HL Deb 27 October 1993 vol 549 cc919-26

7.21 p.m.

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 18th October be approved.

The noble Lord said: Before commenting in detail on the more significant provisions, I must advise your Lordships as to the reason for the withdrawal and re-laying of this draft order.

Essentially, this was to correct an omission from the text to provide powers for regulations which would enable the reduction of capital grant in certain circumstances. As originally laid, the order would not have re-enacted these powers, previously approved by this House, for the recovery of enhanced value of the proceeds from surplus school or college property. The revised order ensures the continuity of that provision. The opportunity has also been taken to correct a similar deficiency relating to grant-maintained integrated schools.

The order will provide compulsory powers for competitive tendering by education and library boards, create a new category of voluntary school, which would be eligible for 100 per cent. capital grants, and make provision for the funding of higher education in Northern Ireland. It also makes a number of amendments to the Education and Libraries (Northern Ireland) Order 1986 and the Education Reform (Northern Ireland) Order 1989.

The order was considered by a wide range of educational interests in. Northern Ireland and a number of useful comments were received. I am indeed grateful for the interest shown by those who took the trouble to respond.

I believe it will be helpful to your Lordships if I say a few words about the main provisions of the order. The Government's policy of promoting the most efficient use of public resources by subjecting public services to external comparison with the private sector is now well established throughout the United Kingdom and considerable savings have been generated. The provisions in Parts II and III of the order will make arrangements for competitive tendering by education and library boards similar to those which currently apply to district councils in Northern Ireland. Indeed, most of the activities defined in the order have already been, or are planned to be, submitted to the competitive tendering process. However in spite of this progress we consider it necessary to provide a legislative framework to ensure that all boards have a common foundation for the extension of competitive tendering.

Boards will of course continue to be responsible for the provision of services and they will still have to specify and monitor the outputs and standards of service they require, whether the service is provided in-house by the boards' own direct labour organisations or by private contractors. The legislation will not mean a lowering of standards; rather, it will give a greater choice leading to better services. Furthermore, we are anxious to ensure that the effective use of taxpayers' money will not be put at risk by the possible fraudulent exploitation of the tendering process and additional safeguards have been included in the legislation to combat this.

One of the most significant parts of the order is Article 28 and its related Schedule 2, which introduce an option of 100 per cent. capital funding for voluntary schools. Almost half the schools in Northern Ireland are voluntary and under the present legislation these schools are eligible for 85 per cent. capital funding. Some schools had been having difficulty in raising their share of the capital and this at a time when additional pressure on accommodation was being created by the education reforms. Your Lordships will know that the Standing Advisory Committee on Human Rights highlighted this in its 16th report presented before this House on 27th June 1991.

Last year discussions were opened with the voluntary school authorities who expressed a willingness to operate under different management arrangements, if 100 per cent. capital funding were available. This order now reflects that agreement and will enable those schools which wish to do so to set up a new management structure which is virtually identical to that which currently exists for controlled schools.

I must, however, stress that the new arrangements will not and are not intended to affect the existing ethos of any voluntary school. Furthermore, no school will be obliged to adopt the new arrangements. The arrangements have been widely welcomed by all sectors of the community, and will ensure equity of funding across all schools and promote a greater confidence and trust between the voluntary schools and the public authorities.

The order also makes statutory provision for the funding of higher education institutions in Northern Ireland which, up to now, has rested solely on Parliamentary approval of the Supply Estimates—the legal authority for valid annual expenditure.

Following a recent report by the Public Accounts Committee new statutory powers in Article 31 will complement the tighter controls currently being exercised in awarding premature retirement compensation to teachers.

Noble Lords will remember that when education reforms were being introduced, the Government established two separate bodies—the Northern Ireland Curriculum Council and the Northern Ireland Schools Examinations and Assessment Council—to ensure that all the major new developments in both the curriculum and assessment should be advanced with equal priority and purpose. However, the Government believe that the time is right to take forward the development of the curriculum and assessment arrangements as a coherent whole. It has been agreed by all concerned that the best way to achieve that is to amalgamate the two existing councils into a single body, to be known as the Northern Ireland Council for the Curriculum, Examinations and Assessment.

As I said at the beginning, I have dealt only with the main provisions of the order. The remaining provisions are largely of a technical or administrative nature. If there are any matters which are still unclear or any other provisions on which your Lordships would like further information I will, as always, do my best to reply. I commend the order to the House.

Moved, That the draft order laid before the House on 18th October be approved.—(The Earl of Arran.)

