluntary aided or special agreement school is not recycled for educational purposes.
Recycling takes place except where the property is owned by persons other than the trustees and is made available to them under a lease or a licence agreement. We propose, therefore, that recovery of assets will be pursued in those very limited circumstances; that is, where property which is owned by persons other than the trustees is used for a school under the terms of a new lease or licence agreement that is entered into after the legislation has come into force. I should like to emphasise that in all other cases, which constitute the vast majority, no requirement will be attached to the payment of grant.
The right reverend Prelate's amendment renders subsection (5) inoperable, since all voluntary aided and special agreement schools are held by trustees on trust for the purpose of the school, including those which are conducted under a lease or licence agreement.
The amendment, therefore, goes too far by precluding the imposition of a requirement in the few cases where it is necessary.
We intend to continue our discussion with representatives of Churches in relation to this provision. I can therefore reassure the right reverend Prelate and other noble Lords that we have not lost sight of this important issue. Technical problems arise if the boundaries to the operation of the claw-back provision are included in the Bill. We are engaged in urgent discussions with the parliamentary draftsmen and, despite the complications, I have not given up hope of introducing an amendment at Third Reading that will clarify the basis upon which the provision will operate and properly recognise the question that is of concern to the noble Baroness, Lady Seear, and the right reverend Prelate.
In the event of deregulation of the School Premises Regulations, there would be no effect on the provisions of the amendment. Grant will still be paid

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according to the requirements of premises, for example, health and safety requirements. As to the remarks of the noble Lord, Lord Dormand of Easington, it is not my practice, nor should it be, to respond to leaks in newspapers.
On Question, amendment agreed to.
The Lord Bishop of Guildford The Lord Bishop of Guildford had given notice of his intention to move Amendment No. 268F:
Page 163, line 19, at end insert:
("( ) No requirements may be imposed under subsection (5) above in connection with the payment of grant in respect of premises which are held by trustees on trust for the purposes of the aided school or special agreement school in question.").
The right reverend Prelate said: My Lords, I do not wish to move the amendment, However, I take the opportunity of thanking the Minister for her reference to urgent discussion still continuing. I am grateful for that. I hope that we shall be able to reach agreement by Third Reading.
[Amendment No. 268F not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 268G:
Page 163, line 33, at end insert:
("( ) In this section "repair" does not include repair falling within section 15(3) (b) of the Education Act 1944 (repair for which governing body are not responsible).").
The noble Baroness said: My Lords, this amendment was debated with Amendment No. 268E. I beg to move.
On Question, amendment agreed to.
Clause 266 [Religious educational trusts: adoption of statutory trusts]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 268H to 268M:
Page 165, line 20, leave out from ("with") to end of line 24 and insert ("—

(i) the provision of religious education at relevant schools, or relevant schools of any description (but not only at a particular school or schools) in a diocese or other geographical area; or

(ii) the provision of premises for relevant schools, or relevant schools of any description (but not only at a particular school or schools) at which religious education is or is to be provided in a diocese or other geographical area;").

Page 165, line 26, leave out ("parish").
Page 166, line 27, at end insert:
(""provision", in relation to premises, means provision by the purchase of a site, the erection of premises or the maintenance, improvement or enlargement of premises;").
Page 166, leave out line 28.
Page 166, line 30, at end insert:
("religious education" means religious education in accordance with the tenets of a particular religion or religious denomination; and "religious education fund" includes a Sunday school fund.")
On Question, amendments agreed to.
Clause 267 [Religious educational trusts: supplementary provision]:
Baroness Blatch Baroness Blatch moved Amendment No. 268N:
Page 167, line 3, at end insert:
("( ) After subsection (5) there shall be inserted—
"(5A) Where a scheme given effect under this section provides for the endowments dealt with by the order or any
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part of them to be used for the purposes specified in Schedule 16 to the Education Act 1993, any such scheme may provide for the endowments thereby dealt with or any part of them to be added to any existing endowment applicable for those purposes (whether it is so applicable by virtue of a scheme given effect under this section or otherwise)."").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 269:
After Clause 267, insert the following new clause:
("Voluntary and grant-maintained schools: teachers' pay and conditions
Employment of certain teachers: pay and conditions
After section 3 of the School Teachers' Pay arid Conditions Act 1991 (special provisions as to grant-maintained schools) there is inserted—
"Special provisions for teachers on transfer of employment.
3A.—(1) This section applies where a school teacher employed to teach at an independent school—

(a) which becomes a county or voluntary school in pursuance of proposals published under section 12(1) (b) or, as the case may he, 13(1) (a) of the Education Act 1980, or

(b) in place of which a grant-maintained school is established in pursuance of proposals published under section 47 of the Education Act 1993, becomes employed (in the case of a county or voluntary school) by the local education authority or the governing body or (in the case of a grant-maintained school) by the governing body in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 1981.

(2) A pay and conditions order shall not apply to the statutory conditions of employment of such a teacher unless he gives notice in writing to the new employer that the order is to so apply.
(3) Where the governing body of an aided school receive notice given under subsection (2) above, they shall inform the local education authority.").
On Question, amendment agreed to.
Schedule 16 [Uniform Statutory Trusts For Educational Endowments]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 269ZA to 269ZF:
Page 224, line 37, leave out ("or") and insert:
("( ) in or towards the purchase of a site for, or the erection, improvement or enlargement of, the premises of a teacher's house for use in connection with any relevant school in the area, and").
Page 224, line 49, leave out ("or") and insert ("and").
Page 225, line 2, after second ("the") insert ("relevant").
Page 225, line 2, after ("assets") insert ("for either of the purposes").
Page 225, line 4, after second ("the") insert ("relevant").
Page 225, line 4, at end insert ("for any of the purposes").
The noble Baroness said: My Lords, the amendments concern schemes made under Section 86 of the Education Act 1944 and orders made under Section 2 of the Education Act 1973 which provide for the assets representing discontinued denominational voluntary and grant-maintained schools to be vested in diocesan authorities and applied for the benefit of continuing voluntary and grant-maintained schools.
Perhaps I may remind your Lordships of the relevant government amendments accepted at Committee stage which made three new provisions. First, they gave diocesan authorities power to standardise the trusts related to endowments of closed voluntary and grant-maintained schools within existing schemes and orders into a new common

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format by the adoption of uniform statutory trusts. Secondly, they enable the income, but not the capital, arising under schemes or orders to be applied for wider purposes than at present. Finally, the amendments enable the endowments held on uniform statutory trusts to be amalgamated so as to constitute a single charity. I beg to move.
The Lord Bishop of Guildford: My Lords, once again I thank the Minister. Many of the amendments improve the matters relating to Section 2 and Section 86 orders and schemes. We are very grateful for this as we are for so many other issues where the Government have met our anxieties. I do not wish people to think that we are not grateful.
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 269ZG:
After Clause 270, insert the following new clause:
Corporal punishment
(".—(1) Section 47 of the Education (No. 2) Act 1986 (corporal punishment) is amended as follows.
(2) In subsection (1), after "pupil" there is inserted "to whom this subsection applies" and after that subsection there is inserted—

"(1A) Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified if the punishment was inhuman or degrading.

(1B) In determining whether punishment is inhuman or degrading regard shall be had to all the circumstances of the case, including the reason for giving it, how soon after the event it is given, its nature, the manner and circumstances in which it is given, the persons involved and its mental and physical effects."

(3) In subsection (5)—

(a) for the words preceding paragraph (a) there is substituted "Subsection (1) above applies to a pupil", and

(b) for "but" there is substituted "and in this section "pupil".").

