Lords Sitting of 14 March 1994

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

Dependent Territories
Lord Beaumont of Whitley Lord Beaumont of Whitley asked Her Majesty's Government:
Whether annual reports are submitted to Parliament on the administration and progress of each of the dependent territories and, if not, why not.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, since responsibility for their administration has been increasingly devolved to the dependent territories themselves, it is no longer necessary for Her Majesty's Government to produce such reports. Some territories produce their own reports; all are encouraged to do so. When available, these reports will be placed in the Library.
Lord Beaumont of Whitley: My Lords, I thank the Minister for that Answer. Does she think, in view of the quite large numbers of people who are the direct responsibility of this Parliament, however devolved the administration might be, that it would be a good thing if debatable reports were produced for Parliament at regular intervals?
Baroness Chalker of Wallasey: My Lords, we have good reporting from the dependent territories. The Cayman Islands is one of the dependent territories which produces reports. If this House wishes for a debate on those islands, as took place on 9th February, it is perfectly possible to arrange that through the usual channels. But given the way that the self-determination
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of the dependent territories is progressing, a formal report is not necessarily of interest. Reports on specific aspects of their work are from time to time requested, and are certainly used, both by the Foreign Office diplomatic wing and my own aid wing.
Lord Boyd-Carpenter: My Lords, arising out of the last part of my noble friend's Answer, is it not the fact that any noble Lord or any Member of another place can table a Question relating to these countries if there is a matter worth raising? Is it not much better to leave it at that rather than produce a whole series of routine reports to which possibly very little attention is paid?
Baroness Chalker of Wallasey: My Lords, I have a great deal of sympathy with what my noble friend Lord Boyd-Carpenter said. It is important to concentrate the reporting that is done on the specific needs of individual dependent territories so that we deal with the challenges that they face in partnership with them, but in a way which can be a better use of time than the generalised report.
Lord Avebury: My Lords, at what intervals are reports obliged to be made to the United Nations Committee on Decolonisation? Are those reports invariably placed in the Library of the House?
Baroness Chalker of Wallasey: My Lords, without checking I cannot be certain, but I believe that that is so.
Lord Gridley: My Lords, am I right in assuming that at the conference of dependent territories that was held a short time ago at Queen Elizabeth Hall, they were very keen to get our advice in a changing world in which more and more nations are becoming independent? With our experience, capacity and reputation throughout the world, having got peace and enjoyment in some of those territories in our association with them, does the Minister agree that it is a compliment that they asked us? Should we not try to come in on this matter and take advantage of it?
Baroness Chalker of Wallasey: My Lords, my noble friend is absolutely right. The conference on the

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dependent territories was indeed most useful; as we also find the dependent territories' regional secretariat in Bridgetown, which looks after the Caribbean dependent territories. What is important is that they all know that they have access to us when they need it, and that we respond to the individual needs that they have.
Lord Bruce of Donington: My Lords, whatever reports are ultimately published, will the Government bear in mind that it is quite unnecessary to have the glossy productions in colour? Normally speaking those reports cost between £4 and £5 each and in the case of those published by Her Majesty's Government represent a gross waste of money?
Baroness Chalker of Wallasey: My Lords, at a time when it is sometimes difficult to attract the attention of the public to some of the affairs of government, making reports more readable and more understandable is quite important. Whereas the noble Lord and I may agree on some matters, I believe that the improvement in government printing is a means by which one can better explain what is going on in a way that the reader will take in, and perhaps even remember.
Baroness Blackstone: My Lords, I accept what the Minister said earlier about self-determination, but will she reconsider her Answer to the noble Lord, Lord Beaumont of Whitley? I received this morning in my post—perhaps fortuitously—a background brief on the dependent territories from the Foreign and Commonwealth Office. It seems to me to form the basis for a report on the dependent territories which could go in the Library. It covers them all; it is fairly short; it is not at all glossy; and it would not cost a great deal.
Baroness Chalker of Wallasey: My Lords, I am grateful to the noble Baroness for bringing to the House one of our regular pieces of information. The difficulty is that too many people, on seeing it, do not have her alert eye and put it straight in the wastepaper basket. I am delighted that she obviously finds it useful. I shall make sure that it is in the Library and that any other noble Lords who wish to have a copy of it will receive one.

NHS: Patient Statistics
2.44 p.m.
Baroness Jay of Paddington Baroness Jay of Paddington asked Her Majesty's Government:
On what data they base their claim that more people are being treated by the National Health Service since the introduction of the "internal market".
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the data are based on information collected directly from the health service, including Körner data.
Baroness Jay of Paddington: My Lords, I am grateful to the Minister for that reply. Perhaps I may ask her for a little more detail? Is she aware that many
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people working in the health service and those using it find difficulty in understanding that the present system of arranging data for patients treated in the health service is based on the somewhat artificial concept of completed consultant episodes, in which people moving about the hospital or within the system are separately counted each time they move? Does that in fact support the Government's repeated assertion that more people are being treated? In the real world waiting lists have increased by some 29,000 in the past three months and there are now nearly 2 million people waiting in this country.
Baroness Cumberlege: My Lords, perhaps I may take the waiting list figures first. In 1987 there were more than 200,000 people waiting over a year. The figures published in September 1993 show that just over 71,000 people were waiting. That is a drop from 200,000 to 71,000. In 1987, 90,000 people were waiting over two years. Today, nobody in the regions is waiting over two years. So we have seen tremendous progress with waiting lists.
With regard to the information that is collected, prior to using finished consultant episodes, the data used to be based on deaths and discharges. People in the health service found that very unhelpful because it was impossible to tell whether people were leaving by the front gates or the pearly gates. The information that we now collect shows what activity happens within the hospital. It also shows the workload of individual consultants, which the National Health Service is very eager to assess.
Lord Ennals: My Lords, is the Minister aware—though there is no reason why she should be—that my wife was admitted to hospital five times in the past 12 months, so far as I know for different conditions? Can the Minister say whether my wife was counted as five people or one person? Secondly, we often hear stories of the increase in numbers being treated. Does she feel that it would be helpful to have statistics for the numbers of people treated in the health service?
Baroness Cumberlege: My Lords, if five different consultants were involved, it would be counted as five finished consultant episodes. One of the difficulties is that people now come into hospital with a multiplicity of problems. Therefore it is important that we know exactly what happens to them when they are in the hospital and which consultants treat them. That is why we have adopted the new process of counting. The process has been in use since 1988 when for three years we used both systems so that we could measure the difference. The difference is about 3 per cent. When we say that 100 patients were treated in 1990–91 and last year 112 were treated, that is using the same baseline.
Lord Dean of Harptree: My Lords, does my noble friend agree that the figures that she has just given amply prove that the "internal market" is working very effectively?
Baroness Cumberlege: Yes, my Lords, we know that more patients are treated year on year.
Lord Mellish: My Lords, in order to help the House generally, will the Minister give us some indication of the number of nurses and doctors and how much money has been spent in the past 10 years on the National Health Service?
Baroness Cumberlege: My Lords, I do not have those figures with me this afternoon, but I shall very gladly place them in the Library.
Lord Stallard: My Lords, in the context of this Question, will the noble Baroness accept that such information about separate consultant episodes is misleading? Without straining too hard, I can think of someone who has had 11 admissions and related discharges. That patient has been in hospital 11 times. That is one patient, but according to your statistics she is counted as 11 patients. Does the Minister agree that that must cause confusion to people who are looking at the figures in the context of this Question?
Baroness Cumberlege: My Lords, the basis on which we compile our figures of more people being treated goes back to 1988 so we can make a direct comparison. We are using the same baseline for the number of people treated as for finished consultant episodes. On that basis we know that we are treating more people year on year not only as in-patients but as day-case patients as well. We are also improving the health of the nation. When we look at GP activity in surgeries and health centres, we see that general practitioners are also exceeding the targets they were set two or three years ago.
The Countess of Mar: My Lords, the noble Baroness gave the waiting list figures up to September 1993 First, does she have more up-to-date figures? Secondly, do the Government find it acceptable that a number of hospitals now say that they are not admitting any more patients to the waiting lists unless they happen to be patients of fund holders?
Baroness Cumberlege: My Lords, I do not have any further validated information this afternoon beyond September last year. With regard to patients of GP fund holders being admitted, we have made it very clear to the National Health Service that there should be common waiting lists for urgent cases and that GP fund holder patients should not get priority treatment. When hospitals have completed the contract that has been set by the district health authority, we are seeing spare capacity being used quite properly by the patients of GP fund holders.
Lord Skelmersdale: My Lords, will my noble friend accept that the health of the National Health Service is better described in terms of completed consultant episodes rather than waiting list figures? Waiting list figures will always be necessary because, regretfully, with the best will in the world from all sides, there will always be a need for the rationing of treatment in the health service.
Baroness Cumberlege: My Lords, I agree. It is important that we look at the activity within the health service. It is not the numbers of people who are waiting
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for treatment that matter; it is the time that they wait. We know that half of all admissions to hospital are immediate; of those admitted from waiting lists, almost half are admitted within five weeks, nearly three-quarters within three months and 98 per cent. within a year.
Lord Molloy: My Lords, I acknowledge the fact that the Minister's department will do its best to deal with this serious problem, but will the noble Baroness be prepared to consider discussing these matters with, the British Medical Association and UNISON? They are waiting to be consulted because they believe that they can assist the department in trying to resolve this difficulty.
Baroness Cumberlege: My Lords, I do not believe that there is a problem in terms of the activity within the National Health Service. We are investing more; we are seeing more professional staff employed; we are seeing more people treated. That is a success, not a problem. We make a point of working with the professional organisations such as the BMA, the RCN and others. The guidelines drawn up with GP fund holders were the result of an agreement reached by the consultants working within the National Health Service.
Baroness Jay of Paddington: My Lords, does the noble Baroness agree that the discussion this afternoon reveals that there is confusion around this complex method of adopting statistics on consultant episodes? Why is it not possible to reinstate the old system of deaths and discharges? Does the noble Baroness also agree that, on the validated statistics on waiting lists that were quoted, the number of those waiting for more than a year has risen by 30 per cent. in that period?
Baroness Cumberlege: My Lords, there is no question of going back to the old system of accounting. As I explained, the problem with deaths and discharges is that that system does not show us what is happening in the hospital. For the patient, the difference between death and discharge is considerable. It is not as great a problem as the noble Baroness implies, and the longer this system runs the easier it will be to make comparisons.
Baroness Jay of Paddington: My Lords, will the noble Baroness please reply to my question regarding the 30 per cent. increase in the number of people waiting for more than a year?
Baroness Cumberlege: My Lords, we know that the number of people waiting over a year has markedly improved since 1987. There are of course fluctuations and at the moment we may be seeing an increase. However, we are still meeting the target of 18 months' wait for hip replacements, 18 months' wait for cataracts and nobody waiting for more than two years.
Baroness Nicol: My Lords, does the waiting time quoted by the Minister include the time spent waiting to see a consultant or is it counted from the time the patient sees the consultant?
Baroness Cumberlege: My Lords, it is counted from the time that the patient is referred by the general practitioner.

Laser Weapons
2.54 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they are among the governments reported by the International Red Cross (IRC) to be developing a portable laser gun which permanently blinds its human target, and whether they will respond to the IRC's call that such weapons should be banned under the Geneva Convention.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My Lords, the United Kingdom currently has no plans to develop portable laser weapons for introduction into service in the Armed Forces, or any other laser weapon designed permanently to blind human targets. A conference has been called for 1995 to review the 1980 UN Weaponry Convention in which the UK will play a full part.
Lord Jenkins of Putney: My Lords, I am grateful to the Minister for that Answer. Can I assume that the Government will continue to have no plans or is the noble Viscount saying that they have no plans now but tomorrow may develop them? Can he assure us that, when they take part in the coming review, they will still have no plans and no intentions?
Viscount Cranborne: My Lords, I admire the ingenuity of the noble Lord, Lord Jenkins. I cannot bind any successor government. All I can say is that we have no plans. If we have no plans, it is difficult to suggest that we can see a possibility that there will be plans in the future. After all, if we have no plans now and see no reason for them, there is no reason to second-guess ourselves.
Lord Renton: My Lords, can my noble friend say whether any other government have such plans?
Viscount Cranborne: My Lords, as usual my noble friend makes a good point. However, United Kingdom research is being carried out to design effective protection measures for the United Kingdom forces against laser weapons. Indeed, protective goggles issued to air crews for "Operation Granby" in the Gulf were a direct result of that research. The United Kingdom continues to maintain a lead in that technology.
Lord Mayhew: My Lords, is the Minister aware that his last answer suggests that this is a serious problem and that other countries are in fact planning weapons of this kind? Can he assure us that, when the conference takes place, the British Government will be striving for a convention to ban those weapons?
Viscount Cranborne: My Lords, the noble Lord, Lord Mayhew, may be interested to know that the United Kingdom Government played a full part in the
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preparation leading up to the 1995 conference. Indeed, the first session was held in Geneva from 28th February to 4th March this year. We look forward to considering other amendments or additions to the existing convention.
Lord Ennals: My Lords, I wonder whether the Minister can go a little further. He will understand that many people in this country are a little suspicious of the phrase "have no plans". A week later someone comes up with a plan and it is suddenly announced. Can the Minister say, in answer to my noble friend's question, that the British Government are opposed to these weapons and will seek to promote a convention against them?
Viscount Cranborne: My Lords, it would be unwise to rule out the development of all laser weapons for ever. It is possible that a laser weapon could be produced that produces a less serious effect than when somebody is shot. In fact, there could be a temporary rather than a permanent effect. If that were possible, I for one would welcome it. There would be fewer dead and maimed under those circumstances than under the present dispensation of weapons.
Lord Williams of Elvel: My Lords, does the noble Viscount agree that, if there is to be a convention, it should be effective and verifiable? Is the United Kingdom conducting research not only to protect our own Armed Forces but also into how it can be verified that a country does not possess laser guns?
Viscount Cranborne: My Lords, I am grateful to the noble Lord, Lord Williams; what he says is true. He will be aware, as I am, that research being conducted into chemical and biological technologies is directed against exactly the same eventuality in this country. I am sure that he, like myself, would support that objective.
Lord Jenkins of Putney: My Lords, is the noble Viscount aware that, if the Government take the same view about these weapons as they have taken in regard to biological and chemical weapons, then the issue will be on the convention and that will be as satisfactory a response as one can get in these matters? Will the Minister say therefore that the Government's attitude will be the same as their attitude towards biological and chemical weapons?
Viscount Cranborne: My Lords, I do not wish in any way to seem churlish. To find myself even half-way in agreement with something said by the noble Lord, Lord Jenkins, is a pleasure which I find rare in your Lordships' House and, with your Lordships' permission, I will savour it for some days to come.

Armed Forces: Welfare of Disabled
2.59 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they will consider what steps can be taken to improve the co-ordination between

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government departments in handling the problems of those disabled while serving with the Armed Forces of the Crown.
Viscount Cranborne: My Lords, the Government keep under review the co-ordination between departments in handling the problems of those disabled while serving with the Armed Forces of the Crown. A detailed study into the welfare, rehabilitation and resettlement of servicemen and women on medical discharge from the services was conducted by the Ministry of Defence in 1991 and the work of the Services Medical Discharge Welfare Committee in particular, which was set up in 1990, was reviewed.
Lord Peyton of Yeovil: My Lords, I am grateful to my noble friend for that Answer. Does he agree that as time passes the burden of disability —the pain—becomes more serious? Does he also agree that as memories of major wars fade so there is at least a danger of a weakening of understanding and sympathy? Since there are no fewer than 17 departments handling the problems of the disabled, it would not be going too far to assume that there is room for better co-ordination and improved focus.
Viscount Cranborne: My Lords, I am grateful to my noble friend for raising this important question. He is absolutely right that the pain becomes more serious and indeed that the memories of past wars fade. The committee to which I referred in my original Answer meets every six months and brings together all those who have an input on the subject, including medical and personnel staff from the Ministry of Defence, the three services, representatives from the Department of Social Security and the Department of Health and, of course, from ex-service organisations. We are always looking at ways of improving that co-ordination. We are never perfect but we think that it is improving all the time.
Lord Merlyn-Rees: My Lords, I declare an interest as a war pensioner, as my father was before me, and I wish to pay tribute to the work that has been done in recent years. It is a good deal better than it used to be. There is no doubt about that. In the work that I do I come across people in the Royal Air Force who dived in their aircraft from 22,000 feet down to 5,000 feet and whose lungs increasingly get worse than they thought they were 10 or 15 years ago. Who co-ordinates the activity; who or what in government co-ordinates? It cannot be a committee meeting every six months.
Viscount Cranborne: My Lords, the committee to which I referred is the overall co-ordinator. It delegates certain areas to departments concerned. I can perhaps help the noble Lord by instancing the War Pensions Directorate, in which he has already declared a direct interest, which formed in 1992 a body known as the Current Invaliding Group. It is a team based at Norcross which deals specifically with disabled claimants and liaises with other interested departments.
Lord Skelmersdale: My Lords, will my noble friend issue an invitation, although it is quite difficult for him to do so, to take my noble friend Lord Peyton and the noble Lord, Lord Merlyn-Rees, up to the war pensions
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department of the Department of Social Security in Blackpool for them to see exactly what is going on and how much better, as the noble Lord, Lord Merlyn-Rees, said, the situation now is compared with 10 or even five years ago?
Viscount Cranborne: My Lords, I am most grateful to my noble friend for that suggestion, but I think that my noble friend in the department would feel it was rather impertinent of me to issue invitations to visit government departments for which he is responsible. However, I am sure that my noble friend the Minister will have heard what my noble friend said. Perhaps he and I can both encourage him to issue that invitation and perhaps I will be able to accompany noble Lords on that visit.
Earl Russell: My Lords, does the Minister agree that the remarks made by the noble Lord, Lord Merlyn-Rees, about disabilities that are worse than people thought they were apply also to the British nuclear test veterans? Is there a case for further review of their condition in the light of the onset of open government in Washington?
Viscount Cranborne: My Lords, I am sure the noble Earl will be as well aware as I am that the National Radiological Protection Board has finally issued the report which many of your Lordships were so keen for it to issue somewhat earlier than it felt able to do. The contents of that report made it perfectly clear that there was no evidence to support the very broadly held contention that the nuclear test veterans suffered any greater incidence of cancer than the rest of the population.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that there are a number of war widows whose husbands served with the New Zealand forces and as a result receive a substantially smaller pension than those widows whose husbands died with Her Majesty's forces from this country? Will my noble friend do something about it? These ladies are war widows. They lost their husbands serving the Crown and they live in this country.
Viscount Cranborne: My Lords, I am grateful to my noble friend for drawing my attention to the plight of these ladies. I shall pass on his message to my noble friend who is responsible for these matters.
Lord Ashley of Stoke: My Lords, is the noble Viscount aware that I support the points made by the noble Lord, Lord Peyton, and by the noble Earl, Lord Russell? Will he also bear in mind a group of very loyal ex-servicemen who were disabled in the service of the Crown by alleged negligence? They campaigned against Section 10 of the Crown Proceedings Act which denied them the right to sue for compensation. They were successful. But when that section was repealed the Ministry of Defence said that they would not benefit because there was no retrospective provision, even though there are many precedents for retrospective legislation. Those loyal men are deeply embittered. Will the Government look again at their claim ?
Viscount Cranborne: My Lords, I always listen to the suggestions of the noble Lord, Lord Ashley, with the keenest of interest, but I think he knows as well as I do that it is not possible for us to look retrospectively at matters of this kind; just as it is not, for instance, for matters of pensions where much the same strictures apply. I am sorry to have to disappoint the noble Lord, but I am afraid I must answer no.
Lord Annan: My Lords, is not the answer to the very pertinent question asked by the noble Lord, Lord Merlyn-Rees, this: it is the duty of the chairman and of the secretary to the committee to chase problems which are outstanding. A committee cannot chase things but the chairman can, and should.
Viscount Cranborne: My Lords, the noble Lord's experience in these matters is well known to your Lordships. Certainly I fully agree with him.
Lord Molloy: My Lords, bearing in mind that the Royal British Legion has to deal with 17 government departments and that we are all finding this somewhat difficult, would he please be prepared to talk with Colonel Creasy, the secretary-general of the Royal British Legion—I am proud to be the national vice-president—to see whether some other system can evolve to help British ex-servicemen?
Viscount Cranborne: My Lords, I am well aware of the noble Lord's interest in these matters. We all admire him for it. Equally, I would certainly yield to no one in my admiration for the work of the Royal British Legion. However, I must say to the noble Lord that suggestions, for instance, for a department of veterans' affairs do not sit very well with me because I feel that in the end we are only talking about introducing another layer of bureaucracy, of which there is more than enough in government circles as it is.
Lord Peyton of Yeovil: My Lords, I am very grateful to my noble friend for the understanding he has shown. I want to make only one point which has already been referred to by the noble Lord, Lord Annan. Too much faith in a committee could be misplaced. One really needs the edge which can be contributed only by an effective leader.
Viscount Cranborne: My Lords, I have already agreed with the noble Lord, Lord Annan. The chairman of the committee is in the end responsible for its actions.

Education Bill [H.L.]
3.7 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 11 [Power of schools to provide courses of initial teacher training]:
Lord Judd Lord Judd moved Amendment No. 62:
Page 6, line 19, leave out from ("teachers") to end of line 22 and insert ("in partnership with and accredited by an institution of higher education.").
The noble Lord said: In moving this amendment I hope it will be in order to say a few words about Amendment No. 68A as well. We see this as an essential amendment. Without it schools could well be able to design teacher education courses not accredited by higher education institution and even without a higher education input. In consequence, local certificates of education could emerge which would carry little weight beyond their local neighbourhood and which would fail to provide the guarantee of quality which parents and governors are entitled to expect and, similarly, which existing members of the teaching profession should be able to expect of those working beside them. In any case, it must surely be wrong for schools to become diverted from their main exacting responsibility of teaching pupils by dabbling in the training of teachers.
Teacher education could easily become highly parochial with individual schools choosing their students, training them, assessing them and awarding their qualifications. That would be an unhealthy, introspective system likely to diminish equality of opportunity in terms of entry to the profession and all too likely to result in a myopic recycling of a school's existing attitudes and practices. It certainly would not be a convincing way to stimulate open minded and creative newcomers into the profession.
Governing bodies are already shouldering considerable and extended responsibilities, frequently without a great deal of the necessary relevant experience and all that that entails. To encourage them to take on further responsibilities for initial teacher education is inevitably a high risk strategy. The future of our children and the quality of the teaching to which we entrust them is far too important to be played about with in this kind of way. Indeed, to my knowledge, staff at many schools already express concern and disappointment that members of their governing bodies apparently do not have sufficient time regularly to visit and to get to know the schools for which they are responsible in order to understand the implications of their policy-making role. Schools are complex, living organisms about life and people; they are not just about profit margins. Against that background it is not just questionable but, I suggest, clearly irresponsible to tempt governing bodies into taking a new, demanding responsibility for initial teacher education on top of everything else.
We on these Labour Benches are convinced that it is vital that teacher education retains a significant higher education input and that the qualifications obtained by trainee teachers are invariably of graduate status. This month, amidst all the upheavals in education, a 6 per cent. fall in applications for initial teacher education has been recorded. If the teacher qualification were no longer to have graduate status inevitably fewer people would apply for it because of its loss of transferability. Families who encourage their children to consider

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teaching as a career want them to finish their studies with a degree and not with some tinpot local certificate only guaranteed by one school.
Primary head teachers in particular are already expressing strong concern and reluctance about playing a fuller part in initial teacher education. While they and their staff colleagues definitely want to contribute to teacher education and training, at no cost do they want still more distracting, administrative and bureaucratic duties when they are already understaffed and often short of expertise in these areas. At present, trainee teachers are usually expected to complete teaching practice in at least three schools. There can be very little confidence that that will be guaranteed under school-centred training. We fear that the tendency is that schools would less and less see their student teachers as supernumerary, but increasingly regard them as part of their own staffing establishment. If they did second them to other schools it might well frequently be to schools with which they had a cosy non-challenging relationship, thereby missing the opportunity to widen the perspective and appreciation of the students.
Of course, many schools would inevitably have their eyes on attracting what might be described as the "easy" student teachers for their courses. But how many schools would be Prepared to commit resources to back the development of the average student, and how many would support the struggling student who is valiantly endeavouring to make the grade and who, with the right backing and guidance, may yet turn out to be a fine teacher?
Teaching is not just a mechanical process by which the curriculum is delivered to pupils. It is absolutely essential that the teacher is reflective and creative; that he or she is master of the subject being taught and preferably with a passion for it. That will become even more essential with the pressures of the century ahead. To encourage thoughtful and creative pupils demands the same qualities of those who teach them; and in order to develop those qualities teachers need some theoretical framework within which to consider children's development, addressing their needs and making appropriate judgments about the curriculum.
It is our case on these Benches that the study and discussion of that theory and the development of reflective skills needs to be at graduate level, either as part of a Bachelor of Education degree or during a postgraduate teaching course. Even though—and I recognise this—the Minister has indicated that school-centred training should be restricted to graduates, it is vital to recognise that all (I repeat, all) student teachers need to complement their indispensable (and again I mean indispensable) and desperately important practical experience with theoretical study. The only feasible way that can be ensured is by schools working in partnership with higher education institutions and by being certain that all qualifications awarded at the end of courses are approved by the higher education institute as having involved study and discussion at graduate level and as having been assessed at graduate level or indeed at post-graduate level.
Teachers must have a background of the in-depth study of education. Without understanding what they
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are doing in context they will be far more open to fashionable trends; to partisan, politically and ideologically transient movements, about which this Committee is rightly concerned and about which the noble Lord, Lord Skidelsky, spoke significantly last week.
Teachers in schools have a great deal of enviable experience and expertise to share, but that does not lie in the realm of assessment at graduate level or the moderation procedures used in higher education. It is therefore essential that our higher education institutions are involved to moderate any assessment of student teachers made by teachers in schools.
Higher education institutions and schools already have much good experience of working well together in the mutual interest, I might say, of school teachers and higher education teachers alike. The importance of the practical role of the schools cannot be over-emphasised, but it is the higher education institutions which can provide quality control for courses and for the qualifications awarded at the end of those courses.
In addition to all these arguments, it is sobering to consider that the removal of higher education involvement will almost certainly damage, and sometimes totally remove, access by students to good and appropriate libraries and other facilities. Indeed, without higher education involvement, who will mark the essays, dissertations and exams which are an essential part of assessing whether or not student teachers have understood the role and responsibility of teaching? I refer to the responsibility to pupils, parents and the wider community not just to the management of individual schools in which their training happens to be centred.
I conclude with just a few words about Amendment No. 68A. It is our view that whichever agency is given powers in relation to accreditation, be it the TTA as the Bill is drafted, or the HEFC as some of the amendments have proposed, we believe that the Secretary of State should accredit institutions and that ideally a general teaching council should advise the Secretary of State on accreditation matters. The role of any funding agency should be to ensure that school-centred courses are accredited by a higher education institution before they receive funds. I beg to move.
3.15 p.m.
Earl Russell: As the noble Lord, Lord Judd, made clear, this amendment is concerned with the accreditation of courses and not the teachers. It is an extremely modest amendment. As far as I can see it is in line with a great deal of what the noble Baroness said on Thursday night. It is not opposed to the principle of school-centred courses; it is merely concerned to ensure that those courses, if they are put on, should be put on with adequate supervision, with adequate partnership with institutions of higher education; with knowledge and information and an ability to compare notes which come from being in the swim of academic contact.
If one tries to put on a course at a school without any ability to draw on courses outside the school and without any ability to use library facilities outside the school, one may find oneself suffering from resource

