Lords Sitting of 4 May 1993

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Smoking on Trains: Survey Findings
Lord Aldington Lord Aldington asked Her Majesty's Government:
Whether, in the light of the recent MIL/MAI market survey on smoking in trains, a copy of which has been placed in the Library, they continue to support the action of British Rail in discontinuing smoking compartments on outer suburban and long-distance trains in Kent.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, it is for the British Railways Board to decide what level of smoking accommodation should be provided on its trains.
Lord Aldington: My Lords, I thank my noble friend the Minister for that reply, which is not perhaps surprising in view of his correspondence with me. Can he say whether his statement, at col. 965 of the Official Report on 21st January, that it was in British Rail's "commercial interests" to discontinue smoking compartments was based on a market survey which, when read, shows precisely the opposite; namely, that 61 per cent. of smokers and non-smokers, asked whether they were in favour of decreasing the number of smoking compartments, said "No"? As he told the House on the same day that the majority of smokers were in favour of the discontinuance of smoking compartments, has my noble friend revised his opinion after reading the market survey, which showed that only 21 per cent. of smokers were in favour of the discontinuance of smoking compartments?
The Earl of Caithness: My Lords, I know that my noble friend has taken up the matter directly with British Rail, as indeed he should. He will have noticed too that the survey showed that 55 per cent. of passengers were in favour of a ban.
Lord Mason of Barnsley: My Lords, should not the Minister condemn the dictatorial attitude of British Rail? Is he not aware that 30 per cent. of train travellers in the South East are being denied the legal right to smoke? So long as smoking is legal, why should there not also be a legal requirement to provide facilities for smokers, especially on trains where they are segregated in compartments away from the non-smokers?
The Earl of Caithness: My Lords, it is not always possible to do so. I know that the noble Lord will wish to consult British Rail directly.
Lord Harris of High Cross: My Lords, will the noble Earl look again at the survey referred to by the noble Lord, Lord Aldington, which, on the only
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question that concerned the ban, revealed that 55 per cent. of those asked were in favour of a ban and 45 per cent. were not? He had been told by Mr. John Nelson, chairman of Network SouthEast, that there was "overwhelming support" for the ban. I wish therefore to ask the Minister a question which goes much wider than the issue of smoking. Do we understand that democracy means that 55 per cent. of opinion must be enforced upon 45 per cent. when separate provision can be made for the two sections of the population?
The Earl of Caithness: My Lords, the House will be interested to know that I have also been in correspondence with the noble Lord on the matter. I know that he, too, has taken it up with British Rail. That is the right way to tackle the matter. The department was not the sponsoring body for the survey; it was conducted by British Rail at its request. It is up to British Rail to decide what action to take.
Viscount Hanworth: My Lords, considering the number of smokers who want to smoke on long journeys, does not the Minister think it monstrous that they should be denied the freedom to do so? Does he further agree that the idea of 45 per cent.—or whatever the figure is—agreeing or disagreeing is irrelevant when all all that is provided is one smoking compartment?
The Earl of Caithness: My Lords, if the noble Viscount goes on a long journey, I think that he will find that he will still be able to smoke; but he may not be able to do so if he travels in an aeroplane.
Lord Clark of Kempston: My Lords, does my noble friend agree that one of the essential requisites is that British Rail should increase its cash flow? Surely, it is folly to introduce a restriction such as that we are discussing which can only mean a diminution in the number of people travelling by train. Is it not time that we had some realism instead of being dictatorial and telling people that they cannot smoke on a long journey?
The Earl of Caithness: My Lords, British Rail has been monitoring the results of its actions. I have to tell my noble friend that the reports I have received show that there has not been a diminution in the number of passengers as a result of the action taken.
Lord Stoddart of Swindon: My Lords, is this not a bureaucratic nonsense and a case of smokers being denied their rights under the terms of the Citizen's Charter? As such, it is certainly a matter for the Minister, to which I hope he will respond. Is it not also true that passengers are much more concerned about trains being on time, about not having to travel on antiquated rolling stock and about having lower fares than they are with the matter of making smoking compartments available to smokers? Those compartments have been available for the past 150-odd years.
The Earl of Caithness: My Lords, with the leave of the House, I hope that I am allowed to wish the noble Lord a happy birthday. I am glad that his spirit in this matter is not at all dimmed. The noble Lord is right to say that passengers are keen that trains should run on

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time. They are also keen to have clean trains and are concerned too about the environment in which they travel. That is one of the reasons why British Rail has taken the action it has.
Lord Marsh: My Lords, if, as the Minister quite properly says, he is unable to answer this Question because he has no responsibility for the matter, is there much point in allowing this Question to be tabled in the first place?
The Earl of Caithness: My Lords, one can only do one's best and answer the questions that are put.
Lord Renfrew of Kaimsthorn: My Lords, is it not curious that the word "health" has not so far been mentioned?
The Earl of Caithness: My Lords, it is curious that it has not been mentioned. I am grateful to my noble friend for mentioning it.
Lord Mishcon: My Lords, I hope that I may sound a note of dissension. I had the privilege to be a member of the Wolfenden Committee. I repeat the words of the report of that committee in asking whether smoking should not be limited to consenting adults in private.
The Earl of Caithness: My Lords, the House will know that the Government are concerned about smoking in public places. The ban is consistent with the aim of the Government's Health of the Nation White Paper.
Lord Carmichael of Kelvingrove: My Lords, I smoke, although there are many occasions when I wish that I did not. Does the Minister not agree that choice is the most important factor, particularly as regards long-distance journeys? Does he not agree that if British Rail really wanted to reduce the number of people smoking on its trains, it should cut down its advertising of tobacco and cigarettes where smoking is portrayed as a glamorous activity? I am sure that the whole House agrees with the point that has been made about health. Would not a reduction in tobacco advertising be a better way to tackle this matter rather than imposing punitive measures on smokers?
The Earl of Caithness: My Lords, the noble Lord will find that on long journeys he is permitted to smoke, at least at the moment. However, if he were to travel by air from London to Hong Kong, for example, he would not be allowed to smoke on some flights.

Mr. Georgi Markov
2.46 p.m.
Lord Bethell Lord Bethell asked Her Majesty's Government:
What action they propose to take in the light of the admission, published in the Mail on Sunday on 4th April 1993, by the former KGB agent Mr Oleg Kalugin that he helped to plan the murder in London of Mr Georgi Markov, a BBC employee.
The Minister of State, Home Office (Earl Ferrers): My Lords, the murder of Mr. Markov is the subject of
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current investigation by the Metropolitan Police and the Bulgarian authorities. It would therefore not be right for me to comment on any press article on the subject.
Lord Bethell: My Lords, is my noble friend aware that the murder of Mr. Markov took place just a few yards from where we are sitting and that it remains unsolved? Is my noble friend further aware that Mr. Kalugin has said in print—and has been quoted—that he was responsible for that murder, or certainly that he helped organise it? Would it not be appropriate during Mr. Kalugin's next visit to the country —he visits frequently—for the Metropolitan Police to ask him to help them in their inquiries into this unsolved murder?
Earl Ferrers: My Lords, I am of course aware that the murder took place not far from here. The difficulty has been that before 1989 there was no access to archives, and these are likely to give the most suitable lead. The archives were destroyed during the changes that took place in Bulgaria and, as a result, one person has been serving 14 months in gaol for destroying the documents. It is of course up to the Metropolitan Police to take such initiatives as they see fit in solving this problem. I can assure my noble friend that the Metropolitan Police and the Bulgarian authorities are co-operating on this matter.
Lord McIntosh of Haringey: My Lords, I appreciate that the Minister cannot answer for the activities of the Metropolitan Police while they are conducting their inquiries. However, can he tell the House whether, if the police come to the conclusion that Mr. Kalugin ought to be interviewed, it would be possible for him to be extradited for that purpose?
Earl Ferrers: My Lords, if someone were to be interviewed, it would be up to the Metropolitan Police to go to the country concerned to conduct the interview with the approval of the appropriate authorities. With regard to extradition, there would need to be sufficient information to mount a prosecution in this country. So far there has not been sufficient information to do so. If there were to be sufficient information, we would have to ask for extradition under special circumstances because there is no extradition treaty with Russia.

EC Budget: Tobacco
2.50 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
In what circumstances they agreed to the expenditure set out in Chapter B1-17 of the European Communities Draft General Budget (Volume 4 Section III) relating to tobacco for the years 1991, 1992 and 1993.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the costs of supporting the tobacco sector, as for other agricultural products covered by the common agricultural policy, are financed from the

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EAGGF (European Agricultural Guidance and Guarantee Fund) section of the EC's general budget. Funds allocated to each commodity are set annually by the Council at a level estimated to meet the expenditure requirements of the Council's policy objectives.
Lord Bruce of Donington: My Lords, is the noble Earl aware that in each of the years in question the sum spent on tobacco subsidies, premium and storage has amounted to over £1 billion, of which the taxpayers of this country bear £240 million? Can the noble Earl explain why, when it has been known in the Community, in Brussels and in other circles for years that those payments are the subject of wholesale corruption, those items go through ECOFIN on the nod every year without query from Her Majesty's Government?
Earl Howe: My Lords, as I am sure the noble Lord is aware, important changes were made to the tobacco regime in last year's CAP reform which should reduce expenditure appreciably in the years ahead. There is a new quota system whereby only tobacco under quota will now be supported, intervention and export refunds have been removed and producers are being encouraged to convert to low tar tobacco and other crops. The Commission estimates that those measures will reduce annual expenditure by over 25 per cent. between 1994 and 1997. There will be another review in 1996 when the British Government will press for further reductions in subsidy.
Lord Boyd-Carpenter: My Lords, is it not a fact that the British taxpayer is contributing—and has done so for several years—a large sum to the production of this product and at the same time is contributing money to propaganda urging people not to smoke? Is that not the most complete economic nonsense? Is it not up to Her Majesty's Government to say firmly to the EC that we shall not continue to pay on those lines?
Earl Howe: My Lords, the policy of the Government is in no way inconsistent. We believe that it is right for the prevalence of smoking to be reduced, and we have seen considerable success in that area over the past few years. We also believe that it is right for subsidies to tobacco growers to be reduced. Again, as I have just explained, we have seen similar success in the CAP reform agreement.
Lord Stoddart of Swindon: My Lords, is it not incongruous that the bureaucrats of British Rail should be trying to stop people smoking while the bureaucrats in Brussels are paying subsidies to continental farmers to grow tobacco? Surely nothing could be more stupid than that.
Earl Howe: My Lords, as the noble Lord will know, the Treaty of Rome provides for tobacco to be eligible for support under the CAP. That is a fact. It is an important crop in many areas of the Community because, particularly in southern member states, it is the only viable economic activity. Seven of the 12
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member states grow tobacco and it is estimated that 200,000 families are involved directly and four times that number indirectly in producing tobacco.
Lord Clark of Kempston: My Lords, if tobacco is an important crop for the Community why does the Community say that the advertising of tobacco should cease?
Earl Howe: My Lords, the Community is indeed proposing that advertising of tobacco should cease. We are not convinced that the EC directive to ban advertising is necessary to complete the internal market. The Government continue to believe that the best way to control tobacco advertising is through the voluntary agreements which we have with the tobacco industry.
Lord Gallacher: My Lords, can the noble Earl tell the House how much notice his right honourable friend the Minister takes of representative submissions made to him by organisations during the annual price review, which includes tobacco? For example, for 1993–94 the Consumers in the European Community Group, a very representative body and one which I believe is still funded by Her Majesty's Government, has suggested that tobacco quotas should be reduced to phase out support over the next five years. Can the noble Earl tell the House whether his right honourable friend will take notice of that suggestion and attempt to give some effect to it during negotiations on prices?
Earl Howe: My Lords, of course we take notice of representations made to us. Over many years we have campaigned consistently for reductions in EC subsidies for tobacco, but with limited support from other member states, many of which, as I explained, have a direct interest in the matter. The difficulty with any suggestion that the regime should be unwound altogether is that, because of the natural conditions which pertain in various member states, there are simply no alternatives to tobacco as a means for the local population to earn a living.
Lord Mackay of Ardbrecknish: My Lords, is it not simply silly that the common agricultural policy is subsidising tobacco growing to create a product which is extremely damaging not only to the health of those people who use it but also to the health of the rest of us who have to breathe in the fumes? While I fully appreciate the problem of those farmers who do not seem to have an alternative crop, could that argument not be used also to justify the growing of crops such as marijuana? Would it not be far better to use the money currently spent on subsidies to find ways of encouraging those farmers either to go to set aside or to find alternative crops, and the sooner the better?
Earl Howe: My Lords, as I have explained, we have to take the facts as we find them. While the levels of support have undoubtedly encouraged greater production over the years, the CAP reform settlement will put that upward trend into sharp reverse, which I am sure my noble friend will welcome.
Lord Bruce of Donington: My Lords, in his reply the noble Earl has not dealt with the subject of fraud, to

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which I referred specifically in my first supplementary question. Is the House to assume that the Government are entirely unaware of what has been happening in that field? Furthermore, the noble Earl said that the Government have been pressing for expenditure on this item to be reduced. Does he agree that the pressure seems to have been futile and that the Treasury officials on ECOFIN have been inadequate to the task of protecting the British taxpayer?
Earl Howe: My Lords, I do not believe that there are any official figures specifically on recent fraud in the tobacco sector. However, positive steps have been taken to prevent fraud. I shall mention two. First, the main producer member states are now required to establish control agencies and those agencies will oversee the payment of premiums, the administration of the quota system and contractual arrangements between growers and suppliers. That should reduce the opportunity for fraud. Secondly, the new division of tobacco varieties into groups will also reduce the opportunity for fraud because in future the same level of premium will be paid for all varieties.
Baroness Seear: My Lords, is the noble Earl really satisfied that there are no alternatives to growing tobacco or that with a little more research effort alternatives could not be found? In such regions one has observed tobacco growing surrounded by other crops. It may be that there is something peculiar about that particular piece of land, but maize, sunflowers and all sorts of crops grow within a stone's throw of the tobacco. Is growing tobacco really the only way people in those areas can live?
Earl Howe: My Lords, I too questioned that assertion and I am told categorically that in some parts of the EC because of the terrain, the soil and climatic conditions there are indeed no alternatives to growing tobacco.
Lord Orr-Ewing: My Lords, is my noble friend aware that there is a further illogicality about the set-up in that the tobacco grown in the southern countries of Europe has a very high tar content, cannot be sold in the markets of Western Europe and is therefore all exported to Africa and other areas to spread any danger which may arise? Is it not true that in such areas earnings are mainly from tourism and not from tobacco? Is it not wrong to pretend that a great deal of employment in the southern European countries depends on tobacco? Does my noble friend agree that their economies are built on tourism?
Earl Howe: My Lords, I agree that tourism plays an important part in the economies of southern member states. However, the reforms agreed last year provide for a three-year compensation package for farmers who succeed in converting to other crops or to lower tar varieties of tobacco instead of problem varieties for which there is less demand.
Lord Campbell of Alloway: My Lords, would the Government be prepared to reconsider the whole
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question of providing those massive subsidies? The explanation given that that is the only crop seems open to most serious questions.
Earl Howe: My Lords, I am sure my noble friend will agree that the recent reforms are at least a step in the right direction. We shall look for further reductions in EC subsidies when the reforms are reviewed again in 1996.

VAT on Domestic Fuel
3 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
What reply they have sent to Age Concern about the effect on older people of the introduction of VAT on domestic fuel.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, a reply was sent to Age Concern on 28th April. This confirmed that, in view of the decision to charge VAT on domestic fuel, extra help will be given to poorer pensioners and others on low incomes. The precise details of this help will be given in the autumn.
Lord Stallard: My Lords, I am grateful to the Minister for that reply. I have read the reply which was sent to Age Concern, in which it was confirmed that, because of the method of uprating of pensions, the pension increase that will take place in April 1994 will be based on the RPI of 1993. That is before the imposition of the 8 per cent. value added tax. Is it not a fact that the pension increase due in April 1995 will be based on the RPI in 1994? The VAT in 1995 will be 17.5 per cent. However, the increase will reflect only the 8 per cent. which was catered for in the 1994 figure. I can hardly believe that it was intended to write that anomaly into the order. Should not the issue be considered and the anomaly put right with an adjustment made to pensioners who will be due such payment?
Lord Henley: My Lords, the noble Lord is right in saying that generally the uprating of pensions and other benefits is by means of historic figures on the level of the RPI from September to September, and the uprating takes place the following April. That is why my right honourable friends the Chancellor and the Secretary of State for Social Security gave the assurance, offering the guarantee of an additional uprating, to reflect the fact that the VAT will be imposed on domestic heating. As both my right honourable friends said, that extra help will go to the poorer pensioners and those on low income. In other words, no poorer pensioner or someone on low income will have to pay any bill before they have received some additional money by way of whatever measures my right honourable friend announces in the autumn.
Lord Molloy: My Lords, one bears in mind that, somehow or other, the Government will help those people who will have difficulty dealing with the tax being imposed on them. However, is the Minister aware that, in addition to charities and many families

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on income support, the Royal British Legion has many members who will be affected? They served in the last war and gave of their best. They will now have an increase of between 20 per cent. and 30 per cent. in their expenditure. In the view of the Royal British Legion and many other people it is an absolutely unnecessary burden to impose on old people and pensioners.
Lord Henley: My Lords, as I have made clear, and my right honourable friends have made clear, we shall be announcing extra additional help to the most vulnerable. We have increased the rates of income support for pensioners by over £1 billion a year since 1989.
Lord Peston: My Lords, the noble Lord's Answer sounded encouraging. However, will he clarify it? Will poorer pensioners receive an increase as though the 17.5 per cent. increase had been included in the RPI? Alternatively, will they receive a further increase taking account of the fact that the RPI does not represent the cost of living for poorer pensioners?
Lord Henley: My Lords, I cannot give the noble Lord any further details at present. I am trying to make clear that full details of the extra help will be given in the autumn based on the latest information available. I repeat the assurance that both my right honourable friends have given: that that full extra help will be targeted at the poorer pensioners and others on low income.
Lord Molloy: My Lords, I welcome what the noble Lord said. It is appreciated to a degree that some help will be given to those who have to meet the new VAT rate. We in the Royal British Legion do not believe that our members should have to apply for additional help. Those members gave of their best. Why do not the Government give of their best now that those members are in their old age?
Lord Henley: My Lords, that is exactly why we have increased levels of income support. That is why we are offering to give further help to the less well-off to help meet their extra fuel bills.
Lord Bruce of Donington: My Lords, the noble Lord has given many assurances today. Will he also bear in mind that we were given specific repeated assurances that the tax would not be imposed?
Lord Henley: My Lords, we are doing nothing more in regard to that than bringing the position into line with a great many of our colleagues in Europe, all of whom impose VAT on domestic heating bills. As I have made clear, we shall be offering extra help to the poorer pensioners and those less well off.
Lord Stallard: My Lords, the noble Lord keeps mentioning the poorer pensioners. I and others are concerned about all pensioners, not only those who qualify for income support and so on. That qualification leaves out thousands of pensioners on the borderline and many others who cannot afford an increase of 17.5 per cent. on their fuel costs. What about those thousands of people who do not qualify being included in what the Minister and his
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Government will call the poorest of the poor? There are others who cannot afford the increase. What will the Government do about those?
Lord Henley: My Lords, the noble Lord will know perfectly well that the average incomes of pensioners have increased by about 30 per cent. since 1979. All pensioners are very much better off. In trying to direct extra resources at the least well off, it is better to do it, as often as not, through income-related benefits. I would point out to the noble Lord that some 90 per cent. of all new pensioners have some income in addition to their state retirement pension.

Business
3.8 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House to know that the Committee stage of the Education Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Access to Health Records (Northern Ireland) Order 1993 and the Social Security (Amendment) (Northern Ireland) Order 1993 will be taken.

Business of the House: Debate, 5th May
The Lord Privy Seal (Lord Wakeham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Peston set down for tomorrow shall be limited to 5 hours. —(Lord Wakeham.)
On Question, Motion agreed to.

Business of the House: Motions, 17th May
Lord Wakeham: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That Standing Order 38 (Arrangement of the Order Paper) be dispensed with to enable the Motion standing in the name of the Lord Irvine of Lairg to be taken before the Motion standing in the name of the Earl of Selborne on Monday 17th May. —(Lord Wakeham.)
Lord Cocks of Hartcliffe: My Lords, as the Motion standing in the name of the noble Lord, Lord Irvine of Lairg, deals with four statutory instruments concerning legal aid, may I have an assurance from the Lord Privy Seal that the change in timing is not as a result of pressure from the Law Society or noble Lords legally qualified that a debate at this time would fit in better with their outside engagements?
Will the noble Lord also help me as a comparative newcomer? Is it in order for the handful of noble Lords such as myself who are not legally qualified to take part in such debates?
Lord Wakeham: My Lords, I understand that the Select Committee has indicated that it is content for

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the debate on the common organisation of the market in potatoes, which it wishes to hold before discussions on the issue take place in the Council of Ministers on 24th–25th May, to be taken after the debate on legal aid in the name of the noble Lord, Lord Irvine.
The House knows full well and fully values the interest that the noble Lord, Lord Cocks, displays in debates on legal issues in this House. Indeed, I believe that he displays rather stronger views on lawyers than he does on potato growers. Perhaps he may wish to contribute his own perspective to the debate on legal aid. In that event, the timing of the debate on legal aid may be convenient for him as well as for others.
Lord Bruce of Donington: My Lords, many of us are extremely interested in the affairs of the European Community. When we considered the original Minutes of Proceedings, we welcomed the fact that the report of the European Communities Committee on the common organisation of the market in potatoes would be given a certain degree of prominence on Monday 17th May, and we made our arrangements accordingly. Will the noble Lord give the House the assurance that in future the reports of the European Communities Committee of the House of Lords will be given the prominence that they are due and that they are not relegated to the most inconvenient times of the day, as they have been many times in the past?
Lord Wakeham: My Lords, Motions on Select Committee reports are, under Standing Order 38, given precedence over Motions in their place on the Order Paper. That is the position. It is only if the House decides to pass a Motion to change the order that it will be changed. Thus, I can give the noble Lord the assurance he requires that it is not for me to change the standing order. It is for the House to do so if it so desires for its convenience. I suggest that the House may wish to do that on this occasion.
On Question, Motion agreed to.

Education Bill
3.10 p.m.
The Minister of State, Department for Education, (Baroness Blatch): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to,
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 181 [School attendance orders]:
Baroness Blatch Baroness Blatch moved Amendment No. 237ZA:
Page 107, line 35, leave out from ("that") to ("they") in line 38 and insert ("a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise").
The noble Baroness said: In moving Amendment No. 237ZA, I wish also to speak to Amendments Nos. 237ZB, 237ZC, 237ZD, 239ZA, 301A, 323ZA, 324A, 324D, 328ZA, 335A, 336A, 336B and 341A.
Amendment No. 237ZA introduces the package of amendments which flow from the announcement in the White Paper Choice and Diversity of the Government's intention to place local education authorities under a new duty—replacing their existing power—to provide education otherwise than at school where necessary to meet a pupil's needs. These amendments give effect to that commitment. I apologise for their length but these are matters of great importance, as I hope will become apparent.
Pupils end up out of school for a variety of reasons. In some cases the reasons are entirely beyond their control. They may have a sudden illness or an ongoing medical condition which requires regular treatment, such as a child who needs kidney dialysis two or three times a week, or they may have had a road accident. Satisfactory arrangements need to be made for the education of these pupils, whether at home or in hospital.
There are also the persistent truants or pupils excluded from school. These children are being denied —or are denying themselves—the full opportunities which their peers enjoy in school. It is all too easy for such pupils to drift into anti-social behaviour and for some a life of juvenile crime is but a short step away. We must do what we can to prevent that happening.
The question of the provision made for excluded pupils was discussed in a paper on exclusions issued by the Department for Education on 30th November. Our proposals have benefited from the substantial and considered response to that paper and from the discussions held by my officials with a range of organisations most closely associated with the issue, including head teacher and teacher associations, the local authority associations and professional and voluntary organisations.
The proposals have also benefited from two recent Ofsted publications, one a formal published response to our exclusions discussion paper, the other a report on the provision made for disaffected pupils. The latter registered particular concern about the legal status and conduct of free-standing units for excluded pupils.
The amendments now proposed principally do two things. First, Amendment No. 301A places local authorities under a specific duty—replacing their existing powers under Section 56 of the Education Act 1944 and Section 3 of the Education Act 1981—to provide education otherwise than at school where it is necessary to meet the needs of an individual child. The new duty applies to those children of compulsory school age who, by reason of illness, exclusion or otherwise, may not receive suitable and efficient education unless such arrangements are made for them. The new duty applies only to children of compulsory school age. Amendment No. 301A therefore also confers on LEAs the power to make provision other than at school for older pupils.
The second major function of Amendment No. 301A is to define the legal status of free-standing units

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for excluded pupils. Whereas units which are attached to mainstream schools are normally quite properly constituted, being formally part of the school to which they are attached, free-standing units are not. The amendment regularises that situation by making provision for a separate category of school established and maintained by local authorities to be known as a pupil referral unit. LEAs may exercise their new duty by placing pupils in such units. The new duty does not require LEAs which do not already have such units to establish them. It is for individual LEAs, in the light of their own needs and circumstances, to determine how best to fulfil their new duty.
Members of the Committee may ask how the pupil referral units will differ from other schools. They are typically small units, providing full-time or part-time education for a relatively small number of pupils, probably between 15 and 30, across a wide age range. The intention is that pupils' stay in these units should be as short as possible: they are not a long-term alternative to mainstream schooling.
Because of the nature of the units there are a number of areas in which some modification of the legislative provisions applying to the generality of schools will be necessary. Amendment No. 323ZA, covering a new schedule, incorporates those general adaptations of enactments. They include a number of detailed provisions, the purpose of which is, I hope, clear.
I have explained in broad terms the intention and purpose of the amendments. The Committee will see that they are grouped with other amendments which will be spoken to, together with my own amendments and/or questions which may be raised as the issues are put before the Committee. In moving Amendment No. 237ZA, I reserve my right to respond to the debate at the end. I beg to move.
Lord Judd: I expect that the Minister will forgive me, after what I hope has been an enjoyable weekend, if I say that on this side of the Committee we are a little perturbed by the large number of amendments which have been tabled at short notice, particularly as a holiday weekend has intervened. I am sure that, like the Government, we are anxious to take advice and to probe into the significance of amendments to see what they are all about. The number of amendments tabled set against the time available seems totally disproportionate. Without labouring the point, perhaps I may also say that it seems unfortunate, when we have seven days for the Committee stage of the Bill, that more time could not have been given to studying the amendments in advance. Our general feeling is that there has been rush and uncertainty about this significant Bill, with provisions being changed, amended or brought up to date at the last moment. We do not question the Minister's serious intent on to help, but we would like to draw the point to her attention because it needs to be addressed.
As I understand it, over the two-year period from 1990 to 1992, the Minister's department collected information about permanent exclusions by the national exclusions reporting system which was the basis of its 1992 discussion document. That document promised publication of a full analysis of the survey by
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the end of January 1993. However, unless I am mistaken—and it is possible that I am—apart from a brief parliamentary Written Answer last week nothing substantial has yet appeared.
The note issued by the Department for Education with the amendments to the Bill optimistically claims that government proposals represent a secure framework that will reduce exclusions and encourage a better approach to behavioural and disciplinary problems on the part of schools. Would that that were likely to be so! The present difficulties, we contend, are being made much worse by the Government's own policy initiatives. The introduction of a crude culture of competition, published leagues and all, driven by parental choice on the basis of school performance and with money following individual pupils according to average cost, set school against school and add up to a pressure to exclude difficult or disruptive pupils. The progressive removal of powers from LEAs and the undermining of their overarching duty to secure a comprehensive education policy replaces a managed system, designed to secure the maximum benefit for all pupils, with an atomised collection of institutions, each of which owes a duty only to the parents of the pupils who happen to attend that particular school.
The legislative changes proposed by the Government address the symptoms of exclusion without touching the root causes. The main change in the law to require LEAs to run pupil referral units will if anything encourage exclusions. It will be much easier for head teachers or governing bodies to exclude a pupil with a clear conscience if they know that the local education authority is legally bound to deal with the consequences of that action.
Although the Government have indicated that they intend that unit funding will follow the pupil, education otherwise than at school is inevitably more expensive. By definition, children who cannot cope with ordinary school or who cannot be contained within it require additional attention. A more generous pupil-teacher ratio is the single most significant factor in increasing cost.
Secondly, and again by definition, LEAs will be required to establish provision that has the capacity to accept new pupils at short notice and at any time during the school year. It will thus be necessary for authorities to carry a permanent margin of spare capacity in order to accommodate an unpredictable level of referrals—again, a factor that will increase cost. The creation of a new legal category of school that is less than a school will impose—it is arguable at least—a degree of uniformity on the system, which seems to run against the Government's declared policy of encouraging diversity. It will cut across the existing freedom of local authorities to discharge their statutory duties in ways that are sensible and appropriate to their own particular locality.
While it may be not unreasonable to expect that pupil referral units could be established with a reasonable degree of cost-effectiveness in urban areas, coverage of more thinly populated parts of the country may well present practical problems of cost and viability. I am sorry to say at the outset of our