On Question, amendment agreed to.
2.30 a.m.
Clause 271 [Provision of goods and services by local education authorities]:
Baroness Blatch Baroness Blatch moved Amendment No. 269ZH:
Page 168, line 28, after ("grant-maintained") insert ("or grant-maintained special").
The noble Baroness said: My Lords, this amendment merely represents a technicality, ensuring that grant-maintained schools will fall within the liberalising terms of Clause 271. I beg to move.
On Question, amendment agreed to.
Baroness David Baroness David had given notice of her intention to move Amendment No. 269ZJ:
Page 168, line 39, leave out subsection (4).
The noble Baroness said: My Lords, we have decided that this amendment and the following one, Amendment No. 269ZK, are too important to be moved at this time of the morning, so we shall defer discussion of them until the next stage of the Bill.
[Amendments Nos. 269ZJ and 269ZK not moved.]
Clause 272 [Abolition of requirement to establish education committees]:
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 269A:
Leave out Clause 272 and insert the following new clause:
("Education Committees
When an order or orders under section 10(1) (b) of this Act are made in respect of both kinds of education in the area of a local education authority section 6(2) of, and part II of the First Schedule to the Education Act 1944 (Education Committees) shall not apply to that local education authority.").
The right reverend Prelate said: My Lords, I am sorry to speak again and bring this matter back to the House, but I think it is important that I should do so. The amendment has the effect of requiring LEAs to retain their education committees until the 75 per cent. trigger point is reached. I moved this at Committee stage, and at the end of the discussion the Minister said that she was impressed by some of the arguments. As the only two speakers were myself and the noble Lord, Lord Ponsonby, we can share this unexpected accolade. The Minister went on to say that she would consider the arguments before Report. I have had some discussion with her over the matter and I am grateful to her for providing the time for us to discuss the issues.
The Bill gives freedom to local authorities not to have education committees if they do not wish to. As the educational responsibilities of local authorities diminish over time, that will be a valued freedom. In the longer term I accept the proposal. The likelihood is either that local authorities will want to combine education with, let us say, social services, or—and I think this is the more likely—they will distribute their educational responsibilities to social services, transport, planning or policy committees.
In the longer term, when local authorities have no direct responsibility for schools, that is acceptable. But while a local authority has responsibility for a significant number of schools, it seems to me right that they should have a properly constituted committee to discharge their educational functions. Anything less is not to take education seriously.
Surely the local government commission might set up a new unitary local authority. It might still have responsibility for all the schools in its area. But, under the Bill as drafted, it could try to administer the schools through another committee or through a number of committees. I cannot think that that is right and if until now local authorities have been required to have proper education committees, surely they should continue to have them now, while they have a significant number of schools to administer. Education is a major responsibility, it merits being monitored and administered by people who make that their special concern. Anything less would be to treat education as second rate.
The second reason for retaining education committees up to the trigger point is that the Churches will continue to have representation on the body, which ensures that they can continue to work in partnership and to do their own strategic planning. It will avoid any risk that there are Church representatives on committees dealing with concerns other than education which could be inappropriate and might be resented.
My third reason in support of the amendment is that some of the local authorities themselves want it. They see my amendment, if I understand them correctly, as ensuring that education and local authority responsibility for education is being acknowledged as significant and valued. I hope, therefore, that the House will think this a modest but significant improvement to the Bill.
Also grouped with this amendment are Amendments Nos. 269B to 269H. Perhaps I may speak to those. They are amendments to government amendments which were moved in Committee. The Government moved these amendments at Committee stage in order to ensure that Church representation could continue in the event of there being no education committee. However, we foresee difficulties with the amendments and for that reason I move a number of minor or even technical amendments to them.
Our concern is to be represented on the appropriate local government committee that deals with the primary educational responsibilities if no education committee is dealing with them. Our primary concern is to deal with strategic planning; that is to say, the establishment, change of character or closure of schools. These matters never affect one school alone. There is always a knock-on effect. As the Churches have their own strategic planning to do, we need to be in partnership with those who have an overall strategic planning responsibility.
As it now stands in the Bill, Clause 273 would enable us to be represented on any committee which deals exclusively or mainly with education. But if a local authority were to combine education with social services, that combined committee will not deal exclusively with education, and probably not mainly with education. If (and I think this more likely) a local authority distributes its educational responsibilities across a number of committees, education will not be a main, and never an exclusive, responsibility anywhere. I suggest therefore that the clause will not work. We need to tackle the problem the other way round, and arrange for representation on the committee which deals with a substantial part of the educational responsibility. Even that may not ensure that we are represented on the committee responsible for strategic planning. Therefore, even with my amendment, some uncertainties remain. It is partly for that reason that my amendment includes a new sub-clause to provide that the Secretary of State can direct any named local education authority, instructing it to include representatives on a named committee.
I have to say that all this amounts to a second-best solution and strengthens the argument for my early amendment to keep education committees until the 75 per cent. trigger point. I hope, therefore, that these various matters will be considered by the Minister. I am very grateful to her for the time and trouble that she has already taken over this matter. It may be that we have to continue these negotiations outside the House, but I thought it right to bring them back to the House at this stage.
Baroness Blatch: My Lords, the Government have been consulting the local authority associations and the Churches on how best to preserve the position of the Churches. They believe that the answer lies in providing appropriate voting rights and representation on local authority committees where education issues are involved. That would reaffirm the rights accorded under existing legislation to representatives or persons who appoint foundation governors of voluntary schools in the context of the new arrangements.
The Government expect to produce an agreed amendment with the Churches at Third Reading which will remove the need for the right reverend Prelate's amendment to Clause 272 and consequential Amendment No. 286B. I hope that he will withdraw it. The amendments that I have in mind would also remove the need for the right reverend Prelate's amendments to Clause 273.
I am in no disagreement with the direction of the right reverend Prelate's amendments. We have been working on similar lines ourselves. Unfortunately there are real difficulties about the amendments to Clause 273 as they stand. For one thing, it would be necessary to identify the totality of an authority's LEA functions in order to determine whether the committee deals with a substantial part of them, and that is no easy task. I also venture to suggest that the amendments may not achieve all that the right reverend Prelate wishes. They would not operate when a committee dealt with all the authority's education functions.
Those difficulties have exercised us as regards our own attempts to bring forward a comparable but more effective amendment. I am confident that we can improve on these amendments in consultation with the Churches. With your Lordships' agreement I ask the right reverend Prelate to withdraw his amendment with a view to bringing forward a similar but more acceptable amendment at Third Reading.
As we are talking about local education authorities and their functions, perhaps I could use this opportunity to mention that I have had expressed to me concerns about the way in which self-governing schools have been refused services by some LEAs. I am not able to respond immediately to those concerns but I would wish to dwell on the matter between now and Third Reading and if necessary to come forward with an amendment.
The Lord Bishop of Guildford: My Lords, I am grateful to the Minister for the assurance that we shall continue our discussions. In the hope that we can reach agreement at Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 273 [Power of Secretary of State to direct appointment of members of committees]:
[Amendments Nos. 269B to 269H not moved.]
Clause 274 [Exceptional provision of education in school or elsewhere]:
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 269J:

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Page 169, line 42, at end insert ("and separate arrangements shall be made as respects children for whom provision is made by reason of illness from those made as respects other children").
The noble Baroness said: My Lords, I am very sorry to have to tell your Lordships that the wife of the noble Lord, Lord Young of Dartington, who has been very ill and whose situation was critical today, has taken a turn for the worse and the noble Lord has been called to the hospice.
These amendments relate to children in hospital. It is difficult to imagine any of your Lordships disagreeing with the aims of the amendments. They are to separate, in this Bill, the sick children who need education in hospital or while convalescing at home from the children excluded from school for other reasons such as truancy, disruptive behaviour and so on. Their needs are very different.
Sick children need to have their conditions understood. They need teachers who have a sensitivity and dedication toward dealing with illness and injury as well as the motivation to teach children at different stages of their education. The conditions cover a wide span—leukaemia, cancer, orthopaedic cases, spinal injury, cystic fibrosis, kidney disease, heart problems, arthritis, serious burns and illnesses of all kinds; the list is endless. There are also children with psychological problems and those with learning difficulties and eating disorders. The psychological problems are as important as the physical ones. They all need to be overcome.
But continuity of education and help for the children in order to keep up with the curriculum so long as they are well enough are vital. Otherwise they will drop behind and have problems when they go back to their normal schools.
There is a real fear that the education of sick children will be cut if their educational needs are submerged in all the other categories included in:
"Exceptional provision of education in school or elsewhere".
The reason is that education authorities will have to organise hospital education for many children from beyond the authority where the children are, as so many children attending hospitals with specialist units often come long distances from their homes.
Until parents have a sick child they do not realise the importance of these facilities. There are to be many changes in counties because of the boundary changes. The education of sick children throughout the country is patchy. Some services have already been cut or are very limited. Today I have had a fax from Pinderfields Hospital School in Wakefield which said:
"The school is registered with the Department of Education and has a properly constituted Board of Governors. Funding is from the Wakefield LEA, Pinderfields recharging the Wakefield MDC to cover use of premises, heat, light etc. The head teacher … is supported by seven teachers, a nursery nurse, two school assistants and a secretary. There is throughput of 1,250 pupils per year with a range of 38 to 72 at any one time and an average of 50. An appropriate educational service is provided to all children in the hospital from the first day that they are notified by medical/nursing staff to be well enough to take part. Teaching takes place on the wards as well as in the school and there is a minimum qualifying length of stay before teaching commences".
The Pinderfields Hospital School is an example of
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good practice and provides a high standard of education to children in hospital. There is a good working relationship between Pinderfields and Wakefield MDC. These are excellent facilities that we want to see safeguarded throughout the country. Already councils like Cumbria do not pay for the education of such children unless they have been sick for at least a month. St Thomas's Hospital is also very limited.
I have met many children with horrific injuries who have been helped by their teachers. They have given them hope and that has led to the building up of trust. It has opened the way to the rebuilding of their lives. One 16 year-old girl who was doing her GCE had meningitis that developed into septicaemia. She had to have both legs and four fingers of her right hand amputated. It was the teacher who helped her and gave her confidence to fight back to achieve as near normal a life as possible. Education is vital for these children. I beg to move.
2.45 a.m.
Lord Addington: My Lords, I rise briefly to support the noble Baroness. My name appears in both amendments. Basically, we are talking about specialist educational help for a special group. The people in hospital are initially grouped with those who do not have the same kind of problem and thus must be regarded as having a great variety of individual problems. One cannot put too many people together. The minute one has an overall group one creates exceptions and specialist assistance is required. I do not believe that the Government can disagree with the intention underlying the amendments. Once it is given any thought it is patently obvious—especially in view of the noble Baroness's thorough introduction—that there should be a special way to deal with the matter. I hope that the Government will be able to put something into the Bill to address these considerations.
Baroness David: My Lords, my name too appears against some of these amendments. I should like to speak particularly to Amendments Nos. 269J and 269K. I think it is important that the Government should not group together any children who are disruptive, or may have been in that kind of trouble, with sick children in hospital just because that might be a convenient way of dealing with a number of children. I hope that we shall be given the reassurance that that will not happen in any circumstances.
Baroness Williams of Crosby: My Lords, I have been asked to raise a matter by the noble Lord, Lord Young of Dartington. I am sure that we all associate ourselves with the expression of sympathy for the wife of the noble Lord, as expressed by the noble Baroness, Lady Masham. I wish to raise a question on subsection (4). One of the problems of the clause is that there are some areas where what is intended is not completely clear. Perhaps the noble Baroness could say something about the force of the word "may" in subsection (4). One would perhaps have preferred the subsection to read,

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"shall make arrangements for the provision of suitable full-time or part-time education".
I wonder whether the Minister can give us the assurance we seek about the treatment of ill and sick children as distinct from the other groups listed in the subsection with them, which I am afraid is bound to make the House a little suspicious.
Finally, perhaps she would be so kind as to say something further in regard to the force of the words, "suitable education" when applied to children with specific needs that may arise from certain conditions or illnesses.
Lord Kilmarnock: My Lords, I have supported an amendment along these lines from the earliest stages of the Bill. It always seemed to me that the phrase in Clause 274, lumping together,
"illness, exclusion from school or otherwise",
was inappropriate. On a previous occasion I incurred the wrath of the noble Baroness by raising the question of exclusions when she thought it inappropriate. In fact, she helpfully referred to exclusions this evening and brought into the Bill various measures which are designed to reduce them. However, that does not mean that the problem will go away.
It seems to me to be intuitively quite inappropriate that sick children should be included in the same provision as children who are excluded for other reasons. In fact, not only the tabloid press but even some of the respectable dailies have taken to referring to the places where truants and expelled pupils are educated as council "sin bins". It does not seem appropriate that any sick child should be educated from or administered from a "sin bin". I hope that the noble Baroness will be able to give us a little comfort on that matter.
Lord Judd: My Lords, perhaps I can say briefly from these Benches that we would like to associate ourselves with the messages of concern for my noble friend Lord Young and his wife. It is distressing news and I hope that our good wishes can be conveyed to him.
I should also like to take the opportunity of saying that we find these amendments timely and right. We believe that those concerned have focused attention on a serious need Which must be met, and we hope that the Government can respond positively.
Baroness Blatch: My Lords, I too should like to be associated with the comments in regard to the noble Lord, Lord Young. He has been stalwart throughout the Bill, waiting until the late hours of the night knowing that he had the pressures of a sick wife. We are extremely distressed at the news tonight and I hope that we can find a way of ensuring that he knows that our thoughts are with him.
Perhaps I can also say that there is a serious misunderstanding about the grouping together of children who are sick and children who are out of school for other reasons. The only commonality is a reference in the Bill to "education otherwise". It is an obligation on local authorities to provide education for all children who are out of school. Some of those children will be truants, some will be excluded and some will be sick. What is absolutely right and proper
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is that whatever provision is made for those children should be appropriate to their needs; in other words, that sick children are properly educated either in hospital or by home tutors, or even assisted in schools. There is no other commonality. It is a line on a piece of paper. We should be concerned with how we provide for those young people.
Clause 274, on the new duty to secure education otherwise than at school, already differentiates between those children who are out of school for reasons of illness and the children who arc out of school for other reasons. I have earlier reaffirmed that the arrangements for sick children will be distinct from those for disaffected pupils in pupil referral units.
There is no question, as the noble Lord, Lord Kilmarnock, said, of the children being administered from "sin bins". I hope he will not use that phrase again. I hope that we have moved on from them. Certainly my experience is that we have some excellent school support units doing splendid work. We shall be drawing up separate guidance on the operation of the new duty on LEAs to secure education otherwise than at school in so far as it affects sick and other children.
We shall be consulting widely on the contents of both sets of guidance after the Bill receives Royal Assent. It would be inappropriate to introduce on the face of the Bill specific reference to the separate arrangements to be made for pupils out of school because of illness without referring to pupils in other circumstances. Should we, for example, consider separately school phobics or pupils receiving home tuition pending completion of a formal assessment or placement in a special school? For example, how should we consider pregnant schoolgirls or pupils who have been discharged from hospital and are convalescing at home?
That is why there is a comprehensive, general duty in Clause 274 on local authorities to provide education for children out of school. What is most important is that the approach to educating each child or young person who is sick is appropriate and sensitive to the individual needs of the child. I must reiterate that the Government believe that the reform of education, coupled with new guidance, will ensure that better co-ordination and more coherent provision is made for such children.
I have concluded before that effective arrangements for the education of sick children must rest primarily with the local education authority and in future such provision may be augmented by any provided in a grant-maintained hospital special school. But now and in future authorities must be able to administer provision in a flexible way which will allow them to make arrangements that will suit the circumstances and meet the needs of each hospital and each child in their area.
It is, I believe, self-evident that what is needed for a thinly populated rural county is not the same as in an inner city where there is a large, specialist children's hospital. In order to meet these needs within certain parts of the country, local education authorities will undoubtedly need to consider a different approach and a less formally structured provision than this amendment envisages. The proposals set out in