7.28 p.m.

Lord Prys-Davies

My. Lords, I should like to thank the noble Earl, Lord Arran, for introducing the order. I must say that possibly predictably we are unhappy about many of the provisions of the order but not with all the provisions. I do not often repeat in your Lordships' House the criticism of legislation by means of orders in council, which is one of the penalties imposed on Northern Ireland by direct rule. But I believe that this order is a good example of the defects of orders in council legislation.

It is an order of 50 articles and five schedules, but it lacks unity. It embraces a strange admixture of about a dozen main but different matters which are unrelated. The Minister could have said that it deals with works contracts, supply contracts and exclusion of non-commercial considerations, amalgamation of institutions of further education, capital grants to schools and management of schools, funding by the department of the institutions of higher education, powers of the board to undertake commercial activities, setting up of the curriculum, examinations and assessment council, schools that are established in hospitals, standards of school premises, suspension and expulsion of pupils, salaries and conditions of employment of teachers, charges for library services and the curriculum in key stage 4.

I was particularly glad that the order deals with the premature retirement of staff and recovery of compensation costs because that is an issue to which we have referred in previous discussions in this House.

I am all too conscious of my own inadequacy in dealing with that extensive range of subjects. I collected a copy of the order last Thursday afternoon. To the best of my knowledge, we have received no briefing from the department, nor do we have notes on clauses. We always acknowledge that direct rule is harsh. But while it lasts, surely there is a duty on the Northern Ireland departments to ensure that the Opposition parties are informed about the results of the consultations; sometimes they are very wide-ranging consultations.

Surely the Opposition spokesmen should be briefed regarding the main provisions and the changes which they make. It simply is not good enough that this kind of order should parachute onto our desks without some kind of background material. Therefore I ask the Government to bear in mind the need to mitigate some of the mischiefs of legislation by Orders in Council by ensuring that we are fully briefed about them. We must have that briefing if Parliament is to attempt to do justice to the contents of the orders.

In the time available perhaps I may be allowed to pick out around half-a-dozen of the articles which concerned me as I read through the order and to ask a few questions of the Minister. First, there are the complex Articles 20 and 21 which deal with exclusion of non-commercial considerations. I am sure that those articles require examination in depth by those who are competent to undertake it. But I raise one point by way of example.

Following the Local Government Act 1988, the education and library boards will in general be precluded from taking non-commercial matters into account in awarding contracts. That is clear from the order. The order enables the boards, where it is permissible under Article 21(4), to make a request in writing, for evidence in support of an answer to the question". That is a significant part of the article. However, I understand that in Great Britain the Secretary of State alone has the authority to specify the questions which are to be approved questions. I have not spotted a similar provision in this order; I may have missed it. If there is such a provision, can the Minister tell the House what are the approved questions? On the other hand, if the provision is absent from the order, may we know why it is absent?

I move on to Article 22(5) and note the role given to judicial review. But I see that there is a limit on the damages that can be recovered from an action for judicial review. Is there a precedent for capping the damages as proposed in the order?

I have a question arising out of Articles 26 and 27, which govern the amalgamation of institutions of further education. On such an amalgamation the institution concerned may have charitable trust funds. As I understand it, the funds will be transferred automatically to the new institution. Is it right that that should be so? Surely serious regard must always be had to the terms of the trust deed. We say that the trustees, and the settlor if he is alive, should be consulted at least before the trust funds or trust property are transferred to a different institution. If it is apparent that a transfer of the funds or property would be in breach of the terms of the trust deed, it should be a requirement—unless the trustees consent by their unanimous resolution—that the terms of the trust deed be modified.

I understand that there is a similar provision in the Great Britain legislation. One should not so lightly depart, as this order seems to be doing, from the sound principle that a charitable foundation established in perpetuity should continue to exist in a form which is in keeping with the terms and spirit of the trust deed.

Next I turn to Article 30, which empowers the Department of Education to fund higher education institutions, on such terms and conditions as it may determine". I find that to be a sweeping condition. One wonders whether that is the way to deal with universities. Should not there be in place some statutory limitations on the exercise of the power? I am sure that if that kind of provision was introduced in Great Britain legislation, that in itself would merit a three-hour debate.

I turn to two points arising out of Article 39, which relates to the suspension and expulsion of pupils. A board is under a duty to provide an appeals procedure against a decision to expel a pupil. That we welcome and I believe it follows the Great Britain legislation. But under Article 49(6) a pupil cannot appeal against a decision unless he or she has attained the age of 18. Why has the age limit been fixed so high? One would have thought that that was contrary to the spirit of the UN Convention of the Child which the UK ratified about two years ago.