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debate after the holiday that we are not at all happy with the amendments or the arguments put forward in support of them.
Baroness Masham of Ilton: I wish to speak to Amendments Nos. 301B, 301C, 301D and 302A. Supporters of the amendments to Amendment No. 301A, which deals with education for sick children in hospital and with home tuition, are trying hard to achieve the parity in the Bill that those services so rightly deserve so that they are not submerged within "pupil referral units", mentioned in Amendment No. 301A. The children's hospital schools are at the moment called "hospital schools" or "hospital tuition units". The noble Lord, Lord Young of Dartington, who has worked so hard on this matter, cannot be here this afternoon.
With so many changes in the health service, such as trust hospitals and the complicated funding systems with extra-contractual referrals, it seems sensible to give these educational services for sick children their own clause in the Bill. Surely legislation should be clear. It is our duty in this Chamber to try and improve Bills. The purpose of the amendments is obvious: they remove "illness" so that the way is paved for the new clause.
At about 1 a.m. on Thursday, 29th April, the Minister, the noble Baroness, Lady Blatch, told us that she had had a son of nearly 15 who had died. I have not had the opportunity to give her my deepest sympathy, which I do now. I am sure that the noble Baroness knows at first hand what a sensitive and traumatic experience it can be to have a seriously sick child. Her son had a loving mother who supported him. Some children are not so lucky. Owing to the emotional stress caused to nurses, children's wards often have a quick turnover of nurses. The teachers who have chosen to work with sick children can give the support needed and bring hope and normality to the sick child. The children frequently have to travel long distances to specialising hospitals for such conditions as leukaemia, renal disease, muscular dystrophy, childhood arthritis, spinal injury, severe burns and numerous other conditions.
The purpose of the amendment is to separate off "by reason of illness" children from otherwise educationally excluded children. Apart from anything else, it will not be good for the morale of teachers in hospitals and the home tuition service if they are lumped together with all the others who will deal in future with excluded children.
Excluded children are likely to be the main concern of LEAs if they are required to take on this new duty. Sick children are liable to become even more neglected than they have been. That will be less likely if there is a clause in the legislation which recognises for the first time that education for sick children is a service in its own right, not just a tag-on to more general services. We would be fairly well satisfied if the Government were to agree just to that point and do no more than repeat what is relevant from Amendment No. 301A in a new clause restricted to children not at school by reason of illness.
The subsections of our amendments are even more
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important and speak for themselves. There is the desirability of basing the whole education service for sick children on hospital schools. There have been concerns over the insecurity of hospital schools. Hospital trusts have started setting charges for premises. I hope that the Committee will agree that this is a very important matter. It is important that there is flexibility, given the variety of the needs and circumstances of sick children, and teachers who understand childhood illness. There will be times, as the noble Baroness, Lady Blatch, said, when the child is too ill for lessons. The teachers should work closely with doctors, nurses and other hospital staff. The Standing Conference of Hospital Teachers calls for the creation of a structured, coherent, non-bureaucratic amalgamated hospital and medical home education service. I hope that the Committee will also agree with that aim.
I should like to explain Amendment No. 301D, which deals with prisons. This amendment to Amendment No. 301A in the name of the noble Baroness, Lady Blatch, is very simple. While I was working on the amendment in relation to sick children, I wondered if the young people of school age who are sent to young offenders institutions or similar places are included in Amendment No. 301A. I telephoned the Department for Education. It checked with its lawyers, who said that they were not. Section 116 of the 1944 Act says that local education authorities already have discretion to provide education in prisons under that section. If they are included in Amendment No. 301A by my amendment, that would be made a requirement. I cannot think of any reason why they should not be included, but it is important that all children of school age should have full-time education.
With the first young offenders institution going private—the Wolds, near Hull—it is important that the legislation should be clear. I hope the Minister and the Committee will agree. These young school age children seem more than most to be in need of education. They have committed offences. Many come through the care system and have been brought up in children's homes. Some of them cannot read or write, and many of them have truanted from school. I found the education unit within the young offenders institution that I visit to be the most beneficial part of the whole system. Many of those young people are immature and have no or little home support. They are taught not only basic education—reading, writing and arithmetic—but also some life skills, such as the dangers of drug and alcohol abuse.
I hope that the Minister will accept the amendments.
3.30 p.m.
Lord Elton: The noble Baroness, Lady Masham, has introduced a complete debate in itself, in which at this stage I do not wish to intervene. However, the Minister and the Committee need to consider how we shall deal with the issue. I have a number of questions to ask and suggestions to make about the pupil referral units which have been introduced into the scheme. But that ought not to cut across what the

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noble Baroness said about whether the hospital units and young offender institutions should be included. I merely say now that I hope that the Minister will feel free to reply to what the noble Baroness said and what the noble Baroness, Lady Warnock, will doubtless say on this issue and not expect immediately to return to the question of whether the amendment should be agreed to because I shall have other questions to ask.
Baroness Warnock: I should like briefly to support everything said by the noble Baroness, Lady Masham, with regard to excluding by reason of illness. Children who have been or who are now away from school because of illness fall into a completely different category from those children who have been excluded and are therefore not at school.
I should also like to support Amendment No. 301D, put forward by the noble Baroness, Lady Masham, to make sure that the local education authority has a duty to provide education for children of school age who are subject to the prison commissioners. It would help to clarify matters if those two issues could be dealt with separately but before we come to the discussion of the referral units as such. We should not then have to come back to discuss those two issues when dealing with the main amendment, Amendment No. 301A, which itself presents a number of difficulties.
I should be grateful if the Minister would say something about the specific points raised by the noble Baroness, Lady Masham, before going on to any other matter.
Lord Elton: If nobody else wants to contribute to that debate, I should quickly like to put a rider on the very last comment with regard to Amendment No. 301D, which seeks to bring the local education authority into dealing with pupils who are subject to some form of detention. I do so with some humility and diffidence. I was for some time responsible for prisons, but I confess that I had not spotted this amendment. It is a very big issue—whether one dismantles part of the education system in the hands of the prison department. It has certain attractions. One of the severe handicaps imposed on anybody who is taken out of mainstream education is that it becomes rapidly and increasingly difficult to get back into it. The people in the non-school institutions are apt to be taught a different curriculum with different assumptions behind it and have a different timetable. That is not surprising because the people who give that education are dealing with a very wide range of ages and abilities as well as curriculum requirements. They also may be rather few in number.
It seems to me therefore that, other considerations being equal, there is considerable advantage in having those excluded (if that is the right word) pupils dealt with under the same aegis—that of the local education authority—as others who are excluded. The simple reason is that the education authority is the one body so far in the whole matrix that is likely to know what such pupils should be receiving in order for them to be at the right stage and state to be reinserted into mainstream education. I repeat that that mainstream education must be the final objective of any
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programme of education for excluded pupils. If not, the system will fail. Therefore I hope that my noble friend will look kindly at that aspect at least of the amendment.
Lord Harvington: I too support the noble Baroness, Lady Masham, with regard to this amendment. We should do all we can to ensure that children who have the misfortune to be ill do not suffer. The noble Baroness, Lady Masham, may be forced to say—indeed I believe she did say—something about costs, which would go against her own natural feelings. But I hope that she will overcome any inhibitions that she might have on that point.
Baroness Hamwee: I too support the noble Baroness, Lady Masham, not only because she discussed the matter with me over dinner last Thursday. She spotted two very important points in addition to the many points that have been well made by other Members of the Committee.
Those who are involved in education as well as the hospital and prison services will welcome clarity at a time when the hospital and prison services themselves are changing, given the moves toward privatisation of the prison services and the introduction of hospital trusts.
Baroness Blatch: I take the point made by my noble friend Lord Harvington. The sentiment that unites the whole Committee is that no child who is out of school, whether by reason of sickness or truancy or other excluded reasons, shall fall through the net. I shall not come back with the tired old answer that it depends upon money. The framework is in place for those children to be provided for.
I understand entirely why the noble Lord, Lord Judd, remonstrated with me about the lateness of the amendment. I regret that he sees the provisions as unhelpful. In fact they put in place a framework to ensure that the needs of all children who are not in school for whatever reason are properly met. That is the whole purpose of these amendments. As the debate continues, I hope it will be realised that that is the real intention.
With regard to the pupil referral units, the noble Lord, Lord Judd, seemed to be worried about their coming under the umbrella of the local authorities. Let me put the question back to him: does he suggest that pupil referral units should remain outside the system? The whole point of the debate and of these amendments is to make sure that there is a duty, coherence and cohesiveness about the whole framework and gathering of provisions to ensure that all children are catered for. To leave the referral units outside the system, where they have been for some time, does not seem to me to be a proper way forward.
As I said to my noble friend Lord Elton, there is no question of a different curriculum being provided for those children. Education will presume in favour of the national curriculum, whatever is happening in mainstream schools. I hope that my noble friend and other Members of the Committee will understand when I say that it will be appropriate from time to time, in the judgment of a professional, that aspects of

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the national curriculum should not apply for particular children. But the intention behind these provisions is that the children should be reintegrated into mainstream education. I can give my noble friend an assurance that that will be part of guidance to schools that will flow from the amendments which, at the end of this debate, I hope will appear on the face of the Bill.
The amendments in the name of the noble Lord, Lord Young of Dartington, and spoken to so ably by the noble Baroness, Lady Masham—Amendments Nos. 301B, 301C and 302A—have been tabled with a great deal of feeling and expertise on the part of the noble Lord. The noble Lord gave the Committee a full and helpful exposition of his views on the education of sick children during the debate on Part III. I thank him for that. I welcome the opportunity of hearing some of the diverse views on the subject from his Benches and of explaining to the Chamber the comprehensive regime which the Bill provides for sick children.
First, the amendments seek to make explicit provision for sick children beyond that made in the Government's Amendment No. 301A and to cover their position with a separate new clause. That may reflect an unfounded worry among some of those who have sick children's interests at heart that they are somehow being lumped together in our thinking with children who are out of school for other reasons, including exclusion. I can assure the Committee that that is not so. It is a simple fact that the need for continuity of a child's education outside school can arise in many different ways.
As I have said, on the one hand, sickness is a thoroughly acceptable reason for being out of school; exclusion and truancy, on the other hand, are not. They are wholly unrelated one to the other but nevertheless are clearly prominent.
The new education otherwise duty will encompass diverse categories of children outside school whose education stands to suffer if they are not provided for. It follows that LEAs will need to plan on a cohesive basis which takes account of any opportunities there may be for economy of scale. As I explained during our debate last week, such planning would scarcely be assisted by taking sick children out into a separate category for planning purposes. In saying that LEAs will need to plan cohesively, I am not of course suggesting a uniformity of approach covering the education of sick children and of others outside school, regardless of particular circumstances and needs. There will clearly be common principles, such as the need to ensure continuity. But the guidance from my department will acknowledge fully and explicitly that the needs of sick children must be addressed as such and differentiated as necessary from those of children in other circumstances.
The second effect of the noble Lord's amendments would be the setting up of a regime based on the hospital, as against the local education authority, as the centre for overseeing the continuity of sick children's education. We debated these matters helpfully last Thursday. The noble Lord knows that
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our own view is that the local education authority is best placed to take a co-ordinated view, encompassing an individual child's time at home, in hospital and back at school.
We know that there are individual children who will be educated in all three ways over the period—partly in hospital, partly in school and perhaps even partly at home. The debate before us is whether we turn the hospital into a local education authority to oversee these provisions outside the hospital or the local authority makes sure that what is being provided in hospital dovetails in well with the provisions provided in school and/or at home. That is why we see the education otherwise duty set out in the Government's amendment as an important benefit for the education of sick children. The other, complementary, benefit from the Bill is of course the prospect of self-governing status for special schools established in hospitals.
I am glad that the noble Lord's amendments have given us this opportunity to consider the important and beneficial effect which our education otherwise amendment will have for sick children. It is entirely appropriate that our debate has focused on their interests as well as those of children outside school for other reasons.
I want to re-emphasise that it is not a question of lumping sick children together with those who are out of school for other reasons. The duty of the local education authority must be to provide education otherwise. Clearly each child is an individual and must be treated as such, with all the sensitivity that is required to see that the educational needs of a child who is sick over a short, medium or longer period are met. All the firmness, commitment and determination required to attend to the educational needs of those who are out of school as a result of truancy or exclusion must also be met by the local authority. It is a question of each local authority being wholly sensitive to the specific needs of a child.
Perhaps I may turn to the other amendment in the name of the noble Baroness, Lady Masham, which concerns children who are detained. Children detained in pursuance of a court order include those convicted of serious crimes and those subject to a secure accommodation order. A child subject to such an order will either have a history of absconding or be expected to injure himself or others if not kept in secure accommodation. However, within these constraints arrangements already exist under the Prison Act 1952 and other measures for the provision of education to those detained in pursuance of a court order. The quality of provision, so far as the prison service is concerned, is the responsibility of the Home Secretary, working through the chief education officer's branch of the prison service. All prison service establishments are subject to inspection by Her Majesty's Chief Inspector of Prisons and that includes education services. Members of the Schools Inspectorate have also been involved in inspection of provision. Custody and control are paramount considerations in those cases.
It would be entirely inappropriate for a local education authority to take on the duty for educating

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those children and young people. It is simply not equipped to do so. It is not the agency best suited to assume educational responsibility for those detained under a court order, given the particular constraints of detention.
I understand the anxieties of the noble Baroness that such children should not be allowed to fall through the net and that the quality of the provision is important. There is no question that the educational needs of those children, who are the concern of us all but in particular the noble Baroness, Lady Masham, will be ignored or not met. In the light of those remarks, I hope that the amendment in my name which puts in place the framework will be accepted, along with the assurance I give that no one will slip through the net, whether in hospital, in prison or indeed out of school for whatever reason; the educational needs of such children should be met by the responsible authority.
3.45 p.m.
Baroness Fisher of Rednal: Before the noble Baroness sits down perhaps I may intervene. She mentioned illness. I believe that the noble Baroness, Lady Masham, was speaking of physical illness. I wonder whether the Minister has any comment to make regarding teenagers who need treatment for mental problems. Can she say whether they come in the same category?
I speak with a little knowledge. I am one of the governors of a residential school in Birmingham for what they call seriously emotionally disturbed children from all kinds of backgrounds. Normally we pick up children over 12 who are not succeeding in school and have done the rounds. Unfortunately, last year we were forced to exclude a boy, which caused us a great deal of worry. We are fortunate in that there is a mental hospital in Birmingham which has what is called a teenage unit.
I wonder whether the same provisions will apply and whether they are general throughout the country. Do I understand that the same facilities will apply for children with mental as well as physical illnesses?
Baroness Blatch: Different parts of the Bill are concerned with children with mental disability. Part III gives the local authority an oversight for children with special needs. A child with mental disabilities will clearly fall into the category of a child with special needs.
This part of the Bill is concerned with education otherwise; in other words, proper educational provision being made for children who are out of school for whatever reason. If a child with a mental disability were out of school for whatever reason, it would be the responsibility of the local authority, unless the child out of school had escaped from a secure unit which was part of a detention order, in which case it would be the proper responsibility of whoever was responsible for the secure unit where the child was constrained from leaving by the methods used for keeping children in secure units.
Under the provisions of the Bill, the amendments proposed to the Bill and other legislation, there is no
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question that a child with mental illness will fall through any net. The anxieties of the noble Baroness are absolutely right. But there is no question that such children will fall through the net.
Lord Judd: I am grateful to the Minister for taking note of what I said regarding tabling large numbers of amendments at short notice. However, I notice that she gave no explanation. I must place on record our anxiety that that is all too characteristic of the sort of high-handed governmental approach which is becoming characteristic of the way the Bill is being handled. We must leave the Government in no doubt that we are not happy about it.
Those on these Benches associate themselves warmly and closely with all that was argued by the noble Baroness, Lady Masham, so far as concerns sick children. She has our full support. Her sensitivity and insight are appreciated by everybody in the Chamber. To turn to the Minister's question about pupil referral units, we believe that if there must be such units, they should be very much part of the local education authority.
Perhaps I may take this opportunity to look at the whole matter in context before we move on. As we see it, the major flaw in the DFE position is that it addresses detailed procedures relating to exclusions without opening up discussion or analysis of the real reason why they take place. It invites everybody to address symptoms without considering causes and assumes that exclusions are in themselves a bad thing. There are intellectually respectable arguments that an expulsion is an appropriate form of disciplinary action, and disruptive pupils should not be allowed to interfere with the progress of their peers.
It is argued by some that attempts to use bureaucratic intervention to restrain schools from using this particular sanction are an infringement of their managerial freedom and are likely to damage the effective working of the system. Such an argument was powerfully advanced by Laurence Norcross in a letter of 5th December last year to the Daily Telegraph. I note that the letter concluded by suggesting that Eric Forth, the Minister, was in danger of joining the ranks of "liberal-minded do-gooders".
However, there is the alternative view, with which we strongly associate ourselves, that in a genuinely comprehensive education system schools should be geared up to cater for the needs of all pupils, and formal exclusion should not be necessary. We argue that to approach the duty of an LEA to secure provision for all the population in its area as a partnership with all the schools that it maintains allows the development of a co-operative ethos where head teachers and governors see themselves as participants in a joint process rather than as competitors in a market. Where a change of school is judged to be in the interests of a particular pupil, surely that should be negotiated between the parties involved as a transfer rather than the removal of a pupil from one school as the result of a quasi-judicial process where the continuing education of the child becomes someone else's problem. Clearly, these are extreme ends of a continuum, and there are possible compromise positions. Most advocates of the market

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approach recognise that a degree of regulation is necessary, and supporters of collaborative models acknowledge that exclusions should be available to governors and head teachers where other approaches have genuinely been tried and have failed. Nevertheless, it is a disappointment that these wider issues have not been addressed in the amendments and the debate surrounding them, including the response of the Minister. The nature and scope of the problem of exclusions from school demand more thorough research than the two-year data collection undertaken so far by the DFE, and considerably more analysis than is so far available. But our main case remains that if the Government are intent on published leagues and competition between schools, whatever adjustments may be made or running repairs attempted to try to sort out these issues that concern us all, the underlying drive for the education system will become divisive and competitive, and difficult students and those with problems —whether it be sickness, maladjustment or whatever—will find themselves at the rough end of the stick.
Baroness Warnock: Perhaps I may ask for clarification and put a question. If it is totally irrelevant, I apologise. Can the Minister tell us whether there is any connection between the pupil referral units, which are mentioned in Amendment No. 301A, for example, and the other units proposed by the Home Office some months ago to contain pupils who were so thoroughly disruptive and criminal that they needed to be removed and placed in quasi-educational and quasi-custodial care? This matter was proposed in another place. I do not know that we have heard very much about these units. I am genuinely confused about whether these units have anything to do with pupil referral units.
Baroness Blatch: There is no formal link at all. The pupil referral units referred to here are those that support mainstream schools for children who have shown early signs of moderate difficulty in coping with mainstream education. Local authorities can make full use of them and children can be withdrawn for half-days, full days or parts of the week. The other units are the responsibility of the Home Office. My right honourable friend the Home Secretary has given an assurance that such units will have a heavily educational emphasis in the rehabilitation of young offenders.
Lord Elton: A large tranche of the customers for the PRUs will derive from pupils who are excluded. I do not think we have disposed of the questions raised earlier in Committee about methods of reducing the number of pupils excluded. Since we conducted it I have been sent a copy of the findings of the Advisory Centre for Education's investigations into exclusions. That confirms the impression that exclusions of all sorts are increasing—not only temporary and permanent but also indefinite exclusions, which happily this legislation will bring to an end. I do not believe that this is the time to ask my noble friend to
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elaborate further on exclusions. I have already said that I feel the matter must be returned to at Report stage.
To deal with the specific provisions in the amendment, first there must be something in the system which means that the child is kept out of school for the minimum period possible. The longer a pupil is out of his or her school, the more difficult it is for that pupil to re-integrate. Remember that usually the child has already been squeezed out of the school like a pip out of a lemon because of the pressures on it, and it will be difficult to re-insert him or her anyway. I hope that my noble friend will tell us that the intention of everybody involved in the process is that the pupil shall be returned to mainstream education in the shortest time possible. That is not apparent on the face of the Bill and it may not be possible to put it there, but I think that we need to have that assurance. We must remember that there is a great feeling of inertia. I have been a tired schoolteacher who has had to teach difficult children in a class of 42 in a comprehensive school with a roll of 1,400 pupils on a slum clearance estate. I can remember thinking, "Thank goodness, so and so is not here. I may get through this afternoon with a little credit". There are many people like that in the system. I sympathise with them. But the fact is that they are the people who have to teach such children. In the long run, they are the only people who can do it properly. The remedy is to equip them to do it, not to keep the pupils away from them. I should like my noble friend to say something about that.
Secondly, it has to be realised that these units have a fantastically difficult job to do. My noble friend has said that they will be small but they will cover the whole age range, and probably the whole ability range, of pupils available. Pupils coming from different schools may all be following the national curriculum but they will be following it in different ways. Pupils studying history will have covered different parts of the subject illustrative of the main themes. They may have studied the Napoleonic wars or the Industrial Revolution. The unit has to have people capable of teaching all the specialisms and it has to have the resources with which to teach pupils in the way of books and other material. That suggests that there must be a much higher pupil-teacher ratio and also that there must be effective resources. I should like my noble friend to say something about that. Underlying it all is the question of a quick return to mainstream education.
4 p.m.
Baroness Blatch: Perhaps I may deal with the final point first. I was privileged for a good number of years to be a friend of, and then part of the management of, what we called a school support unit, which is one of these pupil referral units. It operated in precisely the way in which my noble friend would wish such units to operate. Its objective from the start was to reintegrate children into the mainstream. It had a high pupil-teacher ratio. It took many years for the teachers to convince their professional colleagues in

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both primary and secondary schools to accept why they had a better pupil-teacher ratio. One of the reasons was to get children back into the mainstream.
My noble friend is absolutely right. Each child comes with a different programme from a different school. But what was important in the unit to which I referred is that they came with a special programme. The school liaised with the unit and as far as possible there was continuity between what was done in school and what was done in the unit. The objective was always to reintegrate these young people. In fact, for a while it was called a reintegration unit. It changed from being what we all know as the original sin-bin to being a school support unit aiming to reintegrate children into the mainstream. If they could all be run on the basis that my wonderful Hertford school support unit was run—I unashamedly give the unit a plug—we would be doing a great thing. Schools have come to realise the importance of such provision. The other thing that the unit does—
Lord Elton: Before my noble friend leaves that point, I am sure that lots of people have their hearts in the right place and are doing the right thing, but we are talking about an administrative system. The inertia of the system is keeping the most difficult pupils out of the school. I am asking my noble friend how the Government, in some form or another, will remedy that inertia by ensuring that the whole system is geared to getting the pupils back into the school.
Baroness Blatch: My noble friend is impatient and I have not finished my reply. The other thing that the unit does—as indeed all good units do in following good practice—is to liaise with schools on in-service training to develop strategies for dealing with children with difficult problems and enable them to cope in school. There must be early identification and proper strategies for ensuring that they do not have to be withdrawn. That has worked very well for the units with which I am familiar.
I link that with another point that I know has exercised my noble friend Lord Elton. I refer to exclusions. First, it was out of a concern at the rising number of exclusions that we embarked on a consultation exercise specifically on the issue of exclusions. We need to collate the information, and that is being done right now. We need to look at the reasons for exclusions. We need to examine the tolerance levels of different schools of poor behaviour. We need to ensure—and we shall do this with the inspection system—that schools are inspected for ethos, for frameworks of discipline and, for example, for the degree to which they have followed some of the recommendations of the report of my noble friend Lord Elton. This will manifest itself in early diagnosis, early identification and developing strategies to deal with these children. We are abolishing indefinite exclusions and we are giving local authorities power to direct pupils. In other words, education must be found for these children. I sayunashamedly that we are going to produce exclusion tables. Where schools have a high incidence of excluding pupils, that will be known by a wider public and then judgments will be made about whether schools' tolerance levels or their
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way of dealing with children with difficulties is or is not effective. There is quite a lot in train to make sure that that happens.
I said to my noble friend, when speaking to the amendment initially, that returning children to mainstream schools is a prime objective underlying all of these policies. We shall certainly address that in guidance.
Baroness Masham of Ilton: I should like to thank all those who have supported the amendments in the names of the noble Lord, Lord Young of Dartington, and myself. I apologise to the noble Baroness, Lady Fisher. I took it that it was for all children—those with learning disorders, mentally handicapped youngsters, those with eating disorders and anyone with emotional or learning difficulties.
There are a lot of sick children. It would please many people if their problems were dealt with in a specific clause. I just do not know why the Government do not want to please anyone at the moment. Perhaps they will change their mind before the next stage of the Bill, which is, I think, next week. I will seek advice from the noble Lord, Lord Elton, on Amendment No. 301B. He has considerable experience of the matter. We shall want to see what has been said and so I think that we shall wait until next Monday.
Lord Dormand of Easington: On a point of information, can the Minister say when the Government will be introducing exclusion tables? She said that the Government intend to do that. When will that come about?
Baroness Blatch: My understanding is that it is this coming year.
Lord Gisborough: I wonder whether my noble friend would think it appropriate if I brought in Amendment No. 238 at this stage, which is very akin to what she has been talking about.
Baroness Blatch: I ask my noble friend to bear with me. This debate will certainly have a bearing on that amendment but there are other amendments between this amendment and Amendment No. 238.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 237ZB to 237ZD:
Page 107, line 40, leave out from ("receiving") to end of line 41 and insert ("such education").
Page 108, line 19, leave out from ("order") to first ("the") in line 20.
Page 108, line 23, leave out from ("order") to first ("the") in line 24.
On Question, amendments agreed to.
Clause 181, as amended, agreed to.
Clause 182 agreed to.
Clause 183 [Specification of schools in notices under section 182 (2)]:
Baroness Brigstocke Baroness Brigstocke moved Amendment No. 237A:
Page 110, line 25 after ("body") insert ("and the headteacher of the school").
The noble Baroness said: In moving Amendment No. 237À, I should like to say much that is relevant to

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Amendments Nos. 239A, 243A, 243B, 244A and 244B. This is a series of small but crucial amendments which would put the head teacher on the face of the Bill, where the role of the head teacher has not been sufficiently recognised. I refer in particular to the clauses on admission of pupils and on special needs. These amendments are not designed to increase the responsibility of the head teacher but merely to enable him or her to carry out the head teacher's existing responsibility both to the governors and to the Secretary of State.
My noble friend Lady Carnegy of Lour, in moving Amendments Nos. 160 and 225, explained very clearly the concern which she, my noble friend Lady Young and the National Association of Head Teachers share, as do I, that there is a need to clarify the precise responsibilities and functions of heads. One of my noble friend's most telling points was how important it is for governors in both local authority and grant-maintained schools to sit down with the head teacher and think through the precise nature of the head teacher's responsibilities for which he or she is ultimately answerable to the governors. I was relieved to hear my noble friend the Minister say in reply that she had sympathy with the head having clear responsibilities in schools.
If the local education authority specifies a particular school in a notice under Section 182(2) of the Act, notice needs to be served not only on the governors but also on the head teacher of the school who is to receive the child. Governors, even the most forceful of governors, do not, and indeed they should not, spend long hours in the school. Most of the heads that I know are in school by 8 o'clock in the morning and are often there well into the evening.
The head teacher is the person who is going to implement the local education authority's decision on pupil admission; he is the person who knows not only the class sizes but the precise facilities in the school for dealing with a child's special needs, whether that child is statemented or not. Dyslexia, autism, psychological, emotional or behavioural problems are specific needs for which specific facilities, and, even more important, specialist teachers, are required. My noble friend the Minister herself pointed out the dearth of specialist speech therapists. It is perfectly possible for the local education authority to believe that there is a specialist teacher in the school when in fact he or she has just left.
We all want these new procedures to work and to improve the education of children over the full range of needs and abilities. In order to ensure the smooth delivery of those procedures the head teacher must be named as one of those to be notified of a local education authority decision. It is not satisfactory to rely on the chairman of governors to notify the head. The chairman is not always in the school. There could be a delay while post is being directed to him or her and he or she might even forget to notify the head.
I hope that my noble friend will consider my amendment sympathetically. The effect of it would be to require the local education authority to help the
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head teacher and to keep him informed of any decision or consequent direction and so ensure effective management. I beg to move.
Lord Finsberg: I am puzzled by this amendment, although I can understand the reasoning behind it. I have the feeling that it could set the governing body and the head teacher at each other's throats because in the end the governing body has the responsibility. As I see it, if this amendment were to be passed there is no amendment being made to subsection (7) which follows it. Therefore, although the notice has been served on the head teacher if this amendment is passed, under subsection (7) only a governing body or a local education authority is mentioned. I am concerned that the governing body and the head teacher might come to totally different conclusions. I have served on many governing bodies and from my experience that situation can be a recipe for disaster. Can my noble friend explain how she sees her way through that?
Lord Mountevans: I support the noble Baroness's amendment. It is a small, practical administrative point. It is possible that the chairman of governors may be abroad on business. Let us hope that we get that calibre of person as the governor of a school. It must be right for the head teacher to be informed.
Baroness Perry of Southwark: I also most strongly support my noble friend in this amendment. As she said, it is vitally important that the person who has the executive authority should at least be informed of the duties which are to be placed on the governing body. Of course, that body has the legal responsibility, as it must. But the distinction between day-to-day governing and executive management is a vitally important one if the difficulties in a relationship which my noble friend has raised as a query, are not to occur.
As my noble friend said, quite often the most assiduous and keen member of a governing body will spend as many hours a year on the school's business as the head teacher will spend in a day or a week. To expect him to be able to take that day-to-day responsibility is quite wrong. I believe that many of the difficulties that have occurred between the heads and principals of schools and the governing bodies have been because of a lack of distinction between the functions of the governors and those of the management and executive responsibility. It is important to have that distinction made clear on the face of the Bill and to ensure that the carrying out of the detailed, everyday decisions about the school are not left to the governing body.
Baroness Young: My noble friend Lady Brigstocke has made the point very clearly. There is a great deal of merit in this amendment for all the reasons which have been advanced. I hope that my noble friend will look at it.
Lord Elton: We might as well go A, B, A, B in this matter. I am a B. While there is merit in this amendment, the issue will be taken care of by the amendment which my noble friend Lady Young moved at an earlier stage for the functions of the head