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problems. In trying to hit the exact level at which to pitch the course, one may find that one is suffering from the lack of a standard of comparison. In trying to place the course within the subject matrix within which it must rest, one may experience some difficulty from not knowing the full history and background of the discipline in which one is operating.
We understand from what the Minister said on Thursday that school-centred training is not supposed to relate to the subject element of the teacher training, but it does not say so in the Bill. If the subject training is to take place within a school, a great many of us have very grave doubts indeed about whether the library facilities, the space and the range of expertise, especially in a small school, could possibly be equal to the task.
Above all, anything in higher education needs constant cross-checking. That cross-checking happens through talk with other people in the field, which is why the University of Alaska at Fairbanks, which I mentioned on Thursday, however good the staff that it appoints—and they are often very good—is always likely to be at a disadvantage. There are not many people with whom to compare notes in Fairbanks, Alaska. Similarly, schools in some of the more remote corners of the country may find that there are not very many people with whom to compare notes. There will be a good many little troubles in the teething stages of an initial school-based course about which one will badly need to compare notes.
Co-operation with an institute of higher education would provide us with all the opportunities for that to happen. It would confer companionship, advice, counselling and a degree of safety net. In fact, it would make the thing workable. It would be vital to the comfort of those who organise the course and, even more, I think that it would be vital to the public's esteem of the course once it is running. If the Government want their experiment to succeed, they must be concerned about the public's perception of the standard of the courses. I hope that the Minister will see her way to accepting the amendment.
Lord Beloff: I begin my support for this amendment with an apology to my noble friend the Minister for not having been present last week for her wind-up speech on Amendment No. 3 to which my name was affixed. I had rashly assumed that the debate on that amendment would continue after the dinner hour and that I would therefore be back from my engagement in time to hear her speech. That engagement was a piece of narcissism. I went to see the unveiling of a photograph of myself at the National Portrait Gallery—along with photographs of some other noble Lords. I had thought that I would be back at the House in time and able to hear my noble friend's speech. I have never voluntarily missed a reply. I apologise again to my noble friend. I also missed a Division. As it had been generally agreed that Amendment No. 3 was a probing amendment to seek clarification, I had no idea that there would be a Division. I regard the ambush that was laid on by the Government Whips with less than enthusiasm.
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I have, of course, studied the report of the remaining proceedings. I came back and decided that my spirits were so lowered by the result of the amendment that I did not know whether I wanted to participate. However, I had another very good reason, which may or may not be fortified by today's proceedings. I remembered an adage which was drummed into me in my youth, "You can't make a silk purse out of a sow's ear". There are Bills which are, in their essence, so corrupt that no number of amendments will improve them. I hope that by the end of today, particularly if the Government accept this very modest amendment, I may be driven slightly to revise that view. However, having read the exchanges on the very important matter of research in education, which was raised by the noble Baroness, Lady Perry, the noble Lord, Lord Skidelsky, and others, it seems to me that we ultimately come up against the fact that even on that aspect it is hard to see how any rational arrangements can be made within the general terms of the Bill.
Amendment No. 62 is, as has been said, very modest. It suggests only that if schools undertake the task of school-centred teacher training, they would be well advised —and this might therefore appear in the legislation—to do so only in co-operation with an institution of higher education for all the reasons that have already been given by the noble Lord, Lord Judd, and the noble Earl, Lord Russell. I shall not repeat them.
Therefore, I should like to ask my noble friend the Minister only one question. Can she give the Committee any examples of schools or consortia of schools which have indicated to her department that they are willing to undertake the task of teacher training without any involvement with a higher education institution? My impression is that the schools do not want it. If the schools do not want it, what is the use of it?
Baroness Seear: I should have thought that this amendment would appeal to the Minister and the Government. I am sure that the Minister is very much of the opinion—as are a good many of us—that some teachers in some schools in the past have fallen for pretty dotty educational theories and that children have suffered quite considerably from people who have pursued those rather dotty educational theories.
If there is one thing that a link with higher education should give, it is a healthy scepticism about some kinds of theory which would not stand up to detailed investigation and challenge. If the Government want to see—I am sure that they do—a challenging approach to the theories of education and therefore the limiting of the more simple-minded enthusiasms for doctrines which do not work, they should welcome and not reject the idea of involving higher education. The higher education institutions exist in order to challenge conventional and simple-minded thinking. Surely that is what we want when developing educational theory and in the training of teachers.
Baroness Warnock: I wonder whether the Minister can answer a question for me. If there are consortia of schools which are accredited as fit to train teachers by the training authority alone and not in collaboration with a university or other institution of higher education, who

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will actually validate the degree or certificate that is awarded at the end of the year's training? At the moment, when a course leading to a postgraduate certificate of education has been carried out in an institution of higher education, the award is validated by the university that is involved. I do not know whether thought has been given to the validation of the degree or certificate that is to be awarded at the end of the training, as opposed to the accreditation of the institution. If some teachers are in receipt of certificates or degrees that are university-validated and others are not, it seems to me that that will create two grades of teacher. Yet it would be difficult for a university to validate a degree or certificate if it had no part in the accreditation of the course or the consortium of schools. I should be grateful if the Minister would answer that question.
3.30 p.m.
Lord Elton: My noble friend's reply will reveal whether Members of the Committee who support the amendment are speaking to what is proposed in the Bill, to what is proposed by the Government or to something else. There appear to be misapprehensions because the noble Lord, Lord Judd, referred to a "tinpot local certificate" guaranteed by only one school. I do not believe that that is what the Government have in mind. I imagine that the accredited school carries the authority of the accrediting body and that it will lose its accreditation if it does not provide a product and a training which is required by the accrediting body.
The noble Lord, Lord Judd, also referred to schools which are desperately understaffed. Neither the Government nor the Bill propose to impose this duty on schools but will allow the schools which wish to undertake it to do so. As a result of last week's debate, we are agreed that students who will attend such schools will have had three years of undergraduate-level teaching. They will bring with them the grants which will otherwise go to the institutions of higher education, with which it is proposed these functions should remain. Therefore, there will be no undue pressure on the staff or on the resources; indeed, it might be beneficial to both.
The noble Earl, Lord Russell, referred to some remote Canadian or American university somewhere in the tundra where there were few people with whom students could compare notes. It must be remembered that, although in a university where you are reading history you can talk to other history students, your opportunity to discuss your subject at its greatest intellectual depth is with the staff. However, at a training-oriented school—I do not know whether we yet have a name—which provides the kind of course about which we are speaking, all the staff will be practitioners of the subject that they are teaching. There is a question of balance—
Earl Russell: Does not the noble Lord understand that teacher education involves a little bit more than simply the training practice? It involves a more general knowledge of the subject, which is not always accessible in the staff room.
Lord Elton: I am not sure which subject the noble Earl is speaking about. Is he speaking about the subject of education or the subjects of geography, history, economics and so forth?
Earl Russell: Both.
Lord Elton: There is an answer to both. On the subject of teaching, which I was about to address, it is proposed that the accreditation process shall contain within it requirements as to the academic content of the courses to be taught. My noble friend will tell me whether I am right or wrong but this seems the logical way to go. If the school does not have within it the resources to teach the psychology of education or the development of concrete cognition by children, it will be for it, with the resources released by the scheme, to "buy it in", to use a commercial phrase, from exactly the sources which the noble Earl wants the students to be taught by entirely.
As I was saying when the noble Earl interrupted me, it is a question of balance. Generally speaking, the training of teachers is carried out by academic institutions. The balance of what they do is towards the theoretical. The alternative is to have some students trained in schools where the balance of what they are taught is towards the practical. We want a combination of both.
Under the present system, which provides students with teacher training practice in schools for a limited period, that balance is not right. There is a great deal to be said for putting students into the schools where the practice takes place and for providing the theoretical and academic context of that from outside rather than from within the institution.
That is not a revolutionary proposal. It may cause great upset in the institutions which are at present delivering these services, but it is not a cataclysmic threat to the students. It gives them a chance of attaining a new insight, which will be of benefit to this country. It is an experiment; there are very few pilot schemes. If it works, it will grow; if it fails, it will disappear. I hope that Members of the Committee will be brave and will resist the amendment.
Baroness Carnegy of Lour: The noble Earl, Lord Russell, said that he does not believe that the system can work without the ability of schools to obtain the expertise of higher education. I agree with that. Having been involved in the scene—although not in the English scene that we are discussing—I bear with him on that. However, the question relates to the way in which the aims are to be achieved. The amendment is important in helping us to look at that.
My picture of how the scheme will work is emerging only gradually. I can now see why the amendment is not the right way forward. As regards the criteria for the initial teacher training at both the primary and secondary stages, it is clear that, when consortia of schools are designing their courses and putting them forward for accreditation, they will have to decide how they will bring to the teachers on those courses all kinds of things that they are unlikely to be able to provide themselves. The schools may have people on the staff

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who can provide them, but it is likely that they will have to go to higher education institutions of one kind or another to find such people. I am sure that they will do that.
The proposal in the amendments—that higher education institutions will control the courses because they will provide the accreditation—goes much further than that. I understand that accreditation can perfectly well be done by the new agency, which is a different way of doing it. The important question is that posed by the noble Baroness, Lady Warnock. She asked about the validating of the courses. Under the Bill, accreditation will be carried out by the institution, which can use any higher education institute or person to help. However, the validating of the course will be a step further for the qualification. There can be a qualification from an accredited course which is not validated and one from an accredited course which is validated. I should like my noble friend to explain to me and to the Committee the precise difference between a qualification that a teacher receives from a course that has been validated and one from a course which has not.
Secondly, let us suppose that a consortium of schools wants a course to be validated by a certain higher education institution. How will that institution know how to validate the course if it has not been involved in its construction? Higher education institutions want an answer to that question. I ask, not because I do not believe in having a go at carrying out the training in a different way. We all know that in a number of ways higher education institutions have not succeeded in providing teacher training which is good enough, and the proposal may be no bad thing in helping them to do that. However, we need to know where they are involved, what the effect will be and how they can be involved constructively. The amendment is not the right way but we need information. I hope that my noble friend can explain the position.
Baroness Lockwood: I am rather dismayed by some of the comments made by the noble Lord, Lord Elton, about his interpretation of how the system will work under this Bill. If schools are to have to buy in specialisms in relation to the education element of teacher education, then a very real management problem will be placed on the schools. If they are to have to buy in, they will not be able to provide everything themselves. Therefore, they will have to look around and decide from which higher education institutions they wish to purchase the necessary expertise. Surely that will add to all the managerial problems which school governors are facing already and about which they are somewhat concerned. I should like the Minister to address that aspect of the matter when she replies.
Lord Elton: As the noble Baroness raised that point in my name, as it were, perhaps I may ask her what is the managerial difficulty caused by agreeing with a neighbouring university that someone shall come and give tutorials on certain occasions to groups of students in, for example, education psychology when they need it. It seems to me quite simple. Are we not straining at a gnat?
Baroness Lockwood: I do not believe that the matter is as simple as inviting somebody to give one or two lectures in relation to a course. That involves payment and there must be a balance. It must fit in to the overall syllabus. As the noble Baroness, Lady Carnegy, said, it may be that the school will need to purchase specialist expertise in more than one area in order to fulfil the whole of the curriculum.
Therefore, it is not merely a matter of inviting somebody along to give a couple of lectures. It will be necessary to look at the whole syllabus to find out where everything fits, the personnel needed and how much it will cost.
Baroness Perry of Southwark: I sympathise with the anxieties expressed by the noble Baroness, Lady Lockwood. I understand what she is saying but I believe that we should step back and recognise that any consortium of schools which wished to offer a course of initial training would have to do a great deal of advanced planning in order to be accredited by the teacher training agency. That is the only accreditation which it needs to seek. It would have to devise a proper course which, crucially, met the Secretary of State's criteria for initial training. That would be published in a circular, following on from the circular which used to be operated by CATE, which formerly accredited courses. It would contain the elements which must be present in a course of training for it to lead to qualified teacher status; that is, professional accreditation describing what are the skills, knowledge and background which somebody must have in order to become a teacher. That is a major job.
Let us remember also that the new agency will be able to give the funding, which previously might have been given entirely to a higher education institution, to that consortium of schools. Therefore, it would have a considerable sum of money with which to undertake the planning and training of teachers and to run the courses. There is no doubt that somebody will have to be in charge of the administration and that person would have to build in, as part of the elements of the course, undoubtedly—I cannot imagine a course where it would not happen—an element of buying in higher education expertise, whether by sending students to a local university for part of the course or by bringing in someone from the local university. The criteria are worded in such a way that in my view it would be absolutely impossible for a school to run a course without bringing in outside academic expertise.
I do not believe that the amendment is wrong. I believe that the hearts of all Members of the Committee are with it. But it is unnecessary. The accreditation of the course guarantees its quality, based on the ability of the consortium of schools to deliver the criteria laid down, which include quite complex elements of educational psychology, child development, the theory of school management and organisation and so on. I am convinced that in order to meet those accreditation criteria, any consortium of schools would have to work in concert with local academic expertise.
3.45 p.m.
Lord Dainton: As the noble Lord, Lord Elton, said, the sense of the Committee is clearly that we need to have a balance between theory and practice. Whoever provides the theory and the practice, only the practice can he provided in schools. Therefore, that may be the locus of the driving force of any of these new courses.
I believe we are all anxious that because a course which is entirely practical without theory is not satisfactory nor is one which is all theory without practice. We are all looking for a guarantee from the Minister that either of those two possibilities—I put it in that balanced way—is ruled out in practice.
Some of us feel that it is better from the outset to look for a partnership between the higher education institutions and the schools, rather than having the courses driven exclusively by one or the other. Perhaps the Minister will reply to that.
Viscount Eccles: I should like to go back to 1944 when we discussed the Butler Act in the other place. At that time, we were all aware of the fact that the teachers would be the one group of people who would decide whether or not the Act would be a success and that at that time, teachers were in danger of not having the training and so on which was necessary.
There was no equal pay for men and women teachers. I only got that on to the statute book 10 years later in 1954. I then discovered that the training of teachers was extremely poor and I wanted to find out in particular how to improve the teaching of mathematics, especially in primary schools. Therefore, I went to the universities. Every one except Southampton rejected me. They said that they had nothing to do with the schools and did not care about them. They told me that I must find some other way. I said, "But I want some research carried out into teaching methods and you are the people to do it". They would not do it then.
Later, they began to change their minds. I was then out of the Ministry so I could not encourage them but I was extremely glad to see that happening. When looking at legislation, one must always ask whether it will promote the professional status of the teachers and whether their recognition in society will be improved by the Bill. If the schools do not have a working partnership with the universities, with the universities being, so to speak, in charge where their part of education is the key education, then there will be no promotion of the status of teachers. So long as teachers are—and perhaps it is their fault but I am sure that it is not always so—considered to be beneath the other professions, we shall not get our education right.
I remember going to the Tory Party conference in Blackpool in the late 1950s. I asked the 2000 or 3000 beautifully-hatted ladies sitting in front of me, "Will any of you raise your hand if you have had your local teacher to tea?" About two hands were raised out of 3000. We must change that. It is changing but it will not change for the better if we put the Department for Education on top of the universities in every aspect of teacher training. It must be realised that education is an alliance between the schools, the local authorities and
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the universities. A few parents may be brought into it but I am not sure that parents understand teacher training as well as they might do.
I believe that the amendment in the name of the noble Lord, Lord Judd, asks for greater certainty that the universities will remain a partner in teacher training. In that case, it is worth supporting it.
Baroness Blatch: Having listened to the debate, I am rather puzzled that so many Members of the Committee, for one reason or another, seem to believe that no school or group of schools is deemed capable of providing a course of postgraduate training which addresses all the needs of education and training necessary to equip a good teacher. At the outset, it is important for me to define two important words which have been used in the debate and which will no doubt be used in later debates today. It will help our discussions if we al I use those words with a degree of consistency and can, therefore, be sure what we mean when we use the words "validation" and "accreditation".
In the words of the Council for the Accreditation of Teacher Education—whose Chairman Professor Malcolm Frazer has long experience of such matters —validation is,
"the approval by a provider or by an external body of a course of training for the purpose of making an academic award".
Accreditation, on the other hand, is,
"official recognition of a provider or course of study for purposes of professional qualification".
I believe that there is no disagreement between us on the need for all providers of initial teacher training to be accredited as meeting the necessary professional standards for high quality teaching. That process must be carried out in the same way, by the same body, applying the same standards, in the case of all providers throughout the country whether they are schools or universities and colleges. It must apply the same standards to entirely school-centred training as to that involving higher education.
It appears from amendments to a later clause that there is some disagreement about who should carry out that task. But it has never been suggested that accreditation in the way that I have just defined it should be the role of individual higher education institutions —although, having listened to at least one contribution today, I believe that there is some confusion in that. respect.
The question of whether all school-centred post-graduate courses must secure academic validation is a different point. It has been argued that school-centred courses need to be validated by higher education in order for the qualification that they offer to carry credibility in the schools to which their students will apply. That is pure speculation. We are content to allow schools to decide on that. I am confident that the quality of the students and their professional training will be such that trainees on school-centred courses will not have any difficulty in finding jobs.
Validation of a training course by a university has not for some time been a sufficient condition for the award of qualified teacher status. The course has had to pass the separate test of the Secretary of State's criteria, and prepare fully competent teachers. It is that test which is

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both necessary and sufficient to secure that new entrants to the profession reach the national standard. All school-centred courses so far have been approved as meeting the criteria; all new providers will have to pass the same test. The qualified teacher status that they confer will have the same legal currency, and the same stamp of quality.
Amendment No. 62 goes even further than requiring validation in requiring higher education to be involved as partners in all courses of training. It has been suggested that we are inconsistent in allowing schools to run courses without higher education, but (through the criteria) not allowing higher education to offer courses except in partnership with schools.
A number of interesting points were made during the course of the debate. The noble Lord, Lord Judd, spoke almost entirely as though we were going to impose school-centred courses on schools. We need—and I keep having to repeat this—to make the distinction regarding the school-based experience as part of higher education controlled courses working in partnership with schools.
All primary school teachers under postgraduate training and during their Bachelor of Education Degree —and, indeed, secondary school teachers—will have to spend a minimum number of weeks in schools. There is some tension in schools about that fact. Good, bad and indifferent schools have to be used as training grounds for teachers. In the amendment, we are talking exclusively about school-centred training for postgraduate teachers. Therefore, as I said, no school will have to do it. The noble Lord said that he knows of many schools which are unhappy and which do not want to do it. If that is the case, they will not have to do it. The schools have to want to do it. Their governors and heads will have to apply to do it and they will have to stand the test of accreditation. Moreover, they will have to stand and be subject to inspection from Her Majesty's Inspectorate.
In fact, no graduate need apply. I met 18 graduates in a school-centred training course fairly recently. I asked each of them the question, "Why have you chosen to do school-centred training rather than go to a higher education institution?" Half of them had actually applied to higher education institutions and been accepted; but, in the end, they decided to use school-centred training. Every one of them said that they wanted to be closer to the management unit where they will actually do the job.
The noble Earl, Lord Russell, asked a perfectly proper question about subject competence. Of course, it is almost impossible to say. Each of those graduates were assigned to the faculty for which they were teaching—mathematics, science, history or geography —in a consortia of six schools across a range of types of schools. However, each of those teachers were both enhancing and improving their knowledge of the subject at the same time as learning how to be good teachers. Indeed, all 18 of the graduates came together for half a day of every week and had other general education studies. Sometimes that involved higher education; sometimes it involved guest speakers; and sometimes it
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involved members of the staff speaking with the trainees. I believe that they will prove to be thoroughly competent and equipped young teachers when they finish the course.
The noble Lord, Lord Judd, referred to recent press reports about application for places on teacher training courses starting in the autumn being down by 6 per cent. The noble Lord has taken a part-year figure. It refers to applications received earlier this term. The period for the receipt of applications still has a considerable time to run. We shall not know the figures as regards actual recruitment until nearer the end of the year. It will also be necessary to allow for recruitment to, for example, the new Open University course—which I have also visited—which is now in preparation for distance learning, postgraduate training and school-centred courses. The latter are expected to expand next year. I was enormously impressed with the preparations for the Open University course.
The noble Lord, Lord Judd, also mentioned the number of schools on school-centred courses. Such courses are run by groups of schools. The requirement for experience of a number of schools—a point to which the noble Lord referred—is included in the Secretary of State's criteria. It applies to all courses, whether they are in higher education institutions or in schools. Therefore, the relationship need be no more cosy than that between universities and their partner schools.
The noble Baroness, Lady Warnock, asked about the question of validation. No one necessarily validates a school-centred course. No academic award with higher education validation is awarded. It is only if a consortium of schools invites validation from a higher education institution that they will be validated. Validated awards can be made, although that is not necessarily the case. The 18 young students to whom I referred had accepted the fact that they were already graduates. They undertake a postgraduate course in a school and at the end of the course they become qualified teachers. However, there is no validation for such courses.
There is no question of schools offering un validated degrees. Such young people are already graduates. The course that they are undertaking is a postgraduate course. If they complete it successfully, they will be qualified teachers. The inspection system will ensure that a proper assessment is made on whether such young people will be good teachers.
My noble friend Lord Beloff was worried about schools not wanting higher education involvement. All current courses run by schools have some involvement with higher education. However, as I said, they do not all involve academic validation. That is what the amendment would require. The difference between us is a slight one. We all want competent, educated and well-trained teachers. It is whether we make it an absolute requirement on them to work with higher education or whether they can make their own judgments as to whether they need higher education. Experience shows that some of them are doing so, but not always with validation.
I understand what my noble friend Lord Beloff said about not being present in the Chamber. However, I am

25
totally puzzled by what he said about Amendment No. 3 with which we dealt last week. If that was a probing amendment, I was deeply misinformed. It did not seem to me to be a probing amendment. It was discussed for three hours. I happen to know—perhaps to the discomfort of Members of the Committee opposite—that there was a three-line Whip as regards voting on that amendment. There was a splendid debate on that amendment. Even after rereading the debate, I believe that the argument was won by this side of the Chamber. It was important that at the end of that three hour debate the Committee should have taken a view on whether the amendment was acceptable. The Committee took the view that it was not acceptable.
The noble Baroness, Lady Seear, said that some schools resorted to some pretty dotty theories of education. I would add that there are some teacher training colleges which have resorted to some pretty dotty theories of education. Wherever dotty theories in education reside, they should be rooted out because they do not serve young people well. The noble Earl, Lord Russell, referred to the important issue of access to libraries and subject study. I have already mentioned in passing how at least one consortium approaches that matter. The noble Earl overlooks the fact that schools will receive the full fee for a student and therefore they will have money to enhance their own library facilities —the Committee should remember we are talking about consortia of schools—and they can pool their library resources. Students will also have access, if necessary, to higher education institutions' libraries. As the students will already be graduates—that is, specialists in their own subjects—the emphasis will in any case be on subject application and not necessarily on subject study. In terms of the theory of education and reading round a subject, students will have access to libraries.
I believe the noble Baroness, Lady Lockwood, was unnecessarily denigratory about schools' competence to do this work. She said in effect that higher education institutions are competent in terms of buying-in expertise but that somehow or other schools are not. I believe higher education institutions have to buy in schools' expertise. They cannot meet the conditions of the criteria unless they purchase expertise from schools. I see no reason at all why schools are not competent to judge what is required and to purchase expertise when they need it. My noble friend Lady Perry made an important point when she said that schools will not even be able to provide these courses unless they are accredited as suitable to do so. To apply to be accredited to provide courses, they will have to present a plan and ensure that they properly quantify and codify exactly how they intend to meet all the educational and training needs of teachers under training.
My noble friend Lord Eccles and the noble Lord, Lord Dainton, emphasised the importance of partnerships. I need again to reiterate a small but fundamental point, and that is we are not arguing against partnership. Indeed, this Government have done their utmost to encourage partnerships between schools. We have made it a necessary component part of higher education. Up until recently too many young people spent far too much time in a higher education institution
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and not enough time practising their craft in schools. What we are talking about here is an absolute requirement that they must spend time in schools as opposed to a school making proper judgments on where and when they need to purchase expertise from outside.
I do not think anyone really believes that higher education institutions could prepare teachers for their professional role without close involvement and partnership with schools, nor do we believe—I have said this a number of times in previous debates—that it is possible to have a competent teacher with no experience of higher education. I believe that some groups of good schools—they will have to be good schools to earn accreditation—are well able to offer a fourth professional training year building on three years of previous higher education without necessarily drawing on a higher education institution for help.
4 p.m.
Lord Judd: As usual we are grateful to the Minister for a full reply. I do not normally leap to the defence of the noble Lord, Lord Beloff, but, as regards post-mortems on three-line whips, there was an amendment in the name of the official Opposition. Our three-line whip concerned our own amendment. The amendment of which the noble Lord, Lord Beloff, spoke when he referred to an unseemly ambush was an amendment moved by Members of the Committee on the Cross-Benches with the support of the Minister's Back-Benchers.
Baroness Blatch: The noble Lord may disown this but I had a piece of paper which informed me that the three-line Whip was also mounted in support of the amendment of the noble Lord, Lord Walton.
Lord Judd: I am quite certain that that piece of paper did not come from the Whip's Office of the official Opposition. The message on the paper must have been a deduction made inaccurately by some of the Minister's noble friends.
I now turn to more important matters. I believe that this debate this afternoon has been important and I find in it a reflection of the anxieties with which we were dealing late in the evening last Thursday. Whatever I may fault the Minister on, I cannot fault her on her candour as regards her own interpretation of and position on this matter. However, it is her interpretation and position which so profoundly disturb us.
During her remarks this afternoon the Minister referred to school-centred training. She may recall that, in an exchange which took place last Thursday, I put it to her that the whole basis of the difference between us was that we considered this matter to be about education of which training was a part and not about training into which some education was slotted. I believe that that is a profound difference of perspective and one which gives rise to a great deal of grief in this Chamber. In many ways we respect the Minister but she seems unable to grasp the significance of this issue.
I hope that the Minister will not feel when she reads Hansard that I am misquoting her or treating her unfairly. However, she likes to use analogies with industry. She talked about students whom she had met

