Education Bill

HL Deb 21 June 1993 vol 547 cc8-92

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) moved Amendment No. 235A: After Clause 193, insert the following new clause:— Exemption where child attains 5 years during term (". Where—

1. (a) a child attains the age of five years during the school term of a grant-maintained school, and
2. (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 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 moved Amendment No. 235B: Page 119, line 41. at end insert:

(""appropriate appointing authority" means, in relation to any aided or special agreement school—

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

moved 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 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 moved Amendment No. 240B: Page 127, line 26, at end insert: ("(5) If at any time—

1. (a) this section applies in relation to an aided or special agreement school, and
2. (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—

1. (a) that a period of ten days has elapsed since—
2. (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
3. (ii) in any other case, the period allowed under section 201(3) of this Act for preparing a statement under that section expired, or
4. (b) that the Secretary of State has received a copy of a statement prepared—
5. (i) in the case of a school not having a delegated budget, under section 200 of this Act, and
6. (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—

1. (a) the instrument of government for the school, or
2. (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. (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—

1. (a) all those persons who have any such power acting jointly, or
2. (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 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 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 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 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—

1. (a) if it is a Church of England school, Church in Wales school or Roman Catholic Church school, the appropriate diocesan authority, and
2. (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 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 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 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 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.

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 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 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 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 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 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 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 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 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.

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 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 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 moved Amendment No. 242F: Before Clause 214, insert the following new clause: ("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 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 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 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 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 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 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. 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.

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.

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 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, 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 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 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 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 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.

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.

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

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

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

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.

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 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, 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 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.

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 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—

1. (a) any local education authority
2. (b) any local authority
58
3. (c) any health authority or National Health Service Trust.

(4) Regulations shall determine—

1. (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,
2. (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—

1. (a) give details of the authorities assessment of the child's non-educational needs,
2. (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 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 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 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 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 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 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 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 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—

1. (a)an independent school approved under section 180 or
2. (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 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 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 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—

1. (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,
2. (b) where reasonable, steps are taken to ascertain these views, and
3. (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 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. 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 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: 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 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. (2) The principles of national curriculum testing are that—

1. (a) the tests assess pupils' progress in English, Mathematics and Science against nationally agreed attainment targets;
2. (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;
3. (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;
4. (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;
5. (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 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 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 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 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 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 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 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 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 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 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' 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, 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 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 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 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 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 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.

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.