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subsections (2) and (3) of Amendments Nos. 271 and 423—I do not believe that it is Amendment No. 423; I shall have another number for that in a moment—would remove the ability of LEAs to adopt such a flexible approach by seeking to impose on them a uniform system of provision.
In answer to the noble Baroness, Lady Williams of Crosby, I am told that Clause 274(4) relates to children over compulsory school age. Therefore, it is a power and not a duty.
Baroness Masham of Ilton: My Lords, I would like to thank all noble Lords who have taken part in this debate and to say that what the noble Baroness has said needs to be studied, because there is concern. There is concern that the merging will mean that local authorities may not give the money necessary so that sick children get the education they need. They are not such a difficult group as the other group of children in that amendment. That is the message which we have been trying to convey to the Minister.
Baroness Blatch: My Lords, I know that it is Report stage but I wonder whether, with the leave of the House, I may reply, because it is a very important point. The local authorities are under an obligation to provide. If children are out of school the local authorities are obliged to make provision. The provision which they are obliged to make has to be consistent with the needs of the child. Therefore, for a sick child it will usually have to be a provision in hospital, but it can be at home. If it concerns a child who is out for other reasons then of course it is a different provision.
Baroness Masham of Ilton: My Lords, does the Minister share the anxiety of many people about the cutting of the number of teachers, which has reached 50 per cent. in some hospital schools and which is of tremendous concern?
Baroness Blatch: My Lords, with the leave of the House perhaps I may answer. I believe that I am breaking the rules. I broke them first myself and so I stand guilty. We are talking about the new regime and not the one which exists at the moment. When the local authorities have an obligation under this Bill they will have to make provision. Therefore, this obligation will pre-empt local authority finances.
Baroness Masham of Ilton: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 269K not moved.]
3 a.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 270:
Page 170, line 15, at end insert:
("( ) A local education authority shall make arrangements for the provision of suitable full-time or part-time education otherwise than at school for any young person of compulsory school age detained in pursuance of an order made by any court or of an order of recall made by the Prison Commissioners.").
The noble Baroness said: My Lords, this amendment is a different matter. In moving it, I wish to bring to the notice of your Lordships the fact that young people of compulsory school age, detained in pursuance of an order made by any court or of an order of recall made by the Prison Commissioners, are the only school-age young people who are not included in any part of this Bill.
These young people are divorced from and have contact with their local authority severed by not including them in the part of the Bill relating to exceptional provision of education in schools or elsewhere—that is, Clause 274. Surely they fit in there rather well.
Before Committee stage, I telephoned the Department for Education to check whether these young people of 15 who go to young offenders' institutions were included in the Bill. I was told that they were not. This amendment seeks to include them so that contact with their local authorities and local schools is not lost.
Many of these young people have immense social problems. They are at a very difficult age. Every one of them has a problem otherwise they would not have been sent into custody. Education is perhaps the one salvation which can put them on to the right road. If links with their education authority are lost, it may be more difficult to reintegrate them back into school. They may not even be wanted back. Because so many of them have social and educational problems, they are the very people who need to be kept under close review with probation and social support, as well as support for their teachers. Many of these youngsters will have truancy problems, behaviour problems and drug problems. They need experts to deal with them. Do not the educational authorities have the expertise to make the necessary arrangements? What expertise does the Home Office have in education?
Many of these young people have come from children's homes—about 49 per cent., I am told. They often have little continuity in their lives. The provision of a high standard of education at this difficult stage in a delinquent child's development can provide a turning point in that child's offending pattern, leading to an interest, achievement and even a qualification which leads on to employment and a better chance of avoiding reoffending after release.
So many of these young people have been abused and misused. They feel rejected and have low esteem. The education in many young offenders' institutions is the best investment and activity from which the young person derives benefit. If such young people are included in this Bill, it would strengthen the links between the Home Office, the institution and the young person's local education authority and school.
Unless there is better working together between government departments, it seems that there is little hope of improving the system. At this time of much change, there is great concern at the rising of serious juvenile crime. I hope that your Lordships will see the importance of the continuity and of keeping in touch with the educational needs of these young people of school age. I beg to move.
Baroness Williams of Crosby: My Lords, first I should like to congratulate the noble Baroness, Lady Masham, on moving this amendment and to echo virtually every word that she said about young offenders.
At one stage of my ministerial life, I was the Minister responsible for prisons and one fact that struck me forcefully was learning how many young people in prison were illiterate and how profoundly that had undermined their whole sense of their capacity to hold a job, complete their schooling or even be recognised by the rest of the community. I strongly urge upon the Government that these young people—they are greatly at risk and if not rescued are likely to become involved in a cyclical life of crime—should be included within the scope of the Bill.
Although throughout Clause 274 we are quite properly laying a whole series of duties on local education authorities with regard to children with exceptional needs, I cannot help wondering what will happen when, as the Government intend in many cases, local education authorities go out of business. Perhaps the Minister will say who she sees as being likely to take on these onerous yet vital responsibilities.
Baroness David: My Lords, as one of the quartet of noble Baronesses who tabled the amendment I wish to add my support. The rehabilitation of young people in custody is most important. They should not be deprived of any form of education. Some may be illiterate and in need of basic education. But some may be intelligent and if their tuition continues while in custody they may be capable of taking some kind of qualification. It is odd that they are not mentioned in the Bill and I hope that the Minister will reassure us that they have been thought of and will be provided with education. It would be better coming from the local education authority rather than from elsewhere.
Baroness Blatch: My Lords, perhaps I may ask the noble Baroness, Lady Williams, what she meant when she asked who will do the work when local authorities go out of business?
Baroness Williams of Crosby: My Lords, I was thinking of a situation in which the 75 per cent. trigger point is reached. What does the Minister then regard as being the responsible authority in terms of these groups, which are small in any given school but which together constitute a substantial problem.
Baroness Blatch: My Lords, the education of children under the secure arrangements is not affected because the local authority is not responsible. That is what the amendments are trying to achieve. As regards education otherwise than at school—in other words, the obligation to provide for children out of school—that continues irrespective of the trigger points. Local authorities will continue to have into the future the role of providing education for children out of school.
My Amendment No. 286AB is coupled with Amendment No. 270. Section 116 of the 1944 Act provides that the powers and duties of the Secretary of State, LEAs and parents under the Education Acts are
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not to apply in relation to persons detained by order of court. As currently drafted, Schedule 18 inserts a reference to the funding authorities in that list of persons and bodies in Section 116 whose Functions are not to apply to persons detained by order of court. This amendment removes the reference to the funding authorities. It is wrong to refer to the funding authorities in this context because their functions will not in any way bring them into the area of provision for persons detained by order of court. I must stress to your Lordships that this amendment—indeed this Bill—does not affect the operation generally of Section 116.
Amendment No. 270 in the name of the noble Baronesses, Lady Masham and Lady Mallalieu, who is not in her place, would replace that existing power for local education authorities to provide education for persons detained in pursuance of a court order with a duty.
The present arrangements date from the 1944 Act and I referred earlier to Section 116 of that Act. They are long-established. One of the most important things that they achieve is to ensure that there is no division of responsibility and accountability. In the case, for example, of young offenders sentenced to detention in a young offenders' institution, the responsibility for securing adequate education provision lies clearly and unequivocally with the prison service and with my right honourable friend the Home Secretary.
The prison service is responsible for the custody of these young offenders and for all other aspects of the regime of the establishment. If there are inadequate arrangements then it is the prison service that is clearly accountable. If the law provides that some things in young offenders' institutions are the responsibility of one agency and some of another that seems to me a recipe for confusion.
The objectives of young offender institutions are clear. Detainees should acquire and develop while in custody, understanding of their own behaviour, self discipline, personal responsibility, interests, skills and employability which will enable them to be honest and useful citizens after release. Inmates aged 16 and under receive at least 15 hours of education or training within the normal working week. The objectives and regime set out in the Criminal Justice Act 1988 and its dependent rules were described in 1991 by the Education, Science and Arts Committee in another place as robust and optimistic.
Similar considerations apply to the regimes in the proposed new secure training centres for persistent juvenile offenders, which will provide education and training in ways that tackle the individual's offending behaviour. The Home Office will determine the educational specification to be complied with by the providers of the secure training centres, in consultation with the Department for Education and with Ofsted. The educational regime in the centres will be subject to inspection by Ofsted.
Detained children may also be placed in secure accommodation provided by local authorities or by the Department of Health through the Youth Treatment service. Such establishments are not exclusively for those detained by the court. They