27
who liked to be close to the unit of management where they had to do the job. None of us has anything but the utmost respect for industry and commerce and for the quality of work that is done in industry and commerce. None of us would be able to talk about education if surplus wealth were not being successfully generated in industry and commerce. That is extremely important. Anything that I may say does not seek to demean the invaluable service to the nation that is provided by industry and commerce. However, education is not a management unit and a school is not a management unit. A school is a centre of academic adventure where people are developing their personalities, ideals, perspectives and imaginations. Education is a totally different exercise. The very fact that the Minister has re-emphasised her perception of education in terms of industry is what makes us almost frightened for the future and frightened about what is entailed in this Bill.
The noble Earl, Lord Russell, spoke passionately about his concept of the education of teachers. I can only say that I am at one with him. As regards the point made by the noble Lord, Lord Elton, all I would say is that this is not a matter of either theory or practice but of a combination and a partnership (as the noble Lord, Lord Dainton, put it) which are central to everything we are talking about. One cannot have one without the other.
In this context it strikes me that many people out there in the schools who are carrying the responsibility of education understand our concerns well. That is why the point made by the noble Lord, Lord Beloff, is so important. As far as I am aware, no one of any significance—as the noble Lord said—in schools or centres of education around the country has asked for this Bill. The Bill has been dreamed up in some kind of partisan bunker somewhere in the depths of the Department for Education. It certainly has not come from the world of real education where the real challenges are being met and the real tasks being undertaken.
Of course, in this world there are all sorts of transient pressures. As I mentioned in my opening remarks, there is the flavour of the month, the fashion of the year, in terms of what will or will not be appropriate in education. In that connection the point made by the noble Baroness, Lady Seear, is important. If the task is tackled with the right perspective, depth, knowledge and preparation, the teachers will be able to cope with such transient nonsense. I share the anxiety that has been expressed on all sides of the Chamber about the way teachers can be misled if they do not have the right backing and the opportunity to develop their critical faculties to evaluate those fashions as they occur.
The noble Lord, Lord Elton, and the noble Baroness, Lady Carnegy, both dealt with accreditation. The noble Lord, Lord Elton, took exception to my reference to a tinpot certificate issued by any one school. He also suggested—as the Minister did in her reply—that there is no intention to impose on schools, that schools will be able to make their own choices, and that this should not, therefore, be an issue of shortage of staff.
We want to see a qualification which will be recognised as widely as possible so that there can be
28
flexibility and people in the profession are able to move around the country. People should not have to look up reference books to try to work out what it means to have a qualification from a particular school in a particular neighbourhood. That is a mad task to impose on people. There should be a broad understanding so that an award is broadly recognised and has status beyond the particular neighbourhood in which it was conceived. That is very important.
There is another important point in relation to the argument about accreditation and validation. I tried to understand what the Minister said, and it may be my fault that I did not grasp properly what she said. She seemed to suggest that the great point about accreditation was that a particular institution was accredited as following a proper course of professional preparation. Our point is that it is not merely a proper course of professional preparation, it is also a postgraduate qualification in education which has academic significance and is recognised academically. If it is to be recognised academically the question of validation becomes significant, as the noble Baroness, Lady Warnock, said.
The noble Baroness, Lady Lockwood, very rightly raised the issue of the additional burdens and strains placed on schools in having to buy in expertise which they do not have, and in deciding where they would go for that expertise and whether they have the knowledge to do that. The noble Lord, Lord Elton, and others, and the Minister, do not appear to understand the management strains which teachers are suffering at present. I have talked to countless numbers who feel that the strains of management are distracting them from the task of teaching. This would give them more managerial anxieties when they should be getting on with the job of looking after the children in their care in the context of teaching those children.
The noble Baroness, Lady Perry, tried to reassure us by speaking about the role of the TTA in this respect. The only point that I would make to the noble Baroness is to ask whether, with her experience in education, she really thinks that if the scheme took off one TTA operating centrally could possibly have all the sensitivity, understanding and detailed knowledge required for a successful relationship of the kind which higher education institutions have provided in the past.
In responding to the Minister I return to what the noble Lord, Lord Dainton, said. This is a question of partnership.
Baroness Blatch: I thank the noble Lord for giving way. Will he explain why higher education institutions have not been carrying out accreditation? Accreditation has been carried out by the Council for Accreditation of Teacher Education, which is a similar body of a similar size. Therefore, the point that the noble Lord has just made falls.
Lord Judd: I accept that my point might have been put better. I accept that admonishment from the Minister. In the relationship with centres of higher education the task has been made easier because it has

29
been fully understood that there has been a partnership in which a particular centre of higher education has played a key part.
The noble Lord, Lord Dainton, is right to emphasise partnership. I moved to hear the noble Viscount, Lord Eccles, share his experiences. He told how he had been to universities and tried to persuade them to play their part in building up the quality of education and how he had persisted in his discussions. He said that at first the universities had been wary but had warmed to the task and begun to make an important contribution in the context of partnership. The noble Viscount is to be congratulated on that, as on many other things that he contributed to education in the past. I wish that he spoke more often in our education debates. Wisdom and insight of that kind cannot easily be rejected.
If I had had any doubts about my own position, when I heard the noble Viscount commend the amendment that we have put forward I took heart and felt that we must be on the right course. This matter is so central to the whole issue that we must pursue it to a Division.
4.15 p.m.
On Question, Whether the said amendment (No. 62) shall be agreed to?
Their Lordships divided: Contents, 123; Not-Contents, 121.

Division No.1

CONTENTS

Acton, L.

Falkland, V.

Addington, L.

Fisher of Rednal, B.

Adrian, L.

Flowers, L.

Ailesbury, M.

Gallacher, L.

Airedale, L.

Gladwyn, L.

Annan, L.

Glenamara, L.

Ardwick, L.

Gould of Potternewton, B.

Ashley of Stoke, L.

Graham of Edmonton, L.

Avebury, L.

[Teller.]

Aylestone, L.

Greene of Harrow Weald, L.

Barnett, L.

Gregson, L.

Beaumont of Whitley, L.

Grey, E.

Beloff, L.

Guildford, Bp.

Blackstone, B.

Halsbury, E.

Bonham-Carter, L.

Hamwee, B.

Boston of Faversham, L.

Hanworth, V.

Bottomley, L.

Harris of Greenwich, L.

Brimelow, L.

Basket, L.

Bristol. Bp.

Hayter, L.

Broadbridge, L.

Henderson of Brompton, L.

Brooks of Tremorfa, L.

Hilton of Eggardon, B.

Bruce of Donington, L.

Hollis of Heigham, B.

Buckmaster, V.

Irvine of Lairg, L.

Castle of Blackburn, B.

Jay of Paddington, B.

Chichester, Bp.

Jay, L.

Cledwyn of Penrhos, L.

Jeger, B.

Clinton-Davis, L.

Jenkins of Hillhead, L.

Dacre of Glanton, L.

Jenkins of Putney, L.

Dahrendorf, L.

Judd, L.

Dainton, L.

Kinloss, Ly. Kintore, E.

Darcy (de Knayth), B.

Kirkwood, L.

David. B.

Liverpool, Bp.

Dean of Thornton-le-Fylde, B.

Llewelyn-Davies of Hastoe, B.

Desai, L.

Lloyd-George of Dwyfor, E.

Donaldson of Kingsbridge, L.

Lockwood, B.

Donoughue, L.

Mason of Barnsley, L.

Dormand of r isington, L.

Mayhew, L.

Eatwell, L.

McNair, L.

Ennals, L.

Merlyn-Rees, L.

Ewing of Kirkford, L.

Molloy, L.

Ezra, L

Morris of Castle Morris, L.

Falkender, B.

Murray of Epping Forest, L.

30

Nelson, E.

Stallard, L.

Nicol, B.

Stedman, B.

Ogmore, L.

Stoddart of Swindon, L.

Oliver of Aylmerton, L.

Strabolgi, L.

Peston, L.

Taylor of Blackburn, L.

Plant of Highfield, L.

Taylor of Gryfe, L.

Prys-Davies, L.

Thomson of Monifieth, L.

Redesdale, L.

Thurlow, L.

Richard, L.

Tonypandy, V.

Richardson, L.

Turner of Camden, B.

Ridley, V.

Wallace of Coslany, L.

Rochester, L.

Warnock, B.

Russell, E. [Teller]

White, B.

Sainsbury, L.

Wigoder, L.

Seear, B.

Williams of Crosby, B.

Sefton of Garston, L.

Williams of Elvel, L.

Serota, B.

Williams of Mostyn. L.

Shepherd, L.

Wilson of Rievaulx, L.

Sherfield, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Hooper, B.

Addison, V.

Hothfield, L.

Alexander of Tunis, E.

Howe, E.

Archer of Weston-Super-Mare,

Huntly, M.

L Arran, E.

Hylton-Foster, B.

Astor, V.

Killearn, L.

Balfour, E.

Kimball, L.

Belhaven and Stenton, L.

Lauderdale, E.

Blatch, B.

Long, V.

Blyth, L.

Lyell, L.

Borthwick, L.

Mackay of Ardbrecknish. L.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Brabazon of Tara, L. [Lord

Chancellor.]

Brabazon of Tara, L.

Macleod of Borve, B.

Braine of Wheatley, L.

Mancroft, L.

Brougham and Vaux, L.

Manton, L.

Butterfield, L.

Marlesford, L.

Cadman, L.

Merrivale, L.

Caldecote, V.

Mersey, V.

Campbell of Alloway, L.

Miller of Hendon, B.

Campbell of Croy, L.

Milverton, L.

Carnegy of Lour, B.

Monteagle of Brandon, L.

Chelmsford, V.

Morris, L.

Chesham, L.

Mountevans, L.

Cockfield, L.

Mountgarret, V.

Coleraine, L.

Mowbray and Stourton, L.

Colnbrook, L.

Moyne, L.

Constantine of Stanmore, L.

Munster, E.

Courtown, E.

Murton of Lindisfarne, L.

Cox, B.

Onslow, E.

Cranborne, V.

Orr-Ewing, L.

Cullen of Ashboume, L.

Oxfuird, V.

Davidson, V.

Parkinson, L.

De Freyne, L.

Pearson of Rannoch, L.

Dean of Harptree, L.

Perry of Southwark, B.

Denham, L.

Peyton of Yeovil, L.

Denton of Wakefield, B.

Pym, L.

Dixon-Smith, L.

Rankeillour, L.

Downshire, M.

Rees, L.

Eden of Winton, L.

Renton, L.

Elliott of Morpeth, L.

Rippon of Hexharm, L.

Elton, L.

Rodger of Earlsferry, L.

Ferrers, E.

Romney, E.

Fraser of Carmyllie, L.

Seccombe, B.

Fraser of Kitmorack, L.

Simon of Glaisdale, L.

Geddes, L.

Skelmersdale, L.

Goold, L.

St. Davids, V.

Goschen, V.

Strathcarron, L.

Gray of Contin, L.

Strathclyde, L.

Gridley, L.

Strathrnore and Kinghorne, E.

Grimthorpe, L.

[Teller]

Hailsham of Saint Marylebone. L.

Sudeley, L.

Harding of Petherton, L.

Swinfen, L.

Haslam, L.

Tebbit, L.

Hayhoe, L.

Teviot, L.

Hemphill, L.

Thomas of Gwydir, L.

Henley, L.

Trefgarne, L.

Hood, V.

Trumpington, B.

31

Ullswater, V. [Teller.]

Whitelaw, V.

Vaux of Harrowden, L.

Wolfson, L.

Wakeham, L. [Lord Privy Seal.]

Wynford, L.

Westbury, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.25 p.m.
Baroness Perry of Southwark Baroness Perry of Southwark moved Amendment No. 63:
Page 6, line 22, at end insert:
("( ) Courses of initial teacher training so provided shall be open only to persons holding a degree or equivalent qualification granted by a United Kingdom institution or an equivalent degree or other qualification granted by a foreign institution.
For this purpose a "United Kingdom institution" means an institution established in the United Kingdom, other than one which is, or is affiliated to or forms part of, an institution whose principal establishment is outside the United Kingdom; and a "foreign institution" means any institution other than a United Kingdom institution.").
The noble Baroness said: The amendment has already been debated. I beg to move.
On Question, amendment agreed to.
Lord Peston Lord Peston moved Amendment No. 63A:
Page 6, line 25, at end insert ("save that the governing body shall not make charges in respect of the education or training provided to students undertaking such courses otherwise than in accordance with arrangements made by a funding agency.").
The noble Lord said: The amendment stands in the name of the noble Lord, Lord Judd, and myself. It is a peg on which to hang a number of questions. I assure the Committee that it is a probing amendment.
The amendment arises from my desire to understand Clause 11 of the Bill. I have a series of questions which I hope the Minister will be able to answer. The word "may" appears in the second line of Clause 11. As the noble Lord, Lord Elton, has pointed out, the word "must" does not appear. However, "may" means may. Am I right in believing that Clause 11 means that the governing body of the schools mentioned may provide courses of initial training with no permission required from anyone else? To put the matter as simply as possible, can those schools on their own go into the teacher training business?
That question relates to an issue which puzzles me considerably. Subsection (5) of Clause 11 states:
"Any exercise by the governing body of a school of the powers conferred by this section"—
that is, the powers to engage in teacher training—
"shall not be treated·as being undertaken for the purposes of the school".
In other words, when a school undertakes teacher training it is not a "school". If we ask the question, "When is a school not a school?", the answer is, "When it is undertaking teacher training". That is my reading of subsection (5). Yet we have the logical paradox that teacher training cannot be school-based if the body undertaking it is not a school. I know that the noble Baroness's department will have hired the best lawyers it can lay its hands on who will tell the department that the subsection makes sense. I have to say that it makes no sense to me whatever.
The reason for pressing the amendment is as follows. One of the merits of the 1988 Act is that it endeavoured to clarify the question of when such a school might charge fees. At the time I considered that that legislation
32
took us some way forward in dealing with the fee-paying question with respect to non-public schools. We know that the solution provided by the 1988 Act was less than perfect but it was still a good effort. As I understand it—I hope for enlightenment —when a school is engaged in teacher training, and is not therefore a school for that purpose, there is nothing in Clause 11 to stop the school charging fees for teacher training. In other words, the Bill as drafted states that the school could receive its income from a funding agency, in which case it might require accreditation; or it could charge fees. It could go into the training business. To reiterate the point—I emphasise that I raise the issue as a question—the school would not require anyone's permission to do so. It could simply say: we are now in this business and we are going to do teacher training.
One might ask why a school would wish to provide such a course and to charge fees. It might do so because, once in the business, it would wish to look for customers. Presumably there would not be many customers in this country because they would only wish to pursue a teacher training course if it is accredited. Other noble Lords may fully understand what the position will be with regard to accreditation once the Bill becomes law, but I do not. At some stage someone may be able to explain to me how accreditation will work.
The point is that if one goes into the teacher training business, although accreditation for teachers might be needed in this country, it is not needed for teachers elsewhere. I have put that as a statement, but I can assure noble Lords that it is a question. As I understand the position, there is nothing to prevent a school from going into the teacher training business. For these purposes it would then not be a school but a teacher training business. It could charge fees and presumably could use those fees for whatever purposes it had in mind.
That is my reading of Clause 11 in the context of Part I of the Bill, but I hope that everything that I have said is wrong, that I will be told that they cannot charge fees and that all the things that I am worried about cannot happen. I beg to move.
4.30 p.m.
Earl Russell: The amendment enjoys the full support of these Benches. The only reason why my name is not attached is that I spent Friday at my party conference.
Baroness Carnegy of Lour: The noble Lord understands such things better than I do, being a professional educator. The Minister has stated over and over again that a group of schools which feel they can meet the criteria set out in the published circular can sit down and design a course and ask the teacher training agency for accreditation. If they get accreditation it is an accredited course and if they do not get it, they do not provide it.
Why has the noble Lord raised other matters? Is the situation not absolutely clear? If he does not understand, he ought not to have made the speech.
Lord Peston: If it is agreeable to noble Lords I should like to answer that question. I am looking at the Bill as it is drafted, which is what I believe we are

33
supposed to do. I look at the words on the bit of paper. The circular has nothing to do with the matter. It is what is in the Bill that matters.
I fully accept that a school or a group of schools could go down the route mentioned by the noble Baroness, and I think that that is precisely what the Government have in mind. However, perhaps stupidly, I have been reading the Bill. The Bill simply states that the governing body of the school may provide courses of initial training for school teachers. I have been searching for a part that mentions the requirement for accreditation, but that is not stated. The implication of the Bill is that if the schools want money from the funding agency, they must try and get accreditation, but that is a different matter. As I read the Bill, they do not have to do that.
I hope that the Minister will say that I do not understand, but the Bill appears to state that schools can go into the business of teacher training and try to finance it themselves by charging fees. One group that they might be able to approach would be potential customers from abroad.
I do not disagree with the interpretation of the noble Baroness, Lady Carnegy of Lour, as to what she thinks the Government are up to. I think that my reading of the Bill is correct but I am waiting to be told that I am a typical example of an amateur who does not understand what brilliant lawyers dream up.
Baroness Blatch: I should like to deal with the definition of "may' in the Bill. That word confers upon the schools the power to provide teacher training but, nevertheless, in order to provide it they must receive accreditation. It is important that they should be accredited.
One of the safeg lards is found in subsection (5): they cannot use any of their own school moneys to provide teacher training for anybody; they must not draw on their own school fees; the money must come to them from the higher education institution. Accreditation is the other safeguard. I am advised that the accreditation power is in Clause 13, not in Clause 11.
It is one of the intentions of the Bill to allow us to put school-centred courses firmly on all fours, legally and financially, with courses provided by higher education institutions. That is why we are arranging for one funding body to fund both types of course, and in paragraphs 2 and 9 of Schedule 2 we are extending mandatory awards and student loans provisions to the courses so that student support arrangements can also be harmonised. Currently, the courses and their students are funded by the department, as the funding council does not have the necessary powers and awards and loans legislation does not apply. Course funding is based on the average unit of resource for equivalent courses in higher education institutions and students are given a bursary designed to replace the mandatory award and loan system. That is the interregnum arrangement until the provisions of the Bill come into play.
Once mandatory awards are given to students on school-centred courses, schools will be able to receive some of their income in the form of fees, which will be
34
met in practice by student awards. That replicates the current arrangements for other higher education institution courses. Schools' remaining income will come from the agency.
As noble Lords will be aware, there is no restriction on the fees which higher education institutions may charge for their teacher training, or any other, courses. I do not think it is right to impose greater control on schools in that respect. The level of the fees that schools charge is likely, as in the rest of higher education, to be determined in practice by the level at which it is reimbursed under the mandatory award. That level is a decision for my right honourable friend, subject to Parliament's scrutiny, and not for the agency.
There is no intention whatever to treat school-centred courses differently from higher education based courses. In spite of the fears of noble Lords, it is not our intention to give preferential treatment to school-centred courses, but neither do we want to disadvantage them. Higher education institutions have the power to set their own fees and we should give schools the same freedom.
Clause 11 makes clear that the total income from a school-centred course must meet its costs. There is to be no cross-subsidy from the general school budget. If the course makes a profit, that can be spent on any purpose chosen by the Governors. I would not expect that to be the case—the agency will certainly not be able to pay more than it feels is needed. However, if courses can secure additional income, they should be allowed to apply it for the benefit of the school. It is also worth saying that if they were charging students fees over and above and disproportionately to that of higher education, I am not sure that they would attract students.
Lord Peston: May I thank the noble Baroness for her answer. As I stated at the beginning, the more I listen the less I understand, and that applies even more now that she has answered. I do not read her remarks on Clause 5 as remotely corresponding to what Clause 5 states.
Baroness Blatch: I should have said subsection (5).
Lord Peston: That is closer to what I have in mind. The noble Baroness did not say a word about my remarks on making money from overseas students. That is what higher education institutions do, arid they do it to make as much money as they can. I think that my interpretation is correct, precisely for the reason stated by the noble Baroness. She wants to get the schools on all fours with higher education institutions. I understand that desire, but it will lead to an outcome that is not obvious and one that neither the Government nor the Opposition want; namely, that the schools will go into the business of providing teacher training—profit-maximising teacher training—to overseas students, with no accreditation. Nothing is stated about accreditation. Accreditation arises if funds are needed from the funding agency.
There are other matters in which Members of the Committee are much more interested than this one. So all I shall say to the noble Baroness is that I will certainly look at what she said with a view to coming back to the matter. My point is a serious one. It means that the Bill is flawed. I hope that the noble Baroness

35
will persuade her officials to look at what I have said, with a view perhaps to clarifying this matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 63B:
Page 6, line 31, leave out ("not").
The noble Baroness said: Subsection (4) of Clause 11 exempts the school setting up its own teacher training course from the procedures written into the Education Reform Act 1988 and Education Act 1993 for any school to apply for a change of character. Such changes of character usually apply to a school seeking to change its age intake of children, significantly to increase the size of the school or, of course, to change the selective entry.
For any school, in particular a small school, to provide school-centred courses is a major change to that school. The school governors could decide to run such a course, with all the workload that that implies, without the approval, etc., of the parents whose children will be subjected to the "on the job" training. The governors' and teachers' time will clearly be taken up by training to varying degrees. The impact will be considerable.
The amendment removes the Government's exemption and makes sure that rigorous procedures, including consultation with parents, are followed before school-centred teacher training courses are established in any school.
The key issue about "change of character" is that it allows parents to be involved in formal consultation on a change which affects the whole school. The fact that an individual child's class may not be affected by a change of character does not mean that the child is not affected by the overall arrangements and management of the school.
If a school takes on a school-centred course, there will be a significant number of unfamiliar adults around the school; students would be involved in a systematic way in teaching all or some classes. Parents would have a right to be assured that their children's educational progress would not be impaired. Teachers may be taken away from classes to instruct students on a systematic basis. They may not want to do that. That could trigger significant changes in teacher turnover.
A "change of character" notice would formalise the consultation and allow time for parents to reflect, discuss and, above all, be fully consulted on the proposal. Knowing the Government's enthusiasm for involving parents, it will, I hope, encourage them to accept this amendment. I beg to move.
Lord Addington: I wish very briefly to support this amendment. The noble Baroness has pointed out a matter which could be of considerable importance, as any change to having instruction of teachers in a classroom situation is bound to have at least the potential of significantly changing the terms under which children are educated.
Baroness Blatch: It is important that, where schools wish to provide such training with the approval of their
36
governors, and where they have been accredited as a suitable provider, they should be allowed to do so without any unnecessary inhibition.
This amendment would have a particular effect on county and controlled schools—as opposed to voluntary aided and grant-maintained ones. In the case of county schools, if there is to be a significant change of character it can be proposed only by the local education authority which maintains the school. Even if the governors, the staff and the parents of that school wish it, if the local authority is philosophically opposed - which indeed many are - that school would not be allowed to participate because it is wholly dependent upon the local authority to make the application. Therefore the local authority would have an absolute veto. The amendment would, as I have just said, give local authorities the right of veto over whether or not such schools were involved in school-centred schemes. We would be creating, disproportionately, a "second-class citizen" out of LEA-maintained schools. While I hope that local authorities will help and support their schools which are involved in school-centred schemes—a number are already doing so, and doing so very effectively—I would not want to give all authorities that significant right. The clause secures that local authorities' funds are not compromised in any way, in that the school's maintenance budget cannot be spent on school-centred training. Beyond that, it must be for the governors to determine whether or not their school should be involved.
Of course, governors will not take such a decision without considering the views of all concerned—those of the teaching staff and parents in particular. Both groups are of course represented on the governing body and will be well able to make their views known.
In the light of our wider reforms—namely, greater choice for parents and more public accountability of schools for their performance—I do not think that any school would embark on a school-centred scheme unless it were able to convince and in due course demonstrate to local parents that the effect was beneficial to their pupils. Schools already involved in the scheme have said how much the whole school has gained. In the words of one head teacher, it reaches the parts that normal in-service training cannot reach.
I said in a previous debate that Her Majesty's Inspectorate is evaluating these schemes, and its evaluations will be made public. To require the publication of statutory notices, a three-month wait and a reference to the Secretary of State for a decision, if there are statutory objections, is all far too cumbersome and unnecessary. I note that the noble Baroness does not propose the same procedures for schools involved in partnership with higher education. That seems to be untouched by these amendments, however much effort and time the school puts in. That is what makes me think that the amendment is really a further attack on school-centred training, like others that we have already debated. It would be quite wrong to give a veto over the wishes of governors, parents and staff at LEA-maintained schools.
4.45 p.m.
Baroness David: Can the Minister just tell me the answer to a question? How many schools are currently involved in school-centred training, as opposed to school-based training?
Baroness Blatch: There are at present something like half-a-dozen consortia arrangements. In any typical consortium there are about six schools which come together, agree together, plan together and make an application together. Then they receive accreditation to make the change. In each case it is the governing bodies, the heads and staff of the schools, after consultation with parents, who arrive at the decision to do that. They are LEA-maintained schools, grant-maintained schools and, indeed, even independent schools.
Baroness David: And are the higher education institutions not involved in those courses at the moment?
Baroness Blatch: That particular question has absolutely nothing to do with whether they apply for a change of character. There is at least one consortium that I know of which works voluntarily with Cambridge University, but it does not have validation rights. I know of another consortium which is actively working in participation with a higher education institution and which comes in for one half-day a week to work with the graduates there. But the point is wholly irrelevant to this particular amendment.
Baroness David: The point that I want to make is that if they are school-centred courses and are not involved with higher education institutions, that really is something new which I should have thought would involve a change in the character of the school. Of course it does not altogether surprise me that the Minister does not want the LEA to have that power, because the Government are not very keen on local education authorities. However, I would like to study what the Minister said and perhaps take further advice on how many school-centred courses there really are at the moment, how they are distributed about the country, and so on. I will find out more about this. In the meantime I will read what the Minister says and withdraw the amendment.
Baroness Blatch: Just before the noble Baroness withdraws the amendment, I can be accurate in my answer to her question about how many schools are involved. It is six consortia. There are 40 schools involved. So far 200 schools in all have applied either for 1993–94 or for 1994–95.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 64:
Page 6, line 42, after ("school,") insert ("—

(a) to provide training for persons employed as teachers at the school, or

(b)").