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and the governors to be defined in the articles. I believe that my noble friend has already said that she will consider that matter and produce something along those lines. In that case, this amendment may not be needed.
Baroness Faithfull: I wish to make one small point. Outside bodies have to co-operate with the head teachers; for example, the social services, health, a nurse and a doctor. I am sure that my noble friend Lady Brigstocke will agree that they are the people who should see the head teacher and not the chairman of governors.
Lord Judd: I hesitate to intervene when there is so much support for the noble Baroness from her own side. I just want her to know that she is not alone as regards this side of the House. There is a great deal to commend this amendment and we hope that the Minister will take it seriously.
At the moment it is important to recognise the incredible strains which there are on the teaching profession as a whole and not least on head teachers. Some very interesting pieces of research are available which show disturbing trends as regards the pressure on head teachers and their increasing difficulty in coping with their responsibilities. If we want them to do the job well, we should demonstrably have confidence in them and make sure that they have all the information necessary to discharge their chief executive functions. From that standpoint it is a sound amendment and I am sure that the Minister will want to take it seriously.
Lord Addington: Perhaps I may join briefly in the ringing praise for this amendment. It seems sensible that the head teacher, who is in charge of the daily running of the school, should have all the information that is required. The point has been made by the noble Baroness, Lady Perry, about governors not being able to spend anywhere near as much time in the school; the point has also been made by everyone else that the day-to-day running of the school is carried out by the head teacher. Surely, therefore, if one is making a decision or giving instructions affecting the day-to-day running, the person who has to follow through with those matters should know about them at the first available opportunity.
Baroness Blatch: I would like to think that the rest of the afternoon will continue in much the same vein. I needed no convincing of the point which my noble friend makes as regards these amendments. I was intending to give an identical response to Amendments Nos. 239A, 243A, 243B, 244A and 244B, in that not only is there a very good point to be made but I totally agree that the person who is the key in all this is the one running the school; namely, the head teacher.
To that end we are talking with head teacher associations on this very issue. I ask my noble friend to take me on trust, at least until the next stage. I believe that there is an important distinction, which was hinted at by my noble friend Lord Finsberg. It is between proper, with a capital P, notification and serving an attendance notice or determining a school
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at risk, or whatever it may be, which has to be served on the proper authority. The legal responsibility for that is held by the chairman of governors.
I need no convincing at all that it is absolutely crucial that the head teacher does not learn that informally in the street, at the rotary lunch or wherever else it may be. It is highly appropriate that he is informed simultaneously with the serving of that notice, since the impact of most of these measures is on the running of the school.
The point raised by my noble friend Lord Finsberg as to whether the head teacher may agree or disagree with the chairman of governors does not arise. If a notice has been served either to say that a school is at risk or that an attendance order is being issued, there is not a debate as to whether there is agreement or disagreement. It is the proper information that needs to be made available to the head of the school.
I should like to promise the Committee two things. First, I know that there is an early date in the diary for discussions with one of the heads' associations and we shall see to it that the other is brought into the debate also. Secondly, leading to that informed debate, we shall give consideration as to whether a proper amendment lies on the face of the Bill or in guidance. One way or another, I can promise the Committee that it would be highly inappropriate to leave to chance whether a head teacher knows what is going on in his or her school.
Baroness Brigstocke: I thank my noble friend the Minister enormously for what she has just said. I am only too grateful to leave to her the proper wording of the amendment. When I was a headmistress I had at my elbow always a splendid tome called The Heads' Legal Guide, which I could look at. I do not possess it now, so I would not dream of trying to get the right legal phraseology. I know, however, that all the head teachers' associations will be delighted to learn what my noble friend has said.
My noble friend Lord Finsberg said that he was a little puzzled. I must confess that I am a little puzzled also. I certainly take his point on the legal side, but I should like to say in this Chamber that one of the things that saddens me about discussions on this Bill both in this place and in another is the assumption that governors and head teachers will always or often be on opposite sides and that they will somehow have different views. I know of many heads who do not always agree with their governors and vice versa. But they are civilised, get on with things and work together. I am asking only for communication and for the head teacher to be given that communication so that governors and head teachers can work together. I thank the Committee and my noble friend very much and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 183 agreed to.
Clauses 184 and 185 agreed to.
Clause 186 [Revocation of order at request of parent]:
Lord Gisborough Lord Gisborough moved Amendment No. 238:
Page 112, line 6, at end insert:

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("( ) It shall be the duty of each school to provide adequate transitional classes to reintegrate truants back into the mainstream.").
The noble Lord said: The Bill provides for various penalties for parents who allow their children to become truants. Not all, but most, parents are most anxious that their children should be in school and are sometimes ignorant of the fact that the child either does not go to school after leaving the house or books in and then goes off.
There are a number of reasons for truancy, including the fact that children may be bored at school or bullied. There are also many other reasons. Punishing the parents may make them take their children to the school premises; it does not stop the cause of the truancy. The child may well depart as soon as the parent has left him or her at the school. Much work has been done on truancy, including that by a group called Cities in Schools and various county councils. Cities in Schools has found that it is necessary to have a special class for truants where their particular problems can be dealt with. One class which I visited in Tower Hamlets was studying a subject for which the puplis themselves had asked. That subject was abortion which, for some reason, interested them. So the puplis attended the class once a week and were gradually reintegrated into mainstream lessons.
Children who are bullied cannot be expected immediately to return to more bullying. They must be counselled in how to cope with their problems and be given appropriate help. If parents are to be prosecuted for failing to get their child to school, it is only right that the schools should study the causes of the truancy and run appropriate courses and classes to receive the truants back in a way which removes what caused the truancy in the first place. The amendment attempts to ensure that that happens. I beg to move.
Baroness Faithfull: I support my noble friend Lord Gisborough. Perhaps I may draw the attention of my noble friend the Minister to our discussions on Amendment No. 74 when we referred to difficult and disruptive non-school attenders attending residential schools. Perhaps I may also draw her attention to the fact that in Birmingham Barnados has run a day centre for very difficult non-school attenders. Barnados paid the bulk of the costs of that unit, with a very small grant from the education department in Birmingham. The day centre has been running for some years and has been most successful. It is open every day and at weekends when parents are invited. Children are reintegrated back into their schools from the unit.
I must draw my noble friend's attention to col. 475 of Hansard on 29th April when she said that charitable organisations,
"must market their services to customers",
the customers being the local authorities. This most successful place in Birmingham, Osmund House, has had to close because the local authority would not make its very small contribution. Although some children may go to residential schools, it is possible for
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some very disruptive children to remain at home but to attend special units perhaps not in their schools, but very near.
Lord Elton: The amendment proposes rather a narrow answer to a very wide question. I hope that my noble friend will see that the task of a school in reintegrating its truanting children goes wider than having special classes for them. Indeed, by identifying such children as privileged people who have separate treatment in a returning truants' class, one might be making the job of reintegrating them more difficult. That is not to say that the proposal might not work sometimes, but I think that it would be a great pity if it was thought necessary to use it every time. Reintegration is a very difficult process and varies very much according to whether, as my noble friend suggested, the child is absent from school because of boredom, bullying or the wish to earn a lot of money.
In that context, I ask my noble friend the Minister, who kindly wrote to me in answer to a question on this subject, whether the legislation which lays down that people employing pupils of school age in school hours shall pay fines for so doing has been amended, as the Elton Committee report recommended, so that the penalties are increased where that employment takes place during school hours. My noble friend pointed out what the legislation was, and I suspect that it remains unamended and that a proportion of children go to work during school hours to earn money. That should be tackled because it is a grave breach of the law by the people employing them.
Perhaps it will be convenient, in view of the state of play, if I continue to talk for the moment—unless any other noble Lord wishes to intervene—but I now understand that that is not necessary and I think that I have said all that is needed to be said.
Baroness Masham of Ilton: Before the noble Lord, Lord Henley, rises perhaps I may refer to the growing number of children who truant from school because of drug abuse. I suddenly thought, "What happens to those children?" because all the rehabilitation services of which I know cater for adults. I do not know of any for really young children. Perhaps we should be thinking about, providing some rehabilitation places for such children because drug abuse is becoming serious, certainly in the north.
Lord Judd: In welcoming the spirit in which the noble Lord, Lord Gisborough, moved the amendment—and we do not question his serious intent—we have some anxieties about the implication that the overarching role of the local education authority may be overlooked. The great point about the LEA working as part of the local government of the area is that it can bring together the LEA itself and the social services. If such issues are to be tackled effectively, they must often be tackled more than clinically by the school alone, which will have great need of specialist advice from those in the social services. It would be helpful to hear a little more about how the noble Lord sees that dimension of the issue.
4.30 p.m.
Lord Elton: Before my noble friend responds, I should like to ask him to add something to what my noble friend Lady Faithfull said about supplementary schools. There is not one just in Birmingham; there is a good one in Brixton called Brixton Cares. It is a way of getting pupils who have truanted up to speed again so that they are level with their colleagues who attend regular schools. It is highly irregular mainly to teach children who are not in school, but it is a helpful service. There is a role for the local authority in supporting such places, as my noble friend said. As my noble friend the Minister knows, it is my view that at present local authorities are giving less and not more support to the voluntary sector just when it needs that support.
Lord Ritchie of Dundee: My worry about this praiseworthy idea relates to how it would be paid for. The noble Lord spoke of an adequate transitional class. An adequate transitional class means a special class, and a special class means a special teacher. That is an additional teacher on the roll of teachers already having to be supported by that school, which is running its own finances. That seems to me to be a sovereign difficulty.
Lord Henley: We have had a useful debate on truancy and I should like to follow the noble Lord, Lord Ritchie, and speak purely to the amendment. It is clearly right that schools should do all in their power to facilitate the reintegration of pupils who have engaged in truancy. To that extent, I, as would everyone who has spoken, endorse the sentiments which lie behind the amendment. The Government have made clear the high priority which must be given to action against truancy. We are pursuing with LEAs and schools a variety of measures to combat those problems.
I fully understand, and share, the concern that there should be continuity of learning. That principle lies at the heart of our system and has been made all the more important by the introduction of the national curriculum. Unauthorised absence, for whatever reason, whether condoned by parents or not seriously disrupts that continuity of learning and impedes the individual progress of the pupil. Every effort should therefore be made, by parents as well as by schools, to ensure that pupils attend school regularly and concentrate on their studies. Where a pupil has been absent without authority, the school should take appropriate steps to secure his early return, involving LEA education welfare officers as necessary.
Once back at school, it is important that the pupil should settle back into school life as quickly as possible. Returning truants, or indeed any pupil returning after a long absence, present a particular challenge to even the most skilled teacher. They may need additional support if they are to make up the teaching that they have lost by their absence. The Government recognise that providing it can be a frustrating and time-consuming business, but we do
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not think that it would help to impose a legal requirement on schools to provide classes specifically for the reintegration of truants.
To begin with, there are many factors which influence truancy. The nature and extent of individual instances of truancy can vary from one pupil to the next. Any remedial action taken by schools must, of necessity, also vary according to the numbers, ages and individual learning needs of the pupils concerned. Even in a large school with a serious truancy problem, it would probably be impracticable to organise specific classes for returning truants, given that variety of need and circumstance. Moreover, it could divert key members of staff from attending to the main body of students who had attended regularly. A new duty along the lines proposed could present major timetabling difficulties for even the best organised school.
The Government believe that those matters are best left to the professional judgment of teachers. They will know the pupil concerned and will be best placed to assess how far he has fallen behind. They will be able to determine what form of remedial action is required to help the pupil to catch up. In some schools if there is a sufficient number of pupils with similar learning needs it may well be appropriate to organise specific classes. In others it will not.
As my noble friend Lord Elton put it, we believe that an amendment of this type is over-narrow and prescriptive in seeking to formalise arrangements which we believe are best left to the judgment of individual schools and teachers. I hope therefore that my noble friend will not feel it necessary to press the amendment. As I said at the beginning, we are sympathetic to the sentiments behind the amendment.
Perhaps I may respond briefly to the question asked by my noble friend Lord Elton about employers being fined for employing children of school age who should be attending school. There are bylaws relating to that point, but I am not sure of the current position, and I shall write to my noble friend as soon as possible to clarify the matter.
Lord Gisborough: It is a wide subject about which we have talked this afternoon. There are great difficulties. The main problem, as I see it, relates to the parents who will be prosecuted for not having a child at school when the child has no intention of returning. However, I beg leave to withdraw the amendment.
Amendment by leave withdrawn.
Clause 186 agreed to.
Clause 187 agreed to.
Clause 188 [Offence: failure to secure regular attendance at school of registered pupil]:
Baroness Blatch Baroness Blatch moved Amendment No. 239:
Page 113, line 8, after ("authority") insert ("or the funding authority").
The noble Baroness said: The amendment was spoken to under Clause 10. I beg to move.
On Question, amendment agreed to.
Lord Redesdale Lord Redesdale moved Amendment No. 239AZA:
Page 113, line 13 at end insert ("in so far as this is in accordance with the parent's preferences.").
The noble Lord said: I should like to speak also to Amendment No. 239BZA. Both amendments are concerned with school transport. There is at present nothing in the legislation affecting school transport about parental preference for a school; only guidance given to LEAs by the DFE in circulars has attempted to address the issue. The intention of the amendment is to bring the legislation up to date, but not to go so far as to create a completely open-ended entitlement to free school transport. The right to school transport to a preferred school should be a matter for statutory definition.
I should like to deal with rural areas where school transport provision is of most importance. The Government make plain in publications such as the parents' charter the parent's right to choose and using the right to choose, principles which are difficult to substantiate. In reality LEAs have the minimal duty of offering free school transport on the basis of Hobson's choice of school. The LEA is not obliged even to consider making free transport available to any school further afield than the closest, and without transport parental choice is then available only at a price.
The Government believe that the parental choice between schools on the basis of league tables and other information is a powerful force to improve standards of education at schools. It is inconsistent of the Government not to apply the force of parental choice in rural areas. In rural areas, some small schools of high educational quality are often struggling to survive. Their future would be much more secure if just a handful of additional pupils from further away could be added to the roll. That requires some attention to the present weaknesses in the requirements for free school transport.
Clause 188(4) re-enacts what is now contained in Section 39(2) (c) of the 1944 Act. Section 39(2) (c) uses the key phrase "suitable arrangements" in an ambiguous way. It has been held in two recent court cases that the phrase did not address the suitability of the school nearer the child's home. Clause 188(4), as drafted by the Government, now appears to clarify the point. I should be grateful to the Minister if she will confirm that point in her reply.
The purpose of Amendment No. 239AZA is to establish beyond doubt that the new wording of Clause 188(4) (b) will include parental preferences within what is meant by "suitable arrangments" for an alternative school. The amendment deliberately uses the plural. The preference expressed by a parent will normally include a number of different schools and the final outcome will probably be the product of several factors. We do not mean to suggest that the parental preference should be the sole or perhaps even the dominant consideration. Will the Minister explain the extent to which parental preference will be taken into account by the present wording of Clause 188(4) (b)? Would it not be better to put the matter beyond doubt and agree to Amendment No. 239AZA?
Amendment No. 239BZA similarly addresses the interpretation of "suitable arrangements" in relation to school transport. Both amendments are modest attempts to make statutory provisions clearer. There
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will no doubt always be a need for some additional guidance but not on matters as basic as the parental entitlement to express a preference between schools and to have that preference taken into account.
Lord Renfrew of Kaimsthorn: I have a great deal of sympathy with the points raised by the noble Lord, Lord Redesdale, as so often I do. However, I also have some problems. Clearly, it is the noble Lord's intention that a duty should be imposed on those responsible for providing transport. That provision appears in an odd part of the Bill given that Clause 188 sets out to define an offence in the case of parents who fail to send their children to school. However, perhaps that does not matter if the noble Lord is right—and I believe that he is—that a duty will be imposed by the amendments.
The problem is that there is an element of vagueness about the amendments. In particular, Amendment No. 239BZA sets out to define suitable arrangements for transport. It refers to:
"arrangements which facilitate the child's attendance at the school preferred by the parent".
However, it offers no further guidance and imposes no limitation whatever. If the amendment were agreed to, carte blanche would be given to the parent or—to use a different phrase—a blank cheque would be signed by the providers of transport.
I believe that the noble Lord has a point and that it is right there should be an element of choice. Perhaps it is also right that appropriate transportation should be provided for more than one school even in a rural environment and even if the parent and the child live remote from more than one school. But clearly there must be some restrictions because the parent could say, "I definitely want that school", which is 50 or 70 miles away. Therefore, one must express a reservation.
Perhaps I may also point out that there is a word missing from the Bill, which is not grammatical. Clause 188 (4) (b) (iii), which is amended by Amendment No. 239AZA, requires a noun before the word "enabling". That noun should be "provision" otherwise the Bill is ungrammatical. The word "enabling" is not a sufficiently strong gerund to carry the meaning which Ministers would wish. Perhaps the Minister would care to take way that point and produce her own modest amendment.
I am not trying to be frivolous. The noble Lord, Lord Redesdale, has moved a serious amendment, which has value. However, as worded, it perhaps goes a little further than might be appropriate.
4.45 p.m.
Lord Judd: The noble Lord has indeed raised an important issue. It is a specific indication of the extent to which the Government's declared policy is flawed. If the Government insist that the basis of their policy is parental choice, they must ensure that that choice can be fulfilled. The noble Lord, Lord Renfrew, was right in drawing attention to the fact that no sane Member of the Committee can expect anyone anywhere to have an open cheque in this respect. That illustrates that at some point in the procedure someone must move in the most enlightened way

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possible and look at all the operative factors and ask what is the rational, sensible solution. I suspect that the more we look at the detailed application of the Bill, the more examples of this kind we shall find.
Therefore we suggest that from a specific angle this is an illustration of the unwisdom of rhetoric in deciding educational policy. We want community responsibility and community provision in the best possible interests of all children. The more one turns one's back on that, the more contradictions of this kind we shall encounter.
The Lord Bishop of Guildford: The amendment puts me in some difficulty. In some respects I have sympathy with the argument. However, I recall that on a previous day in Committee the noble Duke, the Duke of Norfolk, moved an amendment in relation to school transport and received an answer from the Minister which he described as "disgraceful". The noble Duke announced his intention to return to the principle.
The Churches, and in particular the Roman Catholic Church, have considerable anxieties about the issue. There is a sense in which if the Churches stated that they had a particular interest there might appear to be special pleading. However, I should risk that on grounds of the historical situation that the Church schools were in position long before the creation of many of the county schools.
Nonetheless, the practical position must be taken into account. I fear for the cost of what is being suggested by the noble Lord, Lord Redesdale. We might find ourselves spending on transport an inordinate amount of money which might be better spent on education. Although I must say that the Churches have a special anxiety, I have considerable difficulty in going all the way with the noble Lord, Lord Redesdale.
Lord Northbourne: I support what was said by the right reverend Prelate. There is a particular problem for the Churches and it is precisely a problem of choice. Although I accept that there must be limits on choice, I believe that there must be a degree of choice. I know that we shall return to the issue on Report; but will the Minister say today whether any kind of compromise is possible in terms of targeting the available resources towards the families who are not able to contribute toward the cost of transport or of making the transport cheaper? If the local authorities do not have to provide transport but must merely procure its availability, the answer may be the practice which we see in many grant-maintained and independent schools. The parents who are lucky enough to have cars run sharing schemes to transport their children to school. They work out arrangements with parents who do not have cars but who contribute towards the cost of petrol. That is a great deal cheaper than the public services providing the transport.
Baroness Carnegy of Lour: I listened with great interest to what was said by the right reverend Prelate and the noble Lord, Lord Northbourne. It is important to keep separate from the amendment the issue of transport to schools; for example, Roman
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Catholic schools. The amendment relates to a different issue. Although it is a lovely idea, it is pretty well impossible to imagine any government persuading the taxpayer to pay for the transport of children to any school that the parents happen to choose. Parental choice has always been subject to certain conditions and it is not conceivable that the amendment can be incorporated into the Bill. It is an important point to raise, however. The noble Lord, Lord Judd, made a fair point that if one cannot obtain free transport, one cannot have total choice. However, I do not believe that people want that and they cannot expect it.
The point about Church schools is narrower and requires careful consideration because it also has problems. The noble Lord should bear in mind the fact that we are not just talking about, say, Richmond Council or a council which is in a comparatively built-up area; we are talking about Northumberland, Cumbria, the South-West and East Anglia where the distances are very great and people could incur enormous expense on behalf of the taxpayer if they could choose. Therefore, although it is a lovely idea, I think that it would perhaps be better if the noble Lord withdrew the amendment and we considered separately the question of religious schools. I apologise for keeping the noble Lord, Lord Judd, waiting. I expect that he would like to speak now.
Lord Judd: There is no need for the noble Baroness to apologise. She put the case very reasonably and convincingly. I simply wanted to ask her whether she agreed that the provision not only flaws the principle of parental choice, but it is actually more sinister. It again indicates that choice is there on the basis of ability to pay. If a parent is in the income bracket which enables him or her to take advantage of a school place further afield for which the local authority cannot provide free transport, then he or she is able to do so. That shows the humbug in so much of the Government's approach to the matter.
Lord Elton: Simply to say that because you cannot have the moon when you want it means that you do not have choice, is surely a ridiculous position. I do not think that noble Lords can stand there and talk about humbug.
Baroness Blatch: As in all of these cases—that is, in Committee, on Report and on Third Reading—I have to deal with the amendment on the Marshalled List. The amendment before the Committee at present is not the amendment to which the noble Lord, Lord Redesdale, spoke. He talked of limitations and the sensible use of them. If the amendment was accepted, the effect would be that every single child of compulsory school age who attended a school beyond walking distance from home would be entitled to free transport and local authorities would have no resort and no discretion whatever: if it was the parents' preference, it would trigger automatic free school transport. That would be the effect of the amendment and it is not what the noble Lord was saying when he spoke to it. Nor, at this stage—because I think that it would be inappropriate—do I wish to become embroiled in the distinction between the amendment

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tabled in the name of my noble friend the Duke of Norfolk and the one now before the Committee. That amendment talked about serious limitations. I believe that we shall be discussing that issue on another day.
As I said, the effect of the present amendment on school transport is one that I believe would lead to a blank cheque policy for local authorities. I turn now to the remarks made by the noble Lord, Lord Judd, who is I think being rather naughty in his interpretation of what we mean by extended choice. We believe that as much choice as is practicable should be made available to parents. There will always be—this is not an absolute—a tension between the degree of choice which is allowable and the constraints of local authority expenditure. That is accepted, whether it is spare places or transport to school. But local authorities exercise a great deal of discretion. For example, they use their discretion on dangerous routes to schools and on schools where the bus passes the door and where it makes good and optimum use of transport. They use their discretion, within the limits, where they can apply charging policy. There is a great deal of discretion. We say that we should presume in favour of parental choice where it is practicable. That is a great deal more choice than was allowed under the previous Government.
The reason I believe that that would be the effect of the amendment is that Clause 188 replaces, without change, Section 39 of the 1944 Act. It has been held that the provisions of Section 39 are relevant when determining whether an individual is entitled to free school transport under Section 55 of the 1944 Act. The reason for the link between school transport and school attendance is that school transport is not provided in a vacuum: it is provided to facilitate school attendance. The law on school transport makes that clear. It specifically requires a local authority to provide free transport where it considers that to be necessary to facilitate the individual's attendance at school.
The nature of the link between the laws on school transport and attendance is as follows. Section 39—and, in due course, its replacement Clause 188—gives the parents of a child of compulsory school age a defence if they are prosecuted for their child's irregular attendance at school. To secure that defence, the parents have to prove two things: first, they must prove that the school attended by the child is beyond walking distance. I should mention that "walking distance" is defined in Section 39 (and re-enacted in Clause 188) as a journey between home and school of more than two miles for pupils between the ages of five and seven and of three miles for pupils aged between eight and 16, and "in each case" is,
"measured by the nearest available route".
Secondly, the parents have to prove that the local education authority has made no suitable arrangements for boarding the child at the school he attends, for transporting him to or from it or for enabling him to become a registered pupil at a school nearer to home.
What all that boils down to, in practice, is that a local education authority is obliged to provide
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boarding or free transport for a pupil who attends the nearest suitable school if it is over two or three miles from home. In most cases, the local authority provides free transport. A journey beyond walking distance to the nearest suitable school is a very tight criterion for entitlement to free school transport. Members of the Committee will have noted that simply having a journey beyond walking distance to school does not create an entitlement to free transport. The school has to be the nearest suitable school to the child's home. He must have no choice but to walk more than two or three miles to get there.
What happens if a child who lives beyond walking distance from his nearest suitable school is sent by his parents to a more distant school? I am afraid that he may lose the free transport to which he would have been entitled if he had attended the nearer school. The same is likely to happen where a pupil who lives within walking distance of the nearest suitable school goes to one beyond it. In both cases, the pupil is unlikely to be entitled to free transport, as his parents would not have a defence under Clause 188 (4)—that is, on the assumption that the local authority would be able to make arrangements for him to attend the nearest school.
The amendments of the noble Lord, Lord Redesdale, change the nature of the parents' defence. They would restrict the circumstances in which the defence is not available either to where the transport arrangements made by the LEA are to the parents' preferred school or to where the arrangements to attend a nearer school also relate to a school preferred by the parents. The effect would be to compel local authorities to provide free school transport for every single pupil who travelled beyond walking distance to school, whether from choice or necessity, if it was consistent with the preference of the parents.
I cannot deny the attraction to the amendments. I am sure that the noble Lord would be immensely popular if they became law—although not, I might say, with his local authority colleagues. Yet, as I said, the Government have no choice but to resist them. In the Government's view, the amendments are flawed both in principle and in practice. We consider that they are flawed in principle for the following reasons. I have mentioned that local authorities provide free transport where it is necessary to facilitate attendance. In practice, that means that free school transport is a safety net for those who need it. But the noble Lord's amendments would make free transport a general entitlement even where it was not necessary.
The Government are fundamentally opposed to the noble Lord's proposal. Indeed, I am sure that many Members of the Committee will have their own reservations. The noble Lord's amendments are also flawed in practice. If the law was changed as proposed by the noble Lord, Lord Redesdale, a parent might, for sound educational reasons, send a child to a school that was a very long way from home. Many local authorities set limits on the length or duration of journeys for which they are prepared to provide free transport or indeed provide transport at a subsidised cost. The noble Lord's amendment could make it difficult for them to do so in the future.