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accommodate a mix of children, including those being looked after by local authorities on welfare grounds. If this amendment were carried it would have the effect of requiring LEAs to provide full-time education for some residents of units but not for others—this clearly would be confusing and undesirable.
The amendment, while clearly well intentioned, would, we believe, cause major operational difficulties for LEAs. The consequence, if the amendment were to be accepted, would be that local education authorities would he given a duty to provide education services which they might not be able to fulfil and for which other arrangements already exist. That cannot be sensible.
It is important that the noble Baroness should be secure in the knowledge that education will be provided for those young people by the appropriate authority. I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Masham of Ilton: My Lords, I thank the noble Baroness and those who have supported the amendment. It seems to me that there should be links between the education authority and the prison service. Perhaps something could be better organised as regards the guidelines. Some of the school-aged youngsters are in custody for a very short time. They may be serving a sentence for non-payment of fines. Some are first offenders. They leave custody to return to their schools. There should be a link because they are of compulsory school age.
I should like the Minister to say that there will be some dialogue and continuity. They are very damaged young people. Often they must return to their school from an institution. It is very difficult for them, especially if they have spent a lot of time in care, which many of them have. I wish to make a better transition for them. They need some support.
Baroness Blatch: My Lords, with the leave of the House, I can give the noble Baroness an assurance that, if a young person is the subject of a secure detention order, he will be the responsibility of the Home Office. Education will be provided under that regime. If that young person does not go back to school but ends up wandering about on the streets, the child becomes an obligation of the LEA. The LEA will know when the child is released and it will be obliged to provide education otherwise than in school. If the young person returns to school, then education is provided directly by the school which he is attending. Of course, there is liaison between local education authorities and Ofsted and some secure units.
Baroness Masham of Ilton: My Lords, I thank the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 271 not moved.]
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 271A:
After Clause 274, insert the following new clause:
("Hospital education
.—(1) Where there is a hospital in the area of a local education authority which is provided by a health service
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body (within the meaning of section 4 of the National Health Service and Community Care Act 1990), being a hospital at which separate provision is made for the treatment of children as in-patients, the arrangements for those children shall be made—

(a) by the establishment at that hospital of a school, or

(b) by the provision of staff and other educational facilities (not amounting to a school) at that hospital;

and such provision as is mentioned in paragraph (b) shall be known as a "hospital educational unit".
(2) Where a local education authority make arrangements under this section—

(a) for the provision of education at a school situated at a hospital or hospital educational unit, and

(b) for teachers to teach pupils for whom provision must be made by reason of their illness elsewhere than at such a school or unit,

they shall make arrangements for the provision of education by those teachers to be organised at such a school or unit and for those teachers to be supervised by teachers providing education at such a school or unit.").
The noble Baroness said: My Lords, I move this amendment in order to give the noble Lord, Lord McColl, an opportunity to speak to it. He has been sitting here for an extremely long time. Amendment No. 271 stands in the noble Lord's name because the Clerks were not able to contact the noble Lord as he was abroad. That is the reason for Amendment No. 271A being tabled without having the noble Lord's name attached to it. The chairman of the trust for Guy's Hospital, the noble Lord, Lord Hayhoe, strongly supported the amendments on the last occasion that we spoke to them. Therefore, I thought that perhaps the noble Lord, Lord McColl, would like to comment upon them. I beg to move.
3.15 a.m.
Lord McColl of Dulwich: My Lords, I thank the noble Baroness for her kind invitation to speak. I was in fact just about to leave because I have to see a patient shortly. However, I should just like to say that we are worried at Guy's. We have a marvellous school which is having problems because the local authority has been cutting down. We would really like to take it over and run it as part of the trust; but that is another issue.
We have been worried about children in school being lumped together with those with problems, but that has been answered very clearly by my noble friend in her response to another amendment. I am grateful to her in that respect. That is all that I wish to say, except to stress that we are concerned and that we hope our current problems will be resolved in the future.
Baroness Blatch: My Lords, I think that a good many of the points made by my noble friend have been answered in the course of my responses to other amendments. However, the point about the hospital school council is that it will become a qualifying candidate for grant-maintained status. No doubt if it wishes to seek that status, an application will be winging its way to my department. I wish it success; that is, if I am allowed to say that without prejudice.
Baroness Masham of Ilton: My Lords, we shall read all that has been said to see what we can do between now and the next stage. I should like to discuss the