The noble Baroness said: This amendment ensures that the provisions of Clause 11 do not have any untoward effects on the provision by schools of on the job training for licensed and overseas-trained teachers. Clause 11 is essentially about the provision of
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school-centred initial teacher training courses—a new type of provision which we are now writing into statute. But there is teacher training activity in schools at present which we do not want or need to bring within scope of this clause. Subsection (6) currently secures that the clause does not apply to schools acting in partnership with higher education—this amendment ensures that initial training for licensed and overseas-trained teachers is similarly excluded.
It would be impossible to require the ring-fencing of budgets which this clause requires for such training; the teachers, as employees of the school, will in many cases be trained alongside their fellow staff members. Other restrictions in the clause—including as a result of the previous amendment the limitation to graduates, which is not a requirement for licensed teachers—would be similarly inappropriate.
The licensed and overseas trained teacher schemes make a small but valuable contribution to the supply of teachers, particularly from unconventional backgrounds. The amendment will preserve the current arrangements. I hope that it will meet with the endorsement of the Committee. I beg to move.
Baroness Blackstone: As this amendment preserves the current arrangements, I think that we can accept it on this side of the Chamber.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Lord Judd Lord Judd moved Amendment No. 65:
After Clause 11, insert the following new clause:
("General Teaching Council
—There shall be established a body corporate to be known as the General Teaching Council for England and Wales to advise the Secretary of State on the supply and education of teachers, to advise the Secretary of State on criteria for the accreditation of courses or institutions for the provision of initial teacher education and training, and to maintain a register of those persons qualified to teach in schools.").
The noble Lord said: I believe that it was Khrushchev, in the heyday of the totalitarian Soviet Union, who once remarked that if he lived in Britain he would vote Conservative. When I see the antics of the present Secretary of State, with his obsessional desire to centralise and control everything, I begin to understand the significance of Khrushchev's remark. In a genuinely pluralist democracy the Secretary of State should not have the degree of direct control over initial teacher education that the Bill in effect proposes. The establishment of a general teaching council would help to ensure that the preparation of teachers was more appropriate to a democratic, open society.
The amendment is important because it allows just such a body to be established. Free from political interference, it would advise the Secretary of State on the supply and education of teachers as well as the criteria for the accreditation of courses or institutions for the provision of initial teacher education and training. The body would also maintain a register of those persons fit to teach in schools. It would not, however, control funds. That function would be left with the Higher Education Funding Council. The three cornered approach of Secretary of State, GTC and HEFC provides the appropriate checks and balances which the current Bill entirely undermines.

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The GTC would have a broader representation than that proposed for the TTA and would not be subject to the same extent of direct political control by the Secretary of State. That would give the body and its policies and the implementation of those policies far greater stability, which would be of benefit to the teaching profession and the entire education service. It would not be subject to the whims of the Secretary of State nor to short-term trends in political education policy.
The proposal for a GTC has been given considerable parliamentary time in the past. The fact that it comes before the Chamber yet again is because the proposal for a GTC has such extensive and broad support among teachers, parents, governors and other organisations representing wider society. It is before this Chamber again because the Bill deals with the tasks which naturally would fall to a GTC and because a GTC would provide a remedy for raising the status and ensuring the quality of the teaching profession —objectives for which the time has surely come.
The amendment allows this Chamber to make now the moment to bring about a lasting improvement, of which the benefits have already been seen in Scotland. It is not an adequate substitute, as the Minister conceded during the debate on the 1993 Education Act, to suggest that teachers can set up their own royal college if they wish. The proposal for a GTC anticipates far wider membership than simply representatives of the teaching profession—for example, parents, governors, industrialists and professional people. It also requires a statutory basis if it is to take responsibility for the very important issues with which it would deal and in relation to which it should have powers. Without the responsibilities it would remain merely a talking shop, which is certainly not what most of the educational world seeks.
I notice in some briefing provided by the Committee of Vice-Chancellors and Principals that attention has been drawn—I feel very relevantly—to the recent Dearing report on the national curriculum and its assessment. That report emphasised the importance of the professional judgment of teachers in the development of a more effective education system. Dearing said:
"As a nation we are, therefore, fortunate that our teachers are deeply committed to the well-being of their pupils. I believe that a policy which trusts more to teachers' professional judgment and which cuts back on administration to free time for teaching will, coupled with an acceptance that schools are accountable to parents and society for their stewardship, produce the results we need".
That is a very good philosophical backing for our proposition. The establishment of a GTC, possibly at a stroke, would repair the morale of the teaching profession and reverse the decline in the public perception of teachers which has been damaged by political interference in education during the past 14 years. I beg to move.
Earl Russell: We all need independent advice and most of us know it. If we do not know it, it means that we need independent advice desperately. That is why I believe that the Bill has provided a new occasion for
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considering again the argument for a general teaching council and why it has made that argument a good deal stronger even than it was before.
The teacher training agency has yet to win its spurs. In winning its spurs, it is essential that it should establish a good public reputation in all quarters. Inevitably, rightly or wrongly—I am sure that the noble Baroness will tell us that it is wrongly—there is a suspicion that it is less independent of the Secretary of State than CATE has been, and that might be one reason for its appointment. That suspicion may be correct or incorrect. If it is incorrect, as I am sure we shall be told, it constitutes a very good reason for trying to dispel it, which is why we believe that there is a case here for a separation of powers, separating the provision of funding from the power of accreditation.
There is also a case for independent advice, as I said. That is part of a very long tradition in English political history of the need to take counsel, a tradition of which the origins of Parliament are themselves but a very small part. It was the classic mark of a ruler who was liable to run into trouble that he took advice from a very small body of people whose political judgment he found congenial.
There is also a strong argument in favour of a general teaching council in terms of the status of teachers. We heard from the Government Benches a good deal of concern about the standard of teachers. If one wants to raise standards, it may sometimes be worth using a little piece of the carrot as well as the stick. Encouraging and instilling a sense of professional pride may be one way of achieving that objective, perhaps with a great deal less fuss and bother than is created by some of the alternative methods. After all, most other professions have their independent professional body. One thinks, for example, of the General Medical Council. Those bodies do a great deal to keep up standards in the professions in which they operate.
The issues on which the amendment bears—giving the general teaching council power to give advice to the Secretary of State; the supply and education of teachers; and accreditation—are all questions on which one would like to think that the Secretary of State was getting independent advice. I believe that he needs it just as badly as I or anybody else needs it. I am happy to support the amendment.
5 p.m.
Lord Beloff: I rise to support the amendment because it is an amendment with a long pedigree in Conservative thinking. I was the chairman of the group on the educational aspects of the 1983 Conservative election manifesto. The group contained many educationalists from various branches of the profession and unanimously recommended that the then government should include in their manifesto for the forthcoming election an undertaking to bring about the creation of a teacher training council.
Lord Pearson of Rannoch Lord Pearson of Rannoch: Perhaps my noble friend will forgive my interrupting, but are we talking about a proposed teacher training council or a general teaching council?
Lord Beloff: Perhaps I misread the words in the amendment. I am referring to a general teaching council. The difficulty with all these abstractions is to keep them clear in one's mind and on one's tongue.
It is a pity that the recommendation was not accepted. On the whole I believe that a number of the problems which have preoccupied us in relation to the teaching profession and its conduct over the past decade—it is now 10 years—would not necessarily have been solved but would have been ameliorated if there had been a body, as the noble Earl, Lord Russell, said, corresponding to those institutions in other professions which are looked to as guarantors of professional respectability.
It is an extraordinary anomaly for those who believe in the importance of teaching—I know my noble friend the Minister is among them—that in every other profession one can look to a central body. They may be differently constituted, such as the General Medical Council and the Bar Council. They are not identical bodies, but in each case one can say that it is a profession. There are aspects which they can control and other aspects on which they provide advice which is available also to Parliament and to Her Majesty's Government.
Teachers should feel that they are valid; Members of the Committee on all sides are keen that teachers should feel that they are valid. That can be achieved without any great expenditure, which should commend itself to the Government. D. is not like saying, "Double their salaries", which would certainly raise their self-esteem. It is a simple measure. The details of how it may be constituted can be discussed later. It would be a body to which teachers could look as their own guarantor of professional status and, as the noble Earl, Lord Russell, said, to which the Secretary of State could look for professional advice. I hope that Members on this side of the Chamber will support what was originally a Conservative idea.
Lord Annan: Before the noble Lord sits down, can he say whether there is a comparable body in the universities? Is it the CVCP or the AUT? I ask purely for information.
Lord Beloff: Universities, being separate corporate bodies, do not require a generalised institution. Rightly or wrongly Parliament, granters of Royal Charters and so forth, decide what should be in a university. I thought that the noble Lord, Lord Annan, was foremost in desiring that they should maintain their independence. The parallel therefore is non-existent.
Lord Dainton: I well remember that the noble Baroness, Lady Blatch, in her winding up remarks at the Second Reading of the first Education Bill 1993, almost exactly a year ago—I believe she spoke after midnight—said words to the effect that there had been much talk about a general teaching council and that we must return to the subject. That is precisely what Amendment No. 65 does and I want to support it as strongly as I can so that England and Wales can enjoy, as others have
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pointed out, the benefits which Scotland has been able to derive for nearly 30 years from the existence of its General Teaching Council.
In view of what has been said, I want to stress a single point which relates to the motivation of teachers in the classroom on which fundamentally the quality of the education delivered so crucially depends. I ask myself how those benefits arise. They come from the simple fact that professional people who have to give a service to others, whether they be doctors dealing with patients, lawyers dealing with clients or teachers with children, will give of their best only if they are invited—I use that verb advisedly—to accept a responsibility arid are then entrusted with a measure of discretion in its discharge; if they feel that they have some influence on who may be allowed to join their ranks and share their responsibilities; if they are permitted to establish a professional code of conduct; and if, out of their experience, they can formulate advice and proposals for improvement of the delivery of their service to which the Government would at least listen.
The best means for doing that in the case of school education is the general teaching council proposed by the amendment. Were such a council to be established it would generate among teachers an even greater enthusiasm and personal commitment in carrying out their task of delivering the national curriculum and in drawing out the latent talents of their pupils whom they see day by day in the classroom and in the more informal school settings.
That is the kind of professionalism to which the noble Viscount, Lord Eccles, at an earlier stage of the debate, referred as being so important. Already there is in the profession a strong groundswell of opinion uniting many parts of the education world in favour of the idea. If the Government were to discuss and work with those promoting the idea of a general teaching council which would have the powers of the kind I mentioned and on which others have elaborated, then great benefits would accrue to education in our schools—benefits far outweighing those gains which are sought by detailed administrative fiat. It is a matter of making the teachers feel a sense of privilege, responsibility and autonomy.
One day I am sure that a general teaching council will come to England and Wales. In my view the sooner that happens the better. I therefore ask the noble Baroness to give careful consideration to the proposal in the amendment.
Baroness Warnock: I support the amendment on the grounds that I have long been an advocate of the idea of a general teaching council. At this moment and in the context of the Bill it is particularly timely and important. I want to reinforce a point made by the noble Earl, Lord Russell, regarding the separation of powers. It is important to separate the duties of a funding agency from those of an accrediting agency or an agency that will give advice with regard to accreditation.
An agency for funding must look at individual courses and make sure that they are good, that they are improving and that what is delivered is worth the money being spent on it. On the other hand, an accrediting agency should be able to help in setting up criteria of a

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more general kind which will establish the kinds of courses and their content and the standards that the courses must live up to. There is a difference between monitoring individual applications on the one hand and setting up a series of criteria for satisfactory courses on the other. I believe that the general teaching council would be by far the best agency to carry out the latter, which would be a matter of advising the Secretary of State on what courses were to come into existence.
We have been told in earlier debates that a general teaching council would be fine as long as the teachers set it up for themselves so that it was something like a college and that there was no reason for it to be a statutory body. In the context of the Bill, on the other hand, there is an absolute reason for it to be a statutory body that will have this as its main task. There already is a non-statutory general teaching council, under Professor Tomlinson, which is flourishing and which is supported by a large number of teachers. It has a constitution and it is already, to its limited degree, working quite well.
I hope that an argument against the establishment of such a statutory body will not be that the teachers have behaved badly in the past. They have behaved badly in the past, or some of them have. I do not believe it could be an argument against the General Medical Council that there have been and still are rogue doctors. I also agree that the way to give teachers a reason not to behave badly in future, not to go on strike, not to neglect their pupils' interests and the way ahead is to give them a statutory stake in establishing criteria of good practice, a professional stake which is recognised by government, and a new role. The general arguments for establishing a statutory general teaching council are still as strong as they always were but within the context of this Bill they are peculiarly strong. Therefore, it would be a very great help to the acceptability of the Bill as a whole if the Minister were to agree to consider the establishment of such a council at this time.
Lord Elton: There certainly is a great need for teachers to win for themselves both greater self-esteem and greater public esteem. But this they have to win for themselves. It cannot be conferred upon them. I am a friend to the general proposition that there should be a general teaching council because I believe that is a means by which teachers could earn that change in self-regard and public regard. However, I am not particularly a friend to this amendment, in part because it is rather like "Let there be light"; there is no definition, or scarcely a definition, of what is intended. One can talk about a horse but this is no indication of whether it is a Shetland pony or a Suffolk punch. Indeed, noble Lords who have spoken in support of it appeared to think that it was either one or the other, according to taste.
The obviously attractive parallel which was quoted by the noble Earl, Lord Russell, was the General Medical Council. That has one characteristic which is a vital ingredient and which I have not so far seen anywhere as a bold statement as part of the objective of anyone who officially supports the idea of a general
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teaching council. The General Medical Council makes the interests of the patient absolutely and without question paramount to the extent that we have long debates and Select Committees in your Lordships' House on the question of whether or not someone may take the plug out of a machine that keeps the bodily apparatus of someone we all think of as dead. The duty of a teacher to the child is not quite so immediately critical and does not affect his life so absolutely immediately as that of a doctor in the intensive care ward. But it has to be said that a teacher is the trustee of the future of a child and that where he withdraws his teaching or in any way acts contrary to the interests of that child he has done something which many of us regard as unethical as well as improper.
There is nothing in the amendment to suggest that that should be one of the criteria of the body to be put in place. I would be much more warmly disposed to an amendment which proposed a teaching council which should have nothing whatever to do with pay and rations and which should require of its members an undertaking that they would not do anything against the interests of their pupils. That would acquire much greater public respect and might be more attractive to the Government.
That is the principal point I want to make. It is probably not necessary to point out that the noble Earl, Lord Russell, and the noble Baroness, Lady Warnock, both referred to the necessity of separating powers. Under the amendment the body would not set criteria for accreditation but merely advise the Secretary of State on them. The power rests with him. I think that is a side issue. The real issue is that we do need a body by which teachers can win back public and self-respect. It requires a measure of self-denial on their part which they have so far not declared themselves prepared to ordain. If they were able to do that we should be closer to an amendment which we could accept. I do not think we have it here.
Lord Dainton: I wonder whether I might put the noble Lord's mind at rest. In the general teaching initiative as it now exists, which is purely a group of people who come together in order to explore this idea and formulate it, it is absolutely clear that the question of pay and conditions of service of teachers is not its business. That has to be dealt with by other means.
Lord Elton: That is half the issue. But the second half of the issue is whether the withdrawal of services, striking, non co-operation, refusal to mark exam papers and so on is an ethical question or a pay and rations question. In my view, it is an ethical question and it belongs here. In the view of a number of people I have talked with, it appears to be a pay and rations question and it belongs with the trade unions. As long as the teaching council or the GTC—call it what you will—will not come out against that, I do not think it is in a position to be the kind of professional body that will win the esteem that the teaching profession deserves.
5.15 p.m.
Earl Russell: The noble Lord, Lord Elton, has widened the debate quite considerably. If he is getting into these questions, then some of us on this side of the

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Committee might want to get into debate about independent review bodies not being overruled by the Government. That might keep us here all night. I do not think that is what the noble Lord wants.
Lord Elton: I do not want to be here all night but I do not want to vote for an amendment, or any noble Lord to vote for an amendment, which gives something which purports to be a means of winning public respect for teachers and actually becomes an instrument of the further unionisation of them.
Baroness Carnegy of Lour: I think it has become evident in discussing this issue that I am somewhat ambivalent about it. That is partly because of the experience in Scotland. I wish to make one point before I come to that. The noble Lord, Lord Dainton, has addressed the issue before and I always listen to him with enormous attention on this as other subjects. I am not sure whether it was last time but the main point he made about the need for a general teaching council was that a profession is not a profession unless it controls itself. I think I am right. The noble Lord is nodding his head. He made that point and I was very impressed by it.
This amendment does not go as far as that, It does not suggest, for example, that the general teaching council should be responsible for discipline within the profession, which should have thought was a very important point. I am not just criticising the detail of the amendment. I have believed for many years that we would never get right all the things that worry us about schools until the teaching profession really felt that it had the job of doing it, felt that it had the confidence to do it and felt that it had the professionalism to do it. All that needs raising. I'll there are a lot of people who have it already. They long for it to happen and try to see ways through which it should happen.
I am not keen to let down my native heath in the United Kingdom Parliament but the fact remains that the General Teaching Council in Scotland is too political within itself. Perhaps naturally, when the elections to membership take place, slates are produced. The membership is asked to vote for certain people and when they are elected they feel that they are delegated to take up a particular point of view. That has the effect of internal politicisation, sometimes with a small "p" and sometimes with a capital. That is probably natural. If we are going to look at this subject we want to find a way of reducing that. I understand that, up to a point, one will never get rid of politics with a small "p" in such a body, but a lot of time is spent in those activities. The press are told what is taking place. There is no great public esteem in Scotland for such a body or among the teachers, certainly among the ones I know. The organisation does not do the job that it is supposed to do.
This teachers' body did not prevent a strike which was more damaging even than the strike which occurred in this part of the world some years ago. The strike targeted the state schools at which Ministers' children attended and brought the teaching profession down in public esteem. I believe that teachers in Scotland know that now and regret it. That model is not completely satisfactory, but I do not know how to get round it.
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I find myself addressing my remarks across the Chamber to the noble Lord, Lord Dainton. I do not know whether he has in mind how this situation can be prevented. I do not believe that just having a general teaching council with the powers outlined in this amendment would do very much for teachers' reputation in the public mind or for their self-esteem.
Whether it is possible for the teachers themselves to arrive at a solution and to propose how it is to be done, I do not know. If it can be done it would be better than Parliament saying, "Right, here is a structure and here are its powers. Use them responsibly and you will go up in public esteem". I doubt that that would work because that is not usually the way in which the world works. It would be nice if teachers could face this issue and persuade their unions to start behaving again like professional associations. What seems to he known as "pay and rations" appears to have taken over. If it were possible for the membership to persuade the teachers' unions to behave like teachers' organisations, I believe that everyone would get on better and the teaching profession would greatly welcome it.
Lord Butterworth: Perhaps I may make two points. First, there is no doubt that a body of this kind is a badge of a profession. A number have been mentioned this afternoon. To those might be added for the solicitors, the Law Society; for the engineers, the different institutes and for the nurses, the royal college. A body of this kind is a badge of the profession. Secondly, why should such a body spring out of this legislation and why should it be in this Bill?
A good reason is that there is no doubt that the proposal to create a teacher training agency is at the moment doing great damage in the teaching profession generally. Out in the country there is a very firmly held view that the result of the teacher training agency would be to reduce the quality of those attracted into teaching. Men and women now in teaching have to fight to get able people to enter the profession because there are now so many alternatives.
Out in the country there is the widespread fear that the very act of creating the teacher training agency will make it much more difficult to attract able young men and women into the profession. It looks as though we are creating an inferior stream in the universities, which is not the way in which to get the best recruits. Therefore, may not this provision be the way in which to restore belief in the profession by creating within this Bill an opportunity for a general teachers' council?
Lord Elton: I am not sure that my noble friend has made his point. Surely one does not give another person public respect by giving him a new suit of clothes. Public respect is gained by getting that person to behave in a way which earns public respect, whatever the way in which it is done?
Lord Butterworth: It may be that I mix more closely with teachers than my noble friend. There is widespread concern in the teaching profession that we are not going to get able young men and women into the profession. I am sure that one of the ways of doing so is to have a general teaching council. The question is

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whether we take the initiative in this Bill or leave it to the teachers to do so for themselves. If we could start the general teaching council as a result of this Bill, we may do a great deal to repair the damage which we did last week.
Lord Glenamara: I apologise for missing the beginning of this debate. I spent most of the day sitting in a train on Durham station because the overhead lines were down. A general teaching council has been a goal and a dream of the teaching profession for very many years—in fact, from the beginning of the last century. In the early years of education in the last century when schools were provided by the two great national societies, a body called the College of Preceptors, was set up. It still exists. That was the first attempt to create a professional body for teachers.
Before the Second World War a body called the Royal Society of Teachers was established. It was a voluntary body. Teachers paid subscriptions and called themselves members of the Royal Society of Teachers. But that body never really caught on and when the Second World War started it was closed down. Incidentally, no one has ever been able to trace its funds. I tried when I was Secretary of State, but nobody knows where they are. They are somewhere in Whitehall. If the noble Baroness can find them she could use that money to start up a general teaching council.
In 1968–69 I set up the Weaver Committee to plan a general teaching council. Mr. Toby Weaver, as he was then, was the chairman. He was a senior civil servant. With great difficulty a scheme was hammered out in the face of tremendous opposition from the DES itself. However, agreement was reached. When that agreement was referred to the teachers' unions the National Union of Teachers, which supported it in the committee, then turned it down. So that attempt to set up a general teaching council failed.
But now, as the noble Lord, Lord Dainton, said, all the teachers' unions and the bodies interested in this council have come together and reached agreement. It can now be done. I have never known morale in the education system to be as low as it is at present. If the Government want to improve it they could begin by creating a general teaching council. I can assure the noble Baroness that it will do an enormous amount to raise morale in the teaching profession. Even if she cannot accept the amendment, I implore her to say that she will at some point produce some kind of plan for establishing a general teaching council.
5.30 p.m.
Baroness Cox: I should like to raise just one point. Parallels have been drawn with the relevant councils in the health care professions. I must underline the point that has been made by one or two noble Lords that some of the key aspects of the roles and responsibilities of those councils relate to their overriding commitment to professional standards. In nursing, there is an overriding commitment to behaviour that will never at any time undermine the well-being of patients or those dependent
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on the professional care that is given by the nursing profession. The same applies to the councils representing the other health care professions.
Turning to the amendment, I am not concerned about the question of professionalism in teaching because there are many good, qualified and dedicated teachers. However, at present many teachers are, I am afraid, participating in or recommending a boycott of the Government's proposals for assessment in the summer. Many teachers seem to put politics before professional service. What really worries me about the amendment is that, as far as I can see, there is virtually no reference in it to discipline, regulating the profession or addressing the situation where politics takes precedence over professionalism. The only way in which the teaching profession will get the status and recognition that it deserves—good teachers know this—is by indicating that it puts professionalism first.
I think that it is indicative that the amendment does not recognise the significance of having a self-regulating body with disciplinary codes and ethical standards. The ethics of teaching is of paramount concern to me. While the amendment is phrased as it is, it unfortunately bespeaks self-interest and professional status without the substance of professional standards. That is why I do not find it in any way convincing. I fear that, as it stands, it could set up a political rather than a professional body.
Lord Dainton: Perhaps I may reassure the noble Baroness that I referred specifically to a professional code of conduct which would contain exactly the features that she wants. I agree that the amendment does not contain that and my support for it is conditional upon that fact.
Lord Annan: The noble Lord, Lord Dainton, has put his finger on it and has reinforced what the noble Lord, Lord Elton, said. Although I am in favour of a general teaching council, I think that we need to have a draft constitution so that we can see what on earth such a council is to do and what its standards and criteria are. The way forward is for those who are in favour of such a proposal—I would willingly support them if I could see such a constitution—to introduce a Private Member's Bill either in another place or in your Lordships' House. The Government could then decide whether or not they were in agreement with such a proposal. At the moment, however, the Government are being asked to agree to something which contains too many loopholes.
Lord Murray of Epping Forest: We really cannot spend half of our time denouncing the teaching unions and their members for irresponsibility and the other half of our time denying them any responsibility. What attracts me to the amendment is that it would strengthen within the teaching unions and the profession—and we are all calling it "a profession"—those who want to see separated what has been called "pay and rations" on the one hand from the establishment and enforcement of proper standards of conduct by members of the profession as professionals. The ability to distinguish between the two is embedded in the amendment.