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The noble Lord's second amendment is quite specific. A local authority would not have made suitable arrangements for a child's transport if those arrangements did not comply with the parental choice of school. The amendments proposed could actually lead to children having such long and tiring journeys that their education might suffer. However, it would not be for the local authority to make that judgment and long distance school transport would not be cheap, as we all know. This brings me to the third ground on which the Government oppose the noble Lord's amendments. Quite simply, they are impossibly expensive. There are roughly 5.8 million pupils of compulsory school age. Roughly 600,000 of these currently receive free school transport on distance grounds. We estimate that their transport costs are some £145 million each year, or roughly £240 per pupil.
I explained earlier the tight criteria which pupils have to meet to receive free transport on distance grounds. They must of necessity have a journey beyond walking distance to their nearest suitable school. The noble Lord's amendments would remove that necessity from the criteria. A parent would simply have to choose a school beyond the two or three mile limit and free transport would automatically follow. The noble Lord's amendments would provide a substantial financial incentive to parents to choose distant schools. It could be argued that this is acceptable and that the exercise of parental preference needs to be freed from transport constraints if it is to be effective in raising standards of education in our schools. Freedom of parental preference is not the only argument for widening entitlement to free school transport. There are also road safety and traffic congestion arguments.
The Government are not bowing to the attraction of these arguments. We wonder whether those who support the arguments fully realise the financial implications of what they seek. It is impossible to forecast how many pupils would be sent to distant schools in order to receive the free transport for which they do not qualify at present. That process would pre-empt local authority moneys because we simply do not know, nor could we gauge, how many parents would make that preference. The number and the cost could be enormous. However, I shall give an illustration of that.
I have mentioned that free transport costs at present are roughly £240 per pupil per annum and that roughly 5.2 million five to 16 year-olds do not receive it. If only 10 per cent. of those pupils—say half-a-million pupils—became eligible for free transport under the noble Lord's proposals, the cost would be roughly £125 million per year. That is not far short of the £145 million local authorities are already spending. As I have said, that is a conservative estimate allowing for only 10 per cent. of pupils exercising their choice.
I do not think that extra expenditure can be justified and I am sure that council tax payers would not be slow to complain if the extra burden were placed on them. My noble friend Lady Carnegy of Lour has made that point. However, the alternative is
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that local authorities would have to cut other educational expenditure in order to pay for the extra transport. More transport could mean fewer books for example. Is that what the noble Lord intends? That would be a serious pre-emption of local authority moneys.
I emphasise that there is nothing in law at present to prevent local authorities from paying in full the travelling expenses of pupils who attend a school other than their nearest suitable school. Many local authorities undertake that provision. As regards my own cluster of villages, some children attend the local village school who live only half a mile away but others have journeys of about one-and-a-half miles. The local authority has deemed their route to be dangerous and therefore it provides transport. It is right that in determining whether and how to use this flexibility local authorities should be free to consider the financial implications. The noble Lord's amendments would prevent this. Local authorities would have no choice but to provide free transport for every pupil who had a long journey to school, whether or not from necessity.
I shall summarise the Government's position. We appreciate the parental choice, safety and environmental arguments for more school transport being provided. The noble Lord's amendments would achieve this, but the cost would be wholly unacceptable. The noble Lord is asking taxpayers to write a blank cheque. The Government simply cannot accept these amendments. I urge the Committee not to support them. I would say to my noble friend Lord Renfrew that I note his remonstration about the inelegant or incomplete drafting of this part of the Bill and I shall alert my officials to that.
Lord Judd: I am sure the Committee is grateful for that omnibus reply. This is almost a matter for the Trade Descriptions Act. When the Minister talks about choice, she uses the term,
"as far as is practical".
I know of the Minister's personal commitment to state education and I admire it. I know her personal record in this respect is beyond reproach. However, in all objectivity, it is not right to use the term,
"as far as is practical".
This matter concerns in most cases the ability to pay.
Lord Elton: Does the noble Lord use the same language with his children at Christmas? Does he tell them they can expect anything, whether or not it is practical? It seems to me that his argument takes us beyond the realms of reasonable thought.
Lord Judd: The noble Lord knows better than that. He will not divert the argument with all his ingenuity. The point is that some parents can afford more choice than others.
Baroness Blatch: There will of course always be a variation as regards what can or cannot be afforded. However, I shall match my list of instances where we have extended choice with the noble Lord's list if he wishes to attend the next stage of the Bill and pit his wits against mine.
Lord Dormand of Easington: I hope the Government will take this matter a little more seriously than has been the case with a previous speaker. The Minister's reply was correct on this matter. If we had a Liberal Democrat Government and the noble Lord, Lord Redesdale, was the Minister responsible for this matter, he would give exactly the same reply from the Dispatch Box as the noble Baroness, Lady Blatch. There simply is not the money available to permit the level of choice he would like. However, I would criticise the Government on one point in support of what my noble friend has said. The Government are always giving the impression that there is complete freedom of choice for parents. We never hear the Government saying there is complete choice with the caveat that they may not be able to afford to provide buses.
I wish to refer briefly to my Second Reading speech. The noble Baroness may recall it. Some schools do not have places available for all the parents who wish to send their children there. Some of us have experienced this matter. What my noble friend and I are saying here is that when the Government speak about freedom, they should be a little more honest and say there is freedom in this matter but with some exceptions. As politicians they are entitled to say they consider they have allowed more freedom than is the case with some other parties. However, I do not necessarily accept that. The Government should be a little more straightforward when they talk about freedom of choice.
Baroness Blatch: I believe there is some dishonesty here. I shall repeat unequivocally what I have said on many occasions. My ministerial colleagues and my right honourable friend the Secretary of State have also said this. We wish to extend choice to parents as far as is practicable. We have never made a secret of that fact. We have said on a number of occasions that there will always be a tension between schools which have too many spare places and others that do not have enough. We accept there is a tension. I have made that clear when I have replied to letters of complaint.
More open enrolment was not available under the party of Members of the Committee opposite. We have said it is the right of parents to seek places at schools for their children as long as those schools have available places. The presumption is in favour of the rights of parents. A school cannot refuse a place to the parent of a child if that school has space below the standard number. We have the notion of standard numbers. That was never available before. We have extended choice but we always repeat the caveat that that choice extends as far as is practicable and is consistent with our policy. We have offered greater choice and greater diversity than the parties on the other side of the Committee have ever advocated.
Lord Redesdale: I thank the Minister for a full and comprehensive reply. I did not intend to propose a blank cheque to enable any child to attend any school. I realise there are cost constraints. I come from rural Northumberland and it is not uncommon for children there to travel distances of 50 miles each day to attend
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school. Therefore I feel that in many instances the availability or otherwise of free transport acts as a constraint to free choice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 239BZA not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 239ZA:
Page 113, line 24, leave out ("at which he was") and insert ("as").
On Question, amendment agreed to.
Clause 188, as amended, agreed to.
Clauses 189 to 191 agreed to.
Clause 192 [Extension of the Education (Schools) Act 1992]:
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 239ZB:
Page 115, line 12, after ("9") insert ("or 15").
The noble Lord said: In moving Amendment No. 239ZB, I wish initially to speak also to Amendments Nos. 239ZF, 239ZG, 242V and 242W. The effect of the amendments is to allow local authorities to use their powers under the Education (Schools) Act 1992 to establish more quickly whether a school requires special measures and to act more quickly when it does.
Schools may run into difficulties between four-yearly inspections, perhaps due to staff illness or misdemeanour. A problem which was minor at the time of the four-yearly inspection may become worse over time. Under Section 15 of the Education (Schools) Act authorities are able to inspect in limited circumstances. Should that inspection reveal problems needing special action, there is no mechanism under the Bill to trigger such action and without a further inspection being made. That seems unnecessarily bureaucratic and potentially dangerous for the child in extreme circumstances. This group of amendments does no more than provide a safety net in such cases.
Amendment No. 239ZJ is intended to draw attention to anxieties that school inspections conducted by registered inspectors may not be good enough for the purposes of Part V of the Bill. If a significant proportion of inspections were inadequate, much of the effort to be expended in accordance with Part V would unfortunately be misdirected. The Minister may say that the amendment is unnecessary. She may say that each registered inspector will be trained and supervised in the inspections he is about to carry out and will thereafter be subject to sample checks, and where any sample check finds a problem then the chief inspector may choose to reinspect the school or schools concerned. However, if those procedures are so complete and safe, then why do the provisions of Clauses 194 and 215 themselves convey distrust of the work of the registered inspectors?
Without greater efforts by the Government to secure high quality inspections for all schools, we suggest that only some of the schools at risk will be detected in each four-yearly cycle of inspections. That is considerably better than nothing; but despite the Government's claims, children in the schools where problems are thus left undetected will complete most or all of their education at the school without assistance being offered. We believe that more could

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be done through steps such as strengthening the ability of the chief inspector to deploy the HMI in the way proposed by the amendment.
The aim of Amendment No. 239ZL is to alert the appropriate authority and LEAs to the fact that they would need to convene meetings urgently in order to respond to the inspector's report. This is a refined version of an amendment moved in Committee stage in another place to which the Minister, Mr. Tim Boswell, replied that giving a warning is a good idea in principle.
Most people will agree that governing bodies and LEAs should be given help to give the most prominent attention to the problems identified in an inspector's report which contains an "at risk" judgment. It would be damaging for the school and its pupils if problems were to be left unremedied any longer, and delay may sway the chances of the school to recover successfully from its problems. For that reason, in view of the practical difficulties of convening governors' meetings and local authority meetings, the amendment suggests that the parties involved should be given up to 14 days' notice of the need to convene a meeting to consider the inspector's report.
The merits of the case are twofold: first, the saving of time, and secondly, and more importantly, the likelihood of an adverse report being handled constructively and promptly. The parties involved will have had time to overcome their initial shock and may have had a chance to devise some initial steps and are therefore less likely to be unprepared victims of adverse publicity.
The warning required by the amendment is not required to be a public warning. There is scope, at the discretion of the chief inspector, for the warning to be withheld where it would not be helpful. In addition, given that too generous a warning period might be counter-productive before the full report can be studied, the amendment suggests a period of not more than 14 days. The latter points are refinements of the version of the amendment debated in another place which, in its original form, would have forced advance notice of about one month without discrimination. I hope that the revised amendment will meet with the Minister's approval.
I turn finally to Amendments Nos. 242D and 242E. The purpose of the amendments is to enable the local education authority to determine the period of time allowed for action on special measures. At present Clause 198(2) enables the Secretary of State to determine the length of time within which the appropriate authority must act on special measures if he considers that the urgency of the case requires a shorter period than the normal prescribed period. The amendment would remove that power from the Secretary of State and give it to the local education authority. The LEA is in a much better position to know how quickly a school can respond to an inspection report. It is much closer to its schools than the Secretary of State can possibly be. It is therefore far more appropriate for the decision about the urgency of the need to act to be put in the hands of the local education authority rather than in the hands of the Secretary of State. I beg to move.
5.15 p.m.
Earl Baldwin of Bewdley: I support the amendments, and in particular Amendments Nos. 239ZB and 242W.
The trouble with the elephantine system of inspections set up by the 1992 Act—which we had last year—is always going to be its insensitivity. It is a system which has been imposed without any proper debate at the time as to whether a heavy-handed programme of inspection is the right way to go about improving standards and preventing schools from failing. Like many of the Government's reforms, it is founded on an untested assumption. Such evidence as I have seen tends to suggest that standards improve when a workforce is well led and is thoroughly involved in the planning and ownership of the task it is involved in. I remember the brief summary of some American research in this field which said, "Carrots work; sticks do not". That is why the lighter hand of the local education authority is so important.
We now have the frequent full blown inspections, whether we like them or not, so anything that the LEA does will need to be fitted into that framework. It is quite possible, as the noble Lord who introduced the amendments said, that with their ears more closely to the ground than the national inspectorate, the local advisers or inspectors may pick up something that the others will miss—probably between the four-yearly inspections. That something may possibly be serious enough for action under this Bill to be needed, such as, for example, the suspension of the school's delegated budget.
These amendments would provide a safety net which could protect children from a situation which might get out of hand. I hope that the Government may see some merit in them.
Lord Renfrew of Kaimsthorn: It was the noble Lord, Lord Judd, who said that it is sometimes quite a task for Members of the Committee to make sense of a whole raft of amendments. I find myself in that position on this occasion; but I have to express a number of reservations about this complex of amendments.
The first amendment in the grouping—Amendment No. 239ZB —sets out to make provision for inspection in the manner laid out under Section 15 of the Education (Schools) Act 1992. The rubric reads:
"Power of local education authority to inspect maintained school for specific purpose".
There is no doubt that the proposal enlarges the scope of the inspection by LEAs as envisaged in the Education (Schools) Act 1992. There may be no great harm in that in itself. But there is perhaps one objection; namely, that the provision for inspection by registered inspectors or members of the inspectorate should allow for a considerable degree of uniformity in the inspections which are made up and down the country. I am not sure that such provision is necessarily allowed for in the arrangements for inspection by officers of the local authority. I have reservations on that score.
I take the point made by the noble Lord, Lord Ponsonby of Shulbrede, that it may be convenient that

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in certain circumstances schools can be inspected within the time span of the four-year cycle of inspection. However, it is not clear to me that under the present arrangements that would not be possible. Section 3 of the Education (Schools) Act 1992 gives general powers to the inspectorate to inspect schools. If the local authority had grounds for believing through its rights of access that the conduct of a school in its care was not all that it might be, it would be perfectly in order for it to request an inspection through the inspectorate. I am sure that my noble friend will correct me if I read the Education (Schools) Act 1992 incorrectly in that respect.
The noble Lord, Lord Ponsonby of Shulbrede, spoke to Amendment No. 239ZJ. It is a complicated amendment which I find a shade nebulous. It appears to rely a great deal on opinion. It provides that an inspection is conducted,
"by a suitable person who, in his opinion, will not fail to be of the opinion mentioned … below".
The noble Lord explained that the intention is to strengthen the position if it is believed that the registered inspector is not himself or herself in a position to give a reliable evaluation. It is believed therefore that the evaluation should be related to the potential evaluation which would be given by a member of the inspectorate. That provision seems reasonable in itself. However, it introduces a third category of person. We have the inspectorate, the registered inspectors—of whose merits the noble Lord seems doubtful—and those notional other persons whose opinion ought to be up to the level of the opinion of the inspectorate. It would be helpful if the noble Lord could explain more clearly whose opinion will be evaluated in that way.
Amendment No. 239ZK provides that criteria should be enunciated. The criteria for inspections are laid down in the Education (Schools) Act 1992. Section 9(4) states the matters on which the registered inspector will report. They are:
"the quality of the education provided by the school; the educational standards achieved in the school; whether the financial resources made available to the school are managed efficiently; and the spiritual, moral, social and cultural development of pupils at the school".
That provision indicates the areas to which the inspection shall have regard. It would be helpful if the noble Lord could exemplify more clearly the criteria that he seeks and whether he believes that those statements are not sufficiently substantial.
I have doubts, too, in relation to Amendments Nos. 242D and 242E. The responsibility in relation to special measures on a shorter timescale is removed from the Secretary of State to the local education authority. I did not altogether understand the merits of that transfer.
I shall be grateful for clarification both on the matter of the criteria and on the confusion inherent in Amendment No. 239ZJ. The category of person is not clear. Perhaps the noble Lord, Lord Ponsonby, will clarify those points.
Baroness Hamwee: I note that the noble Lord, Lord Renfrew, did not refer to Amendment No. 239ZL in his careful analysis of this raft of amendments. I hope
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that that indicates at least a degree of support for the amendment to which I have put my name. I hope he will agree that anything which makes it easier for both governing bodies and LEAs to respond to reports in an effective way must be good.
Baroness Blatch: We are now about to set out on a quite extraordinary, I admit at times, mélange of amendments of which this group is the first to be considered. The Opposition amendments seem to have one aim—to prevent a failing school coming under the management of an education association. The amendments fall into two broad groups. One group gives the LEA the power to act as its own educational association. The other gives the Secretary of State powers wholly to replace a failing governing body instead of putting it under the management of an association.
Amendments Nos. 239ZB, 239ZF, 239ZG, 242V and 242W enable the provisions of Chapter II, Part V, and in particular the powers of the local authority to appoint additional governors and to withdraw financial delegation, to apply where the LEA has carried out its own inspection under Section 15 of the Education (Schools) Act 1992 and that inspection has revealed that special measures are required —that the school is at risk of failing to give its pupils an acceptable standard of education.
Section 15 of the Education (Schools) Act enables the local authority to use its own inspectors to inspect an LEA school. However, that power is very limited. It can only be used to obtain information about the school which the local authority needs to carry out its functions. Furthermore, it can be used only where it is not reasonably practicable for the LEA to obtain that information in any other way.
The inspection arrangements introduced by the Education (Schools) Act, debated in this Chamber less than 18 months ago, bring a completely new regime for the inspection of schools. All schools will be subject to regular and rigorous inspection by registered inspectors. They will work within a framework for inspection set out by Her Majesty's Chief Inspector of Schools and will determine whether any school is in need of special measures. In accordance with the provisions of Clause 194, any at risk report by a registered inspector will be validated by Her Majesty's Chief Inspector. That procedure is introduced because under the provisions of Part V an at-risk report will be a very serious matter for the school. It is right that any reports which make that judgment on schools should be subject to the check that Her Majesty's Chief Inspector will make.
The new arrangements under the Education (Schools) Act are about to come into effect. There is no good reason to duplicate them by giving local authorities the same power. The Education (Schools) Act provides for the regular inspection of every school in the country. The formal inspection process will be a matter for Her Majesty's Chief Inspector, for Ofsted and for the registered inspectors. It is not a part of the role of local education authorities. If there are anxieties about schools in between regular inspections, Her Majesty's Chief Inspector has the power to inspect a school at any time. The Secretary of State has

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power to ask Her Majesty's chief inspector to inspect a school at any time. If a local authority is anxious that one of its schools may be at risk, it can also ask Her Majesty's chief inspector or the Secretary of State to secure an inspection. Therefore I believe that the Committee should reject the amendments.
Amendment No. 239ZJ does not seem to me to make much sense. It calls for persons appointed under Clause 193 to carry out an inspection in place of a registered inspector to be persons likely to form the same views as would be formed by a member of the inspectorate. But the only persons who can be appointed under that section are members of the inspectorate. The amendment seems to achieve absolutely nothing. However, in moving the amendment, the noble Lord, Lord Ponsonby of Shulbrede, expressed his anxiety that persons appointed as registered inspectors will be of adequate calibre. It is, of course, a very serious matter to decide whether a school is at risk of failing to provide its pupils with a satisfactory standard of education. I applaud the anxiety expressed by the proposers of the amendment that that task should fall only to suitably qualified people. Indeed, some may see it as conflicting with the objective underlying the series of amendments which I have just addressed.
I am pleased to report that the Education (Schools) Act 1992 already makes rigorous provision for guaranteeing the quality of registered inspectors. I am happy to say to my noble friend Lord Renfrew that he was right in his interpretation of the Act. All Section 9 school inspections are carried out by a team of inspectors led by a registered inspector. Her Majesty's Chief Inspector of Schools maintains that register under Section 10 of the 1992 Act and may not admit anyone to it unless he is satisfied that he or she is a fit and proper person to discharge the functions of a registered inspector and that such people are:
"capable of conducting inspections under this Act competently and effectively".
The performance of registered inspectors is monitored by Her Majesty's Inspectorate, and anyone whose reports fall below the high standards expected by Her Majesty's Chief Inspector may find that their registration is withdrawn immediately or not renewed. The chief inspector is responsible for the overall training of school inspectors. No one will be registered as a registered inspector unless he or she has satisfactorily completed a course of training either provided or approved by HMCI.
All inspections will be conducted according to HMCI's published framework of inspection, thus ensuring consistent national standards. Clause 194 also sets out procedures for enabling the chief inspector to consider the case where registered inspectors think that a school requires special measures.
If, for any reason, Her Majesty's Chief Inspector decides that it is not practicable for a suitable registered inspector to conduct an inspection, then a member of the inspectorate, an HMI, will be appointed to do so. However, that should not be read as implying any lack of trust in registered inspectors' judgments. I hope that the Committee will agree that
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there are adequate measures in the 1992 Act to ensure that all inspections—and I emphasise "all"—by registered inspectors, not just those resulting in an at risk report, are conducted according to same high standards as one expects from an HMI. No further safeguards are necessary, beyond the provision in Clause 194 of the Bill. I ask that the amendment he rejected.
Amendment No. 239ZK would place on the face of the Bill the requirement that Her Majesty's Chief Inspector of Schools should publish, for the purposes of Part V of the Bill, criteria to which a registered inspector should have regard when carrying out his functions under Clause 194. The clause requires that,
"Where a section 9 inspection by a registered inspector has been completed, the inspector shall make in writing a report of the inspection and a summary of the report."
The clause also sets out in detail the procedure to be followed, where the registered inspector is of the opinion that special measures are required to be taken; in short, that the school is at risk. I assume that the noble Lord, Lord Ponsonby, seeks specific criteria against which the registered inspector should judge whether the school is at risk.
I have already made clear that all inspections by registered inspectors will be conducted according to HMCI's published framework for the inspection of schools. HMCI has a duty under Section 2 of the Education (Schools) Act to give guidance to registered inspectors in connection with inspections of schools under Section 9 and the making of reports on such inspections. He also has the power to impose any condition on registration.
Her Majesty's Chief Inspector has already imposed, as a condition of registration, adherence to the published framework. The framework provides guidance to registered inspectors on the characteristics of a school which is in need of special measures and on the way in which those factors should be taken into account in reaching an opinion in the school. That is already covered comprehensively in the Education (Schools) Act and a framework is already in place. We can rely on HMCI to keep the document under review and up to date. There is no need for this amendment to the Bill.
Finally, Amendment No. 239ZL is also closely linked with the process of inspection and identifying schools as failing their pupils. A school that is at risk should know it as soon as possible. That will ensure that an action plan in response to the inspection report can be produced swiftly and measures be taken to address the problems at the school.
However, as the Committee will be aware, the school might be declared to be at risk for a number of reasons. Any action plan and any action the governing body or LEA take must address the specific problems at the school. Here we come to my difficulty with the amendment. If the inspector were to inform the school and the LEA, if appropriate, immediately after he has received the agreement of the chief inspector to his opinion, that the school is at risk, what could the school do? It would not be able to produce an action plan; it would not know why the school was at risk. That it would find out only once the report had been received. Of course, it is important that the school

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should know the problems that the inspector has identified as soon as possible. We will ensure that that happens through the regulations which flow from Clause 196. Those regulations will set very strict requirements for the period in which the report is to be completed and the Bill requires that it must be sent to the school without delay. Seeking the agreement of the chief inspector will be the last stage in the preparation of the report. Once the opinion of the chief inspector is known, the report can be finalised and sent to the school forthwith. There will be no extended delay and I ask the Committee to reject the amendments.
5.30 p.m.
Baroness Fisher of Rednal: Before the noble Baroness sits down, I believe she answered the question ably but I am a little worried. Am I led to understand that there will be a specific definition of the words "failing schools" or "failure of schools"? I find it difficult to come to a conclusion on what I would call a "failing school". There may be aspects, certain parts, of the school which may be failing, but not the whole school. Will the schools be given marks, or be told, "You are failing in nine out of 10 of the things you should be doing"? It is important that the school should know if it is on the slippery slope, before all the requirements take place. Is there a definition of what we would call a "failing school"?
Baroness Blatch: The noble Baroness raises an important point. Of course, the whole purpose of inspections is that any weakness identified in a school will be notified to the school which will have to produce an action plan following any report whatever. Where there is a weakness which is identified, the school will have properly to address that weakness.
We are talking here about schools where the degree of weakness is such that in the view not only of the registered inspector but of Her Majesty's Chief Inspector, it adds up to a failure to deliver adequate education for its children. That is where the determination is made. The particular area where the criteria will be found—as I said in my response to the amendments—will be in the criteria of the framework which has been drafted by Her Majesty's Chief Inspector with which all registered inspectors will have to comply.
Baroness Fisher of Rednal: I thank the Minister for that reply. The inspectors will know, but will the schools know? Will it only be the inspectors who will look for the failures?
Baroness Blatch: The school itself will know, the governing body will know and the governing body will have to secure the action plan which will have to be carried out in conjunction with the school, to address weaknesses, whether they are small and almost inconsequential but are nevertheless weaknesses, right through to it being a failing school. In that case, the measures in the Bill will be invoked.
Earl Baldwin of Bewdley: On a point of clarification, I am still a little bothered about the business of where something goes wrong in the four
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years between the major inspections. I looked at the Education (Schools) Act 1992. The noble Baroness said that the inspectorate can go in at any time and she may well be right. I do not know whether she knows, off the top of her head, exactly where that is because I cannot find it where the noble Lord, Lord Renfrew, said it was. The wording tells me something slightly different. Can the Minister clarify that?
Baroness Blatch: I said that the Secretary of State could call in the inspectorate merely on the basis of receiving complaints to the department. The local authority can requisition a full inspection by HMI. The school itself can ask for an inspection, if it is sufficiently worried.
I also said that in regard to its own schools the local education authority has powers of entry into schools if it has reason to believe that there are problems. As a result of gaining information, which confirms the perception that a school may be failing, the local authority can requisition a full inspection by Her Majesty's Inspectorate.
Lord Ponsonby of Shulbrede: I am disappointed with many of the answers we have received to the amendments. First, dealing with Amendment No. 239ZL, it seems to me that the suggestion of a warning is a good idea in principle and the proposals are modest in ensuring that an early warning is given to any governing body. I am disappointed that the Minister did not see fit to take up the encouragement given by her honourable friend in another place.
I turn to Amendment No. 239ZJ. In my life outside this Chamber I was approached by somebody who did not realise that I was a Member of this place to see whether I wanted to be a registered inspector. I quizzed him closely about what qualifications I needed to have. I said that, as I was qualified in sciences, perhaps I could inspect sciences. He said: "Oh no, you would not be able to inspect anything on which you were particularly qualified. You would have to inspect the generality of the school", which I thought was quite amusing. The amendments I was—
Baroness Blatch: Is the noble Lord talking about a registered inspector who is the leader of a team to do a full inspection of the school, or a member of the team? It is entirely true that somebody conversant in the sciences would be inspecting the sciences if he were a member of a team. But a registered inspector is somebody who leads the team and has to be concerned with whole-school policy.
Lord Ponsonby of Shulbrede: It was whole-school policy which was commented on. The replies with which I was particularly disappointed were those given to the raft of amendments, Amendments Nos. 239ZB, etc. The noble Earl, Lord Baldwin, put his finger on it when he said that the local education authority, in extending the power to inspect, would have a lighter touch and would be quicker in moving into any school where there were any causes for concern. I must say that I was particularly disappointed that the noble Baroness did not take up that point. In the light of her response, I shall press the amendment to a vote.
5.41 p.m.
On Question, Whether the said amendment (No.239ZB) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 158.

Division No. 1

CONTENTS

Acton, L.

Jenkins of Putney, L.

Addington, L.

John-Mackie, L.

Airedale, L.

Judd, L.

Archer of Sandwell, L.

Kennet, L.

Ardwick, L.

Kilbracken, L.

Ashley of Stoke, L.

Kirkhill, L.

Aylestone, L.

Listowel, E.

Baldwin of Bewdley, E.

Llewelyn-Davies of Hastoe, B.

Baumont of Whitley, L.

Lockwood, B.

Birk, B.

Longford, E.

Blackstone, B.

Lovell-Davis, L.

Bonham-Carter, L.

McIntosh of Haringey, L.

Broadbridge, L.

Mackie of Benshie, L.

Callaghan of Cardiff, L.

Mason of Barnsley, L.

Campbell of Eskan, L.

Merlyn-Rees, L.

Carmichael of Kelvingrove, L.

Meston, L.

Carter, L.

Milner of Leeds, L.

Cledwyn of Penrhos, L.

Molloy, L.

Cocks of Hartcliffe, L.

Monkswell, L.

Dean of Beswick, L.

Morris of Castle Morris, L.

Dormand of Easington, L.

Nicol, B.

Elis-Thomas, L.

Ogmore, L.

Falkland, V.

Peston, L.

Fisher of Rednal, B.

Plant of Highfield, L.

Gallacher, L.

Ponsonby of Shulbrede, L.

Galpern, L.

Prys-Davies, L.

Geraint, L.

Rea, L.

Gladwyn, L.

Redesdale, L.

Graham of Edmonton, L. [Teller.]

Richard, L.

Ritchie of Dundee, L.

Grey, E.

Rodgers of Quarry Bank, L.

Hampton, L.

Russell, E.

Hamwee, B.

Seear, B.

Hanworth, V.

Sefton of Garston, L.

Harris of Greenwich, L.

Shackleton, L.

Henderson of Brompton, L.

Stedman, B.

Hilton of Eggardon, B.

Stoddart of Swindon, L.

Hollis of Heigham, B.

Strabolgi, L.

Houghton of Sowerby, L.

Strafford, E.

Howie of Troon, L.

Taylor of Blackburn, L.

Hughes, L.

Tordoff, L. [Teller.]

Irvine of Lairg, L.

Turner of Camden, B.

Jay, L.

Warnock, B.

Jay of Paddington, B.

Williams of Crosby, B.

Jeger, B.

Winchilsea and Nottingham, E.

Jenkins of Hillhead, L.

NOT-CONTENTS

Aberdare, L.

Brougham and Vaux, L.

Addison, V.

Bruntisfield, L.

Alexander of Tunis, E.

Butterworth, L.

Alport, L.

Cadman, L.

Annan, L.

Caithness, E.

Arran, E.

Campbell of Alloway, L.

Ashbourne, L.

Campbell of Croy, L.

Astor, V.

Carnegy of Lour, B.

Auckland, L.

Carnock, L.

Belhaven and Stenton, L.

Clanwilliam, E.

Bessborough, E.

Clark of Kempston, L

Bethell, L.

Colwyn, L.

Birdwood, L.

Cox, B.

Blatch, B.

Craigavon, V.

Blyth, L.

Cranborne, V.

Boardman, L.

Crawshaw, L.

Borthwick, L.

Cumberlege, B.

Boyd-Carpenter, L.

Davidson, V.

Brabazon of Tara, L.

Denham, L.

Bridgeman, V.

Denton of Wakefield, B.

Brigstocke, B.

Downshire, M.

Brookeborough, V.

Elliot of Harwood, B.

Brookes, L.

Elliott of Morpeth, L.

644

Elton, L.

Norrie, L.

Fairhaven, L.

Northbourne, L.

Faithfull, B.

O'Cathain, B.

Ferrers, E.

Onslow, E.

Finsberg, L.

Orr-Ewing, L.

Flather, B.

Oxfuird, V.

Fraser of Carmyllie, L.

Palmer, L.

Fraser of Kilmorack, L.

Park of Monmouth, B.

Gardner of Parkes, B.

Pearson of Rannoch, L.

Geddes, L.

Peel, E.

Gisborough, L.

Pender, L.

Goschen, V.

Perry of Southwark, B.

Gray of Contin, L.