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compassionate business with the noble Lord, Lord Young of Dartington. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 17 [Pupil referral units]:
Viscount Astor Viscount Astor moved Amendment No. 271B:
Page 226, line 18, leave out ("but not for an indefinite period").
The noble Viscount said: My Lords, the amendment was spoken to with Amendment No. 259J. I beg to move.
On Question, amendment agreed to.
Clause 275 [Stamp duty]:
Lord Henley Lord Henley moved Amendment No. 271C:
Page 171, line 1, after ("46(2)") insert ("or 47").
The noble Lord said: My Lords, in moving the above amendment I should like to speak to Amendments Nos. 271D, 276, 277A, 286AA, 268D, 286E, 297ZA, 297B and 299. This is a disparate group of largely technical amendments. Amendment No. 271C will exempt from stamp duty any transfer of land by the funding authority to the governing body of a school established following proposals by promoters under Clause 47.
Amendment No. 271D inserts a reference to Clause 182 in the list of excepted provisions to statutory instruments in Clause 277(2) and Amendment No. 276 concerns the definition of "local education authority" in relation to LEA maintained schools. It allows for exceptional circumstances in which a local education authority may be responsible for maintaining a school located outside its own area.
Amendment 277A is a technical amendment to a technical part of the Bill. It provides for a number of the provisions to come into force on Royal Assent.
Amendments Nos. 286AA and 297B are purely technical amendments which clarify the definition of secondary school in the education Acts.
Amendment No. 286D simply allows the Secretary of State to use his powers of intervention under the Sex Discrimination Act in cases where the councils themselves undertake an act which constitutes sex discrimination. Amendment No. 286E has a similar effect with regard to the Race Relations Act and racial discrimination.
Amendment No. 297ZA is necessary to enable the provisions referred to in it to be brought into force before the establishment of the FAS. The amendment works by requiring references in those provisions to the FAS, until its establishment, to be read as references to the Secretary of State.
Finally, I must apologise for the necessity of moving Amendment No. 299. During the final debate of the Committee stage of this Bill, I or my noble friend inadvertently moved Amendment No. 341 which stood in the name of the noble Lord, Lord Peyton. The amendment that was moved is of no practical effect. I beg to move.
On Question, amendment agreed to.
Clause 277 [Orders, regulations and directions]:
Lord Henley Lord Henley moved Amendments Nos. 271D to 275:
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Page 171, line 20, after ("145") insert ("182").
Page 171, line 20, after (" 271") insert ("the definition of "Church in Wales school" in section 281").
Page 171, line 23, after (" 216") insert (",234(5), 235(8)").
Page 171, line 23, after (" 284") insert ("or paragraph 1(4) of Schedule 3").
Page 171, line 24, at end insert:
("( ) No regulations shall be made under paragraph 1(4) of Schedule 3 of this Act unless a draft of the instrument containing the regulations has been laid before, and approved by resolution of, each House of Parliament.").
Page 171, line 26, after (" 55") insert (" 68").
On Question, amendments agreed to.
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 275A:
Page 171, line 33, at end insert:
("( ) Before making an order under section 55, giving consent under section 56(1) or giving a direction under section 56(2) of this Act in respect of a Church of England, Church in Wales or Roman Catholic School the Secretary of State shall consult with the appropriate diocesan authority.").
The right reverend Prelate said: My Lords, in connection with Clause 55 the noble Lord, Lord Northbourne, moved an amendment to require consultation with the appropriate Church authority where a Church school plans to change its instrument of government. In response the Minister said it was more practical for the Church school and the appropriate diocesan authority to consult at the local level. She further said that it was not appropriate to have such detailed consultation on the face of the Bill and the noble Lord, Lord Northbourne, withdrew his amendment.
I return to the matter, first, because our officials in the Church of England were shown, I am told, a draft amendment prepared by parliamentary draftsmen on this subject. It was at that time intended that it should be included at Clause 277, but we are riot clear why this draft amendment was sunk without trace.
Secondly, I regret to say that we have some evidence that Church schools do not always consult as they should with their own Church authorities. For instance, it is a legal requirement that a Church of England school governing body seeking grant-maintained status should consult with its diocesan board of education. Some Church schools have failed to comply with this legal requirement. Even so the Secretary of State has approved the application for grant-maintained status. We therefore have grounds for concern that Church schools, although not all Church schools, do not always fulfil their obligations and responsibilities. Therefore I hope that the Minister will accept this amendment which can now be much more straightforward because we have the definitions of "appropriate diocesan authority" achieved by her Amendment No. 275B. I beg to move.
Baroness Blatch: My Lords, I am sympathetic to the concerns of the Churches in this area. The Government have already made it clear that we will be consulting the Churches on a national basis when the instrument and articles of government regulations are being made. We are also committed to consulting the relevant national Church bodies when the Secretary of State initiates subsequent changes to the instrument or

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articles of government of all grant-maintained schools or of all Church of England or Roman Catholic or Church in Wales schools. Noble Lords can have my assurance that an amendment will be put forward to this effect at Third Reading, specifying this on the face of the Bill.
We will be specifying in the Bill that the Secretary of State must consult the appropriate national Church bodies when he makes regulations or initiates changes to the instruments and articles of government of all grant-maintained schools. He will also consult the relevant diocese on those, probably fairly rare, occasions when he initiates changes to an individual school's instrument or articles of government. However, when an individual school itself requests the change the requirement will be on the school first to consult with the diocese before applying to the Secretary of State for the necessary authorisation. With those assurances I hope that the right reverend Prelate will feel able to withdraw his amendment.
The Lord Bishop of Guildford: My Lords, I believe that the noble Baroness has not quite met our concern, but at this stage of the proceedings I do not wish to detain the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 281 [General interpretation]:
Viscount Astor Viscount Astor moved Amendment No. 275B:
Page 172, line 30, at end insert:
(""Church in Wales school" means a school in the Province of Wales in which the religious education provided is provided in accordance with the faith and practice of the Church in Wales and "appropriate diocesan authority", in relation to such a school, means the Diocesan Board of Finance for the diocese of the Church in Wales in which the school is situated or such other person as the Secretary of State may by order designate in respect of that diocese,
"Church of England school" means a school in the Province of Canterbury or York in which the religious education provided is provided in accordance with the faith and practice of the Church of England and "appropriate diocesan authority", in relation to such a school, means the Diocesan Board of Education for the diocese of the Church of England in which the school is situated").
The noble Viscount said: My Lords, the amendment has already been spoken to.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendment No. 276:
Page 172, leave out lines 43 to 45 and insert:
(""local education authority"—

(a) in relation to a school maintained or proposed to be maintained by a local education authority, means that authority, and

(b) in relation to a grant-maintained school, means the local education authority for the area in which the school is situated").

The noble Viscount said: My Lords, the amendment has already been spoken to.
Lord Judd: My Lords, it may well be the hour, and I may have misunderstood the Minister, but I am a little confused. Perhaps the Minister can clarify a point.
I thought that the amendment extended the definition of a local authority in order to define the
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LEA for a grant-maintained school and that the amendment states that the LEA for the area in which a school is situated is the local education authority for that grant-maintained school. Perhaps I may take a specific example to illustrate my point. Does that mean that the London Nautical School, which has been a grant-maintained school since 1990, which is physically located in the London Borough of Lambeth although the London Borough of Southwark has been its LEA, will now transfer to the London Borough of Lambeth?
Lord Henley: My Lords, the noble Lord said that it was a late hour. Perhaps I may correct him and say that it is a fairly early hour on this shortest night of the year.
I am not sure whether I can answer the noble Lord's question, but perhaps I can explain again what Amendment No. 276 is about. It concerns the definition of local education authority in relation to LEA maintained schools. It allows for exceptional circumstances in which a local education authority may be responsible for maintaining schools located outside its own area. The example I should like to give is where a local government boundary change has relocated a school in a different area and agreement has been reached between the two LEAs concerned that responsibility for maintaining the school should remain unchanged.
I am not sure whether I can answer immediately the particular example which the noble Lord gave, but I give that example of how we see the amendment working. I stress that it is largely of a technical nature. I should like to consider what the noble Lord said and possibly come back to him by means of correspondence.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendments Nos. 276A and 276B:
Page 173, line 4, at end insert:
(""Roman Catholic Church school" means a school in which the religious education provided is provided in accordance with the faith and practice of the Roman Catholic Church and "appropriate diocesan authority", in relation to such a school, means the bishop of the Roman Catholic diocese in which the school is situated").
Page 173, line 11, at end insert:
("( ) Before making an order in respect of any diocese in Wales in exercise of the power conferred by the definition of "appropriate diocesan authority", the Secretary of State shall consult the bishop for the diocese.").
On Question, amendments agreed to.
Clause 282 [Index]:
The Deputy Chairman of Committees (Lord Skelmersdale): My Lords, I am in some difficulty. None of the proposers of Amendment No. 277 is present. Therefore, perhaps I may take it that the amendment is not moved.
[Amendment No. 277 not moved.]
Clause 284 [Short title, commencement, etc.]:
Baroness Blatch Baroness Blatch moved Amendment No. 277A:
Page 175, line 26, after ("Act") insert ("(other than sections 229, 277 to 279, 281, 282 and this section)").
The noble Baroness said: My Lords, the amendment was debated previously. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Distribution of functions where order made under section 10]:
Baroness Blatch Baroness Blatch moved Amendment No. 278:
Page 179, line 33, leave out ("exercising those powers") and insert ("performing that duty").
On Question, amendment agreed to.
[Amendments Nos. 279 to 280 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 281 to 285:
Page 180, line 37, leave out paragraph 7.
Page 184, line 8, leave out ("Chapter IV of Part II") and insert ("section 46").
Page 184, line 33, at end insert:
(".The funding authority shall not by virtue of paragraph 3 or 5 of this Schedule be under any duty in respect of junior pupils who have not attained the age of five years.").
Page 184, line 34, leave out paragraph 17.
Page 184, line 42, leave out paragraph 19.
The noble Baroness said: My Lords, the amendments have already been debated. I beg to move the amendments en bloc.
On Question, amendments agreed to.
[Amendment No. 286 not moved.]
Schedule 18 [Minor and consequential amendments]:
[Amendment No. 286A not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 286AA and 286AB:
Page 229, line 24, after ("pupil"") insert:
("( ) in the definition of "secondary school", "primary or" is omitted").
Page 229, line 35, leave out from ("1993"") to end of line 37.
On Question, amendments agreed to.
[Amendment No. 286B not moved.]
3.30 a.m.
Baroness Blatch Baroness Blatch moved Amendments Nos. 286C to 287B:
Page 230, line 27, after ("school") insert ("and paragraph (b) does not apply where section 181(2) of the Education Act 1993 applies").
Page 233, line 41, after (""23") insert ("23A").
Page 235, line 23, after (""18") insert ("18A").
Page 237, line 29, leave out from ("particulars") to ("the") in line 30 and insert ("approved or adopted under section 49, 97 or 177 of").
Page 238, line 35, at end insert:
(".In section 23 (exclusions) "or indefinite" in paragraphs (a) (ii) and (b) is omitted.
In section 24 (reinstatement in county etc. schools)—