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I understand what has been said about uncertainty, generality and the need to put flesh on bones, but I am sure that offering members of the profession the opportunity to be involved in shaping their own future, establishing their own conditions and enforcing their own standards of conduct would be enormously helpful if we are to move in the direction favoured by Conservative Members.
Baroness Blatch: There is an important test to apply to the amendment. The first question to pose is whether it would, of itself, raise standards. Secondly, would it improve the outside world's perception of teachers? Thirdly, would it motivate and raise the professional standards of teachers in the classroom? Fourthly, would it deal with teachers who refuse to teach a child, mark tests or make the assessments that are required by statute? Fifthly, what would be achieved by establishing a register of all teachers, irrespective of their professionalism? Would the body that is proposed in the amendment meet all the issues that I have raised? As my noble friend Lord Butterworth asked, is this the right vehicle for effecting the changes that I believe we all want to see?
I have listened carefully to the support which a number of your Lordships have given to the idea of a general teaching council. Indeed, all that we can debate today is a very broad idea because all that we have is an amendment that deals with the issue in very broad terms. The amendment before us is in no sense a fully worked proposal. I have found myself wondering whether that idea has a single form and a single purpose—or whether the noble Lords who have spoken are not approaching the idea from rather different angles.
I know there are those who believe that the standing of the teaching profession would be enhanced by a general teaching council. I count myself among those who believe that we have many good teachers and that the standing of teachers in the community could and should be higher—as it once was.
But I fear that the standing of teachers will not improve simply by creating a body called a "general teaching council". We must consider who would actually serve on such a body. Will it not inevitably be the same teachers' representatives who already have at least one national platform for their views? If it is to be the decent, hardworking classroom teacher, how is that person to achieve election, when he or she will be campaigning against candidates backed by national publicity campaigns? If one takes the Scottish example, one sees that there is a slate for membership of the General Teaching Council in Scotland.
There is considerable merit in the idea of a forum—detached from issues of pay and conditions—within which teachers could consider professional matters. If such a professional body was to limit its membership to those who subscribed to clear codes of conduct to which they worked, that would have even more effect. Such codes would need to make clear that the interests of children in their charge were always a teacher's first priority, just as patients come first for doctors and clients come first for lawyers.
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It would be welcomed if teachers themselves were to organise under such a banner and establish a body which gave a genuine professional boost to those admitted to membership, like the royal colleges of medicine which have already been mentioned. Schools and parents would know that a member of such a body was a truly professional teacher, who could be discharged if he or she fell below the standards of codified professionalism. But I do not detect such an agenda behind the arguments coming from the supporters of the amendment. Not only the membership but the role of the GTC under the amendment would be very different. It would be to advise the Secretary of State on a host of things about. which teachers and others already offer advice.
Last Thursday we received a clear endorsement of our proposals for a teacher training agency. We shall have a new body focusing on teacher training and bringing together a range of relevant statutory functions. As my noble friend Lord Skidelsky said during the debate last week, there has sometimes been confusion about how responsibilities for funding, scrutiny and accreditation have been shared out, and people have been shunted from acronym to acronym. How right my noble friend was, and how much better things will be when we have the agency—one body taking care of such things.
Future statutory responsibilities for executive action are now clear. We know who will forecast the demand for teachers, who will organise their supply, who will set the criteria and who will apply them.
I hope that those carrying out such responsibilities will seek advice from as wide a range of relevant and knowledgeable people as possible. Indeed, the GTC Initiative is now a valuable contributor of advice to my right honourable friend. That range of people would include any professional body set up by teachers. As I have said, it now includes the GTC Initiative, which is consulted by the department on teacher issues. If teachers' bodies were to defer to an independent professional body in dealing with the Government on these matters, that would be a valuable development, but we do not need legislation to allow for that.
The only function specified in the amendment which non-statutory bodies cannot perform at present is to maintain a register of qualified teachers. This role, which is a purely administrative function, has in previous proposals usually included responsibility for dealing with cases of misconduct. The two certainly go sensibly together. There is no suggestion that the registration and misconduct responsibilities, which have been administered by the department for many years, have not worked well and do not enjoy public confidence.
We debated amendments seeking the establishment of a general teaching council for England and Wales during the Committee and Report stages of last year's Education Bill. We also heard further arguments at Second Reading of this Bill and during the debate on education initiated by the noble Lord, Lord Walton of Detchant, on 2nd February this year. In addition, I had an interesting and very valuable exchange of views with my noble friend Lord Elton and Professor Tomlinson on

51
17th February, and heard something about the discussions at the symposium held at Windsor in January.
As I said previously, there is nothing between us on the need for a high quality teaching profession. We endorse the emphasis given to this objective by the National Commission on Education in its recent report. It is what Part I of this Bill is about.
The noble Lord, Lord Dainton, and my noble friend Lady Carnegy made reference to the Scottish system and I wish to reinforce something that was said. The General Teaching Council in Scotland was established in the 1960s to address the specific problem brought about by teacher shortages. There were large numbers of uncertificated teachers working in Scottish schools and generating considerable disquiet about deteriorating standards. There is no such background in England and Wales. However, it is interesting that polling in elections to the council has fallen since its early days. Only 26 per cent. of secondary school teachers and 36 per cent. of primary school teachers eligible to vote chose to do so in 1990. That does not suggest widespread enthusiasm among teachers for a body of this kind.
The noble Lord, Lord Dainton, also asked whether it impacts on the motivation of teachers in the classroom. He asked what there is in the proposal that will impact on the teachers in the classroom. That is a good question. Supplied education will not impact on the professionalism and standards in the classroom, nor will advice to my right honourable friend the Secretary of State; nor will accreditation necessarily; and certainly nor will registration.
The noble Baroness, Lady Warnock, was anxious about the separation of funding and accreditation. We have made an argument for keeping accreditation and funding together. We believe that those who are funding must make sure that money follows quality in terms of those who are approved to provide training and to have a view about the outputs. But there is no proposal before us about the professional code of behaviour of teachers. There is no reference to what a general teaching council would do about teachers who go on strike. When I posed that question to Professor Tomlinson, asking him what view a general teaching council would take about unprofessional behaviour in the classroom—that is, whether a teacher takes an action which impacts disadvantageously on the education of a child—the answer was, "That is for the unions. We wish to keep off their territory". But that goes to the heart of the professionalism of teachers.
A comparison was made with the General Medical Council. In some ways it is hard to refute that, except I would pose this situation: if a doctor refuses to treat a patient that is a serious breach of professional conduct; but if a teacher refuses to teach a child, somehow that happens to be industrial action or the whim of a teacher but it is not territory upon which a general teaching council wishes to become involved. The noble Lord, Lord Annan, posed a question which related to the professionalism of those in higher and further education. If it is not appropriate for them to have
52
control over their own professional body, what is the distinctive case for a legal, statutory body to do so over teachers in schools?
The noble Earl, Lord Russell, commented on the independence of the advice that would come from such a general teaching council. The Teaching Training Agency will have a clear statutory role and remit. It will if anything be much more independent than the present Council for the Accreditation of Teacher Education. It is important that that is understood. The general teaching council proposal gives powers to the teaching council to give advice to the Secretary of State; but that is precisely the power that is replicated for the teacher training agency.
At last I have an answer for the noble Lord, Lord Glenamara, about the funds of the Royal Society of Teachers. I have been battling to find out the information. I understand that only £100 lies in the account of the society. I also understand that when it was wound up in 1949 it was left in trust. The only question is whether the Charity Commissioners will tell us exactly what the state of the fund and the trust is.
My noble friend Lady Cox raised an important question which goes to the heart of the matter. What can be done, what can we do, how can we, as a Committee and a body responsible for legislation, do to promote the professionalism of our best teachers? The noble Lord, Lord Murray, rightly spoke of the distinction in the roles of the general teaching council and the unions. The unions will not give up the right to any body, call it what one might, to instruct their members to take a particular form of action which they have voted upon, balloted upon and been mandated by their members to do. They will not give up the right to another body which will take a view that that is not its territory. It must remain—or so they say. Members of the Committee have put down an important challenge to me as a Minister in this Committee; that if there is a proposal to hand across that kind of territory to a general teaching council there may well be a great deal of unanimity around the Committee, and we ought to be talking properly about professional codes of standards as they relate to the individual teacher in the classroom—
5.45 p.m.
Lord Murray of Epping Forest: Does the Minister agree that one of the problems is the absence of any kind of agreement among teachers on the circumstances in which it is proper to take what she has called "industrial action"? I am sure that she does not press too strongly the claimed analogy between doctors and teachers. There are limited circumstances in which I would defend the right of teachers. Does the Minister agree that via a general teaching council the establishment of a set of standards, a set of criteria or a code of conduct will enormously strengthen the ability of the people arguing for common sense within teaching unions to define and enforce the narrow area within which it is proper for teachers to exercise that particular power?
Baroness Blatch: That is an interesting question and I remain open minded. If the teacher unions are signed up to membership of a general teaching council—as

53
indeed they are—and come forward and subordinate their right to invite any teacher in any of our schools to take the kind of action that would put a child's education at a disadvantage, we would have to be open minded and consider that proposal. But there is nothing in a general teaching council as proposed by this amendment that will of itself raise standards. There is nothing in a general teaching council as proposed by this amendment that will raise or improve the perception that people have of teachers. That will come only from the conduct of teachers. There is nothing in a general teaching council as proposed in the amendment that will raise the standards of conduct and professionalism because every teacher will be on the register. Therefore, there is no mechanism for dealing with a variable performance of professionalism.
The standard of qualifications for entry to initial teacher training is not an issue. That is dealt with by the Secretary of State's criteria. For school-provided courses, the minimum standard is that students must have degrees. There is no gap here to be filled by a general teaching council. There is, however, as I said previously, scope for a general teaching council-type body which could establish a standard of entry to its ranks, set standards for professional conduct and be prepared to expel a member who failed to live up to these standards. In this way the impact on the reputation of teachers would be positive. The currency of membership would enhance the standing and recruitment prospects of teachers, and the Government would be more than ready to listen to such a body, which would be a positive and welcome addition to the voice of the teacher unions. A general teaching council run in this way must of course spring from professional teachers themselves and not be spawned by government.
Lord Judd: If the charge is that we are putting forward an amendment to bring into being a body that will contribute to the future of sound educational policy in this country—and that will be its principal remit—without hesitation I plead guilty. That is our concern. I have said it several times before; I have said it today but I shall never cease saying it. I endorse totally the view of the noble Viscount, Lord Eccles, that there is no area of life in our country in which it is more important to build positive consensus than in the whole realm of our approach to education. The Minister seems determined —I do not believe that she is a disciple of this philosophy but she i s a loyal practitioner of it—to resist the principle of consensus building. The noble Lord, Lord Elton, shakes his head. He is a gentle and nice man.
Baroness Blatch: I am grateful to the noble Lord for giving way. I believe that banter across the Dispatch Box is the stuff of politics but I will not sit here and have attributed to me words which are completely untrue. I believe that there is enormous consensus across the Committee. We all wish to enable the best of our teachers to be valued properly and for that to be seen to be so. The difference between us is that I believe that that organisation should spring from the good teachers in the system rather than through an organisation with
54
powers which miss out totally on the professional conduct of individual teachers and which does nothing whatever to raise the standard of professionalism.
Lord Judd: The point that I was going to make was that the noble Lord, Lord Elton, as well as the Minister, was shaking his head. I merely wish to say that he is a gentle and decent man. I wish that on this issue he would have the strength of his natural inclinations and convictions.
Lord Elton: The pressure on me is to row along with the noble Lord's amendment because I am in favour of a general teaching council. But I am not in favour of this amendment, and I have the courage to say so.
Lord Judd: If the Minister is so passionately in favour of the consensus of which she spoke a few moments ago, she should not ignore the fact—as none of us should—that the organisation which has been doing such valiant work in the realm of building up the concept of the general teaching council was able to report in July 1992 that there was,
"unanimity and strength of support now evident among teachers' associations and other organisations directly concerned with the education service. The Forum created in 1988 now has in membership thirty-two organisations including not only all the school teachers' associations but also those from further education and the university sector".
It is the overwhelming wish of all those involved to be part of a general teaching council, contributing responsibly to the evolution of policy together with the Government. As has been said by many Members of the Committee, I cannot think of anything more to strengthen morale. Conversely, I cannot think of anything more damaging to morale than for the Government to remain obdurate this evening. I have no alternative but to push the amendment to a vote.
5.52 p.m.
On Question, Whether the said amendment (No. 65) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 135.

Division No.2

CONTENTS

Addington, L.

David, B.

Adrian, L.

Dean of Thornton-le-Fylde, B.

Airedale, L.

Donoughue, L.

Archer of Sandwell, L.

Dormand of Easington. L.

Ashley of Stoke, L.

Eatwell, L.

Aylestone, L.

Ewing of Kirkford, L.

Barnett, L.

Falkender, B.

Beaumont of Whitley, L.

Falkland, V.

Beloff, L.

Fisher of Rednal, B.

Blackstone, B.

Gallacher, L.

Blake, L.

Gladwyn, L.

Bonham-Carter, L.

Glenamara, L.

Boston of Faversham, L.

Gould of Potternewton. B.

Bottomley, L.

Graham of Edmonton, L. [Teller.]

Bridges, L.

Brimelow, L.

Greene of Harrow Weald, L.

Bruce of Donington, L.

Grey, E.

Buckmaster, V.

Guildford, Bp.

Carmichael of Kelvingrove, L.

Halsbury, E.

Carter, L.

Hamwee, B

Cledwyn of Penrhos, L.

Hanworth, V.

Clinton-Davis, L.

Harris of Greenwich, L

Cocks of Hartcliffe, L.

Haskel, L.

Dacre of Glanton, L.

Henderson of Brompion, L.

Dahrendorf, L.

Hilton of Eggardon, B.

55

Hollis of Heigham, B.

Richard, L.

Howell, L.

Rochester, L.

Irvine of Lairg, L.

Rodgers of Quarry Bank, L.

Jay, L.

Russell, E. [Teller.]

Jeger, B.

Seear, B.

Jenkins of Hillhead, L.

Sefton of Garston, L.

Jenkins of Putney, L.

Serota, B.

Judd, L.

Shepherd, L.

Kirkwood, L.

Sherfield, L.

Lockwood, B.

Stedman, B.

Longford, E.

Stoddart of Swindon, L.

Lovell-Davis, L.

Strabolgi, L.

Mason of Barnsley, L.

Taylor of Blackburn, L.

McNair, L.

Taylor of Gryfe, L.

Merlyn-Rees, L.

Thomson of Monifieth, L.

Mishcon, L.

Thurlow, L.

Molloy, L.

Tordoff, L.

Morris of Castle Morris, L.

Turner of Camden, B.

Mulley, L.

Warnock, B.

Murray of Epping Forest, L.

White, B.

Nicol, B.

Wigoder, L.

Ogmore, L.

Wilberforce, L.

Peston, L.

Williams of Elvel, L.

Pitt of Hampstead, L.

Williams of Mostyn, L.

Plant of Highfield, L.

Wilson of Rievaulx, L.

Redesdale, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Glenarthur, L.

Addison, V.

Goold, L.

Alexander of Tunis, E.

Goschen, V.

Allenby of Megiddo, V.

Gray of Contin, L.

Annaly, L

Greenway, L.

Annan, L.

Gridley, L.

Archer of Weston-Super-Mare, L.

Hailsham of Saint Marylebone, L.

Arran, E.

Harmsworth, L.

Ashbourne, L.

Harrowby, E.

Astor, V.

Hayhoe, L.

Balfour, E.

Henley, L.

Birdwood, L.

Hesketh, L.

Blatch, B.

Holderness, L.

Blyth, L.

HolmPatrick, L.

Borthwick, L.

Hooper, B.

Brabazon of Tara, L.

Hothfield, L.

Braine of Wheatley, L.

Howe, E.

Bridgeman, V.

Huntly, M.

Brougham and Vaux, L.

Jenkin of Roding, L.

Burnham, L.

Killearn, L.

Cadman, L.

Kilmarnock, L.

Caldecote, V.

Kimball, L.

Campbell of Alloway, L.

Kintore, E.

Campbell of Croy, L.

Leigh, L.

Camegy of Lour, B.

Long, V.

Carnock, L.

Lucas of Chilworth, L.

Chalker of Wallasey, B.

Lucas, L.

Charteris of Amisfield, L.

Lyell, L.

Chelmsford, V.

Mackay of Ardbrecknish, L.

Chesham, L.

Macleod of Borve, B.

Clanwilliam, E.

Manton, L.

Clark of Kempston, L.

Marlesford, L.

Colnbrook, L.

McColl of Dulwich, L.

Courtown, E.

Merrivale, L.

Cox, B.

Mersey, V.

Craigavon, V.

Middleton, L.

Craigmyle, L.

Miller of Hendon, B.

Cranborne, V.

Milverton, L.

Cumberlege, B.

Monteagle of Brandon, L.

Davidson, V.

Morris, L.

Dean of Harptree, L.

Mottistone, L.

Denham, L.

Mountevans, L.

Denton of Wakefield, B.

Mountgarret, V.

Dixon-Smith, L.

Moyne, L.

Eden of Winton, L.

Munster, E.

Elliott of Morpeth, L.

Murton of Lindisfarne, L.

Elton, L.

Norrie, L.

Ferrers, E.

O'Cathain, B.

Finsberg, L.

Orr-Ewing, L.

Fraser of Carmyllie, L.

Oxfuird, V.

Gardner of Parkes, B.

Pearson of Rannoch, L.

Gilmour of Craigmillar, L.

Pender, L.

56

Perry of Southwark, B.

Strathclyde, L.

Peyton of Yeovil, L.

Strathmore and Kinghorne, E. [Teller.]

Rankeillour, L.

Reay, L.

Sudeley, L.

Renfrew of Kaimsthorn, L.

Swinfer, L.

Renton, L.

Thomas of Gwydir, L.

Renwick, L.

Torrington, V.

Rippon of Hexham, L.

Trumpington, B

Robertson of Oakridge, L.

Ullswater, V. [Teller.]

Rodger of Earlsferry, L.

Vaux of Harrowden, L.

Rodney, L.

Wakeham, L. [Lord Privy Seal.]

Romney, E.

Westbuty, L.

Seccombe, B.

Whitelaw, L.

Skidelsky, L.

Wise, L

St. Davids, V.

Wynford, L.

Stewartby, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6 p.m.
Clause 12 [Grants for teacher training]:
[Amendments Nos. 66 and 67 not moved]
Clause 12 agreed to.
Clause 13 [Qualification of teachers, &c.]:
Viscount St. Davids Viscount St. Davids moved Amendment No. 68:
Page 7, line 25, after ("Agency") insert ("or the Higher Education Funding Council for Wales").
The noble Viscount said: In moving this amendment I shall speak also to Amendment No. 71. Government Amendments Nos. 68 and 71 will bring together the funding and accreditation in Wales that the Bill secures for England. In the case of Wales, for reasons of scale it will be under the auspices of the Higher Education Funding Council for Wales that those responsibilities will be combined. The Bill was drafted before my right honourable friend the Secretary of State for Wales was able to consider the full results of his consultation exercise and conclude, as we already had for England, that the duty of accreditation was better placed with the funding body. I beg to move.
On Question, amendment agreed to.
Lord Judd Lord Judd moved Amendment No. 68A:
Page 7, line 26, at end insert ("to ensure that all courses which involve schools in the initial training of school teachers shall he accredited by an appropriate institution of Higher Education.").
The noble Lord said: I beg to move.
The Deputy Chairman of Committees (Lord Strabolgi): The Question is, That Amendment No. 68A be agreed to? As many as are of that opinion shall say, "Content", to the contrary "Not-Content".
Noble Lords: Not content!
Lord Judd: There is a serious issue here. Amendment No. 62 was grouped with the above amendment at the Government's request. When I spoke to Amendment No. 62, I made it perfectly clear that I was speaking also to Amendment No. 68A. Therefore, as I understand it, the normal procedure in the Chamber is that the Government should accept the outcome of the vote on the first amendment.
Baroness Blatch: There does not have to be an absolute rubber-stamping of other amendments which are consequent upon it. A vote has been taken on Amendment No. 62. It is my wish that we oppose the second amendment.
Lord Judd: With the greatest respect, it seems to me that the point is quite clear. The Government proposed certain groupings to us today. With one or two minor adjustments about which the Government were most co-operative, we accepted the proposal on groupings. When we came to the current group, I made it explicitly clear in what I said that I was speaking to both amendments. Therefore, according to precedent, the Government should accept the outcome of the vote on the first amendment.
Lord Richard: Perhaps I may say a few words. I am bound to say that I am somewhat surprised by the attitude taken by the Minister. As I understand it, the grouping was suggested by the Government. It was accepted by us and, indeed, by the whole Committee. A debate took place on Amendments Nos. 62 and 68A. However, in the light of the defeat that the Government suffered earlier, they now seem to be trying to disentangle themselves from the grouping that they requested. Whether or not it is possible to do so technically is a matter for the Deputy Chairman of Committees. I believe that the Minister should think very hard before she takes such action. Morally speaking, there is no doubt whatever that Amendment No. 68A should follow the result of Amendment No. 62.
Baroness Blatch: It was my desire to put the amendment to the vote. However, I am advised that I should withdraw my opposition to the amendment, and I do so.
On Question, amendment agreed to.
Baroness Blackstone Baroness Blackstone moved Amendment No. 69:
Page 7, line 29, after ("person") insert ("is a graduate of a university in England and Wales or holds a comparable academic qualification and").
The noble Baroness said: The purpose of the amendment is to secure the present position in relation to the graduate status of the teaching profession, especially in primary schools. As it stands, the Bill would permit the new teacher training agency to set up and approve courses of initial training for teachers who were not graduates and who were not taking courses which would lead to graduation. The amendment would ensure that teaching remained an all-graduate profession.
It would be ironical if, at a time when approaching 30 per cent. of each cohort of 18 year-olds is likely to graduate, graduate status was no longer required of those entering the teaching profession. It would certainly be unacceptable for the new agency to have conferred on it powers to move in such a retrograde manner. I am not saying that the agency would move in such a manner, but the Bill as it stands would allow it to do so.
I believe that I am right in claiming that it is now generally agreed that all teachers must have a high degree of knowledge and understanding of their chosen subject; and, indeed, some enthusiasm for it. I believe that the Bill requires amending to ensure that all teachers entering the profession are of graduate or equivalent status, as was largely the case in the 1980s.
58
It would provide an important guarantee of the intellectual quality of teachers who have responsibility for the next generation.
I am sure that Members of the Committee will agree that, at a time when it is generally accepted that standards in schools need to rise, it would be something of an error to reduce the entry requirements for the teaching profession. Again, I am not saying that the Government intend to do so; indeed, I am sure that the Minister will tell us in a moment that they have no intention of so doing. However, I am asking that that should be written on the face of the Bill to ensure that there is no tampering with the graduate status of our teachers. After all, it was only recently that considerable debate took place on the whole question of the graduate status of the teaching profession, with attempts by the Secretary of State to introduce a one-year route into primary teaching for non-graduates which, perhaps unfairly, became tagged by the media as the "mums" "army" route into teaching.
Graduate status for the teaching profession is not secured by this legislation as it stands. Criteria determined by the Secretary of State and the Education (Teachers) Regulations are the basis for determining the level of a teacher's academic qualifications, which may therefore be revoked and amended at any time.
As it stands, Clause 13(2) appears to be an alternative to paragraph 2(1) of the Education (Teachers) Regulations 1993 which define a qualified teacher as a person who has,
"successfully completed a course at an institution or university in England or Wales which—
(a) is for the degree of Bachelor of Education, the Certificate in Education, the Post-graduate Certificate in Education or a comparable academic award".
Perhaps when the Minister replies she will confirm that Clause 13(2) is a replacement for these regulations. As it stands, Clause 13(2) must raise some doubts as to whether accredited institutions might not be able to determine all aspects of a teacher's education, even when this includes what are currently regarded as undergraduate studies leading to a degree. I repeat that the purpose of this amendment is to fully maintain the graduate status of the teaching profession. I beg to move.
Baroness Carnegy of Lour: Where do Scotland and Northern Ireland stand in relation to this measure? It seems to me quite extraordinary for a party which claims to have an enormous majority in Scotland not to have included the whole of the United Kingdom in this measure. I do not particularly wish to tease the noble Baroness but is there a serious point here, or is it simply that the amendment contains an omission? For example, something like half of the undergraduates of the University of St. Andrew's come from England and will probably seek teacher training south of the 'Border. Is the noble Baroness omitting them from the measure or is that simply a mistake?
Baroness Blackstone: No, this Bill is largely about England and Wales. The reference to England and Wales is to enable the amendment to tie in with other parts of the Bill, including later references in this clause. In any case, the amendment states,

59
"a graduate of a university in England and Wales or holds a comparable academic qualification".
Baroness Carnegy of Lour: If I may say so, that is where the insult lies. It is quite extraordinary to refer to a degree from the University of St. Andrew's as a "comparable academic qualification". I believe the noble Baroness should acknowledge that she may have made a small mistake here.
Baroness Blackstone: I am sorry to say this, but I believe the noble Baroness totally misunderstands this Bill. If she reads the rest of the clause in the Bill she will see references to England and Wales. Perhaps she should address her questions to the Minister.
Lord Addington: I am a graduate of a Scottish university and when I first read this amendment I felt my hackles rise. However I believe the amendment is correct when considered in the context of the Bill. Possibly lowering the standards of the Scottish universities to help out the English and Welsh will not cause too much harm.
Lord Renfrew of Kaimsthorn: I share the sentiments behind this amendment. Indeed, I am gratified to know that a number of persons on this side of the Committee do too. When we discussed Amendment No. 50 on Thursday, Amendment No. 63 was also discussed. As I understand it, my noble friend the Minister signified her general assent to the principle; namely, that we are talking about graduates. I am happy to support the amendment to that extent but it seems to me that, as so often happens, there is an element of inconsistency. Amendment No. 63 indicated that,
"Courses of initial teacher training so provided shall be open only to persons holding a degree or equivalent qualification".
That is one pathway. On the other hand, in the amendment we are discussing there seems to be a dual condition that persons should have a degree—that is what the amendment is about—and should also have completed a course of initial teacher training. It has to be one or the other. Either it is a condition of initial teacher training that one has a degree, or it is a requirement that one has both. However, in logic, one cannot have it both ways. This is a small inconsistency but it is an inconsistency between Amendment No. 63 and Amendment No. 69. This is the kind of thing that must be sorted out or it will create a great deal of confusion. I am a little uneasy about that detail although I certainly support the principal point about graduates. Therefore, I support the sentiment of the amendment.
6.15 p.m.
Baroness Blatch: I refer to the question asked by the noble Baroness, Lady Blackstone, in connection with the education regulations. The additional words added to the regulations are a replacement for those which the noble Baroness quoted. As the Committee is aware from what I said on Second Reading, and from the fact that I accepted Amendment No. 63 of my noble friend Lady Perry, I have no difficulty whatsoever with the aim of this amendment. It is exactly in line with the Government's intentions and if it reassures the
60
Committee to have those intentions spelt out clearly on the face of the Bill, I am happy to accept that judgment. I hope the noble Baroness will understand if I point out —I reinforce the point made by my noble friend Lord Renfrew—that there is a drafting deficiency here and that the amendment should be in line with that of my noble friend Lady Perry, which we have already accepted. If the two amendments were brought into line that would help to ensure consistency in the legislation. If the Committee is agreeable, I will bring back an amendment on Report which I hope the Chamber will then agree should appear on the face of the Bill.
Baroness Blackstone: I am enormously grateful to the Minister. Of course I accept that these amendments must be brought into line so that they are consistent with each other. When this amendment was first tabled I believe the amendment in the name of the noble Baroness, Lady Perry, had not yet been tabled. I am grateful for the Minister's comments and I look forward to seeing a revised amendment at the next stage of the Bill. In the meantime, I shall beg leave to withdraw the amendment.
Baroness Blatch: Before the noble Baroness sits down, I should have said that we will do what we can to give Scotland and Northern Ireland comparability with the other countries of the United Kingdom.
Baroness Blackstone: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 70 not moved.]
Viscount St. Davids Viscount St. Davids moved Amendment No. 71:
Page 7, line 33, leave out ("Secretary of State") and insert ("Higher Education Funding Council for Wales").
The noble Viscount said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
[Amendment No. 72 not moved.]
Clause 13, as amended, agreed to.
Clause 14 [Duty to provide information, &c.]:
[Amendments Nos. 73 and 74 not moved.]
Lord Elton Lord Elton moved Amendment No. 75:
Page 8, line 4, after ("require") insert ("in such manner as the Secretary of State may from time to time determine;").
The noble Lord said: We are moving at such a pace that I am rather surprised that we have arrived at where we have. My amendment is addressed at a narrow but, I think, significant point. It directs the attention of the Committee to line 4 of page 8 of the Bill. Clause 14(1) (a) states that the teacher training agency,
"shall provide the Secretary of State with such information or advice … as he may from time to time require"
or, under paragraph (b),
"may provide the Secretary of State with such information or advice … as they think fit".
In paragraph (b) the agency may provide the Secretary of State with information which it thinks the Secretary of State ought to have but for which he has not asked. Both those provisions are subject to the requirement of the final two lines of subsection (1) which state,
"the information and advice shall be provided in such manner as the Secretary of State may from time to time determine".