Article 39 provides that a parent may appeal against the decision. That is fine. But I do not see a provision in the order which places a duty on the school to notify a pupil's parents that their child has been expelled or suspended. That strikes me as an odd omission. It was probably intended that that should be covered in the scheme to be introduced under Clause 49. But I should have thought that the need for notification should be spelt out in the order itself.

Finally, I am troubled that the Government should have spent so much time and effort on producing this order. Although parts of it we welcome, in general it does little to reform the education system in Northern Ireland so that it meets more fully the needs and demands of the young people of the Province. Nevertheless, I am gratified that the Government, albeit belatedly, launched consultations on the reforms which are required. I shall be grateful if the Minister can give the House an indication of when the new legislation, based on the consultative document, Educational Administration in Northern Ireland, is likely to see the light of day. It seems to me that that is the only contribution that I can make in a discussion on this order.

7.30 p.m.

Lord Holme of Cheltenham

My Lords, I thank the noble Earl for the clear way in which he presented this Order in Council. But I must echo the comments of the noble Lord, Lord Prys-Davies, and say that this is an extraordinary way in which to conduct our legislative obligations towards Northern Ireland—in a largely empty House, though I see one or two noble Lords taking an interest. It is a comprehensive and complicated measure, almost a ragbag, in which a number of provisions have been slung together. And, of course, your Lordships' House does not have the ability to amend the order in any way; we simply accept it or reject it.

Having said that, I welcome one element of the order; that is, the emphasis on competitive tendering. Given the massive government expenditure in Northern Ireland, anything which will lead to greater efficacy in the use of government funds—here I include competitive tendering—is particularly welcome. Perhaps when the noble Earl responds he can say what checks the Government envisage introducing under Article 22 to ensure that non-bona fide contractors (your Lordships know the sort to which I refer) do not obtain business in educational contracts of this sort.

I have two other brief queries for the Minister. First, I echo the noble Lord, Lord Prys-Davies, on Article 39. It is curious that pupils must make their appeals through their parents until they reach the age of 18. It is strange that the Government should want to introduce such a provision. The noble Earl will be aware that the North-Eastern Education and Libraries Board, when it was consulted, called for a maximum period for which a pupil may be suspended—this is an additional point—to eliminate lengthy or rolling suspensions. Do the Government have anything in mind to help to ensure that we do not have over-lengthy periods of suspension for pupils?

A different point I should like to raise relates to Article 37. The North-Eastern Education and Libraries Board warned the Government about this. It concerns the provision by boards of education otherwise than at a school and the substitution of the word "shall" in Article. 36(a) and removing the requirement for departmental approval in Article 36(b). Could this not be constructed as meaning that the board is committed to providing home tuition immediately if a child ceases to attend school? My concern is that this would make it hard for pupils to get back to school where that is the better option. In Article 37(b), where the child has special educational needs, the same argument would apply.

Finally, I draw the attention of the House to the remarks of Mr. Michael Ancram in the Belfast Telegraph earlier this week when he said that teachers in Northern Ireland suffer "from considerable overload". That is very serious and bears on the question raised by the noble Lord, Lord Prys-Davies, about the new legislation and the effect of the educational reforms in Northern Ireland. It is fair to say that, amid so much gloom about Northern Ireland at the moment, one bright spot is the quality of education in Northern Ireland. In common with education in Scotland, it has very high standards, an emphasis on traditional values, a very high level of O-level and A-level passes, or whatever their contemporary equivalents are, and altogether a high ethos of achievement that we should be proud of.

I shall be grateful if the noble Earl can reassure us that the Government's intention in all their policies, including this complicated order, is to see that teachers are not overloaded and that the standards of education in Northern Ireland are maintained.

The Earl of Arran

My Lords, as ever, I am grateful to the noble Lords, Lord Prys-Davies and Lord Holme of Cheltenham, for their thoughtful contributions. The noble Lord, Lord Prys-Davies, said that he felt inadequate in the circumstances. If inadequacy means such searching questions, the noble Lord continues to ask some very demanding and appropriate ones. That also applies to the noble Lord, Lord Holme of Cheltenham. I shall attempt to answer the points made by both noble Lords, but if I am unable to do so I shall write very quickly to deal with them.