Peyton of Yeovil, L.

Grimston of Westbury, L.

Rankeillour, L.

Guildford, Bp.

Rawlinson of Ewell, L.

Hailsham of Saint Marylebone, L.

Rees, L.

Renfrew of Kaimsthorn, L.

Halsbury, E.

Renton, L.

Harmar-Nicholls, L.

Renwick, L.

Harvington, L.

Rix, L.

Hayhoe, L.

Rodger of Earlsferry, L.

Henley, L.

Romney, E.

Hives, L.

St. Davids, V.

Holderness, L.

Sanderson of Bowden, L.

HolmPatrick, L.

Seccombe, B.

Hooper, B.

Selborne, E.

Howe, E.

Selkirk, E.

Hunt of Tanworth, L.

Shannon, E.

Hunter of Newington, L.

Sharples, B.

Hylton-Foster, B.

Shuttleworth, L.

Johnston of Rockport, L.

Skelmersdale, L.

Killearn, L.

Stewartby, L.

Kilmarnock, L.

Stodart of Leaston, L.

Kinloss, Ly.

Stokes, L.

Lauderdale, E.

Strange, B.

Leigh, L.

Strathcarron, L.

Lindsay, E.

Strathclyde, L.

Long, V. [Teller.]

Strathcona and Mount Royal, L.

Lucas, L.

Lucas of Chilworth, L.

Strathmore and Kinghorne, E. [Teller.]

Lyell, L.

McAlpine of West Green, L.

Sudeley, L.

McColl of Dulwich, L.

Swansea, L.

Mackay of Ardbrecknish, L.

Swinfen, L.

Macleod of Borve, B.

Thomas of Gwydir, L.

Mancroft, L.

Trumpington, B.

Manton, L.

Ullswater, V.

Marlesford, L.

Vaux of Harrowden, L.

Merrivale, L.

Vestey, L.

Mersey, V.

Vivian, L.

Monckton of Brenchley, V.

Wakeham, L.L. Privy Seal

Monson, L.

Westbury, L.

Montagu of Beaulieu, L.

Wharton, B.

Mottistone, L.

Whitelaw, V.

Munster, E.

Wise, L.

Murton of Lindisfarne, L.

Wyatt of Weeford, L.

Napier and Ettrick, L.

Young, B.

Nelson, E.

Resolved in the negative, and amendment disagreed to accordingly.
5.51 p.m.
Lord Henley Lord Henley moved Amendment No. 239ZC:
Page 115, line 13, leave out from ("voluntary") to end of line 14 and insert ("maintained special, grant-maintained or grant-maintained special school.").
The noble Lord said: If the Committee will bear with me, in moving this amendment on behalf of my noble friend I shall also speak to Amendments Nos. 239ZD, 239ZH, 239ZP, 239ZS, 239ZW, 242G, 242T and finally 242AB.
These amendments bring maintained special schools within the provisions of Part V of the Bill. They will, as our county, voluntary and grant-maintained schools, be subject to the inspection procedures in Chapter I. They are already subject to

645
the provisions of the Education (Schools) Act 1992. As the Committee will be aware, Chapter I, Part V brings about some extension of the Education (Schools) Act provisions, particularly in respect of the reporting process, in following up where a school is found to be in need of special measures.
The amendments also bring maintained special schools within the provisions of Chapter II. Where such a school is at risk, the LEA will have the power to appoint additional governors and the Secretary of State will have the power to establish an education association and to provide for the transfer of maintained special schools to be conducted by an education association.
We cannot stand by while schools are failing their pupils. That is just as true for a special school as for a mainstream primary or secondary school. It is particularly important that pupils who are taught in special schools are given an acceptable standard of education. I beg to move.
Lord Judd: By my calculation there are some 51 amendments to Part IV that were laid by the Government last Thursday and appeared on Friday. I do not believe that the Committee has had any satisfactory explanation of such a procedure. It is exasperating and does not lead to good consideration of legislation. What is the rush? What is the urgency? Why suddenly do we have to have all these amendments at such short notice? Some of us take these matters very seriously. It is not simply a matter of coming to the Dispatch Box and speaking for the sake of it. We talk to people who know the situation and make sure that we have been able to investigate all the angles of what is before us and are therefore able to perform responsibly. This situation is not good enough.
I have some specific questions to put to the Minister on this batch of amendments. I understand that Section 9 of the Education (Schools) Act 1992 lists those schools which have to be inspected under the new inspection provisions. However, once these amendments are made to the Bill—unless I am very wrong and we have all been rather rushed in considering them—there will still be several important groups of schools that will be inspected under the new provisions but will have no procedure for tackling failing schools in Part IV of the Bill. For example, they include LEA maintained nursery schools, City Technology Colleges (of which we are hearing a lot today) and independent schools approved by the Secretary of State as suitable for children for whom statements of special educational needs have been made. It would be helpful if the Minister could tell the Committee the action that he and his colleagues expect to take when an inspection report on those schools suggests that the quality of education is not sufficient.
Lord Henley: Perhaps I may deal later with the noble Lord's specific questions. I understand his concern about the timing of the amendments. I can only apologise briefly for the lateness with which they
646
were tabled. I understand that they were pressed by remarks made by my colleagues in another place and certainly by the remarks of my noble friend.
This batch of amendments is perfectly straightforward in terms of bringing in the maintained special schools within the provisions of Part V of the Bill. The noble Lord went on to ask about certain classes of other schools such as CTCs and nursery schools. I can give him an assurance that they are covered by the appropriate parts of the 1992 Act. I stress that these amendments relate purely to maintained special schools and bringing them within Part V of the Bill. I am sure that that is not something to which the noble Lord would object and that he would be prepared to support the amendments.
Lord Judd: Could the Minister just explain what the procedure would be for tackling failing schools in the categories that I mentioned?
Lord Henley: Those are covered in the 1992 Act. We are dealing here with bringing maintained special schools within Part V of this Bill.
Lord Addington: Before the Minister sits down, will the inspectors of schools have sufficient access to expertise for special schools within their own ranks? We have debated that point at considerable length in this Chamber throughout the passage of many Bills, pointing out that there has to be expertise in dealing with special needs. Once again we could dive into the argument about the thousands of fields that are covered. Could the Minister give us some reassurance about that? Perhaps I have forgotten and the provision is already in place. The point just occurred to me as the noble Lord was speaking.
Lord Henley: The noble Lord, Lord Addington, makes a very important point. I can give him the assurance that it is a requirement that any team should have the appropriate expertise within it to cover any particular aspect, in this case maintained special schools.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZD:
Page 115, line 16, leave out ("or voluntary") and insert ("voluntary or maintained special").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZE:
Page 115, line 19, after ("grant-maintained") insert ("or grant-maintained special").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 239ZR and 242H. In advance of an intervention from the noble Lord, Lord Judd, again I apologise for the lateness of these amendments.
These are amendments to Clauses 192, 197 and 198. They bring grant-maintained special schools within the provisions of Chapter I of Part V of the Bill. They are consequential on earlier amendments which have already been introduced to Part III of the Bill. These schools will therefore be subject to the same inspection regime as county, voluntary, maintained special and grant-maintained schools. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 239ZF and 239ZG not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 239ZH:
Page 115, line 35, leave out ("and grant-maintained") and insert ("maintained special, grant-maintained and grant-maintained special").
On Question, amendment agreed to.
Clause 192, as amended, agreed to.
6 p.m.
Clause 193 [Section 9 inspections by members of the Inspectorate]:
[Amendment No. 239ZJ not moved.]
Clause 193 agreed to.
[Amendment No. 239ZK not moved.]
Clause 194 [Section 9 inspections by registered inspectors]:
[Amendment No. 239ZL not moved.]
Clause 194 agreed to.
Clause 195 agreed to.
Clause 196 [Timing of section 9 inspections by registered inspectors]:
Lord Henley Lord Henley moved Amendment No. 239ZM:
Page 117, line 33, after ("inspection") insert ("shall be completed by the time allowed under subsection (2) below").
The noble Lord said: In moving Amendment No. 239ZM, I shall speak also to Amendment No. 239ZN. Again, I repeat the apologies I made earlier.
These amendments allow for the prescription of separate periods for the inspection and the period making the inspection report. The change is to ensure that the arrangements follow the precedent of the Education (Schools) Act 1992.
Without the amendment there is no means of controlling the time spent in the school by the registered inspectors, thus preventing the inspection from taking up a disproportionate share of the whole period. The Education (Schools Inspection) Regulations, made under the Act, have already been subject to consultation and are to be published shortly. They prescribe a maximum of two weeks for the inspection, with a further five weeks for making the report. We envisage that the regulations under the clause will prescribe the same periods. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZN:
Page 117, line 36, after ("The") insert ("time, and the").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 239ZP:
Page 117, line 43, leave out ("or voluntary") and insert ("voluntary or maintained special").
The noble Baroness said: Amendment No. 239ZP was spoken to with Clause 181. I beg to move.
On Question, amendment agreed to.
Clause 196, as amended, agreed to.
Clause 197 [Destination of reports]:
Lord Henley Lord Henley moved Amendment No. 239ZQ:
Page 118, line 3, after ("send") insert ("a copy of").
The noble Lord said: Again I apologise to the Committee for what will be a rather large group of amendments. In moving Amendment No. 239ZQ I shall speak also to Amendments Nos. 239ZT to
648
239ZV, 239B, 242A, 242C, 242F, 242J to 242S, 242X, 242Z, 243ZA, 243ZD, 243AZA to 243AZD, 243AZF, 244AA, 244AB, 244AF, 244D, 244F, 244J and 244K.
A noble Lord: Can the Minister repeat that?
Lord Henley: I am sure that the list of amendments is now down on the record and there is no need for me to repeat it.
The group covers a number of areas, some consequential on earlier amendments. Most are technical points intended to ensure that the provisions of Part V operate smoothly and effectively. I propose to give brief details of the areas they cover.
Amendments Nos. 239B and 242K provide for a more precise description of those who must receive a copy of the report in respect of a school within a group. Amendments Nos. 242A, 242C and others provide for certain provisions to be brought to bear even where action plans and LEA commentaries are produced late or not produced at all.
Amendment No. 242M provides for a requirement on the LEA to send a copy of its statement, in the case of a voluntary or special agreement school, to those responsible for appointing foundation governors. The amendments also provide for the prohibition on balloting on grant-maintained status to apply only where the governing body has received a copy of the report, and for the appointment of initial foundation governors when an education association school, which was formerly a voluntary school, is to become a grant-maintained school.
Finally, there are a small number of drafting amendments. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 239ZR:
Page 118, line 4, after ("grant-maintained") insert ("or grant-maintained special").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 239ZS:
Page 118, line 6, leave out ("or voluntary") and insert ("voluntary or maintained special").
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 239ZT:
Page 118, line 16, after ("send") insert ("a copy of").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZU:
Page 118, line 17, leave out from ("and") to second ("the") in line 18.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZV:
Page 118, line 19, leave out ("both cases") and insert ("any case").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239ZW:
Page 118, line 23, leave out ("or voluntary") and insert ("voluntary or maintained special").
On Question, amendment agreed to.
[Amendment No. 239A not moved.]
Lord Henley Lord Henley moved Amendment No. 239B:
Page 118, line 30, leave out from first ("or') to end of line 32 and insert ("any school in a group of grant-maintained

649
schools which was a voluntary school immediately before it became grant-maintained, to the person who may appoint a core governor under a provision of the instrument of government made in pursuance of section 118(4) of this Act.").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 239C:
Page 118, line 38, after ("or") insert ("in prescribed cases").
The noble Lord said: In moving Amendment No. 239C, I shall speak also to Amendment No. 244G. These amendments provide for charging for inspection reports to be restricted to prescribed cases. They ensure that provisions of Clauses 197 and 215 are consistent with those in Clause 198.
Schools will thus be able to charge for copies of inspection reports only in prescribed cases. The Education (Schools Inspection) Regulations, to be published shortly, require that they may charge only for copies of the report provided to any person or body who is not otherwise entitled to receive one and, for a copy of a summary of the report, to any person or body who already has a copy. Parents are entitled to receive a free copy of the summary. I beg to move.
On Question, amendment agreed to.
Clause 197, as amended, agreed to.
[Amendments Nos. 240 to 242 not moved.]
Clause 198 [Special measures by appropriate authority]:
Baroness Blatch Baroness Blatch moved Amendment No. 242A:
Page 119, line 5, leave out from ("shall") to ("prepare") in line 6.
The noble Baroness said: Amendment No. 242A was spoken to with Amendment No. 239ZQ. I beg to move.
On Question, amendment agreed to.
Lord Judd Lord Judd moved Amendment No. 242B:
Page 119, line 8, at end insert ("which shall not normally be less than two years.").
The noble Lord said: The purpose of Amendment No. 242B is to ensure that the school is given sufficient time to improve before an education association is brought in and the school is deemed failing.
Clause 198 requires the responsible authority to draw up an action plan in response to a Section 9 inspection report. If that report includes a recommendation for special measures, then the statement containing an action plan goes to the Secretary of State. In any case the statement is copied to all interested parties, including Her Majesty's Chief Inspector, and copies are available as in Clause 197.
The action plan sets out the action that the responsible authority proposes to take and the period of time within which they would propose to take it. The amendment would mean that the time allowed would normally be up to two years. The amendment would not prevent the Secretary of State from reducing that time, where he thought it was necessary to do so, to a shorter period under subsection (2) of the clause. Nevertheless, it would ensure that normally a school was given sufficient time to allow it to make changes. While a school can be expected to make changes as quickly as possible in order to ensure that the education of its pupils is not more greatly affected
650
than it need be and that it does everything it can to improve in those areas where the inspectors have found its work to be inadequate, clearly changes may take some time. If the period prescribed is too short the school may find it impossible to respond effectively.
This amendment takes into account that changes may take some time but clearly limits that time to a maximum of two years in normal circumstances, still allowing the Secretary of State flexibility to reduce that time still further. I am sure that what everybody wants to see, if the legislation goes ahead, is a situation in which the arrangements succeed. It would be rather unwise if under pressure of deadlines and the rest real good will and commitment by all concerned in the school to make a success of improvements were just not given time to be effective. I hope that the Minister will be able to look at this point sympathetically.
Baroness Blatch: I believe that there is some misunderstanding, and I hope that I shall be able to clear it up for the noble Lord. The amendment to Clause 198 would require the governing body normally to state that it would take a period of at least two years to implement any action set out in its action plan. In this Bill there has never been any requirement as to the time that a school must be given to take action in response to an inspection report. As Clause 198 has now been amended, it is crystal clear that the period that can be prescribed by the Secretary of State is the period within which the action plan must be prepared, not necessarily fully carried out.
However, there may still be a perception that schools should be given a period, normally not less than two years, to put their plans into effect. I have some difficulty in seeing the advantage of that. The clause applies to all schools, not just those at risk. If very minor problems are identified in the inspection report, why should there be a general rule that the school should have as much, and possibly longer than, two years to solve them?
It may be that the intention of the amendment is that schools which are at risk should have a period of two years for putting matters right before further action can be taken by the local authority or the Secretary of State. There is no such provision on the face of the Bill, nor is it our intention that there should be. Each case should be considered on its merits in the light of the action plan. No two failing schools will be the same; no two action plans will be the same. In some cases the Secretary of State may consider that the plan is likely to be effective and the school should have a period to put it into effect. In another case he may take the view that the plan will not work and that further action by outsiders is essential and should be taken without delay.
Clause 208 deals with the circumstances in which the Secretary of State can transfer a school from the control of an LEA to being conducted by an education association. Basically, he may do so following an at risk report at a school, once he has received the action plan from the governing body of the school or the period allowed for that has expired.
Amendment No. 243AC would add a further constraint on the exercise of the Secretary of State's

651
power to transfer a school to an education association. He would not be able to use it where the LEA had begun to carry out those actions mentioned in the statement and was doing so on the timescale mentioned in the statement unless a further report at the school showed no improvement at the school.
Indeed, the pattern of events envisaged would, I expect, be how things usually worked out in practice. If the Secretary of State had decided not to place a school in an education association, having seen the action plans of the school and the LEA, he would allow it to carry out its announced plans. In general, if those plans were sensible, thoughtful, were carried out diligently and the school was clearly on the road to recovery, there would be little need to impose an education association.
But the amendment sets a complex test for the exercise of further powers. How is the inspector supposed to judge whether there has been an improvement in the standard of education since the date of the statement? Some of the problems identified in the inspection report may have been remedied but other problems may have been identified. There may have been improvements, but the school may still be at risk. The Secretary of State must be free to take action as necessary in any case where a school is failing its pupils. We cannot stand by while pupils are not receiving a proper standard of education.
The amendment of the noble Lord, Lord Judd, seeks to prevent a school which has been identified as in need of special measures from holding a ballot on seeking grant-maintained status for a period of five years. Clause 205 prohibits a ballot on grant-maintained status where a school has received an at risk inspection report. Once an inspector has made a report that the school is no longer at risk the prohibition is lifted. We are clear that there should be no ballot while a school is at risk, but there is no sound reason for prolonging the prohibition even where a school has a clean bill of health. As no amendment to Clause 205(c) is proposed, that will in fact remain the position with or without the amendment. I urge the Committee to reject the amendments.
6.15 p.m.
Earl Baldwin of Bewdley: There is some confusion here, because the noble Baroness got up very quickly and I am just trying to check whether we were in fact talking to the three amendments that are on the list there. I was not aware that the noble Lord, Lord Judd, had actually brought in Amendment No. 243AZE. Before I say anything, could I just check that we are taking those three together?
Baroness Blatch: There has been such an agreement. I understand that that agreement was reached between the usual channels before the amendment was proposed. The name of the noble Lord, Lord Judd, appeared on the amendment.
Baroness Hamwee: I believe that we are speaking to the complete group. As the noble Earl, Lord Baldwin of Bewdley, has realised, my name is on the third of the amendments. That was why he was looking towards me to seek to clarify whether it was included
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in this group. In her usually helpful way of addressing all questions almost before they are asked, the Minister has responded to the amendment, though it has not yet been spoken to. We are grateful to her for putting on record her comments on the amendment.
Baroness Blatch: Perhaps I may say that if the noble Baroness had stood up to say that she wished to speak to the amendment it could have been dealt with in that way. I had assumed that it was part of this grouping and therefore it was incumbent upon me to respond to it.
Baroness Hamwee: The Minister moves as fast as she speaks.
Earl Baldwin of Bewdley: Perhaps I may put a word in on these amendments, which I do support. I feel that there is a lot of prescriptive detail in these clauses of the Bill which involve special measures, education associations and so on. It does seem sensible in the overall context to add this little bit more in order to make it clear that the Secretary of State should not rush in with an education association while the people on the spot are still taking action—whether we stipulate however many years or not.
There does, I feel, need to be some trigger to set in motion the taking of the matter out of local hands; otherwise, the fear is that the Secretary of State of this or of a future government of a different complexion could be tempted, perhaps for non-educational reasons, to intervene prematurely. I think that a heavy-handed intervention at the wrong time could defeat what the governors or the LEA were trying to achieve.
I think the amendment also provides a very slight but common sense check to yet another of the Secretary of State's host of new powers, and for these reasons I hope that the Government will not lightly dismiss an amendment which I understand was referred to quite sympathetically by a Minister in another place.
Lord Judd: If the Minister will forgive me, I believe that what the Minister has said has accentuated my anxieties. There is a great deal of concern among many teachers of good will and commitment—the people upon whom education depends and about whom we speak far too little in the course of our consideration of the Bill—that the Secretary of State is inventing a huge impersonal machine to move in from outside to put right things that are wrong in a school.
We on this side will take second place to nobody in our commitment and determination that if things need to be done to put a school right they should be done. But I emphasise that it is our view that, if a school is to be put back on the right track when things have gone wrong, it will in the end be achieved only by the staff and the community of that school. Anyone who knows the first thing about the inside of a school, teaching and the rest of it realises that that cannot be done by some kind of imposed management system—management consultants coming in from outside to make sure that the profit is on line again. A school is a creative place, with all kinds of sensitive

653
relationships. It is because we feel that this clause has a significance way beyond the immediate provision that we are considering and fails to recognise the nature, heart and soul of education and how those dimensions are handled imaginatively if matters are to succeed that we intend to pursue this amendment. We intend to pursue it because we want the result. We believe that what is being proposed is still reminiscent of a too mechanistic and impersonal approach which will be self-defeating. I beg to move.
6.20 p.m.
On Question, Whether the said amendment (No.242B) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 116.

Division No. 2

CONTENTS

Acton, L.

Kilbracken, L.

Addington, L. [Teller.]

Kirkhill, L.

Airedale, L.

Listowel, E.

Archer of Sandwell, L.

Llewelyn-Davies of Hastoe, B.

Ardwick, L.

Lockwood, B.

Ashley of Stoke, L.

Longford, E.

Avebury, L.

McGregor of Durris, L.

Baldwin of Bewdley, E.

Mackie of Benshie, L.

Beaumont of Whitley, L.

Masham of Ilton, B.

Birk, B.

Mason of Barnsley, L.

Blackstone, B.

Merlyn-Rees, L.

Bonham-Carter, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L.

Monkswell, L.

Cledwyn of Penrhos, L.

Moran, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Darcy (de Knayth), B.

Nicol, B.

Dean of Beswick, L.

Ogmore, L.

Dormand of Easington, L.

Palmer, L.

Elis-Thomas, L.

Perry of Walton, L.

Falkland, V.

Peston, L.

Fisher of Rednal, B.

Plant of Highfield, L.

Gallacher, L.

Ponsonby of Shulbrede, L.

Galpern, L.

Rea, L.

Graham of Edmonton, L. [Teller.]

Redesdale, L.

Richard, L.

Greenway, L.

Rodgers of Quarry Bank, L.

Gregson, L.

Russell, E.

Grey, E.

Seear, B.

Hampton, L.

Sefton of Garston, L.

Hamwee, B.

Shackleton, L.

Hilton of Eggardon, B.

Stoddart of Swindon, L.

Hollis of Heigham, B.

Strabolgi, L.

Holme of Cheltenham, L.

Taylor of Blackburn, L.

Houghton of Sowerby, L.

Tordoff, L.

Howie of Troon, L.

Turner of Camden, B.

Hughes, L.

Warnock, B.

Jeger, B.

Whaddon, L.

Jenkins of Hillhead, L.

Williams of Crosby, B.

Jenkins of Putney, L.

Williams of Elvel, L.

John-Mackie, L.

Winchilsea and Nottingham, E.

Judd, L.

NOT-CONTENTS

Aberdare, L.

Borthwick, L.

Addison, V.

Boyd-Carpenter, L.

Alport, L.

Braine of Wheatley, L.

Arran, E.

Bridgeman, V.

Ashbourne, L.

Brigstocke, B.

Astor, V.

Brookeborough, V.

Auckland, L.

Brookes, L.

Belhaven and Stenton, L.

Bruntisfield, L.

Bessborough, E.

Butterworth, L.

Blatch, B.

Cadman, L.

Blyth, L.

Caithness, E.

Boardman, L.

Campbell of Alloway, L.

654

Campbell of Croy, L.

Mancroft, L.

Carnegy of Lour, B.

Marlesford, L.

Carnock, L.

Mersey, V.

Clanwilliam, E.

Mottistone, L.

Clark of Kempston, L

Moyne, L.

Colwyn, L.

Munster, E.

Cox, B.

Murton of Lindisfarne, L.

Cranborne, V.

Napier and Ettrick, L.

Cumberlege, B.

Norrie, L.

Davidson, V.

Onslow, E.

Denham, L.

Orkney, E.

Denton of Wakefield, B.

Oxfuird, V.

Elliot of Harwood, B.

Park of Monmouth, B.

Elton, L.

Pearson of Rannoch, L.

Faithfull, B.

Peel, E.

Ferrers, E.

Perry of Southwark, B.

Finsberg, L.

Peyton of Yeovil, L.

Flather, B.

Rees, L.

Fraser of Carmyllie, L.

Renfrew of Kaimsthorn, L.

Fraser of Kilmorack, L.

Renton, L.

Geddes, L.

Rodger of Earlsferry, L.

Gisborough, L.

St. Davids, V.

Goschen, V.

Sanderson of Bowden, L.

Grimston of Westbury, L.

Seccombe, B.

Hailsham of Saint Marylebone, L.

Selborne, E.

Sharpies, B.

Halsbury, E.

Skelmersdale, L.

Harmar-Nicholls, L.

Stodart of Leaston, L.

Harvington, L.

Strange, B.

Hayhoe, L.

Strathclyde, L.

Henley, L.

Strathcona and Mount Royal, L.

Hesketh, L. [Teller.]

Hives, L.

Strathmore and Kinghorne, E. [Teller.]

Holderness, L.

HolmPatrick, L.

Sudeley, L.

Howe, E.

Swansea, L.

Hylton-Foster, B.

Swinfen, L.

Johnston of Rockport, L.

Thomas of Gwydir, L.

Lauderdale, E.

Trumpington, B.

Lindsay, E.

Ullswater, V.

Long, V.

Vaux of Harrowden, L.

Lucas, L.

Vivian, L.

Lucas of Chilworth, L.

Wakeham, L. [Lord Privy Seal.]

Lyell, L.

McAlpine of West Green, L.

Westbury, L.

McColl of Dulwich, L.

Whitelaw, V.

Mackay of Ardbrecknish, L.

Wise, L.

Macleod of Borve, B.

Wyatt of Weeford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.28 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 242C:
Page 119, leave out line 9 and insert:
("( ) It is the duty of the appropriate authority to prepare the statement within the period allowed by this subsection, that is—").
On Question, amendment agreed to.
[Amendments Nos. 242D and 242E not moved.]
Lord Henley Lord Henley moved Amendment No. 242F:
Page 119, line 17, at end insert:
("but this subsection does not relieve the appropriate authority of any duty to prepare a statement which has not been performed within that period").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 242G:
Page 119, line 22, leave out ("or voluntary") and insert ("voluntary or maintained special").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 242H:
Page 119, line 25, after ("grant-maintained") insert ("or grant-maintained special").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 242J:
Page 119, line 29, leave out ("or voluntary") and insert ("voluntary or maintained special").
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendment No. 242K:
Page 119, line 43, leave out from first ("of") to end of line 45 and insert ("any school in a group of grant-maintained schools which was a voluntary school immediately before it became grant-maintained, to the person who may appoint a core governor under a provision of the instrument of government made in pursuance of section 118(4) of this Act.").
On Question, amendment agreed to.
Clause 198, as amended, agreed to.
Clause 199 [Additional special measures by local education authority]:
Lord Henley Lord Henley moved Amendments Nos. 242L to 242N:
Page 120, line 13, leave out subsections (1) and (2) and insert:
("(1) This section applies in circumstances where—

(a) in a report of an inspection of a county, voluntary or maintained special school the governing body of which has a delegated budget the person who made the report expressed the opinion that special measures were required to be taken in relation to the school,

(b) either that person was a member of the Inspectorate or the report stated that the Chief Inspector agreed with his opinion, and

(c) the local education authority receive a copy of a statement prepared under section 198 of this Act in response to the report or the period prescribed for the purposes of subsection (3) of that section expires.

(2) The local education authority shall—

(a) prepare a written statement of any action they propose to take in the light of the report, and the period within which they propose to take such action, or, if they do not propose to take any such action, of their reasons for not doing so, and

(b) send a copy of the statement prepared under paragraph (a) above, together with their comments on any statement prepared under section 198 of this Act of which they have received a copy, to the Secretary of State and the Chief Inspector and, in the case of an aided or special agreement school, to the person who appoints the foundation governors.").