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I can quite understand why the Secretary of State may wish to determine the manner in which the advice he has asked for is presented to him. That seems to me quite proper. However, it appears inexplicable that he should be in a position to tell the training agency how to present the information he has not asked for. If the agency has an idea about the number of teachers at present being prepared to teach geography and the Secretary of State has not asked for that information, I do not see why he should be required to be told that he is about to be given that information and then say how it should be presented.
Therefore, I have suggested that the words which qualify paragraphs (a) and (b) should be moved into paragraph (a) and qualify only that paragraph, which would then read:
"The Teacher Training Agency—
(a) shall provide the Secretary of State with such information or advice relating to matters for which they are responsible as he may from time to time require in such manner as the Secretary of State may from time to time determine".
Paragraph (b) is then left without that qualification because Amendment No. 76 removes the qualification in the last two lines.
The Front Bench opposite has a different proposal which I consider to be less good, but it is for Members of the Committee opposite to argue their case. I beg to move.
Lord Dainton: I support Amendments Nos. 75 and 76 in the name of the noble Lord, Lord Elton. He has put his finger on the issue. It is reasonable for the Secretary of State, in seeking advice, to specify the form in which it should be submitted. But it is not merely inexplicable that when advice is proffered to him he should set those conditions, because until he receives it he cannot know what it contains and therefore is incapable of setting those conditions. Therefore, that qualification must be removed; otherwise it presents the Secretary of State with another problem which he will find it impossible to solve.
Lord Addington: I rise briefly to support what the noble Lord, Lord Elton, said and also to support the amendment in the name of my noble friend, which says very much the same. I hope that the Minister can give a satisfactory answer. If the Secretary of State can choose which segment of advice he wants, there is no point in advice being offered in the first place.
Baroness Blateh: The Committee is right to be concerned that the teacher training agency should be free to give the Secretary of State independent, objective advice. We fully share that view. The availability of accurate information is also a prerequisite for the workings of good government. But I must assure the Committee that the clause as drafted does not prevent the agency from proffering independent and objective advice.
There are sound reasons why the Secretary of State should be able to determine the manner in which information and advice he has requested from the teacher training agency is provided. First, it will ensure
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that clear and orderly channels of communication will be established. That is important for the efficient transaction of business.
Secondly, there will be times when confidentiality will be required. For example, the teacher training agency may wish to alert the Secretary of State to the position at a particular institution. Depending on the circumstances, it may be unfair to that institution if confidentiality is not preserved. The Secretary of State must be the arbiter of that. That would defend the agency from external pressure to release information that should properly be kept confidential.
Thirdly, there is no evidence that the parallel provisions in existing legislation, such as in the Further and Higher Education Act 1992 in relation to the further and higher education funding councils, have in any way resulted in those bodies being unduly restricted in providing information or advice. On the contrary, I believe that the existing arrangements ensure that full and candid information can be passed without reservation to my right honourable friend the Secretary of State.
The Secretary of State would be unable to ensure that such information as he requires to evaluate the effect of his policies among other matters would have clarity and completeness. He would be unable even to commission advice on such matters as the financial viability of institutions if he wished to guarantee its confidentiality.
There would be an adverse effect on public accountability. Currently, the Secretary of State commissions from the Higher Education Funding Council an annual appraisal of the financial position and requirements of institutions which it funds. This is essential for accountability in the use of public funds and is of necessity confidential, as I am sure the Committee will appreciate. That would not be possible under the noble Earl's amendment.
I believe that the amendment in the name of the noble Earl, Lord Russell, could lead to a breakdown in communications between the Government and the agency and a loss of accountability on the part of the agency. I hope that the noble Earl will feel able to withdraw that amendment.
The amendment of my noble friend, Lord Elton, does not go as far as the amendment of the noble Earl, Lord Russell. His amendment seeks to remove the Secretary of State's control over the form only of information and advice which the agency itself wishes to send to the Secretary of State.
It is fair to say that the amendment would expose the agency to some pressure—pressure which the Higher Education Funding Council does not have to fear because it is covered by provisions identical to the Bill as drafted. In 1992 this Chamber considered an amendment which would have left the council free to determine the manner of its advice but decided that it was better for the council to be able to defer to a general direction on confidentiality rather than have to defend itself against pressure to publish all its advice.
There is enormous force in the argument put forward by my noble friend in support of his amendment in relation to information which is proffered independently and objectively by the agency. The only reason for not

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accepting that argument is the question of confidentiality. If there were no requirement on the agency to retain confidentiality when imparting information it could proffer information to the Secretary of State and make it public at the same time.
If the Committee agrees, I should like to go away and think about the matter to see whether there is any way of making sure that there is some protection against that particular scenario. The last thing we want to do is to put any kind of muzzle on information and independent advice proffered by the agency to my right honourable friend. But there is this fine point of confidentiality and the possibility of exposing information about what may be an unfortunate set of circumstances relating to an individual institution to the public domain at a very sensitive time.
Baroness David: Perhaps I may just make a point. I am very glad that the Minister is going to have another look at this question. Clause 14(1) seems to be an extremely clumsy way of putting anything. It seems to me to be slightly odd that there is such a worry about confidentiality. If it comes into existence, the teacher training agency will surely be a very responsible body and I should not have thought that the worry about confidentiality would be very great.
Lord Dainton: In five years as chairman of the University Grants Committee I would have found such a restriction on proffering advice to Secretaries of State quite difficult. However, it should not arise in this case because, as the noble Baroness will recall, at all times the teacher training agency will have in attendance a representative from the department—who I assume would be of Deputy Secretary rank. It would be natural that he should advise that a particular matter should be confidential. In any event, in those days, when I had matters to take to Secretaries of State, my own judgment was quite as good a guide to our behaviour as the advice that we obtained from the Deputy Secretary then in charge of higher education. I hope that that mechanism will apply because there is a flavour to this provision which could, on important occasions, prevent the TTA from bringing to the attention of the Secretary of State matters of some importance.
Lord Elton: I am most grateful to the noble Lord, Lord Dainton, for his intervention. It illuminates for me how the Secretary of State will know what advice he is going to receive so that he can therefore give a direction about it.
To give the Secretary of State a blanket power—as the clause does—which could be applied to all the advice that was initiated by the TTA, would be more than the Government require and therefore more than we need accord to the Secretary of State. When she is considering the matter between now and the next stage, I wonder whether my noble friend will consider, instead of the wording of my amendment:
"in such manner as the Secretary of State may from time to time determine",
that the clause might read:
"in such manner relating to confidentiality as the Secretary of State may from time to time determine".
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That at least would be a start in limiting the power, which I am sure my noble friend does not want to be too great.
Baroness Blatch: That is a very helpful suggestion. Without taking advice from learned counsel I would not dare to say whether that would be an acceptable form of words. However, I accept the principle behind what my noble friend says.
I should not like to give the Committee the impression that I believe that the provision in respect of information required and requested by my right honourable friend should not allow him the power to specify the manner in which he would like to receive that information. I make the distinction between the two types of information—that requested by my right honourable friend and that proffered by the agency independently and objectively. Therefore, I should like to think further about the form of words suggested by my noble friend.
Lord Elton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Peston Lord Peston moved Amendment No. 75A:
Page 8, line 6, at end insert ("and
(c) shall publish an annual report (to be laid before Parliament) on the past year's financial and other activities in matters for which they are responsible.").
The noble Lord said: The amendment stands in the name of my noble friends Lord Judd and Lady David. It is at the other extreme from the anxieties that we have just discussed. With regard to those earlier concerns, I believe that the Secretary of State is right to consider questions of confidentiality at all times and should not be so constrained that he can never say, "I do not wish this information to be in the public domain". I wish to go to the other extreme and ask about what ought absolutely to be in the public domain.
The new teacher training agency is a public body spending an enormous amount of public money. It is accountable to Parliament and to the Secretary of State. I am not an expert on these matters. For all I know, any such agency of any kind must always publish an annual report. There may be more blanket legislation which states that such bodies must do so; but I am not aware of it. If there is no general requirement, then we need an amendment which states that those bodies must publish an annual report.
Clause 14 relates to the provision of information to the Secretary of State, to the two agencies together, and so on. On the simplest terms of open government or of the Citizen's Charter, the one body which is really interested in what is going on is the public at large, including Members of this Chamber. On occasions they also welcome the opportunity to debate what is going on.
It is a probing amendment. It is possible that the noble Baroness will simply say, "Of course those bodies will publish an annual report and we do not need to argue about it". That would be an end of the matter. However, if she remotely suggests that there is a doubt about it, then we ought to have such a provision on the

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face of the Bill. I hope that she will simply state that there is no problem and that there will be an annual report.
Baroness Blatch: It is certainly our intention that the agency should produce the standard range of publications which secure accountability and openness in the work of our public bodies, including a corporate plan setting out the way in which it intends to pursue its statutory objectives, and an annual report about what has been achieved. That is the case with the Higher Education Funding Council, and that was secured without specific reference in legislation. However, I accept that there is a distinction to be drawn. The agency will have a very special and focused role, as we have said, and a unique oversight of the teacher training system. I am therefore happy to accept the proposal for a statutory requirement for an annual report in this case.
If it does not risk damaging the relationship between myself and the noble Lord, I should like to accept the principle underlying the amendment but should like to look again at the drafting and bring forward an amendment to the House addressing the point at the next stage. I hope that is acceptable.
Lord Peston: Perhaps I may say to the noble Baroness that there is never any danger of our relationship being damaged by anything said across the Floor of this Chamber. As a matter of principle, I always prefer an amendment to be drafted by the Government because I can then rely on it rather better than on my own drafting. Naturally, I accept the noble Baroness's offer and look forward to her form of the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I have to inform the Committee that if Amendment No. 76 is agreed to, I cannot call Amendment No. 77.
[Amendments Nos. 76 to 79 not moved.]
Clause 14 agreed to.
Clause 15 [Additional, supplementary and ancillary functions]:
The Deputy Chairman of Committees: If Amendment No. 80 is agreed to, I cannot call Amendment No. 81.
Earl Russell Earl Russell moved Amendment No. 80:
Page 8, line 19, leave out subsection (1).
The noble Earl said: Amendment No. 80 seeks to delete from the Bill the clause which allows the Secretary of State by order to confer on the teacher training agency such additional functions as he considers it may appropriately discharge having regard to its general objectives.
My first objective in putting down the amendment was to find out roughly what additional functions were envisaged. It may be that I can save the Committee's time by listening to what the noble Baroness says on Amendment No. 83. However, I wish to ask her one specific question before doing so. Amendment No. 83 is to be placed at line 24 of page eight of the Bill. Will the noble Baroness indicate whether her amendment covers only subsection (2) of Clause 15 or does it relate also to
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subsection (1)? When I have that answer, I may be able to find out whether I need to take up any more of the Committee's time. I beg to move.
Viscount St. Davids: Perhaps I may speak to Amendment No. 83. The amendment has been introduced to specify that the Secretary of State can ask the funding council to undertake supplementary functions only if the Secretary of State has power to undertake those functions himself. Without the amendment, "supplementary" has no meaning in the context of the clause. The wording mirrors that provided in Section 69(6) of the Further and Higher Education Act 1992.
Earl Russell: I am grateful for that reply, which goes a long way to reassure me. I have one further question. Does Amendment No. 83 relate to subsection (1) as well as to subsection (2)? If so, my anxieties are at an end.
Viscount St. Davids: Amendment No. 83 relates only to subsection (2).
Earl Russell: I am grateful for that reply. In that case, what functions are being conferred by subsection (1)? At first sight it appears a rather large power. Before I can agree to the provision, I should like to know exactly what is being envisaged. If subsection (1) is not covered by the amendment, it might mean anything.
Viscount St. Davids: I can give an example. The agency might help to arrange admissions.
Earl Russell: I am afraid that that does not reassure me. It was the range of missions which might be involved which caused me concern. I had a suspicion that I might be buying a pig in a poke. Perhaps we should all take some advice and return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 81 not moved.]
The Deputy Chairman of Committees: Before the noble Lord moves Amendment No. 82, I have to say to the Committee that if Amendment No. 82 is agreed to, I cannot call Amendment No. 83. Is the noble Lord moving it, or not moving it?
Lord Dainton: I wish to move the amendment.
The Deputy Chairman of Committees: I have called the amendment. Perhaps the noble Lord would like to make his speech. Is the noble Lord moving the amendment formally?
Lord Dainton: Is the position that I cannot make a speech?
The Deputy Chairman of Committees: The noble Lord is perfectly entitled to move Amendment No. 82 and to make a speech on it. All I had to say to the Committee was that if the Committee should accept the amendment, Amendment No. 83 will fall. Perhaps the noble Lord would rather not move Amendment No. 82?
Baroness Blatch: I wonder whether it would be helpful if I intervened to say that I believe the

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amendment was consequential upon Amendment No. 3, which stood in the name of the noble Lord, Lord Walton. I understand that the amendment has already been debated. The normal convention—I am the last person to talk about normal conventions today—is that it should not be moved.
Baroness David: Perhaps I may ask whether that is right. When I considered the amendment this morning, I decided that it was not consequential. Therefore there seemed every reason why the noble Lord, Lord Dainton, should move it.
Lord Dainton Lord Dainton moved Amendment No. 82:
Page 8, line 22, leave out subsections (2) and (3).
The noble Lord said: I wish to move Amendment No. 82 only to make the position absolutely clear. It seems to me that subsections (2) and (3) of Clause 15 are superfluous. If one considers Clause I carefully, it already gives the Secretary of State the right to impose on the teacher training agency any additional functions appropriate to the TTA's capacity to achieve its general objectives. That includes any activities that are ancillary to their function, as referred to in subsection (3), and functions supplementary to their functions in subsection (2). Those subsections confuse the matter, whereas if subsection (1) is left as it stands, it is perfectly clear. I am open to correction but it seems to me that those two subsections are unnecessary.
Lord Elton: Subsection (2) relates to the Education Funding Council for Wales and subsection (1) refers to the teacher training agency.
Lord Dainton: I am anxious to point out the redundancy of those two clauses. I am content to leave the matter having drawn it to the attention of the noble Baroness.
Baroness Blatch: The amendment was grouped with Amendment No. 3 in a previous debate. As I stated, I am rather sheepishly reminding noble Lords about conventions, but it is the convention of the House that as the amendment was grouped with Amendment No. 3, it should not be moved.
The Deputy Chairman of Committees: I am bound to call every amendment. It is not for me to decide whether or not Members of the Committee wish to speak to it.
Lord Dainton: I beg leave, to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount St. Davids Viscount St. Davids moved Amendment No. 83:
Page 8, line 24, at end insert:
("For the purposes of this subsection a function is a supplementary function in relation to the Council if it is exercisable for the purposes of—

(a) the exercise by the Secretary of State of functions of his under any enactment, or

(b) the doing by the Secretary of State of anything he has power to do apart from any enactment,

and it relates to, or to the activities of, an eligible institution.").
On Question, amendment agreed to.
Lord Judd Lord Judd moved Amendment No. 83A:
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Page 8, line 27, at end insert:
("(4) The Secretary of State shall consult with appropriate persons and shall consider any representations made to him by them about any order or direction under this section.").
The noble Lord said: As with other parts of the legislation we feel that the maximum degree of consultation will strengthen what is subsequently done because it will not just be governed by diktat but government having taken into account the views of those who will be affected and those with valid observations to make. In that context we hope that the Government are able to accept the amendment. I beg to move.
Baroness Blatch: Amendment No. 83A may in one sense go too far and in another it may not go far enough. I should like to consider further whether it is sensible for ancillary functions to be caught by the provisions. It may be a step too far. Ancillary functions are by definition functions of a technical nature that do not require Parliamentary scrutiny, and a requirement to consult may be heavy handed. On the other hand, the amendment does not define appropriate persons and that is an important deficiency.
If the noble Lord would agree to withdraw the amendment I should like to undertaken further consideration between now and Report.
Lord Judd: This is one of those rare moments that I treasure. How could I possibly spurn it? I totally accept the assurance that has been given and look forward to seeing what the noble Baroness brings back.
Amendment, by leave, withdrawn.
Clause 15, as amended, agreed to.
Clause 16 agreed to.
Clause 17 [Interpretation]:
Baroness Blatch Baroness Blatch moved Amendment No. 84:
Page 8, line 37, leave out ("regulations") and insert ("order").
The noble Baroness said: The amendment concerns a purely technical change to correct an error in the Bill. Clause 17(1) (a) makes a cross reference to Clause 4(3). In doing so, it should have referred to an order but instead refers to regulations. The amendment corrects that situation and I hope that noble Lords will accept it.
On Question, amendment agreed to.
Clause 17, as amended, agreed to.
Clauses 18 and 19 agreed to.
Viscount St. Davids: I beg to move That the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Road Traffic Regulations (Special Events) Bill
Brought from the Commons; read a first time, and to be printed.

Trade Marks Bill [H.L.]
6.45 p.m.
Baroness Trumpington: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Trade Marks Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the Disposal of Parliament, for the purposes of the Bill.
Read a third time.
Clause 3 [Absolute grounds for refusal of registration]:
The Earl of Harrowby The Earl of Harrowby moved Amendment No. 1:
Page 2, line 19, at end insert:
("Provided also that a certification trade mark should not be refused by virtue of paragraph (c) above.").
The noble Earl said: My Lords, there are three amendments in my name and the rest are consequential. The last amendment concerns a matter of drafting. The second one is a matter of principle but the first one is a matter of substance.
Noble Lords will be aware that a certification trade mark is not the same as a trade mark or a collective trade mark. A certification trade mark is something which has not been known or practised entirely, but by the majority of other members of the community.
In Clause 3(1) (c) certain elements of the bans on the usage of the ordinary trade mark do not apply in logic to certification trade marks. At Report stage the Minister stated:
"My noble friend mentioned certification marks. Certification marks such as, for example, "Sheffield", "Stilton" and the "Woolmark" would all qualify for registration under the Bill in the same way as they did under the present Trade Mark Act". —[Official Report, 24/2/94; col. 730.]
With great respect to my noble friend, I do not think that that statement is correct. If he looks carefully at the clause that we are discussing he will find that where there is a reference to "kind" in Clause 3(1) (c) the word "Woolmark", for example, would be banned.
The Minister stated that we have to comply with the Community regulations, but the Community regulations have no experience of and do not recognise certification marks. Therefore, in my submission we are totally in order in excluding certification marks from the banning that they would affect under the clause.
I suggest to the Minister that his two arguments are incorrect and it is not desirable to outlaw certification marks under this clause when they can be useful. If the Woolmark was an issue in front of the registrar at present it would be banned as the Bill stands. I do not believe that that is a desirable or necessary situation. What I am suggesting is in no way in conflict with Community law. I beg to move.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, I am grateful
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for the way in which my noble friend introduced his amendment. I know that he has been particularly concerned about the position of certification marks under the Bill. I do not think that there is any difference of opinion between ourselves about the desirability of what my noble friend intends. There is disagreement about what the Bill says. I would like to repeat my assurance that there is nothing in this clause, or in subsection (1) (c), which will make it difficult to register a certification mark.
At Report my noble friend observed that if the Woolmark, a very well-known and widely used certification mark, were to come up afresh, it would be banned under the terms of the Bill. I can assure him that that is not the case. There is nothing in the Bill which would prevent the registration of the Woolmark as a certification mark. In any event Clause 3(1) represents a directive obligation which must apply to all applications for registration and we cannot change it.
Amendment No. 16 would delete the first sub-paragraph of paragraph 3 of Schedule 2, which again takes up a directive provision. In this case it is an optional provision which allows us to register certification marks—such as Stilton or Sheffield—which designate the geographic origin of the goods. Given that my noble friend's Amendment No. 1 is unacceptable because the directive does not allow it, this one is equally unacceptable because it deletes the only exception which the directive allows when it comes to registering certification marks which are geographic words.
I know that my noble friend has spent a great deal of time examining this issue. I can only tell him that the resources of the department have been concentrated on making sure that the departmental view is the correct one. I hope, therefore, that on this further assurance my noble friend will be able to withdraw his amendment and take some comfort in doing so.
The Earl of Harrowby: My Lords, I am very grateful for my noble friend's remarks. I cannot, however, see the logic of his argument in that the phrase "the kind" under Clause 3(1) (c) seems to me exactly what the Woolmark is. Nevertheless, the Minister has enormous resources behind him in his department, and I have only my own amateurish brain-power. I hope that in another place the argument will be examined. Of course, I accept my noble friend's word; I also accept his judgment. I am not convinced, but I withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Strathclyde Lord Strathclyde moved Amendment No. 2:
After Clause 6, insert the following new clause:
Raising of relative grounds in case of honest concurrent use
(".—(1) This section applies where on an application for the registration of a trade mark it appears to the registrar—

(a) that there is an earlier trade mark in relation to which the conditions set out in section 5(1), (2) or (3) obtain, or

(b) that there is an earlier right in relation to which the condition set out in section 5(4) is satisfied,

but the applicant shows to the satisfaction of the registrar that there has been honest concurrent use of the trade mark for which registration is sought.

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(2) In that case the registrar shall not refuse the application by reason of the earlier trade mark or other earlier right unless objection on that ground is raised in opposition proceedings by the proprietor of that earlier trade mark or other earlier right.
(3) For the purposes of this section "honest concurrent use" means such use in the United Kingdom, by the applicant or with his consent, as would formerly have amounted to honest concurrent use for the purposes of section 12(2) of the Trade Marks Act 1938.
(4) Nothing in this section affects—

(a) the refusal of registration on the grounds mentioned in section 3 (absolute grounds for refusal), or

(b) the making of an application for a declaration of invalidity under section 43(2) (application on relative grounds where no consent to registration).