Perhaps I may first deal with anxieties about the Order in Council procedure. This issue has come up before and I have said that the Government are always willing to listen to suggestions for improving legislative procedures. But there are good reasons why Orders in Council are used for Northern Ireland and any changes could have substantial implications, not least for this House. One particular reason is that the Order in Council procedure allows us to preserve a large corpus of powers which would be readily available for transfer to new political institutions in Northern Ireland.

The noble Lord, Lord Prys-Davies, also suggested that comments on draft proposals should be placed in the Library of the House. I must advise him that consideration has been given to this option. However, it was agreed some time ago that because of restraints and other potential difficulties the best way forward would be to include a summary of the responses in the letters sent to Northern Ireland Members of Parliament and party spokesmen at the end of the consultation period, and this is now established practice.

In relation to the competitive tendering provisions, the noble Lord, Lord Prys-Davies, asked about the nature of the questions which are referred to in Article 21. This provision is necessary to ensure that boards can be satisfied that potential contractors are not unqualified under the terms of the Fair Employment (Northern Ireland) Act 1989. However, there is no requirement for such questions to be formally approved by the department as there is only one question which is required to be asked by contracting authorities to establish whether a person is unqualified in fair employment terms. That question is whether the person/contractor has been served with a notice of disqualification under the 1989 Act.

The noble Lord also asked whether there was any precedent for capping the damages awarded to any person who had taken an action against a board for failing to comply with certain requirements of the order. I can confirm that this is the case. Similar provision is included in the Local Government Act 1989 dealing with local authorities and in the Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1992 covering district councils. On grounds of consistency and fairness it is therefore proper that this order should provide for a similar limitation.

On Article 30, the noble Lord asked about the need to limit or qualify the power of the department to "set terms and conditions" on grants to the universities. It is normal convention that government departments, as grant aiding authorities, should have the necessary power to "set terms and conditions" on grants. I can assure the noble Lord that there is no intention that the substance of the terms and conditions applied in Northern Ireland should differ from the terms and conditions applied in England and Wales, and indeed in Scotland. In a more specific way the terms and conditions applied to grants to the universities will be embodied in a financial memorandum agreed between the department and the universities; and this will be based on similar memoranda applied in Great Britain.

With regard to points raised about the suspension and expulsion procedures and the related appeal procedures, the intention is that these will apply to all pupils in schools. It is reasonable and essential that there should be provision for appeals to be made by parents, but there comes a point when a pupil is old enough to make the appeal. As 18 is the age of majority, it seems a sensible age at which to allow this. That point was also raised by the noble Lord, Lord Holme. While the draft order makes no specific provision for parents to be notified of suspension or expulsions, it empowers the department to make regulations relating to the procedures to be followed. Under existing arrangements, schools are required to notify parents after suspending any pupil. I can assure the noble Lord, Lord Prys-Davies, that these requirements will be continued in the new regulations under the order.

The noble Lord referred to Article 27 and asked whether there should not be a requirement to modify the trust deed when colleges of education amalgamate. Article 27 provides for the transfer of land and property from the governing bodies of the colleges being merged to the governing body of the new institution. The terms of the trust will apply unchanged to the new governing body of the new institution because no breach of the terms of existing trusts is envisaged.

Finally, on the question of when legislation based on the review of education document might be introduced—a point raised by the noble Lord, Lord Holme—no firm timetable for legislation has yet been set. In a statement issued in July this year my honourable friend Michael Ancram indicated that he intended to take time to get the decisions right, and then set a sensible timescale for implementation, once a way forward had been found.

The noble Lord, Lord Holme of Cheltenham, referred to curriculum overload. Northern Ireland has its own statutory curriculum which is being phased into schools over a period of years. There are some worries about curriculum overload in the primary sector in the future when all subjects are introduced. In view of those anxieties my honourable friend Michael Ancram has asked the Northern Ireland Curriculum Council to consult teachers about this and to report back to him with advice next April.

With regard to the period of suspension of pupils, the length of time during which a pupil can be suspended will be covered in regulations.

Regarding how the Government propose to ensure that competition is fair, I can say to the noble Lord, Lord Holme, that the boards will be prohibited from doing anything which has the effect of restricting, distorting or preventing competition. The department will monitor the boards' performance to ensure that these requirements are satisfied. I hope and believe that I have answered the majority of the questions posed by noble Lords. However, if there are some which I have not answered I shall reply as soon as I can.

On Question, Motion agreed to.

House adjourned at ten minutes before eight o'clock.