(a) in paragraph (a) (i), for "after consulting the governing body" there is substituted "(after giving the governing body an opportunity to express their views and after considering any views expressed within the prescribed period by the governing body)",

(b) in paragraph (b), for "an exclusion which is for an indefinite period or is permanent" there is substituted "permanent exclusion",

(c) paragraphs (c) and (e) are omitted, and

(d) in paragraph (f), "or (c)" is omitted.

In section 25 (reinstatement in aided etc. schools)—

(a) in paragraph (c), for "consult the governing body" there is substituted "give the governing body an
218
opportunity to express their views and to consider any views expressed within the prescribed period by the governing body", and

(b) paragraphs (d), (e) and (f) are omitted.

Regulations may provide that, where a local education authority or governing body of a school are required under section 24 or 25 of that Act to take any step, the duty must, subject to prescribed exceptions, be performed within the prescribed period; but such provision shall not relieve the authority or body of the duty to take any step which has not. been taken within that period.").
Page 238, line 43, after ("punishment)") insert:
("( ) in subsection (5) (b), for the words from "primary" (where first mentioned) to "full-time" there is substituted "education", and
( )").
On Question, amendments agreed to.
Lord Henley Lord Henley moved Amendment No. 288:
Page 239, line 19, at end insert:
(". In section 58(1) (travelling and subsistence allowances for governors), in paragraph (a) for "county, voluntary and maintained special schools" there is substituted "any county. voluntary or maintained special school which does not have a delegated budget (construed in accordance with section 33(6) (b) of the Education Reform Act 1988)".").
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 290 and 291. In response to the noble Lord, Lord Ponsonby, we undertook in Committee to introduce a government amendment which would allow governing bodies the discretion to use their delegated budget to pay to their members travel and subsistence allowances. The amendments fulfil that undertaking. Unless the House would like me to expand further, I intend to leave it at that. I beg to move.
Lord Ponsonby of Shulbrede: My Lords, I express my thanks to the Minister for moving the amendments.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment. No. 288A:
Page 240, line 26, leave out from ("from") to end of line 28 and insert (""Curriculum Council, that" to "shall be" there is substituted "Council, in relation to Wales, shall be, so far as relevant for the purposes of advancing education"").
The noble Baroness said: My Lords, the amendment has been previously debated. I beg to move.
On Question, amendment agreed to.
[Amendment No. 289 had been withdrawn from the Marshalled List.]
Baroness Blatch Baroness Blatch moved Amendment No. 289A:
Page 240, line 28, at end insert ("and at the end of paragraph (c) there is inserted—
"(ca) to advise the Secretary of State on such other matters connected with the provision of education in maintained schools in Wales, or in non-maintained special schools there, as the Secretary of State may specify by order;",").
On Question, amendment agreed to.
[Amendment No. 289B not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 290 to 292:
Page 241, line 10, leave out from ("section") to ("after") in line 11 and insert ("36 (delegation to governing body of management of school's budget share)—
( ) in subsection (4)").
Page 241, line 13, at end insert ("and

219
( ) after subsection (5A) there is inserted—
"(5B) Any such governing body shall not exercise their powers under subsection (5) above to pay to governors any allowances other than travelling and subsistence allowances." ").
Page 242, line 15, at end insert:
(". In section 218(7) (school etc. regulations) after "approval" there is inserted "or, in such cases as may be prescribed, the approval of the funding authority".").
On Question, amendments agreed to.
[Amendment No. 293 not moved.]
Lord Henley Lord Henley moved Amendment No. 293A:
Page 243, line 17, at end insert:
(".In section 36(8) of that Act (consultation in respect of education supervision orders) the words from "social" to "of the" are omitted.").
The noble Lord said: My Lords, I shall speak also to Amendment No. 300. These are technical amendments designed to remedy a particular deficiency in a particular provision of the Children Act 1989, which has been drawn to our attention by an LEA. The proposed amendment will bring Section 36(8) into line with other provisions of the Children Act 1989. Where there is a requirement to consult the appropriate local authority, that consultation is intended to take place with the authorised officer of the social services department within that authority. I commend the amendments to the House. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 294:
Page 244, line 40, at end insert:
("The School Teachers' Pay and Conditions Act 1991 (c. 49)
In section 2 of the School Teachers' Pay and Conditions Act 1991 (orders relating to statutory conditions of employment), in subsections (6) and (7) for "section 3" there is substituted "sections 3 and 3A".").
On Question, amendment agreed to.
The Lord Bishop of Guildford The Lord Bishop of Guildford moved Amendment No. 294A:
Page 244, line 43, at end insert:
(".In section 2(1) (functions of the Board) there is inserted at the end—
"(g) such functions as are from time to time assigned to the Board under the Education Acts.".").
The right reverend Prelate said: My Lords, the amendment is grouped with others, including Amendment No. 294B which stands in my name but which I shall not move because a government amendment deals with the matter. These are amendments to the Diocesan Board of Education measure. They are largely technical. I do not believe that I need to explain the matter further.
I should perhaps say in connection with Amendment No. 294A that at one point the Government indicated that they did not think the amendment necessary because no new functions were being given to the Board of Education. However, the Diocesan Board of Education has been given new functions in connection with the additional governors. For that reason, an amendment along the lines suggested is necessary. I beg to move.
Lord Henley: My Lords, in relation to Amendment No. 294, we are at present consulting parliamentary counsel on whether the amendment is appropriate. It may be regarded as otiose on the grounds that, if the Bill or any education Bill assigns functions to diocesan boards, there is no need to double-bank by making provision in the measure. I hope that the right reverend Prelate will not press the amendment. If appropriate, after consultation with parliamentary counsel, we can return to that matter at Third Reading.
In principle we are happy with Amendment No. 294B, which the right reverend Prelate stated that he would not move. However, we believe that Amendment No. 294C is better. The right reverend Prelate has indicated that he would prefer to accept our amendment.
I should like to turn to the amendments in the Government's name—that is, Amendments Nos. 294AA, 294AB, 294AC, 294AD, 294AE, 294C and 301. Amendment No. 294AA is merely a technical amendment to update the reference to the Education Acts in Section 7(3) of the 1991 Measure to include a reference to the Bill. The other amendments are consequential upon the other provisions in the Bill. They are necessary because we have streamlined the process for schools to become grant maintained. The amendments require that the local diocesan board be given at least seven days' notice of the governing body's intention to consider holding a ballot on grant-maintained status, that the governing body should take account of any relevant advice from the diocesan board and that any statutory proposals consequent upon a ballot in favour of seeking grant-maintained status should refer to that advice. The amendments follow commitments that were given at an earlier stage to the right reverend Prelate, and representatives of the Church have been consulted on those matters.
I trust that the right reverend Prelate will not feel it necessary to move the amendments, and that the House will accept our amendments in due course.
Bishop of Guildford: My Lords, I am grateful to the Minister for that reply and on the basis of the assurance that he has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendments Nos. 294AA-294AE:
Page 244, line 45, after ("required)") insert:
("( ) in subsection (4) for the words from "by a resolution" to the end there is substituted "to hold a meeting to consider whether to hold a ballot of parents on the question of whether grant-maintained status should be sought for the school, it shall—