(5) This section does not apply when there is an order in force under section 7 below.").
The noble Lord said: My Lords, in Committee the noble Lord, Lord Peston, moved an amendment which would have had the effect that a mark is not to be refused registration where honest concurrent use has been made of it, notwithstanding that there is already an identical or similar mark on the register. That would have preserved the effect of Section 12(2) of the existing law. I said that I was doubtful if that could be reconciled with the directive, since it provides that a mark shall be excluded from the register where it conflicts with an earlier mark. I promised, however, to give the matter further consideration.
The amendment before the House provides a procedural mechanism whereby the burden of raising objections on relative grounds falls to the owner of the earlier mark rather than on the registrar. It will mean that, where the registrar raises an objection based on an earlier mark, he will not maintain the objection if the applicant is able to satisfy him that his mark has been the subject of honest concurrent use. Instead, he will accept the application, and advertise it.
So far, that is the same as the position under the existing law. Under the new law, however, if there is opposition from the owner of the earlier mark, the registrar will have to decide whether the grounds for refusal are made out. If they are based on subsection (1) of Clause 5—that is, the marks are identical, and so are the goods or services concerned—then the application will have to be refused. The fact of honest concurrent use will not be sufficient to defeat the opposition. If, however, the opposition is based on subsection (2) of Clause 5, it is necessary to show a likelihood of confusion on the part of the public. In such a case the fact that the two marks have been concurrently used may well make it more difficult to establish that such a likelihood exists. Likewise, if the ground of opposition is that the later mark would take undue advantage of the earlier mark's reputation, the fact that the two have co-existed in the market place may have a bearing on the outcome.
If there is no opposition, the mark applied for will in due course be registered. The owner of an earlier mark will still be able to challenge the registration. After five years however, the provisions on acquiescence will take over, and such a challenge will no longer be possible.
While this provision may not fully preserve the effect of the honest concurrent use provisions of the existing law, it is as far as we feel able to go, given the terms of
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the directive. The Government believe that it will nonetheless be of value to trade mark owners, particularly bearing in mind the remarks that I have made about how it may be expected to operate in practice. I beg to move.
Lord Peston: My Lords, I thank the Minister for the efforts that he has made on this matter. I know that it has been very difficult to reconcile the existing law with the directive. He has worked extremely hard, together with his colleagues, to go as far as he can. The point, as I understand it, is that there is no examination system in the rest of the European Union. Therefore de facto the problem does not arise there in the same way as it does here.
I presume that our position—the noble Lord did not state it, but I take it that he would agree—is that in due course we shall be giving up examination anyway; then, our position will be exactly the same as it is in the rest of the Union. In the meantime, it seems to me, although I accept that the noble Lord has done the best that he can, that the law in this country will still be slightly tougher than it is in the rest of Europe on this matter. It may well be that honourable gentlemen in the other place will find that this is a topic that interests them. I simply want to say how pleased I am at what the noble Lord has done. I strongly welcome the amendment that he has introduced.
On Question, amendment agreed to.
Clause 7 [Power to require that relative grounds be raised in opposition proceedings].
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 3 and 4:
Page 4, line 37, after ("that") insert ("in any case").
Page 4, line 38, leave out ("any of the grounds") and insert ("a ground").
On Question, amendments agreed to.
Clause 9 [Infringement of registered trade mark].
Baroness Hamwee Baroness Hamwee moved Amendment No. 5:
Page 6, line 32, leave out ("But") and insert ("Provided that").
The noble Baroness said: My Lords, my noble friend Lord Airedale may have been taken by surprise by the House resuming a little earlier than expected. Perhaps I may move the amendment in his name and explain why he put it down.
During an earlier stage of the Bill I whispered to my noble friend that I wondered whether it was appropriate for a sentence which is in subsection (6) of Clause 9 to start with the word "But". My noble friend appears to have taken that on as something of a challenge. He remarked that it is not only a sentence but indeed a paragraph which starts with the word "But". Not wishing to set a bad example in legislation that is passed by this House and recommended to another place, my noble friend feels that we should use more conventional language and not the rather more informal language that is now coming into everyday use. I beg to move.
Lord Strathclyde: My Lords, the noble Baroness, Lady Hamwee, moved her noble friend's amendment in a most excellent way. Perhaps I can so reply on behalf of the Government.

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The point here is that there are 141 occurrences of the word "But" beginning a sentence in current statutes, most of those being a subsection. These range from Chapter 46 of the Commons Act 1235 and Section 17 of the Ecclesiastical Licenses Act 1533, right up to the present. There are, I understand, an average of 12 examples each year. Therefore the use of the word "But" in the second sentence of Clause 9(6) is neither novel nor unusual.
I understand perfectly well why the noble Baroness and the noble Lord have taken an interest in the matter. I am delighted that they have done so. I believe that our use of "But" has a respectable legal and grammatical pedigree, and that "provided that" would, in this context, be wrong. In the circumstances I am unable to accept the amendment and perhaps the noble Baroness, or the noble Lord, will feel able to withdraw it.
Lord Clinton-Davis: But, my Lords, is it desirable?
Baroness Hamwee: And, my Lords, I think it is sad that we have example No. 142. But I thank the Minister for his explanation and his officials for the hard work that they must have put in. I hope that computers were of some use in tracking down previous examples. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Clause 12 [Registration subject to disclaimer or limitation]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 6:
Page 7, line 35, at end insert:
("( ) Where a trade. mark contains an element which is not distinctive, and where the inclusion of such element in a registered trade mark could give rise to doubts as to the scope of protection of the registered trade mark, the registrar may require as a condition of registration of the trade mark that the applicant makes a disclaimer in accordance with section 12(1).").
The noble Baroness said: My Lords, this amendment deals with the issue of a compulsory disclaimer, which your Lordships may feel, as I did when the matter was first brought to my attention, is something of a contradiction in terms. However, it is an important point. Under the current law, the registrar has the power to enter a compulsory disclaimer to make it clear that part of a registration is non-distinctive and that no rights attach to that part of the registration. This Bill does not provide that power.
The view of the Institute of Trade Mark Agents, which brought the matter to my attention, is that the absence of the provision will lead to uncertainty of the rights given by the registration and possible additional expense and indeed unnecessary litigation. The retention of a compulsory disclaimer—that is, a disclaimer required by the registrar—will keep the law in the United Kingdom in line with the Community trade mark regulations. Given that the rest of the European Union will be affected by compulsory disclaimers as directed by the Community Trade Mark Office, it seems sensible to have the same provision in this country. If the Bill is not amended, some trade marks which are enforceable through the British courts will be subject to compulsory disclaimers and others will not.
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The Trade Marks Act 1938, Section 14, gives the registrar the power to decide whether a proprietor should have to disclaim any right to the exclusive use of part of a mark as a condition of its registration. Disclaimers imposed by the registrar mean that it is possible to determine by a simple inspection of the register the scope of a given registration. That allows third parties to carry out a search to know whether they can adopt a certain mark without fear of infringing a registered proprietor's rights. That is an advantage to small potential users and applicants for whom the expense of challenging the scope of a registration would be very great. We have said on a number of occasions during the course of the Bill that we must bear in mind the interests of the consumer.
An applicant is unlikely voluntarily to enter on the public record an admission that part or parts of the mark lack distinctiveness or otherwise would fall within the public domain. If compulsory disclaimers do not continue with this Bill, large companies may attempt to obtain a substantial number of registrations which, on the face of it, would give them the right to stop third parties from using expressions which are common in the English language or indeed ordinary English words. That might mean that large organisations will assert rights against third parties to which in fact they are not entitled. With a system of disclaimers imposed by the registrar on the other hand, there are bound to be a number of situations in which a smaller company will not know whether a threat of infringement has any substance.
The point may be made that disclaimers are misleading in that they suggest that no rights exist in the disclaimed matter when in fact there are common law rights. But that is a defect which I am advised can be remedied by appropriate rewording of the standard form of disclaimer. Let me give your Lordships one example: the mark "Kodak Colourprint". The word "Colourprint" would be disclaimed to show the public that no legal rights are given by that word.
I hope that that somewhat technical provision will commend itself to your Lordships as having some real importance. I beg to move.
Lord Strathclyde: My Lords, as the noble Baroness has acknowledged, we discussed during Committee whether the registrar should be able to require an applicant to disclaim any exclusive use of an element in a trade mark which he does not consider distinctive. That is a provision which exists in the Trade Mark Act 1938, which this Bill replaces.
The consensus is that such a provision is out of date and the majority of those consulted through the White Paper, and later on the Bill, welcomed the end of compulsory disclaimers. Experience under the present law shows that, not only can negotiations between an applicant and the registrar be protracted, and therefore add significantly to the fees charged by trade mark agents (about which the noble Baroness expressed concern during the debate that we had on Second Reading), but also the results are often overtaken by events. What might be considered non-distinctive today can become distinctive through use.

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The House will be interested to know that the Australian Government, having consulted users about their registration system, have also just issued a draft trade marks Bill. Like the Bill before your Lordships today, it provides only for voluntary disclaimers, repealing the registrar's ability to require disclaimers. I think that illustrates that what we are doing is in line not only with what our users want but with what is happening internationally.
Therefore, I do not believe that it is in the interest of the users of the trade mark registry to change the Bill. In the Government's view, it is clear that registration does not confer any exclusive rights in matter forming only part of the registered trade mark.
That is an important statement and indeed the definitive statement. On the basis of the explanation that I have given, I hope that the noble Baroness will withdraw her amendment.
Baroness Hamwee: My Lords, before the noble Lord sits down, perhaps I might ask him two questions arising from the explanation that he has just given. He referred to the consensus as part of the consultation process among different sectors of industry and the trade mark community. I wonder who in that community made up that consensus. In other words, are we talking about those who are likely to be applicants for trade marks who might well have an interest in there not being a provision for compulsory disclaimer, or the professionals?
Secondly, the noble Lord, quoting the Australian example, said that to have no such provision would mean that we are in line with other international provisions. Perhaps the Minister will confirm that the rest of the European Union does have the compulsory disclaimer provision and that we have made great efforts to keep this Bill in line with the rest of Europe.
Lord Strathclyde: My Lords, we are trying to harmonise under the terms of the directive, but nothing here goes against what the terms of the directive have set up for the European harmonisation. Other countries may well have disclaimer systems within their own individual systems. We have consulted as widely as possible with all sides of the relevant interests in this area to see whether or not there could be some form of consensus. We consulted professionals and those in industry on the Standing Advisory Committee. We tried to make sure that we would not include anything in this Bill that hitherto had been in the Trade Mark Act 1938 which would be difficult to work under present conditions. I believe that we have done that.
Clearly, in reaching a consensus, there may well be those who believe that our changes have gone too far. I suspect that that is the point that the noble Baroness makes. But I hope that she at least agrees with the case that I have made and that possibly we have made the right decision in this Bill and it should now be approved.
Baroness Hamwee: My Lords, I am grateful to the Minister for his explanation and for the amplification that he has given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Trusts and equities]:
Lord Strathclyde Lord Strathclyde moved Amendment No. 7:
Page 12, line 1, leave out from ("equities") to ("a") in line 2 and insert ("(in Scotland, rights) in respect or).
The noble Lord said: My Lords, in moving Amendment No. 7, I shall speak also to Amendment No. 8. The House may recall that I moved an amendment at Report to clarify the wording of this clause so that its effect in Scotland is the same as that in the rest of the United Kingdom. That amendment took account of the fact that the term "equities" is not used in Scottish law. However, on further reflection we feel that the present amendment better clarifies further the position regarding the enforcement of rights in respect of a registered trade mark in Scotland. I beg to move.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 8:
Page 12, line 3, leave out ("or in relation to").
On Question, amendment agreed to.
Clause 24 [Licensing of registered trade mark]:
Lord Peston Lord Peston moved Amendment No. 9:
Page 12, line 36, at end insert:
("( ) Use by a licensee in accordance with the terms of a subsisting licence in relation to goods or services for which the trade mark is registered shall be deemed for the purposes of this Act and at common law to be use by the proprietor in relation to those goods or services, and references to the goods or services of the proprietor shall be construed accordingly.").
The noble Lord said: My Lords, Amendment No. 9 is identical to an amendment which I tabled in Committee. It concerns the question of whether the use by a licensee is considered to accrue to the benefit of the proprietor.
I do not intend to repeat any of the arguments that arise on the matter. The noble Lord, Lord Strathclyde, welcomed the discussion and said that he would take the matter away and consider it further. I gather that he may not be able to accept the amendment but he may be able to make a few remarks of a clarifying and reassuring nature. That is the reason I retabled the amendment. I beg to move.
Lord Strathclyde: My Lords, in Committee I said that I was satisfied that it was quite clear that use by the licensee was use with the proprietor's consent, and that that applied regardless of the type of licence involved —exclusive, sub-licence or whatever. However, I agreed to consider the matter and I have done so.
The noble Lord's anxiety was that because these provisions were drafted differently from those in Section 28 of the 1938 Act, they would have a different effect on the reputation of the mark. He felt that the reputation of the mark would become fragmented because of its use by the licensee. Having considered the matter further, I am satisfied that that will not be the case. The different style of drafting stems solely from the fact that the whole concept surrounding the registrar of trade marks involvement with licensing is now different. In 1938 licensing of trade marks was relatively new, but now it is an everyday event. However, the basic idea remains; all use of the mark by

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the proprietor or with his consent is genuine use, and I am satisfied that there is no need to spell that out in Clause 24.
The all-embracing statement in Clause 42(1) (a) applies throughout the Bill, but appears where it really matters when dealing with revocation. That is, after all, the time when what constitutes use is important. I know the noble Lord is concerned about common law rights, but I would remind him that those are not affected by the Bill (as can be seen from Clause 2(2)); and accordingly, with that explanation and reassurance, I hope he is able to withdraw his amendment.
Lord Peston: My Lords, I thank the noble Lord for that statement and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Revocation of registration]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 10:
Page 20, line 10, after ("person") insert ("with a bona fide interest").
The noble Baroness said: My Lords, Amendment No. 10 relates to Clause 42 of the Bill which deals with the revocation of a registration. It is to stress to your Lordships that an application for revocation should be limited to a person under subsection (4) who has a bona fide interest in the matter and not merely "any" person.
It may be that without that qualification—that the applicant for revocation has a bona fide interest—a large number of applications for cancellation would be filed on a speculative basis, putting proprietors to a good deal of cost and inconvenience. Indeed, it is not beyond the bounds of imagination that a competitor may arrange for cancellation attacks against the whole or a large part of a trade mark portfolio of an applicant.
The clause will provide for proceedings in the registry being brought by a nominee with the identity of the real party being kept secret. That could also cause problems unless the applicant for revocation has such an interest. Indeed, the use of the application for revocation could be used to force the settlement of a real and more genuine issue. On the other hand, an application for registration under Clause 28(3) requires a bona fide intention for the mark to be used if it is not currently being used. I believe that that provision should be replicated in the clause dealing with revocation. I beg to move.
7.15 p.m.
Lord Strathclyde: My Lords, I thank the noble Baroness for her comments. The amendment covers a point which is new to the debate on the Bill but which I believe I can deal with in this way. As I have mentioned on a number of occasions, and most recently in reply to the previous amendment moved by the noble Baroness, a wide spectrum of user interest groups were consulted through the White Paper and the Bill on all aspects of the trade mark system. The majority of those supported the provisions set out in subsection (4) of Clause 42 which will enable any person to make an application to the court or the registrar for the revocation of a trade mark. Under the Trade Mark Act 1938 only persons aggrieved could do so.
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On that basis the amendment would be restrictive. In particular, anyone should be free to seek revocation of a trade mark which has become the common name in the trade for the goods or services for which it is registered. There is no such restriction in the regulation on the Community trade mark. Therefore, having explained the point in that regard, it is probably better to leave the clause as it stands rather than to add the words "bona fide" as suggested by the noble Baroness.
Baroness Hamwee: My Lords, again I am grateful to the Minister for his explanation. I am aware that the wording in the current Act is of a person aggrieved. It is because the words "bona fide" were used elsewhere in the Bill that I used them here.
The matter may be worth a little further consideration as the Bill continues its progress. The fact that the matter did not arise in consultation, good as that consultation was, does not necessarily mean that it is not worthy of consideration. I know that the Minister takes these points seriously; he has shown that throughout the course of the Bill in your Lordships' House. In the hope that having made the point it will lodge in the minds of those who have the responsibility to take the Bill forward, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Reay Lord Reay moved Amendment No. 11:
After Clause 56, insert the following new clause:
("Unfair competition: Article 10 bis
—(1) Where any goods of the proprietor of a trade mark bearing the trade mark are associated in the course of trade with any label, packaging or container having an overall appearance of a distinctive character it shall be an act of unfair competition actionable as such for any person in the course of trade to supply or offer to supply any such goods with or in any label packaging or container which is similar in overall appearance, whether by reason of name, shape, colour, design or any combination thereof or otherwise, to the overall appearance of that of the proprietor's goods if the use of the label, packaging or container either—

(a) is likely to cause confusion, which includes a likelihood of association with the proprietor or the proprietor's goods; or

(b) without due cause takes unfair advantage of, or detrimental to, the distinctive character or repute of the appearance of the proprietor's goods or trade mark.

(2) In an action for unfair competition under this section all such relief by way of damages, injunctions, accounts or other wise is available to the plaintiff (in Scotland, pursuer) as is available in respect of infringement of a registered trade mark or other property right.").
The noble Lord said: My Lords, Amendment No.11 is identical to the amendment on "look-alikes" which I tabled at Report stage and which I withdrew after my noble friend the Minister made some encouraging noises.
The amendment seeks to deal with the growing incidence of large retailers offering for sale their own brand products in packaging deliberately designed to resemble that of a famous brand and thereby taking advantage of the consumer loyalty established and maintained for those brands at great expense by their manufacturers.
This is a manifestly unfair form of competition for which no adequate remedy is provided either by current British law or by the Bill as it stands, although remedies commonly exist in the laws of other countries. I spelt out the difficulty at Report stage and do riot wish to repeat the arguments now. The amendment is based on

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the Paris Convention for the Protection of Industrial Property, Article 10 his, which relates to unfair competition. The Bill has been used to give effect to other articles of the convention and its Long Title explains that that is one of its purposes.
The Bill therefore provides a perfect opportunity to fill the gap which exists in our competition law. The amendment is supported by a group of major consumer goods manufacturers, most of them household names and to one of which I am an adviser. I should perhaps repeat that declaration of interest.
At Report stage, as noble Lords present then will remember, the amendment enjoyed overwhelming support from this side of the House. Of my noble friends who spoke, no fewer than seven supported the amendment while only one spoke against it. My noble friend the Minister acknowledged the strength both of the case and of the support for the amendment, but he said that the Government would find it difficult to support the introduction of a new cause of action of unfair competition, such as this amendment would provide, unless there was a clear majority in favour of it. He said, fairly enough, that there are two sides to the issue and that before taking any action the Government must seek the view of industry generally.
I have tabled the amendment again, although I believe it has defects, in order that my noble friend should have an opportunity to explain to the House what steps he has since taken to seek the views of industry and what effect, if any, those views have had on government thinking. In particular, I should like to know whether the Government now agree that action is essential to deal with the abuses covered by the amendment and whether they have come round to the view that this Bill provides a suitable opportunity to do so. I beg to move.
Baroness O'Cathain: My Lords, I want to speak against the amendment. In doing so I declare two interests; first, as a non-executive director of Tesco, and secondly, as a consumer. This amendment smacks of restrictive practice. It is an attempt to limit competition. Even more importantly, it is an attempt to limit consumer choice and to deprive the consumer of products which are competitively priced. It is an attack on own labels. Own labels are seen by the consumer as good value where the definition of good value is a balance between quality and price. The amendment is wide and all embracing.
In the time available to me I should like to make five short points. First, on the containers and packaging, there are only a limited number of package types. Those are dictated by shelves, by fridge space, by fridge size, by weight, and sometimes, indeed, by the European Union. The European Union has dictated the packaging for washing powders. There is E5 or E10. What about carrying all these different types of packages? In effect the modern supermarket has something like 30,000 different lines. There cannot be 30,000 different types of packaging. That is not possible.
Secondly, if someone develops a package which has evolved due to consumer complaint, can the consumer
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only benefit from the new packaging if he or she buys from that particular manufacturer? I cite here the case of an ordinary milk carton. I do not know about other noble Lords but for years I have struggled with milk cartons. I have broken nails, I have had milk on the floor and I have actually managed to get milk on the ceiling. Marks & Spencer has now developed a package and I go down on my knees and thank the company for it. It has a ring-pull plastic top which comes out as a spout and means that there is no spillage. You can close it again and the milk does not go off in the fridge. Marks & Spencer stores are not open on all the days of the week, as we know from the Sunday Trading Bill. They are not universal—would that they were. Does it mean that when I want to save my nails, save my floor and save my ceiling I have to go to Marks & Spencer only or else do without milk?
Thirdly, does the current situation confuse the consumer? For example, a yellow washing up liquid bottle is known by the consumer as containing washing up liquid which has a lemon fragrance. The consumer is not confused if there is Fairy in a yellow washing up liquid bottle or some own brand in a yellow washing up liquid bottle. I think that the amendment is slightly patronising in suggesting that the consumer is not intelligent enough. The normal consumer has her head about her, if she is female; I am not so sure about the other side. Perhaps that is making a cheap point.
Fourthly, this is seen to be hurting the manufacturers, as the noble Lord, Lord Reay, said. I look at the bottom line and at profits. I look at the percentage of turnover of the major supermarkets. I am not talking about Tesco. The figure is something in the range of between 4 and 8 per cent. The profits of Procter Gamble are in the range of 11 and 13 per cent. I do not think they are being hurt. Incidentally, we talk about competition. Procter & Gamble and Unilever have between them some 80 per cent. of the detergent market in this country. The other 20 per cent. is own label.
Fifthly, the Consumers' Association has come out strongly against the amendment. Noble Lords on all sides of the House admire the Consumers' Association for the work it has done over many years.
Finally, I should like to make an observation. A government who have strongly supported deregulation and less legislation cannot support the introduction of new legislation which is unnecessary and frankly militates against the consumer.
Baroness Hamwee: My Lords, I am pleased again to have the opportunity of supporting the noble Lord, Lord Reay. I was able to put my name to this amendment at the previous stage of the Bill and have done so again. Perhaps I should declare an interest as a confused consumer; a female confused consumer indeed.
The noble Baroness, Lady O'Cathain, referred to the amendment as being an attack on own labels. That is precisely what it is not. It is an attempt to defend the packaging, the labels and the work of the brand manufacturers whose packaging is copied almost precisely, but not absolutely precisely, by those who wish to take advantage of their work. The noble Baroness said that the choice of packaging was dictated

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by a number of factors. One must accept that there are standard sizes. EC legislation provides for that and so on. However, it is surely not necessary that the same colour of container or the same shape of container is applied to two products, one of which is a brand product and the other of which is an own supermarket product. This concerns not only the colour but the combination of colours—a bottle of one colour with a cap of another colour.
The noble Baroness referred to milk containers. I suggest to your Lordships that that is a quite different matter. Square containers with particular forms of opening, however good or bad they may be, are square containers. They have on the material with which they are made full details of their contents. One does not confuse the contents of one container of a particular shape and with a particular spout with another.
One of the disbenefits of your Lordships' procedure is that one cannot use visual aids. I wish that we could. Perhaps I may describe, for instance, two bottles of shampoo. One bottle called Head and Shoulders has a shape reminiscent of shoulders. The other bottle which has the term "Head" in its name but does not refer to shoulders is very similar but not quite identical. It is the same colour and the label contains almost the same combination of colours. I suggest that it is not necessary for that bottle to imitate so nearly the shape and the devices of the original bottle.
We have been told that it is perfectly fair for consumers to have the advantage of a certain type of packaging becoming known. We have also been told that, if retailers had to alter the appearance of their products, prices would rise. But the packaging does alter. That is what makes it so suspect. A manufacturer alters his packaging, as happens as a matter of normal commercial practice as styles change and so on, and five minutes later the own brand packaging has changed as well. The noble Baroness told us that the Consumers' Association is against the amendment. Unhappily, it has not succeeded in disseminating its views perhaps quite as well on that point as some of the other interest groups which have been concerned with the issue. I would have been glad to have heard from them, but I have not: so I have not heard the detail of their argument.
Twice within the past few days I have had the experience of discussing this issue with journalists. In neither case have I been able to get very far because it has sparked so much recognition in them. They have told me of their own experiences and confusion and immediately identified very closely with the issue and the problem.
Finally, in supporting this amendment, if retailers cannot win customers and keep them by their own quality and price —it is very often the case that own-brand retailers have prices which are slightly lower than those of the brand manufacturers—and cannot use those advantages, I, do not believe that they should use someone else's "get-up" in order to win over customers. I do not believe it is a coincidence that the packaging of the various sets of items is so similar. I believe that it is a case of deliberately riding on the back of a manufacturer's reputation.
7.30 p.m.
Baroness Hooper: My Lords, we have discussed this issue at previous stages of the Bill and at each point I have made a plea on behalf of consumers in order to ensure that there should be no constraint on consumer choice if any amendment of this type were agreed to. Nevertheless, some of the examples quoted today by the noble Baroness, Lady Hamwee, and quoted right and left in your Lordships' House on Report by a number of confused Peers, mean that some of them are unnecessarily close.
I rise at this moment in the spirit of inquiry. My noble friend Lord Reay said that manufacturers in this situation had no legal recourse. I assume he means no statutory legal recourse because, as I understand it, they do of course have a right of recourse to the courts in passing off in common law.
Lord Strathclyde: My Lords, yet again it has been a useful and interesting debate, and this is the third time that we have had it. I am delighted that my noble friend Lord Reay has given me the opportunity of at least explaining where the Government are in examining the whole issue.
As I explained on Report, the amendment aims to prevent someone from using packaging, or a label, or a container with an overall appearance which resembles packaging, which is associated with a trade mark belonging to a competitor. The trade mark does not even have to be registered; it could be an unregistered mark which the trader, caught by this new offence, is totally unaware of.
I also explained that, even if the directive does not prevent us from introducing unfair competition as a general cause of action, I do not think that we could do this under the Bill since it is all about trade marks. Therefore, as I said earlier, the Government could not support the introduction of a new cause of action of unfair competition without careful study and full consultation.
Following Report stage, my department initiated the process of seeking views from the Standing Advisory Committee on Industrial Property which is made up of organisations representative of the patent, trade mark and legal professions, industry and commerce, consumers, the academic world, and those specialising in licensing intellectual property rights. For example, papers received from the British Producers and Brand Owners' Group, who support the amendment, and from bodies opposed to the amendment have already been circulated to the member organisations of the standing advisory committee. Other submissions, or comments on such submissions, will be circulated to the committee as and when they are received. The House may recall that the committee was consulted on both the White Paper and the Bill.
Even if the consultation shows general support for a change, I cannot promise that we will be able to solve the problem in this Bill. As I said earlier., there are considerable difficulties in formulating a suitable provision and one which would be consistent with the directive. Indeed, our mini-debate today shows just how much disagreement there is with both my noble friend