Page 120, leave out line 30 and insert:
("( ) It is the duty of the local education authority to prepare the statement within the period allowed by this subsection, that is—").
Page 120, line 34, at end insert:
("but this subsection does not relieve the local education authority of any duty to prepare a statement which has not been performed within that period.").
The noble Lord said: I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
Clause 199, as amended, agreed to.
6.30 p.m.
Clause 200 [Monitoring special measures and further inspections]:
Lord Henley Lord Henley moved Amendment No. 242P:
Page 120, line 42, leave out from ("period") to ("has") in line 43 and insert ("prescribed for the purposes of subsection (3) of that section").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Henley Lord Henley moved Amendments Nos. 242Q, 242R and 242S:
Page 121, line 1, leave out from ("that") to ("monitored") in line 3 and insert ("any measures taken by the appropriate authority and, in the case of a school which has a delegated budget, the local education authority for improving the standard of education at the school are").
Page 121, line 5, leave out subsection (3).
Page 121, line 12, leave out from ("prescribed") to end of line 13.
On Question, amendments agreed to.
Clause 200, as amended, agreed to.
Clause 201 [Schools to which sections 202 and 203 apply]:
The Deputy Chairman of Committees (Lord Alport)If Amendment No. 242T is agreed to, I cannot call Amendment No. 242V.
Lord Henley Lord Henley moved Amendment No. 242T:
Page 121, line 32, leave out from beginning to second ("at") in line 34 and insert ("Sections 202 to 205 of this Act apply only to county, voluntary and maintained special schools and do not apply to a school at any time unless").
On Question, amendment agreed to.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 242U:
Page 121, line 32, after ("(1)") insert ("Subject to subsection (1A) below").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 243AZG. There is a raft of various amendments which are consequent on those two amendments. Amendment No. 242U is a paving amendment. The new clause after Clause 205, and the consequential amendments, are intended to remove education associations from the Bill and to provide a complete and workable alternative system.
In addition to the various printed amendments, Clauses 206 and 214 would need to be deleted in order to remove the existing provisions. The effect of the new clause amends the instrument and articles of government and would grant new powers to the Secretary of State over an at risk county or voluntary school similar to the existing provisions for grant-maintained schools given by Clauses 61 and 64.
The exercise of such powers would be extremely rare, since we believe that the local education authority would normally take effective corrective action. But, if ever needed, we believe that direct ministerial responsibility is preferable to the creation of a new quango of unknown qualities.
The main feature of the system proposed by the amendment is that the school's own governing body would continue in existence so that, after corrective measures, it was ready to resume conduct of the school when given a clean bill of health. It appears to be profoundly illogical for the Government to propose machinery—that is to say, an education association—which destroys the governing body of an LEA-maintained school, precisely at the time when that school most needs assistance.
That illogicality is emphasised by the more sensitive approach of providing assistance to a grant-maintained school in similar difficulty by adding, removing or replacing individual governors rather than destroying the whole governing body.
Amendment No. 243AZG would give the Secretary of State power to add, remove or replace individual governors and to vary the proceedings of the governing body. That latter provision is intended to allow the Secretary of State to make streamlined arrangements for the new governing body to reach decisions, perhaps by the delegation of powers to a small sub-committee. Nothing in the amendment is intended to delay the implementation of corrective measures at the school, but it is intended to maintain throughout a viable governing body for the longer-term interests of the school. I beg to move.
Lord Finsberg: Perhaps I may speak to Amendment No. 243, which is almost unique; it actually stands without any letters after it. It becomes somewhat clearer than the muddied waters which we have been through so far. It is an amendment aimed at finding out what is the actual position. The London Boroughs Association is somewhat anxious about this matter. It seems that the position of local education authorities may not be as clear as the association would like it to be.
This particular amendment would give the local education authorities the same powers as those given to education associations in Clause 206 in order to act as the governing body of a failing school. Therefore, the intention is to clarify the precise powers. Clauses 201 to 205 give local education authorities new powers to deal with failing schools, including the right to appoint additional governors and to suspend delegation of the school's budget.
However, Clauses 206 to 216 establish education associations and give them strong powers to deal with failing schools, particularly the right to dissolve the governing body of the school and to act in its stead. Once the education association has completed its work, the school will automatically move to grant-maintained status without the need for a parental ballot.
This amendment seeks to clarify whether the power to suspend delegation of a school budget will give local education authorities the same powers as education associations to act as the governing body of a failing school with the power, for example, to remove governors and replace senior staff. If that is not the case, there seems to be no rationale for giving some powers to LEAs to deal with failing schools, but not giving them the same powers as education associations.
Giving local education authorities—which are locally accountable bodies with local knowledge—full powers to deal with failing schools would seem, on the face of it, to be a somewhat systematic way of dealing with failing schools rather than setting up appointed bodies on an ad hoc basis. The amendment would not remove the Secretary of State's powers to establish education associations; it would merely give the local education authorities the option to tackle the problems of failing schools in an effective way.
Earl Baldwin of Bewdley: The noble Baroness will not be surprised to hear that I am an agnostic where education associations are concerned, because they
658
sound to me like an idea which has been dreamt up by management consultants rather than by those with an understanding of schools.
The occasions when this kind of hit-squad intervention is appropriate will, I think, be extremely few, because schools can decline for a variety of reasons and in most cases the best antidote will be low-key support and pressure, where necessary, at a local level. It is easy to quote the rare headline cases like William Tyndale, but it is less often realised how many potential failures are nipped in the bud by timely local action behind the scenes: action that I think will become increasingly difficult—I am sure it will—as LEAs' powers and resources are eroded.
Ironically, though, it may be the free-standing, grant-maintained school, without the automatic local support network, that would be the best candidate for the EA treatment, and yet there is no provision for this in the Bill. Once again we have the unlevel playing field.
It is hard to resist the conclusion that the Government see the EA route as another means of whittling away at LEAs' territory, especially as no parental ballot is involved. As I said, schools decline for many reasons. There could be a section of the staff—perhaps a major department—dragging everybody else down. It could be a sudden loss of experienced staff causing disciplinary and other problems. One head told me the other day that his predecessor had simply gone bonkers. In these instances, it is doubtful whether an education association, with its attendant publicity, would be the best solution for the school.
I would concede that, as an absolute long-stop and where there has been a major management problem which nothing else has resolved, you may need some powers in reserve, but, apart from anything which is down in front of us today, the Secretary of State already has these under Section 68 of the 1944 Act and I feel the better solution is to use these where necessary rather than invent a new structure which is likely more often than not to hit the nail on the thumb.
Earl Russell: I should like to support Amendment No. 242U and to underline the concluding point that was made by the noble Lord, Lord Ponsonby of Shulbrede, about the need for a viable governing body. I have heard the noble Baroness, Lady Blatch, many times arguing for the vital importance of the link between schools and parents and stressing the need for confidence. But we here have a situation where elected governors will be removed and where there is going to be no governing body enjoying the confidence of the parents. That reduces a school to what 17th century political thought used to describe as "the status of a conquered province". A school will have an authority entirely imposed on it from outside. From that position, it takes quite a long time for a new, viable, permanent, political structure to grow. I wonder whether the solution really needs to be quite as drastic as that.
Baroness Blatch: Perhaps I may advise the noble Earl, Lord Baldwin of Bewdley, who scoffed rather at these provisions and described them as something dreamt up by management consultants, that in this

659
country we have stood back and wrung our hands for too long over failing schools. Local education authorities have for as long as I can remember had the power to identify failing schools and to do something about under-performance in those schools. I think that it is not before time that the Government take it upon themselves to put in place a framework to ensure that identification is made early and that action is taken to prevent under-performance. I use the noble Earl's own words —EAs should be a "long-stop". Education associations are, indeed, in this Bill, a long-stop—
Earl Baldwin of Bewdley: Why—
Baroness Blatch: If I may finish. They come into play—they are triggered —only when the Secretary of State, having given a local authority an opportunity to address the problems of a failing school, deems that it has failed to do even that. That is when the provisions of this Bill are put in place.
Earl Baldwin of Bewdley: Yes, but the Secretary of State has had these reserve powers for nearly 50 years now. If the situation is as serious as the noble Baroness says it is, why have they not been used? A Conservative Secretary of State—
6.45 p.m.
Baroness Blatch: Would that that were so. The noble Earl, Lord Baldwin of Bewdley, might remember the difficulties encountered by my right honourable friend, Mr. Clarke, when he was Secretary of State. The noble Earl may also remember the sad story, which was mentioned in a previous debate, of William Tyndale School, which was allowed to fail for too long. The reason that it failed for too long before action was properly taken was because the provisions of this Bill were not in place. It was an LEA that failed those children. We are not prepared to stand back any more and see our children failed by the system. As I have said, it is a long-stop.
These amendments would have far-reaching effects and far-reaching consequences on the policy for tackling failing schools. They would delete the provisions that give the Secretary of State the power to appoint an education association to take over the management of a failing school. Instead, the Secretary of State would be given new powers to vary the number of, remove or appoint "governors or governors of any particular description". Schools would remain in the control of the local education authority.
These amendments make fundamental changes to the arrangements for tackling failing schools. The basic aim of the noble Lords, Lord Ponsonby of Shulbrede and Lord Judd, and of the noble Earl, Lord Baldwin of Bewdley, is to remove the provisions for education associations from the Bill and instead to give new powers to the Secretary of State in respect of the composition of the governing body of an LEA-maintained school. We believe that those provisions are absolutely essential if we are to do something about schools which fail our children. I ask the House to reject the amendment.
Lord Monkswell: Before the noble Baroness sits down, in her response just now she indicated that there were large numbers of failing schools—
Baroness Blatch: No, I did not.
Lord Monkswell: That was the implication. The noble Baroness was saying that there are failing schools; that the system is failing, and that that is why we have to have these powers.
Baroness Blatch: If the noble Lord will allow me, I said that over the years there have been failing schools, that the powers which the noble Lord now wishes to retain for local authorities have not been properly exercised, and that too many of our children have been victims of under-performing schools—not just of failing schools. We are talking about a specific category at the end of the line where schools are deemed to be at risk. Children have been let down because of the failure of the system to address the problems of failing schools. What we are saying is that we now have a framework in place and that we believe that it will not be a matter of chance that children receive a good education, but a matter of the system addressing the weaknesses and foibles of failing schools.
Earl Russell: May I ask the noble Baroness—
Baroness Cox: Perhaps I may support my noble friend the Minister—the noble Earl has already spoken—in her deep anxiety about schools which have been providing young people with less than the education which they deserve. Research with which I was closely associated during the 1980s which, at national level, looked at performance right across the country, showed enormous differences between schools in the same areas and with the same catchment areas, sometimes varying by a factor of two or three in respect of the educational examinations at which they allowed their pupils to succeed, as compared with those which did not allow their pupils to succeed. There is evidence that many schools in many local authorities have been failing their children with systematic under-achievement. As I have said, the evidence points to that even when all the various social factors are held constant.
There has been increasing awareness that many schools have not given young children the education that they deserve. We really do need—it is none too soon—arrangements nearer the local level, more quickly brought into play, more sensitive to local needs and more responsive to local under-achievement. In that, we really do need the education associations and I hope passionately that the Committee will resist these amendments. Education associations are a fail-safe mechanism, long overdue.
Earl Russell: It would be of a good deal of assistance to this side of the Committee if the Minister could give us one undertaking: that, before bringing in an education association, the Secretary of State will undertake to consider the possibility that the difficulties of a school might be due to inadequate funding.
Baroness Blatch: I can certainly give the noble Earl the assurance that, as he will know, HMCI and the Education (Schools) Act 1992 made it possible for the inspectorate to have views about the adequacy or otherwise of resources. Therefore, given that HMCI is the determining body as to whether a school is or is not at risk, I must add—and I shall repeat it as many times as I am able—that we must not drift into the simplistic notion that money spent equals good education. We know of ILEA's lamentable record and that, although it spent more money than any other education authority in the country, it did not produce the best education.
Lord Finsberg: Is my noble friend going to say something about Amendment No. 243 or will she write to me about it?
Baroness Blatch: I hope that my noble friend will forgive me. I had intended to address the amendment, but I was carried away by the difficulty of seeing what I think are very good provisions being challenged—I think, quite wrongly—
Noble Lords: Oh!
Baroness Blatch: Well, not challenged wrongly, but challenged in a way that I believe made no sense.
The amendment which stands in the name of my noble friend Lord Jenkin of Roding, but which was ably put forward by my noble friend Lord Finsberg, would allow the local authority to take over the powers of the governing body of a school which had been found to be at risk, or to appoint a special subcommittee to take over those powers. There is no question, in this case, of removing the power to establish an education association. This appears to be an alternative to the new power given to local education authorities in Clause 202.
But the Bill already gives the LEA two significant additional powers where the school has received an at risk report and the school and the LEA have produced, respectively, an action plan and a statement in response. The local authority will have the power to appoint additional governors. There is no restriction on the number they may appoint. They could, if they considered it necessary, appoint such a number as to secure that the local authority appointees had a clear majority on the governing body.
If the authority is able to appoint appropriate people, and to do so in sufficient numbers, it will have the power to ensure that the deficiencies which have been identified in the inspection report are remedied.
Even more significantly, the local authority will also have the power to withdraw delegation from the governing body where the school is at risk. That is also a new power. At present it has the power to withdraw delegation only where a governing body is failing to comply with the requirements of the LMS scheme, or where it is not managing the budget in a satisfactory manner. When the LEA takes such a step it withdraws all the powers delegated to the governing body under the local management scheme. The governing body loses the unfettered power to select staff for appointment and dismissal, and the power to spend
662
the budget as it thinks fit for the purposes of the school; and those powers are subject to control by the local authority.
I do not see how it would help the local authority to have such other powers as would remain with the governing body. The Bill's provisions already give local authorities strong new powers to deal with failing schools which are their responsibility. The amendment would give them inappropriate further powers, so I hope that my noble friend will not press his amendment.
Lord Ponsonby of Shulbrede: This has been an interesting debate. We are all agreed on one thing, at least; that we are debating the long-stop of a failing school. This side of the Committee is profoundly incredulous that the last resort for dealing with a failing school should be something that has been referred to as a Rambo-like hit squad.
Baroness Blatch: Perhaps the noble Lord will give way. I said that the provision would be triggered only if not just the school had failed but the local authority had failed to remedy the position.
Lord Ponsonby of Shulbrede: It was the noble Earl, Lord Russell, who made the most pertinent point in the debate, and that is the question of resources, community and partnership. Those are the factors which will most effectively remedy any failing school. A long-term partnership needs to be built up to remedy the situation. As I said, we are profoundly sceptical of this Rambo-like hit squad which will come in to sort out the deficiencies of a school when the problem is inadequate resources.
I suspect that there may be a more sinister reason for this proposed method of dealing with failing schools. That is best exemplified by parents losing the right to a ballot to gain grant-maintained status. Even if the Government argue with passion for education associations, I cannot see any logic in them saying that the parents will have no ballot and no right to say whether they move to grant-maintained status. We are dissatisfied by the Minister's response and sceptical of the true reasons which lie behind the proposed education associations. For that reason, I shall press the amendment to a vote.
6.53 p.m.
On Question, Whether the said amendment (No.242U) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 108.

Division No. 3

CONTENTS

Addington, L.

Dean of Beswick, L.

Airedale, L.

Donoughue, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ardwick, L.

Elis-Thomas, L.

Ashley of Stoke, L.

Ennals, L.

Avebury, L.

Falkland, V.

Baldwin of Bewdley, E.

Fitt, L.

Beaumont of Whitley, L.

Geraint, L.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L. [Teller.]

Carter, L.

Cledwyn of Penrhos, L.

Grey, E.

Cobbold, L.

Hampton, L.

Cocks of Hartcliffe, L.

Hamwee, B.

663

Hilton of Eggardon, B.

Plant of Highfield, L.

Hollis of Heigham, B.

Ponsonby of Shulbrede, L.

Holme of Cheltenham, L.

Rea, L.

Howie of Troon, L.

Redesdale, L.

Jeger, B.

Richard, L.

Jenkins of Hillhead, L.

Russell, E. [Teller.]

John-Mackie, L.

St. John of Bletso, L.

Judd, L.

Seear, B.

Kilbracken, L.

Sefton of Garston, L.

Listowel, E.

Shackleton, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Lockwood, B.

Stoddart of Swindon, L.

Masham of Ilton, B.

Strabolgi, L.

Mason of Barnsley, L.

Taylor of Blackburn, L.

Molloy, L.

Tordoff, L.

Monkswell, L.

Turner of Camden, B.

Morris of Castle Morris, L.

Warnock, B.

Nicol, B.

Whaddon, L.

Ogmore, L.

Williams of Crosby,B.

Palmer, L.

Williams of Elvel, L.

Peston, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Lindsay, E.

Addison, V.

Long, V.

Alport, L.

Lucas, L.

Arran, E.

Lucas of Chilworth, L.

Ashbourne, L.

Lyell, L.

Astor, V.

McAlpine of West Green, L.

Auckland, L.

McColl of Dulwich, L.

Belstead, L.

Mackay of Ardbrecknish, L.

Bethell, L.

Macleod of Borve, B.

Blatch, B.

Manton, L.

Blyth, L.

Marlesford, L.

Boardman, L.

Mersey, V.

Borthwick, L.

Mottistone, L.

Boyd-Carpenter, L.

Mountevans, L.

Brabazon of Tara, L.

Moyne, L.

Brentford, V.

Murton of Lindisfarne, L.

Bridgeman, V.

Napier and Ettrick, L.

Brigstocke, B.

Norrie, L.

Brookeborough, V.

Onslow, E.

Brookes, L.

Orkney, E.

Bruntisfield, L.

Oxfuird, V.

Cadman, L.

Park of Monmouth, B.

Caithness, E.

Pearson of Rannoch, L.

Campbell of Alloway, L.

Perry of Southwark, B.

Carnegy of Lour, B.

Peyton of Yeovil, L.

Carnock, L.

Rees, L.

Clark of Kempston, L

Renfrew of Kaimsthorn, L.

Colwyn, L.

Renton, L.

Cox, B.

Robertson of Oakridge, L.

Cranborne, V.

Rodger of Earlsferry, L.

Denham, L.

St. Davids, V.

Denton of Wakefield, B.

Seccombe, B.

Dundee, E.

Selborne, E.

Elliot of Harwood, B.

Sharples, B.

Elton, L.

Skelmersdale, L.

Ferrers, E.

Stodart of Leaston, L.

Finsberg, L.

Strange, B.

Flather, B.

Strathclyde, L.

Fraser of Carmyllie, L.

Strathcona and Mount Royal, L.

Gardner of Parkes, B.

Gisborough, L.

Strathmore and Kinghorne, E. [Teller.]

Goschen, V.

Greenway, L.

Sudeley, L.

Hailsham of Saint Marylebone, L.

Swinfen, L.

Thomas of Gwydir, L.

Halsbury, E.

Torrington, V.

Henley, L.

Vaux of Harrowden, L.

Hesketh, L. [Teller.]

Vivian, L.

Hives, L.

Wakeham, L. [Lord Privy Seal.]

Holderness, L.

HolmPatrick, L.

Whitelaw, V.

Howe, E.

Windlesham, L.

Jeffreys, L.

Wise, L.

Lauderdale, E.

Wyatt of Weefonl, L.

On Question, Motion agreed to.

7.2 p.m.
[Amendments Nos. 242V and 242W not moved.]
Lord Henley Lord Henley moved Amendment No. 242X:
Page 121, line 43, at end insert ("and").
[Amendment No. 242Y not moved.]
Lord Henley Lord Henley moved amendment No. 242Z:
Page 121, line 45, leave out from ("school") to end of line 15 on page 122.
[Amendment No. 242AA not moved.]
Clause 201, as amended, agreed to.
Clause 202 [Appointment of additional governors]:
Lord Henley Lord Henley moved Amendment No. 242AB:
Page 122, line 16, leave out subsection (1) and insert:
("(1) If at any time—

(a) this section applies in relation to any county, controlled or maintained special school, and

(b) the conditions in subsection (1A) below are satisfied, the local education authority may appoint such number of additional governors as they think fit.

(1A) Those conditions are that—

(a) a copy of a statement prepared—

(i) in the case of a school not having a delegated budget, under section 198 of this Act, and

(ii) in any other case, under section 199 of this Act, has been sent to the Secretary of State,

(b) the local education authority have received a notice in writing in which the Secretary of State acknowledges receipt of the copy, and

(c) not less than ten days have elapsed since the date of the notice.

(1B) The Secretary of State may in respect of any particular school determine that subsection (IA) (c) above shall have effect as if the reference to ten days were to such shorter period as he may determine.").
The Deputy Chairman of Committees (Lord Alport): I must advise the Committee that if Amendment No. 242AB is agreed to, I cannot call Amendment No. 242AC.
On Question, amendment agreed to.
[Amendments Nos. 242AC and 243 not moved.]
Lord Henley Lord Henley moved Amendment No. 243ZA:
Page 122, line 31, after ("of") insert ("additional").
Lord Henley Lord Henley moved Amendment No. 243ZB:
Page 122, line 32, at end insert:
("(2A) If at any time—

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

(b) the conditions in subsection (2B) below are satisfied, the person who appoints the foundation governors may appoint such number of additional governors as he thinks fit.

(2B) Those conditions are—

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

(i) in the case of a school not having a delegated budget, the period prescribed for the purposes of section 198(3) of this Act expired, and

(ii) in any other case, the period allowed under section 199(3) of this Act for preparing and sending a statement under that section expired, or

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

665

(i) in the case of a school not having a delegated budget, under section 198 of this Act, and

(ii) in any other case, under section 199 of this Act, and has served notice in writing on the person who appoints the foundation governors stating that the power conferred by subsection (2A) above is exercisable.

(2C) The Secretary of State may by notice in writing served on the person who appoints the foundation governors determine that subsection (2B) (a) above shall have effect as if the reference to ten days were to such shorter period as he may determine.
(2D) In the case of any appointment made by virtue of subsection (2A) above to the governing body of a school—

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

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

shall have effect as if, notwithstanding section 4(3) of that Act (foundation governors for aided and special agreement schools), the instrument or, as the case may be, arrangements authorised the person who appoints the foundation governors to appoint such number of additional governors as he thinks fit.
(2E) Where in the case of any aided or special agreement school there are different powers to appoint foundation governors, references in this section (other than subsection (2B) and (2C)) to the person who does so are to—

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

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

The noble Lord said: I imagine that in speaking to the amendment the right reverend Prelate will speak also to his amendment, No. 243ZC. It was to be moved with Amendment No. 242AC, which cannot now be moved as a result of Amendment No. 242AB. In the event, that will matter little because the gist of what I had intended to say was an attempt to persuade the right reverend Prelate not to press his amendments and try to persuade him that the government Amendment, No. 243ZB, achieved much the same purpose.
The White Paper made clear that the Government wanted to consult the Churches on whether they saw any need for additional powers to assist them to improve voluntary schools which are found to be failing. There has been very valuable consultation and as a result the Bill made provision for voluntary schools to be brought within the framework, which could culminate in its being conducted by an education association. The ethos and religious character of the school would be protected.
The Government have much appreciated the co-operation of the Churches in ensuring that in any rare cases where voluntary schools are failing the mechanisms will be in place to tackle the problems.
However, discussions have continued over two aspects of the framework. The Churches told us that it would be of great assistance to have a power equivalent to that of the local education authorities to appoint additional foundation governors. Such a power would strengthen the governing body's ability to put into effect the proposals in its action plan. Amendment No. 243ZB, which is the Government's amendment, gives a new power to those who appoint foundation governors to appoint additional governors in the case of a failing voluntary-aided school.
The amendments from the right reverend Prelate have two effects. The first is that the power given to the LEA to appoint additional governors to voluntary-controlled schools is removed. The second is that the power to appoint additional governors to all voluntary schools is placed in the hands of the appropriate Diocesan Board of Education in the case of Church of England schools or the appropriate Roman Catholic Diocesan Bishop in the case of Roman Catholic schools.
Before I turn to who should be responsible for making appointments I want to deal with the position of voluntary-controlled schools. The amendment in the name of my noble friend gives the power to appoint additional governors in respect of voluntary-aided and special agreement schools. Voluntary-controlled schools have never had a majority of governors appointed by the foundation. Amendment No. 242AC, which the right reverend Prelate would have moved, would have had the effect of allowing the foundation to put their appointees into a majority. They would then be in the same position as the governing body of a voluntary-aided school, without the responsibilities that voluntary-aided status carries with it. The powers in the Bill to remedy problems at voluntary-controlled schools are already adequate; there is no case for bringing about a fundamental change as proposed by that amendment.
Returning to the issue of the appointment of additional governors for voluntary-aided and special agreement schools, we have not been persuaded that the new provision should be limited in the way proposed by the right reverend Prelate. I understand that the difficulty is that in some cases responsibility for appointing foundation governors lies with more than one person or body. It should normally be possible, where there is more than one person responsible—for example, the Parochial Church Council and the Diocesan Board of Education—for agreement to be reached on how the appointments should be made. In circumstances where agreement is not possible the amendment gives the Secretary of State power to determine, after consultation, which should make the appointment or appointments.
I very much hope that the right reverend Prelate will welcome the Government's amendment, which gives a substantial new power. I now understand that he was unable to move Amendment No. 242AC. I hope that he will not feel it necessary to move Amendment No. 243ZC and will accept our Amendment No. 243ZB. I beg to move.
Lord Elton: For the benefit of the slower witted among us, will my noble friend repeat the grouping to which he is speaking?
Lord Henley: There was some confusion. In moving Amendment No. 242AB, which was in a previous group, Amendment No. 242 was ruled out of order and therefore could not be pressed. I was expecting to respond to the right reverend Prelate in moving Amendment No. 242AC and to tell him that in due course I should be moving Amendment No. 243ZB. I then moved my own amendment and in doing so responded to the points which I presumed the right

667
reverend Prelate would make in regard to Amendment No. 243ZC. But, of course, he cannot now move Amendment No. 242AC.
Lord Renton: I hope that my noble friend does not think that I have not been attending but I find it difficult to infer from his remarks which amendment is what he called "my own amendment".
Lord Henley: "My own amendment" is a misnomer. It is the amendment standing in the name of my noble friend Lady Blatch; it is Amendment No. 243ZB.
The Lord Bishop of Guildford: Perhaps I may speak to the amendment and explain that once Again I am in some difficulty. We return to the point made by the noble Lord, Lord Judd, at the beginning of the debate. It is extremely difficult to deal with these matters when we have not been given notice of the Government amendments. I must say with some firmness that I deeply regret what has happened.
The noble Baroness, Lady Blatch, was kind enough to ensure that a letter was sent to me informing me of what was afoot, so to speak. The letter was dated 30th April but it was delivered by hand from one side of Great Smith Street to the other after the first post this morning. The officers of the Diocesan Board of Education of the Church of England faxed the letter to me in Guildford but I was at that time leaving in order to attend the Committee.
I am sure that Members of the Committee will understand that I must reserve my position because I have had no opportunity to consult with my advisers. Furthermore, the Minister must accept that this is not a satisfactory way of dealing with matters which are of deep anxiety to people who have points to make—
Noble Lords: Hear, hear!
The Lord Bishop of Guildford: I am sorry to speak so firmly, but I really do believe that this is a timetable which the Government have set. I feel with some passion that the point needs to be made. In the circumstances, I do not think that general apologies are satisfactory. That is my first point.
Secondly, I deeply regret the fact that my advisers were not, to the best of my knowledge and belief, advised of the terms of the amendment; indeed, my latest telephone call indicated that they have not yet received any information at all. It seems to me that the amendment does not actually meet the anxieties which we expressed. In particular, I turn to the way in which Amendment 243ZB provides that,
"the person who appoints the foundation governors may appoint such number of additional governors as he thinks fit".
In the case of an aided school which is failing—and that is the issue we are dealing with—the person who appoints the foundation governors is now to be given the power to appoint additional governors. In some cases the person or body appointing the foundation governors is the local parochial church council, and no one else. Our concern is that if the matter is as local as that and the school is failing, a local parochial church council is unlikely to be able to appoint additional governors from so small a locality in order to redeem such a school. During our negotiations with
668
the Government we have tried to point that out and have said, therefore, that those who appoint the additional governors should be of the "Diocesan Board of Education", which has a broader remit and a greater number of people on whom to draw.
In introducing the discussion, the Minister referred to cases where more than one body appoints foundation governors. He implied that, if they got their act together, they ought to be able to agree. I can only say that that does not actually meet the concern expressed. Of course, people ought to get their act together and agree. But if a local school is failing and the local parochial church council is in some difficulty, that may produce exactly the kind of difference of view where it needs to be made quite clear who has the responsibility.
Finally, I am indeed sorry that the position of the controlled Church school has not been taken on board. Controlled schools have trustees and foundation governors. Therefore, they are in an important position. If the local education authority can appoint additional governors, it puts the foundation governors—if I may express it in such strange terms—in a diminishing minority. Of course I shall not press my amendments. But I am seeking a clear assurance from the Minister that the negotiations will continue and that we shall not again be presented with the kind of situation that has developed over the past few days.
There are points here that do not satisfy us. I must make it explicitly clear that we do not accept that the Government's amendment meets all our points. I hope, therefore, to receive some assurance from the Minister that further negotiations will take place so that we may be satisfied.
Lord Dormand of Easington: First, when replying to what the right reverend Prelate just said, will the Minister bear in mind that the whole Committee is entitled to an explanation of what happened? If I understood correctly, it is obviously a matter of great courtesy that the right reverend Prelate was informed directly. However, it goes much wider than that. All Members of the Committee are interested in what happens to Church schools.
Secondly, yesterday was a Bank Holiday. Many of us spent the time trying to get to the bottom of some of the points made. I am glad to see the Minister nodding his head. But, over some considerable time, there has been a need for something to be done much more efficiently than has been the case. What the right reverend Prelate revealed to Members of the Committee is quite astonishing. I understand that that was done directly to him. I appreciate that fact. But, as I said, it is much wider than that. Many of us have had experience of such things being done over the years. We ought to have a better system.
7.15 p.m.
Lord Renton: I have a great deal of sympathy with the right reverend Prelate. I am glad that he is reserving his position. There is no need for one to repeat his argument that the government amendment which was moved by my noble friend Lord Henley is not such a satisfactory way of dealing with the

669
problem (with which, at any rate, the amendment of the right reverend Prelate deals) as the direct way put forward by the right reverend Prelate. After all, Church schools are Church schools. We should acknowledge the fact that, very often, the Churches started such schools a long time ago, have taken a continual interest in them, are doing splendid work and are part of our education system.
When it comes to having to find new governors, and so on, surely it is right that the Churches themselves should be the people to have a say, in the matter, rather than as proposed in the Government's amendment. I do not know whether other Members of the Committee have a view on the matter, but we must be careful. If we accept the Government's amendments, it will stultify discussion on Third Reading.
Lord Henley: Perhaps it would help if I intervened. I do not want to take up too much of the Committee's time. I can only repeat, as was said earlier, my apologies and those of my noble friend in the matter. I can give the right reverend Preiate an assurance that the letter was in fact signed on Friday. As my noble kinsman will know, we have in the past made use of the Post Office and that has created some problems. But, on this occasion, it was the proverbial man with the cleft stick. Even so, the letter did not get over the road to Church House in time.
I appreciate that the right reverend Prelate will not find that general apology satisfactory. However, perhaps he will be happy with the following course of action. I propose not to press ahead with the Government's amendments at this stage but to return to them on Report following further consultation between the Church authorities and officials in my noble friend's department. The matter can then be further explored and, it is to be hoped, dealt with to the satisfaction of all parties concerned. Again, as I believe my noble kinsman Lord Russell will remember, we shall try to send more than one copy of any letters to the right reverend Prelate and will employ all possible different forms of communication.
Having said that, it only remains for me to beg leave to withdraw Amendment No. 243ZB, tabled in the name of my noble friend Lady Blatch.
Amendment, by leave, withdrawn.
Clause 202 agreed to.
The Lord Bishop of Guildford The Lord Bishop of Guildford had given notice of his intention to move Amendment No. 243ZC:
After Clause 202, insert the following new clause:
("Diocesan Boards of Education
Where in respect of a Church of England or a Roman Catholic voluntary school the power conferred by section 202 would have been exercisable by the Local Education Authority had the school been a county school that power shall be exercisable by the appropriate Diocesan Board of Education (in the case of the Church of England voluntary school) or the appropriate Roman Catholic diocesan bishop (in the case of a Roman Catholic voluntary school) and subsection (2) of that section shall have effect as if the expression "Local Education Authority" was replaced by "Diocesan Board of Education" or "Roman Catholic diocesan bishop" (as the case may be).").
The right reverend Prelate said: I should like the opportunity to thank the Minister for his apology
670
which I fully accept. I recognise the fact that we all work under considerable pressure. I realise too that he has taken the complaint I made seriously. I am also grateful to him for not pressing his amendment and for agreeing to further negotiations. I recognise that the Government have been taking our concerns seriously. I do not wish in any way to imply by my criticisms that there have not been helpful negotiations. Nevertheless, we have to get right what is on the face of the Bill. It is for that reason that I spoke as firmly as I did. I shall not move the amendment.
[Amendment No. 243ZC not moved.]
Clause 203 [Suspension of right to delegated budget.]
Lord Henley Lord Henley moved Amendment No. 243ZD:
Page 122, line 33, leave out from beginning to ("authority") in line 35 and insert ("If at any time—

(a) this section applies in relation to any county, controlled or maintained special school in respect of which financial delegation is required, and

(b) the conditions in subsection (1A) below are satisfied, the local education").