(a) give to the secretary of the Board for the diocese in which the school is situated at least seven days' notice that such a meeting is to be held at such time and place as is specified in the notice, and

(b) have regard to any relevant advice given by the Board, when considering at the meeting whether to hold a ballot of parents on that question,

and in paragraph (b) above, "relevant advice" means advice given in connection with the acquisition of

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grant-maintained status for the school whether given for the purposes of that school or for Church of England voluntary schools generally",
( )").
Page 244, line 46, at end insert ("and ( ) in subsection (6) "or (4)" is omitted").
Page 244, line 47, after ("status)") there is inserted ("( )").
Page 244, line 49, at end insert ("and
( ) for "the advice given by the Board under section 3(4) above" there is substituted "any relevant advice (defined in section 3(4) above) given by the Board" ").
Page 245, line 2, at end insert:
(".In section 7(3) (powers of Board to give directions to governing bodies of aided church schools) for "1988" there is substituted "1993" ").
On Question, amendments agreed to.
[Amendment No. 294B not moved.]
Viscount Astor Viscount Astor moved Amendment No. 294C:
Page 245, line 3, after ("(interpretation)") insert:
("( ) for the definition of "church school" in subsection
(1) there is substituted—
""church school" means—

(a) a Church of England voluntary school,

(b) a grant-maintained school which was such a voluntary school immediately before it became grant-maintained,

(c) a grant-maintained school established in pursuance of proposals published under section 47 of the Education Act 1993 where either any trust deed relating to the school or the statement required by paragraph 8 of Schedule 3 to that Act provides for religious education at the school to accord with the faith and practice of the Church of England, or

(d) a grant-maintained school in respect of which proposals for the required provision for religious education to be provision for religious education in accordance with the faith and practice of the Church of England are approved under section 96 of that Act", and.

( )")
On Question, amendment agreed to.
Lord Addington Lord Addington moved Amendment No. 294D:
Page 245, line 11, at end insert:
(".In Schedule 2 of that act there is inserted—
"(k) a course provided for persons with profound and multiple learning disabilities at an institution designated by the Secretary of State".").
The noble Lord said: My Lords, Amendment No.294D is a comparatively simple amendment. Under the Further and Higher Education Act 1992, it proposes the provision of courses for people with profound and multiple learning difficulties. It is in the spirit of much of what the Government have done in expanding the availability of education for those with special educational needs. I hope that the Government will be able to give a favourable response, even at this late hour.
Baroness Blatch: My Lords, when we debated Amendment No. 334ZB at Committee stage, I confirmed that the Government do not dispute the importance of provision for students with profound and multiple learning difficulties. We fully accept that there should be a duty to secure that type of provision and we have provided for it under the Further and Higher Education Act 1992.
The issue raised by the amendment is whether that duty should lie wholly with the further education funding councils. As I stated at Committee stage, I do
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not accept that making provision for certain students the responsibility of the funding councils will give it higher status, nor do I accept that giving a duty to the funding councils rather than to LEAs will make it more likely to be discharged. The duty on LEAs is no less strong than that on the funding councils.
Another argument that I do not accept is that the funding councils are more likely than LEAs to have resources to support the types of provision for which they are responsible. The Government have made it clear that the funding councils will be funded for the provision which has been allocated to them; we have also made it clear that where the duty remains with LEAs, funding will continue to be available to authorities too.
The scope of the funding council's duty in Schedule 2 to the Act is designed to ensure that the Council is able to offer an integrated package of provision which is the start of a ladder leading to vocational or academic courses. LEAs' duty largely relates to courses which do not lead to qualifications and which may be of a more informal kind. We consider that. where courses are free-standing, LEAs should secure their availability along with other LEA responsibilities in the social services area. We see no advantage in having a single funding body for students with profound and multiple learning difficulties. In cases in this category, retention of a local authority involvement is important.
There is also the indignity of determining at what point someone has multiple learning difficulties or falls short of that and the difficulty of falling between two stools. As provision for students with profound and multiple learning difficulties is already covered by the duties under the Further and Higher Education Act 1992, I hope that the noble Lord will feel able not to press the amendment.
Lord Addington: My Lords, at this time of night, I do not pretend to have followed clearly the response of the noble Baroness. However, certain matters might be of interest. For instance, the problem of definition is one that we have often dealt with previously. When I feel a little more refreshed, I should like to read carefully th noble Baroness's response. Bearing that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved Amendments Nos. 295 and 296:
Page 245, line 21, after ("inspection)") insert:
("( ) in subsection (3) in paragraph (e) for the words from "11(3) (a)" to the end there is substituted "180(1) of the Education Act 1993 (approval of independent schools for children with statements)",
( ) at the end of subsection (6) there is inserted "or to the content of collective worship which falls to be inspected under section 13", and
( )").
Page 250, line 5, at end insert:
("( ) In paragraphs 14(4) (c) and 15(3) (c) after "education" there is inserted "or, as the case may be, who takes part in acts of collective worship the content of which falls to be inspected under section 13".").
The noble Viscount said: My Lords, these amendments were taken with Amendment No. 259. I beg to move.
On Question, amendments agreed to.
[Amendment No. 296A not moved.]
Schedule 19 [Transitional provisions and savings]:
Viscount Astor Viscount Astor moved Amendments Nos. 297 and 297ZA:
Page 250, line 27, leave out ("under") and insert ("by an order under section 55 of this Act").
Page 251, line 7, at end insert:
("Meaning of "funding authority" before Funding Agency for Schools begin to exercise functions
.—(1) Before the Funding Agency for Schools begin to exercise their functions, references in the relevant provisions to the funding authority shall be read in relation to schools in England or the governing bodies of such schools as references to the Secretary of State.
(2) The relevant provisions are—

(a) paragraph 1(3) of Schedule 3 to this Act, and

(b) paragraph 6 of Schedule 4 to this Act.").

On Question, amendments agreed to.
Schedule 20 [Repeals]:
Viscount Astor Viscount Astor moved Amendments Nos. 297A and 297B:
Page 252, column 3, line 46, leave out ("8") and insert ("8(1) and (2) (b) and (d)").
Page 254, column 3, line 42, at end insert:
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("In section 114(1), in the definition of "secondary school", "primary or".").
On Question, amendments agreed to.
[Amendment No. 298 not moved.]
Viscount Astor Viscount Astor moved Amendments Nos. 298A to 301:
Page 256, column 3, line 27, at end insert:
("In section 23(a) (ii) and (b) "or indefinite".
Section 24(c) and (e) and, in paragraph (f), "or (c)".
Section 25(d), (e) and (f)").
Page 257, column 3, line 14, leave out from beginning to end of line 16.
Page 257, line 28, at end insert:

("1989 c. 41.

The Children Act 1989

In section 36(8), the words from "social" to "of the".")

Page 257, line 44, at end insert:

("1991 No. 2.

The Diocesan Boards of Education Measure 1991

In section 3(6) "or (4)".")

On Question, amendments agreed to.
House adjourned at seventeen minutes before four o'clock.