The noble Lord said: I spoke to this amendment with Amendment No. 239ZQ. I beg to move.
[Amendment No. 243A not moved].
Lord Henley Lord Henley moved Amendment No. 243AZA:
Page 122, line 37, at end insert:
("(1A) Those conditions are that—

(a) a copy of a statement prepared under section 199 of this Act has been sent to the Secretary of State,

(b) the local education authority have received a notice in writing in which the Secretary of State acknowledges receipt of the copy, and

(c) not less than ten days have elapsed since the date of the notice.

(1B) The Secretary of State may in respect of any particular school determine that subsection (IA) (c) above shall have effect as if the reference to ten days were to such shorter period as he may determine.").
Clause 203, as amended, agreed to.
Clause 204 [Grouping and de-grouping]:
Lord Henley Lord Henley moved Amendments Nos. 243AZB and 243AZC:
Page 123, line 1, leave out from beginning to ("they") in line 12 and insert ("If at any time—

(a) this section applies in relation to any county, voluntary or maintained special school, and

(b) the local education authority have received the report referred to in section 201(1) (a) of this Act").

Page 123, line 16, leave out from beginning to ("he") in line 17 and insert ("If at any time—

(a) this section applies in relation to any county, voluntary or maintained special school, and

(b) the Secretary of State has received a copy of the report referred to in section 201(1) (a) of this Act").

The noble Lord said: I spoke to these amendments with Amendment No. 239ZQ. I beg to move.
Clause 204, as amended, agreed to.
Clause 205 [Prohibition on ballot under Part II]:
The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the Committee that should Amendment No. 243AZD be agreed to, I cannot call Amendment No. 243AZE due to pre-emption. I now call Amendment No. 243AZD.
Lord Henley Lord Henley moved Amendment No. 243AZD:
Page 123, line 22, leave out from beginning to end of line 31 and insert ("If at any time—

(a) this section applies in relation to any county or voluntary school, and

(b) the governing body have received the report referred to in section 201(1) (a) of this Act,

then, notwithstanding anything in sections 22 or 23 of this Act").
The noble Lord said: I spoke to this amendment with Amendment No. 239ZQ. I beg to move.
On Question, amendment agreed to.
[Amendment No. 243AZE not moved.]
Lord Henley Lord Henley moved Amendment No. 243AZF:
Page 123, line 33, at end insert:
("( ) If at any time—

(a) this section applies in relation to a maintained special school, and

(b) the governing body have received the report referred to in section 201(1) (a) of this Act,

regulations under section 176 of this Act shall not apply in relation to the school.").
Clause 205, as amended, agreed to.
[Amendment No. 243AZG not moved.]
Clause 206 [Power to establish education associations]:
Lord Judd Lord Judd moved Amendment No. 243AZH:
Page 123, line 41, after ("order") insert ("subject to annulment in pursuance of a resolution of either House of Parliament").
The noble Lord said: The purpose of this amendment is to make the establishment of an education association subject to a negative resolution of either House of Parliament. It will not come as a surprise to Members on either side of the Committee if I emphasise that there is a great deal of anxiety about the immense powers which the Secretary of State is taking in the context of this Bill. I think at normal times within a democracy we would be concerned to examine this tendency but at this time it is abundantly obvious that there is already too much overcentralisation in education, with disastrous consequences. One has never seen the educational system of this country in as great a state of chaos as it is at the moment. Therefore it seems to me quite extraordinary that we should just acquiesce in this acquisition of more power by the Secretary of State.
Under Clause 206 the Secretary of State may, in circumstances set out in Clause 208, establish by order an education association to conduct any school to which the clause applies. The order, however, is not subject to the negative resolution procedure as the Bill stands. In other words, the Secretary of State may make an order that allows no parliamentary scrutiny. The aim of this amendment is to ensure that both Houses of Parliament have the opportunity to scrutinise the order, though they would not be required to scrutinise it, since, as we all know, a negative resolution requires each House of Parliament to pray against the order only if it wishes to do so. It would therefore not add to the load of parliamentary business unless Members of either House considered that scrutiny of the order were necessary.
Before I leave the introduction of this amendment, I have one other point to make. We all know that once an education association moves in, there are only two possible outcomes. Either the school closes or else the school becomes grant-maintained. We have heard the Minister repeatedly say from the Dispatch Box opposite that the whole purpose of this Bill, and its whole rationale, is to enhance the quality of democracy in education. Parents and those around the school are to have no say once the education association moves in. We shall discuss that matter on a later amendment and therefore it would not be proper to pursue that point in detail now.
But under the procedure laid down in Parliament, Parliament will have no say either. We are moving towards a form of executive government that offers no chance of democratic parliamentary scrutiny, or scrutiny at the local level. I find that very sinister. I shall need a convincing reassurance from the Minister before I withdraw the amendment. I beg to move.
Lord Renton: I would be very surprised if my noble friend felt himself able to accept this amendment. We have two quite different systems for Ministers making orders and regulations. One is when they are making secondary or subordinate legislation. Nearly always we provide that that shall be subject to a negative or affirmative resolution of both Houses of Parliament. But the other occasions are when Ministers ate using non-legislative powers but executive powers in exercise of the opportunity given to them by Parliament. We do not have affirmative and negative resolutions when those executive powers are exercised. There may be some rare precedents. I cannot say there are not, but I cannot remember them.
There are hundreds of schools in this country. One hopes not too many of them will be caught up in this procedure or in other procedures in the Bill. But for both Houses of Parliament to have to consider, in the case of the negative resolution within 40 days, each of the individual cases, could very seriously hold up the operation of this Bill. I really would be very surprised if my noble friends on the Front Bench felt that this was a wise thing to do.
7.30 p.m.
Earl Russell: Constitutionally the noble Lord, Lord Renton, is perfectly correct. This is a highly unusual provision. We are dealing here with an executive power, and we are subjecting it to an unusual degree and form of scrutiny. However, I am sure that the noble Lord will agree with me that during our long history there have been occasions when we have felt that this type of scrutiny, for exceptional reasons, was appropriate.
We have here a policy and a context of policy which, it will not have escaped the attention of the noble Baroness, is exceptionally controversial. Even quite innocuous words such as "quality" have such different meanings for different speakers that they themselves become exceptionally controversial. We are also in a situation in which maintaining the basic consent necessary to keep the system going is becoming extremely difficult. For that reason, I believe that the powers for

673
which the noble Lord, Lord Judd, is asking, because they are exceptional, are appropriate to an entirely exceptional occasion.
There are two ways in which we may wish to examine how those powers are used. One is the situation in which those powers may be assumed and in which an educational association may be set up. We heard a certain amount of argument between the noble Baroness, Lady Blatch, and the noble Lord, Lord Ponsonby of Shulbrede, on that point in relation to a previous amendment. We have here two totally different diagnoses of what is assumed to be wrong when a school is in danger of failing. It is important that from time to time that disagreement should be subjected to evidence. One of us must be wrong. Probably both of us are wrong some of the time. I should like to see an opportunity for scrutiny because it is in the national interest that we should make some progress towards finding out which of us is wrong.
There is also considerable need for scrutiny concerning the persons appointed to the educational associations. Not everyone who appears to the Secretary of State to be impartial appears to everybody in every school to be impartial. In that context some names may be rather more provocative than others. It is important that we should have a chance to consider them and see whether they represent an unwarranted intrusion of executive power in areas where it should not go.
Lord Renton: I am grateful to the noble Earl for giving way. I am sure that he appreciates that if the Secretary of State has made a decision which seems to be controversial or with which even one Member in either House disagrees, a Question can be tabled which the Secretary of State will have to answer in another place or his representative, at present my noble friend Lady Blatch, in this place.
Earl Russell: I appreciate that perfectly well; but there could be situations in which Parliament might want to stop one of those exercises of power. A sovereign parliament ought to be able to do that, by one means or another.
Lord Henley: I am most grateful for the intervention of my noble friend Lord Renton and the expertise which he has brought to this particular amendment.
I can assure the Committee that these are not decisions which my right honourable friend the Secretary of State—who is, as my noble friend rightly said, answerable to Parliament—would take lightly. That is surely evident from the carefully thought out step-by-step procedures that we have set out in this part of the Bill, and which we have been discussing.
Generally speaking, a school will be put under EA management only where its governing body and its LEA have failed it and have clearly shown that they are not capable of bringing about the necessary improvements. In most cases, I would expect the LEA to be given a second chance to sort the school out. Only in those cases where an LEA has a proven track
674
record of appalling management would it be appropriate to take the school immediately into the care of an education association.
There will be difficult decisions to be taken; but, as my noble friend stressed, they are surely decisions of an essentially administrative nature to be taken in the normal operational way by the Secretary of State on the basis of full and careful advice from the inspectorate. Orders establishing educational associations, I would argue, will not be legislative in character and therefore, with all due respect to the Committee, do not need to follow the negative resolution procedure.
As we have discussed previously, the use of secondary legislation in this Bill has been scrutinised by the new House of Lords Select Committee on the scrutiny of delegated powers. That Committee clearly set out those few cases where it felt that we may not have got the matter quite right, but in the vast majority of cases the committee concluded that the intended procedure was correct. That included this particular case, in which a statutory instrument was considered appropriate. The Secretary of State will make an order, but not one subject to parliamentary scrutiny. I hope, therefore, that the noble Lord, Lord Judd, will not feel it necessary to press the amendment.
Lord Judd: I have the utmost respect for the intervention of the noble Lord, Lord Renton. Few people are better equipped or more experienced to speak on the matter than the noble Lord. One does not lightly dismiss his observations. Therefore, we are grateful for his advice.
I am concerned that in his reply the Minister still did not deal with the central issue. The central issue is that we are told that the whole future of education is to be democratised and freed from unnecessary bureaucratic influences and that parents and others are to be brought in to determine the future of their schools. The problem that we have here is that once an education association has moved in, whatever the arguments surrounding education associations themselves, there are only two possible outcomes, as I said in my introductory remarks: either the school will be closed or it will become grant maintained. There is no opportunity for the parents or the community around the school to be drawn into a discussion.
We shall move on to that issue with another amendment. In the circumstances, it would probably be best to pursue the point on a later amendment. In pursuing it, I am sure that the spirit of what we have said will be accepted by the Government and that the later amendment will be accepted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 243AZJ:
Page 123, line 47, at end insert:
("( ) Before making an order under this section in the case of a voluntary school, the Secretary of State shall consult the person who appoints the school's foundation governors and such other persons as he thinks appropriate.").
The noble Baroness said: Amendment No. 243AZJ is grouped with other amendments and no doubt Members of the Committee will present the case for their own amendments in that group.
As has already been made clear, we have had very useful discussions with the Churches about the means of tackling failing Church schools. We have been most encouraged that the Churches have been ready to see voluntary schools come within the framework for tackling failing schools. I believe that we would all agree that a failing school, wherever it is, is one about which we must all be concerned.
The Churches have expressed anxiety that there appear to be no safeguards in the Bill as to the membership of an education association which could conduct a voluntary school. In Clause 208 there is already a requirement on the Secretary of State to consult, before the transfer of a voluntary school to an education association, the person who appoints the foundation governors and such other persons as he thinks appropriate. However, given the worry of the Churches, Amendment No. 243AZJ now introduces a further requirement to consult in Clause 206 before an education association is established. The consultation is not limited to membership of the education association. Although it will normally be on the subject of the membership there will be nothing to stop consultation being wider. I shall await discussion on other amendments in this group. In the meantime, I beg to move.
The Lord Bishop of Guildford: I am sure that the Minister will understand if I say that the amendment falls under the same condemnation as the last amendment to which I spoke. This again is an amendment about which I was informed by the method to which I referred earlier. I shall not trouble the Committee by repeating it. The Minister was kind enough to send me a copy of her letter to the noble Lord, Lord Judd. It is therefore on the basis of the Minister's letter to him that I have picked up what is now proposed in relation to education associations for voluntary schools. Again, what is contained in the amendment falls far short of what I was led to expect the Government were prepared to accept.
The amendment which stands in my name makes it quite clear that the Churches are most anxious that when an education association is appointed with responsibility for a Church school, which will then either close or become grant-maintained, the providing body should be fully represented and in the majority on that education association. That is not provided for in the noble Baroness's amendment. Furthermore, Amendment No. 243AZK provides that the Secretary of State shall consult. In the Minister's letter to the noble Lord, Lord Judd, she was kind enough to say that in practice the Secretary of State will normally consult the appropriate diocesan board of education. I note that the word used is not "invariably". The Committee will understand that I do not find that sentence reassuring.
Furthermore, under a diocesan board of education measure, the diocesan board of education has a
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statutory responsibility in relation to a failing Church school. That does not seem to have been taken into account when the amendment was being drafted.
Amendment No. 243AA stands in my name and the names of the noble Duke, the Duke of Norfolk, and the noble Lord, Lord Northbourne. The Committee will note that we have been working in close association with the Roman Catholic Church whose anxieties in this area are parallel with our own. I hope that the Government will recognise the current position and, as with the previous amendment, will acknowledge that the government amendment does not satisfy us. I hope that they will not press the amendment in order that negotiations may continue.
Baroness Blatch: Perhaps it would be helpful to say this. I am indeed entirely happy to accede to the right reverend Prelate in not pressing my amendment. It is also true to say that the amendments were tabled either late on Thursday or on Friday. In the light of all that has been said by the right reverend Prelate, it seems appropriate that we should return to these matters at the next stage of the Bill. I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 243AZK:
Page 123, line 47, at end insert:
("( ) In appointing the members of an education association, the Secretary of State—

(a) shall include persons who appear to him to have experience in the management of a school or the provision of education in a school (including in particular experience as governors), and

(b) shall have regard to the desirability of including a person with experience as governor of the school (or as the case may be persons with experience as governors of each school) which is, for the time being, to be conducted by the association.").

The noble Baroness said: Amendment No. 243AZK is more specific than the amendment that has just been withdrawn. Amendment No. 243AZJ provided for one particular consultee or set of consultees,
"and such other persons as [the Secretary of State] thinks appropriate".
No doubt he would do that, whether or not the provision is on the face of the Bill.
Amendment No. 243AZK requires the appointment of certain persons as members of an education association; that is, people who appear to the Secretary of State,
"to have experience in the management of a school or the provision of education".
To the extent of that amendment, we on these Benches are prepared to put a little faith in the judgment of the Secretary of State about who appears to him to have the right experience. The provision requires the Secretary of State to have regard to,
"the desirability of including a person with experience as governor of the school".
The Government wish the power to establish education associations to be a specific measure with regard to an at risk school. As we have heard today, that is very much a matter of last resort. However,

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they have not given many details as to how it could be ensured that the mechanism, when required, would work better than an LEA.
When the matter was raised in Standing Committee E on 2nd February, the Minister stated at col. 1245 of Hansard that the Government wished to preserve flexibility when making the appointments. However, he further stated that the Committee would realise that it was not necessary to put on the board of an education association people with a particular expertise. He stated that the Government did not intend to put the education association in to act as managers of the school. That statement seems to envisage an education association which needs to have no particular expertise of school management within its membership. I am not sure what expertise—I refer to school management or otherwise—might be expected.
I am grateful to the noble Lord, Lord Henley, for using the term "EA". Perhaps if I may use that acronym it will make life a little easier. The EA will be able to draw on external expertise without having to include an expert in accountancy, for instance, as a member of the board. I hope that it would make great efforts to involve the parents of pupils at the school. I am not sure why there should be resistance to a requirement for school management expertise to be represented. The amendment is modest. It requires only that two members have such experience.
At col. 1245 of the Official Report of Standing Committee E of 2nd February, the Minister commented on the membership of an EA. He stated that he expected that members would be drawn mainly from the local community. He expected membership to include local businessmen, professionals and possibly parents and might include head teachers or former head teachers who had been successful in similar schools. That is similar to the membership of a typical governing body, of which many Members of the Committee have experience. Why does an EA have to replace a governing body with a different constitutional model? I do not argue for the same people; it is the model to which I refer. I hope that the Government will recognise the merits of the amendment.
7.45 p.m.
Baroness Blatch: Amendment No. 243AZK seeks that the membership of the education association should be specified on the face of the Bill. The amendment requires my right honourable friend the Secretary of State to appoint to an education association persons who have experience of management of a school or the provision of education in a school and to have regard to the desirability of including a person with experience as a governor of the school or schools conducted by the EA. The amendment would place an undesirable restriction on the power of my right honourable friend. Schools which are failing may be doing so for a variety of reasons. Those problems will be identified by the inspection report. My right honourable friend will appoint persons with the requisite expertise to deal
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with those problems. There is no need for a requirement on the face of the Bill specifying particular specialisms or categories.
I accept that in many cases the problems at the school may be managerial where the input of people with experience of management of a school will be of vital importance. In some cases the inclusion of a governor or former governor of a school might also be invaluable. However, I can imagine circumstances in which the appointment of a member of the governing body which has been responsible for the school's failure would be most undesirable. But in cases where particular appointments will be of value, my right honourable friend already has the power to appoint them to the education association under this clause. No one is excluded from membership. If we were to specify some categories, there is a danger that other categories whose expertise might also be vital would be seen of less value in the process of remedying the problems of failing schools.
The education association will be a small body with as few as five members. It would be inappropriate to require certain groups of people to be represented on that body. The Secretary of State must have discretion over the selection of members. It is the problems in the failing school which should dictate the membership. Therefore, we should be concerned about appropriate membership and not about one single body of persons named on the face of the Bill. I ask that the amendment is not pressed, or, if pressed, that it is rejected.
Baroness Hamwee: The answer smacked a little of the concept that nothing is ruled in and nothing is ruled out. We have come to expect that approach in other contexts.
I find it sad that the Secretary of State must have such discretion that no provision shall require him to appoint or even have regard to people with particular backgrounds or expertise. However, the discretion of the Secretary of State in this matter fits entirely comfortably with the provisions in the remainder of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 206, as amended, agreed to.
[Amendment No. 243AA not moved.]
Schedule 11 [Education Associations]:
[Amendment No. 243AB not moved.]
Schedule 11 agreed to.
Clause 207 agreed to.
Clause 208 [Transfer of responsibility for conducting school to an education association]:
[Amendments Nos. 243AC, 243AD and 243B not moved.]
Clause 208 agreed to.
Clause 209 [Effect of order under section 208]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 243C:
Page 125, line 2, at end insert:
("(aa) it becomes a county school or a voluntary school by virtue of an order under section (Transfer of school formerly conducted by education association to local education authority) or").
The noble Baroness said: Amendment No. 243C is grouped with Amendments Nos. 243D, 244ZA, 244ZB and 244C. The intention of Amendment No.

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243C and the others in my name is to provide the option for a school which is being conducted by an education association to revert to its former status as a county or voluntary school and for it not merely to have the option of becoming either a grant-maintained school or closing.
Under the Bill, parents need not even be consulted before the Secretary of State directs the education association to publish proposals for grant-maintained status. The amendments are to provide, among other matters, for parents to be fully involved in determining the school's new status, whatever it may be. Of course, the drafting of the amendments is not intended to limit representations merely to parents. The EA must notify the LEA, relevant voluntary foundations and the funding authority.
Amendment No. 244ZA, the new clause, is to provide the machinery for parents to consider options for the school's future. The education association will form an initial opinion of what is best for the school. It may feel that a return to its former status is an appropriate option. Whether it be that or grant-maintained status, the education association would notify parents and consider any written representations made within a period of two months. If it believes that a return to the LEA is best, then there is a requirement about informing parents. After receiving representations, unless it is of the opinion that grant-maintained status is best, it must start the process of transferring the school to the LEA.
In other words, the balance in this set of amendments is that, a school having been rescued and set on the right course by an education association, there should be a presumption that it may go back to the LEA, which would be an option and that grant-maintained status and closure are not the only courses available.
The amendments are intended to avoid a procedural cul de sac; if the parents are balloted and if the education association believes that grant-maintained status is best, it must ballot the parents. However, if the parents are balloted and do not support GM, there would be a procedure to transfer back to the LEA by default. Closure would be the option only where there is a decision against both grant-maintained status and a return to the LEA.
As drafted, the Bill provides that if the EA is required to publish proposals for grant-maintained status, it must include the names of the first governors which it proposes. However, there is no procedure identified for choosing suitable people. The amendments, in proposing the return to a county or voluntary status, give a little more detail. They propose that the Secretary of State should make nominations to the new governing body, with the EA's role limited to making recommendations for nominations. As with the GM proposals, the names of nominated governors would be attached to the published proposals for a return to county or voluntary status.
These may appear complicated proposals—the Government's drafting may appear simpler—but I believe that the Government give less weight to the views of parents. I believe that the main point in the
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amendment—the reference to the views of parents—is to be taken account of in the context that we propose, where a convalescent school which has been at risk has the option to go back to its former status. By definition almost, it will lack a strongly experienced governing body and I know that all Members of the Committee will want an at-risk school to recover and be managed well, and that the use of an education association should not be a fast or slow track merely to closure. Some schools may wish to seek GM status, but it should not be forced upon them. I hope that the Minister will be able to respond to the broad principle of including the additional option, as well as to the detail of the amendments. I beg to move.
The Deputy Chairman of Committees: The amendment proposed is on page 125, line 21—and not line 2, as printed in the Marshalled List—at end insert: the words as printed on the Marshalled List.
Lord Judd: I am sure that we are all grateful to the noble Baroness, Lady Hamwee, for moving the amendment. I find myself genuinely perplexed by the Government's position, if I am being very charitable. I have re-emphasised this several times today because I have heard the message powerfully put by the Minister. The Government are committed to the spirit of open, democratic choice as much for parents individually as for parents together in the school. We have heard that governors are to discuss the possibility of the school opting out and, if the Secretary of State wishes, he is to be able to instruct the governors to discuss it every year. The governors may then come to a conclusion as to whether or not they invite parents to participate in a ballot on the future of the school.
However, intrinsic in that position—even if, for a moment, we examine the proposition positively—is that the parents make the choice. We have big reservations because we say that it is only one generation of parents and that future parents will not have the choice. We shall not go into that now, the point is that parents make the choice.
The anxiety which we have expressed and which is shared by many in the country is that the potential power of the Secretary of State to require the governors in a particular school to go on discussing it year after year is because the Secretary of State may have decided that the,school really should opt out. He will go on trying to wear people down by an annual discussion of the governors until finally they acquiesce, there is a ballot and he hopes that there will be the result which people suspect the Secretary of State wanted to be achieved.
That anxiety is surely compounded by what we are faced with now with the education associations. What happens is that when the Government have their own henchmen in place, the "bovver brigade", or call them what you will, have gone in to sort the school out. Once the education association is there, there are only two possibilities, as I said on an earlier amendment. One is that the school closes, the other is that the school opts out. That seems to deny the very principle of free parental choice. If the school was in a mess before, nobody suggests that the parents made it a mess. The parents were let down by the situation that

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was there. Presumably what has happened is that an education association has gone in to sort out the situation and try to get a more normal and a more hopeful situation in which the parents can then sit down, even by the Government's own logic, and say, "Right, now we have a normal school. It's doing a job. What's going to be the right future for the school? Let's have a debate about it and let's have a vote".
What we find unacceptable on these Benches is the principle that once the education association has moved in, there is no chance of a free choice by the parents and others around the school. It seems to us to be a contradiction of everything that the Government argue in the normal school situation, and it honestly seems to us to underline the anxieties which are there; namely, that the Government are determined to have their way and ensure that sooner or later all the schools opt out.
8 p.m.
Earl Baldwin of Bewdley: I can see no good reason why, if a school survives the bovver boys and the hit squad, it should have to go grant-maintained. The Government will boast of the sector which, by hook or by crook, they want to see enlarged. But educationally—which is what we should be concerned with —the school that is in clear waters again will be in no different a position from any other LEA school. But in that case the same rules should apply.
Parental choice, as we discovered when debating the amendment to allow schools to opt back in, is to be allowed only where the odds in favour of voting in the direction that the Government want are reckoned to be pretty favourable. Otherwise, I can see no reason why parents should be disenfranchised in this case. I can imagine that parents might conceivably feel that they would want to cut the links with the LEA which they saw as not having prevented their school from failing, in which case their ballot would do the Government's job quite respectably for them. But if from their close knowledge of the school they feel that the circumstances warrant the opposite conclusion and they prefer the links with and the support of the LEA, then why should the Government depart from normal practice and take the power of decision from them? I support the amendments.
Baroness Cox: I hope that the Committee will not support the amendment. The assumption underlying so much of the debate is that LEAs have generally been fulfilling their responsibilities quite satisfactorily except for a few atypical exceptions such as the William Tyndale school which is often quoted. If that were the case, many of the provisions in the Bill would not be necessary. But there is evidence—I referred briefly to this point in a previous debate—that for many years many local education authorities have presided over unsatisfactory schools for far too long, betraying a whole generation of children.
Of course there are many good schools, and many good local education authorities. But research has shown that many local authorities have allowed far too much under-achievement. Research in which I was
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involved looked at, for example, the examination results in one year of 250,000 children from across the country; and the following year the examination results of 350,000 children. Examination results are not everything, but they are formal indices of educational attainment which matter a great deal to young people. That research found significant differences between schools with similar catchment areas and between local education authorities—factors of two to three in terms of what they enabled young people to achieve. Those differences are reflected in international comparisons. We as a nation have been under-achieving and our children have been betrayed again in terms of educational attainment.
If a local education authority has presided over a failing school, there is no reason whatever to suppose that it is the appropriate authority to continue carrying responsibility for that school. We have heard a great deal about local education authorities representing local democracy. But too often local education authorities have epitomised monopoly and intervention. Often they presided over a system of protection of bad schools and political intervention in good schools. They have often been the opposite of local democracy.
Grant-maintained schools are essentially democratic. They are fundamentally accountable to parents. They are the opposite of centralisation. They are the ultimate devolution of power and accountability to parents, where it most belongs. Therefore very much I hope that this amendment, with its presumption that the schools will have the right to go back to local education authority control, will not receive the support of the Committee.
Baroness Warnock: We should be grateful to the noble Baroness, Lady Cox, for bringing out so very clearly and, if I may say, nakedly, the motivation that lies behind this particular refusal to allow the option of staying with the local authority for those schools which have been deemed failing schools. We cannot make any judgment yet, until we see how it works and what the criteria of failure will be. It would be wrong to try. But I hope that one tiny point can be conceded; namely, that if the amendment is rejected, we shall not go on talking about seeking grant-maintained status as "opting out" because there will be no option whatever in that case.
Lord Elton: I hope that even if the appeals of general principle so powerfully made by my noble friend Baroness Cox are not accepted, the Committee, in considering the amendment, will consider the absurdity of returning a school which has been in effect rendered inoperable by a local authority to that local authority once it has been restored. That seems to me to be a very extraordinary proposal.
The Lord Bishop of Guildford: I feel that there is justice, logic and common sense in giving schools which have been under an education association the option of returning to the local education authority if they so wish. I have to say to the noble Baroness, Lady Cox, that I think her argument is dangerous. The obverse of her case is that, if a grant-maintained

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school were to fail, it ought automatically to be required to go to the local education authority because that would be a condemnation of the grant-maintained system. I do not think that that argument can be applied. We are concerned here that there can be failing schools in some education authorities where it is appropriate after there has been an education association that a school should become grant-maintained. But there are other (and many) good local education authorities where there can be a rogue school which they have not so far been able to rescue but may be able to by these means. I cannot see why the normal option should not apply in that particular case. It seems to me to be a case where parental choice should be allowed to prevail.
Baroness Seear: It seems quite extraordinary to me that one may maintain the arguments for parental choice but not let them apply here. As the noble Earl, Lord Baldwin of Bewdley, said, if the local education authority has so bad a reputation, one can be pretty confident that the vote will not go in its favour. But I remind the Committee that it is possible even for local authorities to change. An example is the experience of Lambeth. In a recent by-election it returned a Liberal Democrat with a swing of 37 per cent. If that can happen in Lambeth, one can have the most tremendous reform in a local authority, and parents who previously disliked it may come to love it.
Baroness Blatch: I am continually—
Lord Judd: I was about to make a point in support of the noble Baroness. I can envisage a situation in which, where an education association had moved in and a school had been sorted out, that might be a catalyst for change in the whole political situation locally. The noble Lord, Lord Elton, should consider that point before he comes to the conclusion which he put to the Committee.
Baroness Blatch: My sincere apologies to the noble Lord, Lord Judd, for pre-empting what he had to say.
I am continually disappointed—indeed, depressed—at the intemperate nature of the language used by the noble Earl, Lord Baldwin of Bewdley. The noble Earl called an education association "bovver boys" and "hit squads". We are talking about a group of people charged with the responsibility of restoring good education to a school where not only has the school itself failed to deliver good education but the local authority has also failed to remedy the situation. Perhaps I may remind the noble Earl that the people at the end of the line are parents and children. The sooner such a situation is remedied the better. I do not see education associations disparagingly as "bovver boys" or "hit squads". I see them as people who will return good education to the most important people of all, the customers, the children.
My noble friend Lady Cox gave many reasons as to why an education authority should be established at all. I repeat what I have said before: education associations are positively a long stop. They are triggered in the provisions of the Bill only when all else has failed—when the school and the local authority have failed.
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I take issue with the right reverend Prelate on the point that he made. He said that there may well be good local authorities which have failed. Good local authorities do not fail. They at least know a failing school when they see one. When they see a failing school they can put together a plan which sets the school on the road to recovery. That is what is important. I repeat again: education associations are triggered only when not only a school has failed but the LEA has failed or is deemed to be sufficiently inadequate to undertake the restoration of good education in a failing school.
The education association will have worked hard over a period to ensure that the school gets a clean bill of health. That surely must be an objective to which we all sign up. Is it right to ask the association to hand the school back to the local education authority which has failed it in the past?
Members opposite and Opposition Members in another place have argued that there should be a choice over the future of a school when an education association has turned it around. What choice is there in an enforced return to the local education authority which may well be the cause of its problems in the first place?
The procedure set out in the Bill for the move to grant-maintained status is quick and simple: the Secretary of State gives notice of his opinion in the light of the inspection report which has declared that the school has recovered and the education association is obliged to publish proposals in much the same way as a governing body of a school which is seeking grant-maintained status. The proposals could be approved in as little as three to four months if the education association acted quickly. I have every confidence that the education associations will do so.
Why is it so important to have a swift process for the move to grant-maintained status? Once the school has been turned around, the work of the education association is done and the school, all things being equal, should move on to governance by a representative governing body as soon as possible.
This package of amendments has several different strands. First, the education association is given a power to say what should be the future of the school. It gives notice that the school should return to the local education authority. It is not clear how this links with Clause 212 where the Secretary of State has power to give notice of his opinion on the future of the school.
But let us assume that the education association has a view. What factors would the education association take into account? I have given that point a great deal of thought. The main factor that occurs to me is the failure of the LEA which led to the school coming under education association management. Would an education association, which has worked hard over a period to remedy the problems of a school, readily return it to that LEA?
Again, let us suppose that the education association did propose that the school should return to the LEA. What do the amendments provide? They provide a cumbersome and bureaucratic path back to local authority control. As far as I can judge from the new

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clauses—some of the steps are not altogether clear—the process of securing approval for a return to local authority control could take up to nine months. A school which has been taken into the care of an education association will already have been subject to uncertainty. That would be a necessary part of securing the future of the school. But a further lengthy period of uncertainty of that kind could not be justified.
I was interested in the absence of any provisions for consultation with the local education authority. It is quite possible that the local education authority would not want the school back. How else can one account for the neglect shown in the past? What is to happen in these circumstances? The amendments would require the education association to notify the LEA and others of its view that the school should return to the LEA. There is then a two-month period for representations. If, after considering the representations the education association remains of the view that the school should go back to the LEA, the LEA then has a period to publish proposals. There is nothing to ensure that the education association does not give the responsibility back to an unwilling LEA. When the LEA has the opportunity to make representations, it does not know who will be nominated by the education association to serve on the governing body. Will it want to maintain a school where it has no say in the membership of the governing body, as it does now with all county and voluntary schools?
Nor is there anything to prevent the Secretary of State from approving proposals published by an unwilling LEA. Indeed, even where he rejects the proposal, the amendments require further such proposals to be published. Does that make sense?
I fully expected the argument to be put that the provision for the education association to nominate the members of the governing body of the school returning to LEA control would override my argument that parents would not want their school to return to the LEA which had failed it in the past. It is certainly an interesting concept. The argument seems to be that the school is not in fact returning to the LEA after all. But the LEA will be responsible for maintaining the school and for its funding and in the case of a county or controlled school it will be the employer of the staff. It will be an LEA school. The Opposition cannot have it both ways.
The decision on when a school is ready to move on from education association management will be triggered by an inspection report which states that it is no longer at risk. The Secretary of State will be best placed to give notice that the time is now right for it to seek grant-maintained status. He will have access to the inspection report and to any advice he may need from the chief inspector and the education association in reaching his view. When the education association publishes proposals for grant-maintained status as the Bill requires, parents will have the opportunity to make representations. The Secretary of State will take those into account when he comes to consider the proposals.
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I see no value in these new clauses and amendments and I urge the Committee to reject them.
8.15 p.m.
Baroness Seear: Why does the noble Baroness say that it is a forced return if it is a return as a result of a ballot? It is not forced. It is democratically decided by the parents. That is the mechanism that the Government have wanted for all such decisions. There is nothing forced about it. Did the noble Baroness mean to say that it is a forced return, or did I mishear her?
Baroness Blatch: As I understand the amendment, it presumes in favour of going back to the LEA. The ballot would be to become a grant-maintained school.
Lord Judd: Before we leave this point, I wonder whether the Minister will address herself a little more specifically to certain points that were made in the debate this evening. First, where does her argument stand if, for example, there has been a total change in the political leadership of the local authority concerned. In her reply she referred to the fact that the school would be returning to the local authority that had failed it. But a change might be triggered by the whole episode. The point is that in the intervening period there may be a totally different local authority. That is my first point.
Secondly, is the Minister saying that in that situation, when an education association has done the job that it has been sent in to do, parental choice will not apply? That is the issue. Is she saying that the parents will be given no opportunity to decide that they would rather the school went back to the local education authority than for the school to pursue the course that the Government would otherwise expect it to pursue; namely, into grant-maintained status?
Lord Elton: I rise to the fly that the noble Lord, Lord Judd, keeps casting across my nose. I point out to my noble friend that he concedes one of her arguments by accepting that if the political complexion of a local authority changes, it may suddenly become efficient, having previously been inefficient. My noble friend has been trying to persuade this Chamber of that for many years.
Baroness Blatch: I am partly helped by my noble friend, but perhaps I may add to what he said. I do not know over what period the noble Lord envisages the change happening. Our view is that a school that is failing its children ought to have good education restored to it as quickly as possible. If a judgment has been made, and most seriously arrived at, that not only a school is failing—and that takes time—but the LEA is failing, it is inconceivable that in the course of restoring good education to that school any Lambeths of this world would have so changed and produced such a record that a different judgment can be made.
Baroness Seear: Perhaps the Minister will agree that there may be very big changes between now and next Friday.
Baroness Blatch: I would argue that there will not be too many changes in Lambeth between now and next Friday. That was the example that I used.
I continue to make the point most seriously. In every change of council there is a whole period of indetermination about how efficient or otherwise the council will be. Having sat on a council that changed in midstream, I know that it takes a very long time and the period of uncertainty is considerable. Where there is a hung council—my word for it is "unhinged"—it is even more difficult to make a judgement about the kind of authority that it will be. I simply do not accept that point.
I am also reminded, quite rightly, that I thought there was an assumption somewhere that there was a ballot to go back to GM. I understand that there is no ballot to become a LEA school—that is a presumption—and there is certainly no ballot to become a GM school. There is no ballot in the amendments at all.
Earl Russell: The noble Baroness continues to talk of a local authority failing the school as though it were an act of will by the local authority. She continues to assume that, if it has failed the school once, it will do so again, and that was at the centre of her argument.
The noble Baroness might consider cases such as that of Warwickshire, where a cap was imposed at a mistaken level and the removal of the cap allowed the local authority to do what it would willingly have done in the first place.
Baroness Blatch: Nobody is making judgments about Warwickshire being a failing authority. Certainly nobody at this stage is talking of failing schools in Warwickshire—I do not know whether or not they exist. I am saying that a school failing to provide good education for its children is in a serious situation. If, after a local authority has been given a reasonable period to do something about restoring good education, it fails to do so, then I do not believe that it is right to return the school to the local authority.
The other situation is where a local authority is not deemed even in the first place to be a fit body to restore good education to a school. That is an even more serious situation. We want good education restored to the school. We have to agree to differ. We take the view that, for stability and for the sake of the future of the school, it should remain in the grant-maintained sector. We understand the case being put forward by Members opposite. We happen to believe that the way in which it is arrived at is wrong.
Earl Baldwin of Bewdley: I wonder why stability suddenly comes into the argument when the stable thing is to keep it where it was?
Baroness Blatch: That is not the stable thing. A school becomes subject to an education association because it is not stable and because it is not providing good education. When it provides good education and in a way that satisfies the inspectorate who advise my right honourable friend the Secretary of State, that is a stable situation. It is to retain that stable situation that we on this side of the Chamber believe that
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schools should remain in the grant-maintained sector after they have been subject to an education association.
Baroness Hamwee: We do indeed differ. I am obliged to the noble Baroness, Lady Warnock, and to the right reverend Prelate, for expressing so clearly that Members opposite take the view that grant-maintained status automatically makes everything all right where it may have been all wrong or a little bit wrong previously.
I am obliged to the Minister for her lengthy reply. She has probably given us a good deal of material to come back at a later stage. I shall certainly ensure that consultation with the LEA is explicit and that it is not merely one of those that may make representations but is not actually referred to.
We will come back to the matter. In kindness to those who thought that they would be dealing with other matters at 7.30 I am prepared not to push the question to a Division. But there is between us a great difference of philosophy as well as detail on the matter. It is something to which we must return. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 243D not moved.]
Clause 209 agreed to.
Clause 210 [Functions of education associations]:
Baroness Blatch Baroness Blatch moved Amendment No. 244:
Page 126, line 20, leave out from beginning to ("or") in line 21 and insert:
("it is part-time education suitable to the requirements of persons of any age over compulsory school age, or full-time education suitable to the requirements of persons who have attained the age of nineteen years,
( ) it is part-time education suitable to the requirements of junior pupils who have not attained the age of five years and the school provides full-time education for junior pupils of the same age").
The noble Baroness said: Amendment No. 244 has already been spoken to. I beg to move.
Clause 210, as amended, agreed to.
Clause 211 agreed to.
[Amendments Nos. 244ZA and 244ZB not moved.]
Clause 212 [School conducted by education association acquiring grant-maintained status]:
[Amendment No. 244A not moved.]
Lord Henley Lord Henley moved Amendment Nos. 244AA and 244AB:
Page 127, line 17, after ("effect") insert ("(a)").
Page 127, line 19, at end insert ("and
(b) with such other modifications as may be prescribed").
The noble Lord said: Amendments Nos. 244AA and 244AB were spoken to with Amendment No. 239ZQ. I beg to move.
Clause 212, as amended, agreed to.
Clause 213 [Discontinuance of school conducted by education association]:
Lord Judd Lord Judd moved Amendment No. 244AC:
Page 127, line 39 after ("liabilities") insert ("including liabilities in respect of the staff of the school,").
The noble Lord said: In moving Amendment No. 244AC, I shall speak also to Amendment No. 244AD. I shall be as brief as possible in view of the business that is waiting to be heard in the Chamber.
The purpose of Amendment No. 244AC is to ensure that there is a responsibility for staff. Clause 213 concerns a discontinuation of a school conducted by an education association. Where the Secretary of State concludes that the school should be discontinued he gives notice to the interested parties. The notice includes the date on which the education association shall cease to conduct the school.
Clearly the future of members of the staff of the school is of considerable importance, yet, amazingly, the clause makes no mention of their interest in referring to the disposal of school property and the discharge of any liabilities. The amendment would include a specific reference to liabilities in respect of the staff of the school and would therefore give the Secretary of State the duty to consider those liabilities.
This again relates to a disturbing theme in the Bill. It is about management; it is about the technocratic dimensions of education, the arrangements for education, the government of schools and so forth. Earlier this evening we heard an interesting debate in regard to the degree to which heads of schools should be involved. Here we have the possibility of a school being brought to a conclusion and all the goods and chattels being considered, but the people who have been part of that school and who may have been suffering under an appalling situation which was none of their making, receiving no consideration whatever.
Amendment No. 244AD seeks to ensure that property is returned to the local education or funding authority to allow it to provide for sufficient places. Subsection (3) makes no reference to how the school property should be disposed of. The amendment would ensure that the property was returned to the relevant body to enable it to continue the process of providing sufficient places without incurring substantial capital costs in having to buy or build a new school. In the case of a county school, that would mean the Secretary of State being expected to return the property to the local education authority, while, in the case of a grant-maintained school, the Secretary of State would be expected to return it to the funding authority. I beg to move.
Lord Henley: Speaking to Amendment No. 244AC first, when a school conducted by an education association closes, the Bill already makes provision for an order to cover the discharge of any liabilities of the education association in respect of the school. I can appreciate the wish to see that liabilities in respect of the staff of the school are covered, but the amendment adds nothing to the substance of the clause. I can give the Committee an assurance that the discharge of liabilities in respect of an EA school which closes will cover liabilities in respect of staff of the school.
Turning to Amendment No. 244AD, the amendment assumes that grant-maintained schools will be included in the categories of schools which may be transferred to an education association. However, I
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will deal with the general principles of disposal of property when a county school conducted by an education association is discontinued.
Clause 213 allows the Secretary of State to make an order for the disposal of the school property and the discharge of any liabilities of the education association in respect of the school. Such an order may make any such provision as may be made by an order under Clauses 107 to 112 of the Bill. Clause 110 deals with the disposal of property on the discontinuance of a grant-maintained school. It provides for the return to the LEA of property of a former grant-maintained school which was LEA-maintained before it acquired grant-maintained status, but it is subject to the provisions of any order made under Clause 107.
Clause 216, paragraph (b), enables my right honourable friend the Secretary of State to make regulations applying Clause 110 in relation to the discontinuance of a school conducted by an education association, and this he certainly intends to do. But the Secretary of State will need to determine the destination of property of a school which has been conducted by an education association in the light of all the circumstances in the same way as he will determine the disposal of property of a grant-maintained school.
We believe that this flexibility is essential. The appropriate destination of the property of a school which is discontinued will depend on the precise circumstances. The decision may differ depending on whether the school has received capital grants while it has been under the control of the education association and whether the premises and other school property are to be used for the purposes of another school. The return of the property to the LEA is not ruled out. The clause allows flexibility. I hope, therefore, that the noble Lord will feel that his amendment is not on this occasion necessary.
Lord Judd: I am grateful to the Minister for his reply. Paradoxically, I am more convinced by his reply to the first amendment than his reply to the second, which still leaves me with some anxiety about what already happens to property. He was categorical about the staff. I am sure that the whole Committee has noted it and will be able to report it to the people concerned outside. They will watch it very closely to make sure that it registers. I thank him for being so firm in his response on that point.
Without, I hope, being churlish, perhaps I may say that it would be more reassuring for us all if, instead of having to wring from government tributes to staff and the good will of the people who make our schools function, occasionally they could be seen in the text of legislation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 244AD not moved.]
Clause 213 agreed to.
Clause 214 agreed to.
8.30 p.m.
Clause 215 [Reports showing school no longer requires special measures]:
[Amendment No. 244AE not moved.]
Lord Henley Lord Henley moved Amendment No. 244AF:
Page 128, line 18, after ("send") insert ("a copy of").
The noble Lord said: I spoke to this amendment together with Amendment No. 239ZQ. I beg to move.
The Deputy Chairman of Committees (Lord Strabolgi): I have to inform the Committee that if Amendment No. 244AG is agreed to I cannot call Amendments Nos. 244B to 244D inclusive.
[Amendment No. 244AG not moved.]
The Deputy Chairman of Committees: If Amendment No. 244B is agreed to the Committee will have to amend the wording of subsequent amendments.
[Amendments Nos. 244B and 244C not moved.]
Lord Henley Lord Henley moved Amendment No. 244D:
Page 128, line 19, leave out from ("and") to ("the") in line 20.
The noble Lord said: I believe that I spoke to this amendment in relation to Amendment No. 239ZQ. I beg to move.
[Amendment No. 244E not moved.]
Lord Henley Lord Henley moved Amendments Nos. 244F and 244G:
Page 128, line 22, after ("any") insert ("copy").
Page 128, line 25, after ("or") insert ("in prescribed cases").
[Amendment No. 244H not moved.]
Clause 215, as amended, agreed to.
Clause 216 [Regulations for the purposes of Chapter II]:
Lord Henley Lord Henley moved Amendments Nos. 244J and 244K:
Page 128, line 33, at beginning insert ("(1)").
Page 129, line 6, at end insert:
("( ) Subsection (1) above does not apply in relation to schools which are or were maintained special schools; but regulations may provide for sections 208 to 215 of this Act to have effect in relation to any such schools as they have effect in relation to county schools but with such modifications as seem to the Secretary of State to be necessary or desirable.
( ) Regulations may make such provision as the Secretary of State considers necessary or desirable in relation to—

(a) the transfer to an education association under section 208 of this Act of responsibility for the conduct of any maintained special school and the subsequent conduct of the school by the association, and

(b) where a former maintained special school is being conducted by an education association, the discontinuance of the school under section 213 of this Act.

( ) In relation to any former maintained special school being conducted by an education association—

(a) section 176 of this Act shall apply as it applies to any maintained special school, but as if the reference in subsection (1) to the school ceasing to be maintained by the local education authority were to its ceasing to be conducted by an education association, and

(b) section 212 of this Act shall apply—

(i) as if the reference in subsection (I) to a grant-maintained school were to a grant-maintained special school,

(ii) as if the reference in subsection (2) to section 29 of this Act were to section 176 of this Act, and

(iii) with the omission of subsection (3).").

The noble Lord The noble Lord said: I spoke to these amendments with Amendment No. 239ZQ. I beg to move.
Clause 216, as amended, agreed to.
[Amendment No. 244L not moved.]
Viscount Astor: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Sexual Offences Bill
Brought from the Commons; read a first time, and to be printed.

Access to Health Records (Northern Ireland) Order 1993
8.36 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran)The Parliamentary Under-Secretary of State, Northern Ireland Office (The Earl of Arran) rose to move, That the draft order laid before the House on 8th March be approved.
The noble Earl said: My Lords, the purpose of the draft order is to introduce for Northern Ireland provisions corresponding to the Access to Health Records Act 1990, which came into operation in Great Britain on 1st November 1991.
It may be helpful to the House if I say a few words about the provisions of the order. Access to computerised health records is already available under the Data Protection Act 1984. The type of records to which this order relates are manually held health records prepared by health professionals in respect of individual patients. The right of access to these records will be exercisable by the patient concerned or his or her nominee, his or her authorised representative, the parents in the case of a child or other legally-authorised person.
There will be certain exemptions from the right of access, principally where disclosure of information would, in the opinion of the record-holder, result in serious harm to the physical or mental health of the patient or someone else. Information about or provided by some other identifiable individual, other than a health professional, is also exempt. These exemptions also apply under the Data Protection Act 1984 in relation to computerised health information.
The order also provides a mechanism whereby a patient may apply to a record-holder for correction of information which he or she considers to be inaccurate. The record-holder should then make the necessary correction unless it is considered that the information in the record is correct. In this event a note should be added to the record indicating the points in dispute. In either case, the patient should be supplied with a copy of the corrected record or a note of the disputed points.
Where a person seeking access to his or her health records feels that any provision of the order has not been properly applied in his or her case, application may be made to the court for an order requiring

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compliance. Such application will normally follow completion of complaints procedures which will be set out in regulations to be made by the Department of Health and Social Services under Article 10(2) and (3). We consider that the order will be a useful measure in the extension of people's rights to information, and that it should contribute to improvements in doctor/patient relationships. I beg to move.
Moved, That the draft order laid before the House on 8th March be approved.—(The Earl of Arran.)
Lord Prys-Davies: My Lords, we believe that this order is a very good one. I thank the Minister for explaining its background and principal provisions. It widens individual rights, and I believe that its very existence will tend to ensure that the written record is correct. As the noble Earl so rightly said, the order is based on the Access to Health Records Act 1990. That Act originated as a Private Member's Bill but supported by the Government. I recall with great affection and sadness that it was introduced to your Lordships' House by the late Lady Ewart-Biggs, who, as I am sure your Lordships will recall, was genuinely and deeply interested in the affairs of Northern Ireland and the well-being of its citizens. We are profoundly grateful for her personal bravery and for her contribution to the improvement of inter-community relations in Northern Ireland.
It saddened Lady Ewart-Biggs that the 1990 Act could not be extended there and then so as to apply to Northern Ireland. She could not see why the people of Northern Ireland should be denied for a single day the principle of access to medical records which would be available to citizens throughout Great Britain by virtue of the 1990 Act. I am sure that Lady Ewart-Biggs, had she been with us, would therefore have welcomed the order warmly.
So far as I can see, apart from Article 13, which appears to update the law to reflect the Human Fertilisation and Embryology Act 1990, the order is virtually identical in terms to the 1990 Act, which, as the Minister said, came into operation on 1st November 1991. But this order will not come into force until late summer or, more than likely, early autumn. It will not be retrospective. I accept that. But this raises an important issue. Where proposed GB legislation confers new rights upon the citizen and is seen to be just as relevant for the citizens of Northern Ireland as it is for the people of England, Wales and Scotland, why is Northern Ireland denied access to the legislation for two years and, in many cases, possibly longer than two years?
Having read the record of the discussion on the order which took place in the Standing Committee on Statutory Instruments in another place the other day, I anticipate that the Minister may plead that such delay is inevitably occasioned by the need for consultation in Northern Ireland. I suggest that that explanation would beg another question. Is there any good reason why the appropriate Northern Ireland department cannot commence consultation at a much earlier stage, possibly while the proposed GB legislation is still on the drawing board and when the GB authorities are consulting in England, Wales and
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Scotland? I wonder whether the department in Northern Ireland can give consideration to that. It is a simple reform which could and should be built into the system. Otherwise, people in Northern Ireland can justifiably point to a denial of important rights.
Finally, perhaps the Minister can confirm that the terms of the order are as extensive as the 1990 Act. That appears to me to be the case but I could have missed a point or two. I shall also be interested in the comments of the noble Lord, Lord Holme of Cheltenham, as I believe that he has a very special interest in the question of access to records and official information. With those few reflections, it gives me pleasure to support the order from these Benches.
Lord Holme of Cheltenham: My Lords, this is one of those happy occasions when there is sunny unanimity on all sides of the House. We all support the order, although, like the noble Lord, Lord Prys-Davies, I regret that something so valuable has taken so long to reach the people of Northern Ireland. I thank the noble Earl, Lord Arran, for the terms in which he introduced the order and I should like to associate myself with the remarks of the noble Lord, Lord Prys-Davies, about the late Lady Ewart-Biggs, who was such a good friend of the people of Northern Ireland and who was a doughty fighter for freedom of information. I am sure that the noble Lord in turn would acknowledge that the original source of the Bill was as a Private Member's Bill in another place. It was introduced by my honourable friend Mr. Archy Kirkwood, who, if I recall, won the freedom of information award for his role in introducing the Bill.
On these Benches we think that the order is desirable not just on general grounds of freedom of information, to which there has been a long commitment on these Benches, but also specifically because mistakes can be made in records which need to be brought to light for the benefit of the patients concerned. The Northern Ireland citizen's advice bureaux told me that in a recent case there was confusion over diagnosis and a shuffling of cards. As a result one patient was told quite incorrectly that he had liver cancer and was treated accordingly for two years before the doctors finally became aware of the mix-up in the medical records. That kind of thing, as all of us know, can happen. Fortunately, it does not happen too often, but patient access to records is prudent in the interests of better medicine. I believe that patients are almost invariably better trusted with their own medical secrets rather than being kept in the dark about them.
I should like to ask the Minister a question. Article 4 of the order, under the definition of professionals, does not include social workers, although, interestingly, it includes, for instance, music and art therapists. I know that this is a point on which the British Medical Association in Northern Ireland has corresponded with the noble Earl. Since this is very specifically his area of authority and expertise in the Province, I wonder whether he would be good enough to tell us what conclusions he has come to about the role of social workers in this matter. With that one question we are pleased on these Benches to support the order.
The Earl of Arran: My Lords, I am grateful for the careful and thoughtful way in which this order has been debated. I say to both noble Lords that I well remember the dedication and devotion of the late Lady Ewart-Biggs in such matters, particularly those relating to Northern Ireland.
The order has its origins in pressure from people who wanted access to their health records and from health professionals who recognised the benefits of open relationships with the people they care for and attend.
The noble Lords, Lord Prys-Davies and Lord Holme of Cheltenham, asked about the reason for the delay in introducing the order. The Access to Health Records Act came into operation on 1st November 1991. There were a number of delays in preparation of the draft order, including some caused by the general election and by the extended consultation period necessary for the proposal. The proposal attracted some 25 replies, and consideration of those replies and other matters gave rise to a number of minor amendments to the draft order, none of which affected the fundamental principle of the patient's right of access. Having said that, we are always very anxious indeed to ensure that Northern Ireland legislation reaches the statute book with the minimum of delay following the comparable GB legislation. I can certainly confirm to the noble Lord, Lord PrysDavies, that the order is as extensive as the 1991 Act.
The noble Lord, Lord Holme of Cheltenham, asked about social workers. Statutory rights of access to manually held social services records and personal health information contained therein are subject to the provisions of the Access to Personal Files and Medical Records (Northern Ireland) Order 1991 but Part II of the order which provides for such access is not yet operational, pending the making of regulations setting out the conditions under which access may be given. Regulations are currently being drafted under the order and are expected to be made during 1993. As soon as those are in place Part II of the order will be brought into operation. Although the statutory right of access to social services records has yet to be given effect, administrative procedures are in place within each Health and Social Services Board which allow for client access to social services records under conditions broadly comparable to those to be contained in the proposed regulations.
Finally, I should just make clear that this order does not introduce major changes of policy for health
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bodies or professionals; rather it extends the established principles and procedures of patients' access to cover all health records.
On Question, Motion agreed to.

Social Security (Amendment) (Northern Ireland) Order 1993
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 10th March be approved.
The noble Earl said: The Social Security Administration (Northern Ireland) Act 1992 and the Social Security Contributions and Benefits (Northern Ireland) Act 1992, which consolidated Northern Ireland social security law, came into force on 1st July 1992. Inadvertently three provisions, repealed in consequence of the consolidations, were omitted from the consolidating Acts. The purpose of this order, which is short, containing only three articles, and made under paragraph 1(4) (a) of Schedule 1 to the Northern Ireland Act 1974, is to restore the statute book to its pre-consolidation position. I very much hope that your Lordships will support this order. I beg to move.
Moved, That the draft order laid before the House on 10th March be approved.—(The Earl of Arran.)
Lord Prys-Davies: My Lords, again I thank the Minister for his explanation of this very brief order. We accept the explanation; namely, that the order provides for three detailed provisions which were inadvertently left out of the consolidation orders. I am sure that the Minister can give me an assurance that these provisions do not effect any change in the substantive law as it stood prior to the consolidation order. If that is the case, then I do not believe that we should be concerned that they appear to be in breach of the principle of no retrospective legislation. That is a principle which the House rightly holds dear. Therefore, on that assumption on which I am sure that the noble Earl can be reassuring, we fully support the order.
The Earl of Arran: My Lords, I thank the noble Lord, Lord Prys-Davies, for his understanding remarks concerning this particular order. I can give him the assurance which he seeks that there is no substantive change.
House adjourned at seven minutes before nine o'clock.