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Lady Hooper and the noble Baroness, Lady O'Cathain, speaking for the consumer. It is important that we have a definitive view either from the Consumers' Association or from the National Consumer Council over the role that they feel the consumer should have in making his or her own purchasing decisions when they go to the supermarket.
Perhaps after Report stage, when so many noble Lords from all around the House expressed their concern and confusion whenever they went shopping, the only sadness which I have about the whole debate is that we did not have the benefit of the wisdom of the noble Lord, Lord Peston, who I know, as a new man, takes a great deal of interest in the quality of his supermarket shopping. On this issue I ask my noble friend Lord Reay if he can leave it not only to another day but also to another place in order to deal with what is an extremely complicated issue, fraught with all kinds of problems, which the Government are taking very seriously having committed themselves to consulting widely.
Lord Reay: My Lords, I thank my noble friend very much indeed for that statement which I shall study carefully. Plainly, the Government are taking seriously their statement that they will consult widely. I am grateful for what my noble friend said. Perhaps I may take up a point which the noble Baroness, Lady O'Cathain, raised. She represented the amendment as being an attack on own-brand products. I wish to follow the noble Baroness, Lady Hamwee, in saying that the amendment is not an attack on own-brand products; it is directed at own-brands dressed up to look like other brands which themselves have well established reputations. Like the noble Baroness, Lady Hamwee, I am not convinced that this is a coincidence. On the contrary, I am certain that it is a deliberate and unfair attempt to trade off the back of the reputation of famous brands.
My noble friend Lady Hooper asked what I meant when I referred to the fact that the current law is inadequate in providing a remedy. My reason for saying that is that passing off has not been found to provide a satisfactory remedy because manufacturers are required to produce evidence of confusion among customers and it is extremely difficult to collect such evidence. Those endeavouring to do so are ejected from premises. Judges are extremely difficult to persuade that there has been such confusion. As a result, the chances of success in bringing an action are small.
I am happy to agree with my noble friend that this matter has to be left for another day and another place but, unlike him, not for another Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Power of Secretary of State to make rules]:
The Earl of Harrowby The Earl of Harrowby moved Amendment No. 12:
Page 30, line 38, leave out ("may") and insert ("shall").
The noble Earl said: My Lords, in moving this amendment, perhaps I may also speak to Amendment No. 13. Those Members of your Lordships' House who
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were Members of the Committee will recollect my raising the subject of principle of open-ended cheques. Clause 74(1) states:
"There shall be paid in respect of applications and registration and other matters under this Act such fees as may be prescribed".
I have had lengthy correspondence and discussions with my noble friend's officers and so forth. It has been explained to me that "prescribed" means something specific and not what I understand the word to mean. That is fine, but there is still an open-ended cheque. The reason for that is because, when my noble friend says that there are conventions, they lie in the prescription which is that,
"The Secretary of State may make rules"
as stated in Clause 73(1). "May" is the operative word; he does not have to. It is still an open-ended cheque until he has to make rules about pay. I do not doubt for a moment that he will or that he will be sensible, but the circumstances may not be the same in 20 or 50 years' time. It is now almost 50 years since the previous legislation on trade marks was enacted. A lot can happen in that time.
I do not believe that we should leave on the statute book open-ended options for any individual, however responsible, by which that person can charge whatever he likes without some form of legislative curtailment. I think that it is wrong that the Bill leaves totally optional that which an unnamed person can do. That is why I am moving an amendment to ensure that the Secretary of State "shall" make rules—the rules will then have to be made—and that they "shall" be as prescribed, not "may" be as prescribed. I beg to move.
Lord Airedale: My Lords, I notice that subsection (1) states:
"The Secretary of State may make rules".
Subsection (3) states:
"Rules under this Act shall be made by statutory instrument".
One would think that subsection (2), sandwiched between them, would state that "rules"
"may, in particular, be made",
in certain circumstances and for certain purposes, but, in fact, it states:
"Provision may, in particular, be made,"
for certain purposes. If subsection (2) is meant to be operated by rules—I imagine that it is—it would be clearer if the legislation actually stated that instead of, "Provision may … be made". There might be confusion, so I offer that suggestion.
Lord Strathclyde: My Lords, that was a nice suggestion from the noble Lord, Lord Airedale; but I do not think that there is any confusion. I do not think that anybody will be confused by the wording as drafted.
It is standard drafting practice for a statute to empower the making of rules, rather than to require them to be made. That is a point that I make to my noble friend. That was, for example, the case in Section 40 of the Trade Marks Act 1938, which this Bill replaces. Therefore, we are not going into uncharted waters with this provision.
Moreover, the fact that the Bill authorises something to be prescribed does not mean that this has to be prescribed. In the case of Clause 74, for example, it may be decided that there are no circumstances in which a

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single fee should cover two or more matters. Perhaps I should stress that the fact that a provision says that the Secretary of State "may" prescribe something by rules does not mean that he can prescribe it by some other route if he is so minded. He can either prescribe it by rules, or not at all. This in particular applies to the fees to be changed by the Patent Office in this Bill. As I explained to the House at Report, the reference to such fees having to be prescribed means that they must be determined by statutory instrument. This means that the fees have to be approved by a Minister before he makes the rules, and the instrument then has to be laid before Parliament, where it can be prayed against in either House. I know that my noble friend's anxiety is that we could see a spiralling of costs, but that could occur only when an order had been laid, and a noble Lord is entitled to pray against an order.
The Earl of Harrowby: My Lords, I thank the Minister for his reply. I hope that this matter will receive some attention in its next stage in another place. That is the main reason I tabled the amendment. I do not believe that the present position is satisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
7.45 p.m.
Clause 87 [Delivery up of offending goods, material or articles]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 14:
Page 36, line 37, leave out subsection (1) and insert:
("( ) Where infringing goods, material or articles are seized from any person, application may be made to the Court by the party which made the seizure for an Order that the goods, material or articles in question be delivered up to such person as the Court may direct, whether or not the person from whom the infringing goods, material or articles were seized is prosecuted or convicted of an offence under section 86.").
The noble Lord said: My Lords, I have given notice to the Minister's Private Office and his officials about the purpose of this amendment, which stands in the name of my noble friend Lord Haskel. I shall await the Minister's reply with interest.
The essential purpose of the amendment is to deal with a mischief that can and does create considerable and unnecessary prejudice to trade mark owners. As I understand it, the present law is that if a person is convicted of an offence under Section 58 paragraph (b) of the Trade Marks Act, the court may order the goods or materials which are seized by the authorities to be delivered up to such persons as the court may direct. However, where goods are seized and no prosecution ensues—or no successful prosecution ensues—no application for delivery up can be entertained by the court under Section 58 paragraph (b). Furthermore, if the person in receipt of the goods refuses to disclaim them, the prosecuting authorities are obliged to return the goods to that person with the consequential risk that they may find their way back on to the market unless the trade mark owner obtains a High Court injunction to prevent that from happening, which of course puts him to considerable time, effort and money. Meanwhile—perhaps even more seriously—further injury may be sustained by the public.
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I am in a position - I shall not be tempted by it—to illustrate the point by reference to a number of factual cases which have been drawn to my attention in which authorities have seized goods which were suspected to be counterfeit. Although the trade mark owner, following inspection, confirmed that view and confirmed the view that the goods were undeniably and noticeably inferior, prosecutions either have not taken place, have been withdrawn or have been unsuccessful. In those circumstances, no application could be entertained by the court that the goods in question should be destroyed or that the infringing trade mark should be obliterated before the goods are returned to the person from whom they were seized with the ensuing prejudice to the trade mark owner and potential prejudice to the public.
In the case of which I am thinking, the trade mark owner was unable to secure a disclaimer from the persons from whom the goods were seized. Therefore, the only remedy available was to sue such persons. The difficulty there is that frequently, by the very nature of their operations, such persons are people of straw—uncontactable or untraceable. The only interest that the trade mark owner would have in those circumstances would lie in seeking to eliminate the goods from the market by destroying them.
There is a substantial case to be made for this amendment. I do not know whether we have dealt with the matter sufficiently within the terms of the amendment; but I invite the Minister to comment on the principle. I hope that the Minister will be nice to me because I am relinquishing my virginity so far as concerns the Bill, and I know that the Minister is always charming, pleasant and helpful. Perhaps he will be so on this occasion. I beg to move.
Lord Strathclyde: My Lords, the noble Lord, Lord Clinton-Davis, relinquishes his virginity most capably. I am delighted at the way in which he has offered us this amendment and welcome him to our deliberations on the Bill. If he had spent more time on it, he would have discovered that its passage through this House has been extremely smooth. I hope that we shall not have a hiccup with this amendment.
On the face of it, the amendment seems a case of finding somebody guilty although they have been found not guilty by a court. On taking a second look at it, I can understand the point that the noble Lord was making. As a government, we are well aware of the damage that is caused to the economy by counterfeit goods. However, if a person prosecuted for trade mark counterfeit is acquitted, the court cannot simply go ahead and treat the goods in the same way as if that person had been convicted. It may be that the defendant has not argued that the goods are genuine. He may even have admitted that they were fake, but has convinced the court that he is not guilty of an offence concerning them. In such a case, it is still possible for the trade mark owner to bring a civil action under Clause 15 where it is not necessary to point the finger at a particular offender and where the burden of proof will not be the same as in a criminal

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charge. In such an action he can ask the court to order that the goods be delivered up to him, for example, for destruction.
The noble Lord, Lord Clinton-Davis, raised questions which go to the root of our policy on counterfeiting. They may require further re-examination and therefore I cannot accept the amendment that he has put before the House. However, I offer him the commitment that between now and the Bill being introduced in another place we shall examine the matter carefully. If there is a loophole and a way of closing it, we shall seek to do so. I hope that on that basis the noble Lord will withdraw his amendment.
Lord Clinton-Davis: My Lords, my expectations of the Minister have been wholly fulfilled. He is charming, nice and flexible on some occasions and tonight is no exception. I am grateful for his commitment and cannot expect him to go further. I beg leave to withdraw the amendment and shall write to the Minister giving further details than I have been able to expound tonight.
Amendment, by leave, withdrawn.
Clause 97 [Offences committed by partnerships and bodies corporate]:
The Earl of Harrowby The Earl of Harrowby moved Amendment No. 15:
Page 41, line 25, leave out ("proceeded against and").
The noble Earl said: My Lords, the amendment has received considerable discussion on previous occasions and I am grateful to my noble friend for writing to me about it. The trouble arises as a result of the drafting; that is the English. In excuse it is said to be standard phraseology. The fact that a phrase has been used previously does not excuse bad English in legislation. The provision reads:
"is also guilty of the offence and liable to be proceeded against and punished accordingly".
I am not a lawyer but I do not understand how one can be proceeded against if one has already been found guilty.
My noble friend wrote to me using the phrase "double liability". I do not know whether that is legal terminology. I suspect that it is not and that it is something that has come out of his great intelligence. Nevertheless, I strongly object to using a phrase which does not make sense, which is bad English and being told that it has been used previously. For that reason I table the amendment, which I hope will receive attention from those who are more able to make a case of this nature. I beg to move.
Lord Airedale: My Lords, I support the amendment. I join the noble Earl in trying to avoid the perpetuation of a piece of nonsense. To say,
"is also guilty of the offence and liable to be proceeded against",
is nonsense, because if he is guilty of the offence he will have been proceeded against. The Bill puts the cart before the horse. It is like the King's messenger in Alice in Wonderland who was going to be hanged tomorrow. Alice said, "What has he done?". She was told, "Well, the offence isn't until next week". Alice said, "Supposing that he does not commit the offence?". "Well", she is told, "that will be all the best, silly child".
Lord Strathclyde: My Lords, this is the third occasion on which my noble friend has raised the issue and therefore I safely assume that I have not convinced him of the correctness of the Government's case. Perhaps the slight problem is that the phrase is a standard formulation which appears in other statutes which have to deal with offences committed by partnerships. No doubt it would be possible to express it differently; perhaps in a more logical way. However, in seeking to clarify we could perpetuate or even create further confusion. It might be argued that if we had adopted a wording different from what is found in other measures Parliament must have intended it to have a different effect from those other measures. We are not intending that at all.
I believe that the provision is clear. In my defence I say that the phrase is clearly understood by those who have to use it. Partnerships, lawyers and the courts can all understand what has been said in the past and therefore will clearly understand what is said in this particular cause. If the partnership is guilty so is each of the partners, unless shown to have been ignorant of the offence or to have tried to prevent it. The partner is therefore liable to be punished accordingly. However, before he can be so punished he must be proceeded against.
I do not wish to continue the debate unduly. I accept, as does my noble friend, that essentially this is a matter of drafting. Perhaps on that basis we can agree to differ and he will withdraw his amendment.
The Earl of Harrowby: My Lords, I thank my noble friend and I agree to differ. I am grateful to him for the trouble that he has taken and for giving the time that I have demanded from him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Certification marks]:
The Earl of Harrowby The Earl of Harrowby had given notice of his intention to move Amendment No. 16:
Page 48, leave out lines 2 to 4.
The noble Earl said: My Lords, again I thank the Minister. I hope that the comments that I made in respect of the previous amendment will not be regarded as ungracious. They were not meant to be because I have great admiration for my noble friend. I shall not move the amendment.
[Amendment No. 16 not moved.]
Lord Strathclyde Lord Strathclyde moved Amendment No. 17:
Page 49, line 35, leave out from beginning to end of line 8 on page 50.
The noble Lord said: My Lords, these amendments deal with infringement concerning certification trade marks. The House will recall that at Report we completely re-cast the clauses of the Bill which deal with the licensing of trade marks. This included those provisions of Schedule 2 which would have placed an authorised user of a certification mark in the same position as a licensee under an ordinary trade mark. In particular, it would have allowed such an authorised user to take infringement proceedings.
This is not the case under the present law and, on reflection, the Government have decided that it would

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not be appropriate to make such a change. This is because, given the nature of the certification marks, it is the proprietor who should be responsible for protecting it and not an authorised user. For example, the duty to protect the 'Woolmark' must be on the shoulders of the International Wool Secretariat and not an individual producer of woollen garments (who would also add his own trade mark to the label). A licensee, on the other hand, is in a totally different position since he may be the only user of the mark; the proprietor may not be using it himself.
It is not possible for a licensee to take advantage of the provisions of the Bill, which give him his rights and remedies in relation to infringement unless he has recorded the fact that he has a licence on the trade marks register. This is reasonable when it comes to licensees, since they have always been entered on the trade marks register and anyone can go and look to see who they are. However, when it comes to authorised users of certification trade marks, these are not recorded on the trade marks register. Only the proprietor of the certification trade mark knows who they are. It is not therefore appropriate to place them in the same position when it comes to taking action for infringement.
Nevertheless, the provisions of paragraph 14 of Schedule 2, which allow the court to take account of any loss suffered by authorised users of certification marks when, for example, assessing damages in an infringement action, will remain after this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Transitional provisions]:
Lord Strathclyde Lord Strathclyde moved Amendment No. 18:
Page 52, line 1, leave out from ("Act") to ("applies") in line 2 and insert ("(court to take into account loss suffered by authorised users, &c.)").
On Question amendment agreed to.
An amendment (privilege) made.
8 p.m.
Lord Strathclyde: My Lords, I beg to move that this Bill do now pass. As noble Lords will have realised, the Trade Marks Bill is technical and complex. It was also the first Bill for a number of years that your Lordships agreed should be considered by a Public Bill Committee off the Floor of your Lordships' House. That was a wise decision and I believe that the result has fully demonstrated the value of such a procedure in considering a Bill of this nature.
Voltaire said:
"No problem can stand the assault of sustained thinking".
The spirit of co-operation and the positive contributions during discussion of the Bill in the Committee bore that out. Although not all noble Lords' interests could be accommodated, there were lively discussions on a range of issues and a number of proposals made for amendment to the Bill. I should like to thank the noble Lord, Lord Peston, and the noble Baroness, Lady Hamwee, for their thoughtful approach and suggestions for ways in which the Bill might be improved or clarified.
The Trade Marks Bill, though, as I have said, both technical and complex, is of considerable importance to
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industry and commerce which wish to register and protect their trade marks. The Bill implements an EC directive and in doing so will make it easier for a trade mark to qualify for registration and provide wider infringement rights. It will also enable the United Kingdom to ratify the Madrid Protocol and deregulate procedures. All of those will make it simpler and cheaper for industry and commerce to protect their marks in the United Kingdom and overseas. The wider infringement rights will also ensure that business does not have to resort to expensive common law action for passing off to protect trade marks. At the same time the Bill will also strengthen the measures available to deal with counterfeiting.
As a result of your Lordships' deliberations, a number of improvements have been made to the Bill. Within the framework of the EC directive and in line with the aims of the Bill, we have been able to take account of a number of points and amend the Bill for the positive benefit of users of the trade mark registration system. Some examples of these are: recasting the provisions on counterfeiting to ensure that the innocent infringer is not caught by the criminal offence of making or selling goods bearing, without permission, someone else's trade mark; revision of the licensing provisions of the Bill to ensure that they fully reflect what happens in the market place and the needs of business; providing for the acceptance by the registrar of applications for registration of trade marks which conflict with existing registrations but where the applicant can show honest concurrent use of their mark; and the amended definition of "use" which broadens the protection given to a registered mark so that non-graphic use of a trade mark may be actionable for infringement.
The Trade Marks Bill is an example of the Government's commitment to help industry and commerce compete for business at home and overseas. The Bill will help companies to exploit their goods and services based upon valid, secure and protected trade mark registrations on the same basis as their competitors. Administrative procedures will be simpler and costs reduced thus helping to foster support and innovation.
I thank the Bill team for the enormous amount of work that it has done within the department to make sure that we could deal with all the points raised. I thank the authorities of your Lordships' House which made Committee stage and, indeed, all stages, simple. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Lord Strathclyde.)
Lord Peston: My Lords, it is a pleasant albeit rare occasion when I can say that I agree with every word that the Minister has just said. I thank all noble Lords who have taken part in all stages of this Bill. I believe that we have seen your Lordships' House at its very best. I must congratulate the Minister and his officials for all that they have done. It has been an excellent performance and much appreciated. I thank my own advisers, especially Mrs. Lane who is a senior lecturer in law at Queen Mary and Westfield College.

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This Bill has been a model of how our business should be conducted. I hope that other Bills will be tackled in that way. I would go further. It would improve our efficiency if interested Peers could sit in the form of a committee to take technical advice jointly rather than what has been done; namely, the same people have told each of us separately the same things and then we all get together and retail it across the Floor of the House. It would be much better if we could take the evidence jointly; but that is for the future.
For the present, as the noble Lord, Lord Strathclyde, said, I believe that we have made a useful though minor contribution to the efficiency of British industry. I look forward to the enactment of the Bill into our law with very little delay.
Lord Reay: My Lords, like my noble friend, I believe that committing the Bill to a Public Bill Committee off the Floor of the House has worked well. I believe that it was a good choice of Bill for such an experiment. I am sure that time on the Floor of the House has been saved.
At all stages, the passage of the Bill has been characterised by a constructive and co-operative attitude, both from the leadership of the parties opposite and from the Government. I pay tribute to all of them. The Government have been very responsive. They have met satisfactorily a large number of the anxieties expressed to them and I wish to convey the appreciation of the CBI in particular for the way in which the Government have listened to the views of industry.
At all times my noble friend and his officials have remained accessible. I thank them for their open-mindedness and helpfulness, which has ensured that the Bill leaves this House better than when it came here.
The views of the CBI have not always prevailed. The CBI is not the enthusiast for comparative advertising which, rather surprisingly, the Government have emerged to be. The Government have leapt into an area which the European directive did not oblige them to leap into. They chose to enter that, following the impulse of their own philosophy. I believe that they should have waited until the European directive on comparative advertising—now once again imminent—had first been agreed. They have jumped the gun and may well pay a penalty for having done so.
I keenly await the outcome of the look-alike issue, where I hope that the just cause prevails. Otherwise, I support the Bill. It is a constructive and overdue measure which updates antiquated law and which fulfils some of our Community obligations. I wish it well.
Baroness Hamwee: My Lords, I thank the Minister for the way in which he has helped to guide the rest of us—perhaps I should not apply my own position to the rest of your Lordships—through a very complicated Bill. Some of your Lordships may have felt, as I did, that we have had an opportunity to concentrate on particular issues which have interested and concerned us, and we have had the confidence that the technicalities in the background have been dealt with competently.
I must confess that, to that extent, I have found it a slightly frustrating experience in that after every stage of
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the Bill I have wondered whether I have missed some wrinkle which should have been ironed out. Your Lordships have said that the Bill protects the interests of industry, manufacturers, and so on. I hope that we have also made it a better Bill for the consumer.
In addition to the experience of taking the Bill through a Public Bill Committee, it has benefited also from the considerable amount of preparatory work that was done—the consultation with the committee—to which noble Lords have referred at a number of stages. I take this opportunity to mention one matter which, on a future occasion, may be dealt with even more helpfully; that is, the question of seeing the precise wording of a draft Bill at a very early stage.
I understand the question of parliamentary privilege but it seems to have been overcome as regards the proposed Sunday trading legislation, where the draft Bill was annexed to the White Paper. It would have been even more helpful had the precise draft Bill been made available at a similarly early stage for all those who have given so much of their time from outside the House to improve the Bill during its passage.
I thank the Minister. He has had many difficult and sometimes, I suspect, rather surprising points bowled at him and he has dealt with them clearly and helpfully.
Baroness Hooper: My Lords, as my noble friend said, the Bill is an important one. As one who pressed the Government—though perhaps in a small way—to bring forward legislation in order to up date our trade mark law to comply with the European directive, and indeed to implement the Madrid Protocol, I am very happy to be present at this stage of the proceedings. We now have a Bill which benefits manufacturers, consumers and practitioners in the field.
I should also like to thank the Government for having produced the legislation and for the wide consultation that went on before it was produced which enabled it to pass through your Lordships' House so smoothly, albeit with a few small additions and amendments. I should also like to express my thanks to my noble friend the Minister and his team for the way in which they dealt with all our queries and amendments. They did so in such a competent and cheerful manner, both behind the scenes as well as on the Floor of the House.
Lord Lucas of Chilworth: My Lords, I very much regret that I am the only one of your Lordships who is likely to strike a moderate note of discord. I told my noble friend the Minister that I would strike such a note. However, that does not in any way detract from my thanks to him for the manner in which he conducted the Government's business, and indeed attended to those questions which I raised with him both outside the Chamber as well as during the Committee stage. The amendment that I tabled was dealt with on Report by my noble friend Lady Hooper in my unavoidable absence.
Retailers have been left outside the scope of the Bill. While my noble friend the Minister had some sympathy for the cause of retailers to register "retail services" in the terms of the Bill, I do not believe that his enthusiasm was shared by officials in the Patent Office. It is all very well to talk about interpreting or translating the Community directive; but it is in the interests of our

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retailers that we find a way to deal with a European Community directive that benefits us and which does not put our retailers at a disadvantage. That is the note of discord—indeed, the mark of disappointment—that I have so far as concerns the Bill.
Nevertheless, I believe that we have made great progress since the matter was last dealt with about 50 years ago. It has been much fun to deal with the Bill off the Floor of the House. That process was most useful for dealing with such a specialist Bill. I hope that the other place will deal with the Bill as sympathetically and with as much dispatch as we have and that we will find it on the statute book before many weeks have passed.
Lord Brightman: My Lords, perhaps I may be allowed to take up a few minutes of your Lordships' time in order to commend the draftsman of the Bill. I wish to commend him for including Clause 100. The clause is an index of "defined expressions". If noble Lords look at the clause, they will see that the left-hand column contains 47 words and expressions which have a special definition in the Bill. The right-hand column tells the reader exactly which section to refer to in order to see what the word or expression means.
Clause 100 is an immense time saver. It saves the reader of a Bill having to find out, laboriously pouring over the different clauses, whether a particular word or expression is defined and where to find its meaning. That practice was first applied in 1975. I do not believe that there was an earlier use of an index of defined expressions. There have been approximately 1,000 Acts of Parliament since that date, but only about 20 of them have included an index of defined expressions. Of course, such an index is not of any use in a very short Bill; but, in a long Bill—such as the Companies Act 1985 which did not have such an index—it is extremely useful. In fact, the practice was found so useful that when the Companies Act 1989 came to amend the Companies Act 1985, an index of defined expressions was introduced into the latter.
I have discussed such a device—if I may call it that— with several noble Lords. I am authorised by the noble Lord, Lord Renton, to say that he entirely agrees with the inclusion of such a clause into this type of Bill. So also said my noble and learned friend Lord Simon of Glaisdale. Moreover, I also took up the matter with the noble Lord, Lord Allen of Abbeydale. He wrote to me to say that he finds such an index to be very helpful and that he hopes the practice will spread, at any rate, for longer Bills.
As I said, the draftsman should be commended. I hope that his attention will be drawn by the Minister to my commendation, and perhaps that of other noble Lords.
Baroness O'Cathain: My Lords, I should just like to say that I entirely agree with the noble and learned Lord.
Lord McGregor of Durris: My Lords, I should like to add my layman's voice to the commendation made by the noble and learned Lord, Lord Brightrnan, on the value of Clause 100 in the Bill. Such a clause which rehearses the definitions of expressions used in the Bill is, as the noble and learned Lord said, immensely time saving and very helpful to the unlearned reader. I should like to echo the noble and learned Lord's wish that that habit of drafting will spread.
Lord Strathclyde: My Lords, I should like to thank all noble Lords who have spoken. I am sorry that my noble friend Lord Lucas is still unhappy with what we decided upon as regards retail services. The House will no doubt recall the force with which he spoke during Second Reading and in Committee. We considered very carefully whether we should agree to defining in the Bill the services for which a trade mark might be registered as including "retail services". However, we came to the conclusion that such a definition would be putting an unacceptable gloss on the meaning of the directive.
Nevertheless, it is possible that, at some future date, a court—perhaps even the European Court of Justice —may decide that the expression "services" in the directive in fact includes the activity of retail trade in goods. If so, nothing in the Bill would prevent the registration of such marks. However, we did not feel that we could do so in the present Bill.
I am overwhelmed by the words of the noble and learned Lord, Lord Brightman, the noble Baroness, Lady O'Cathain, and the noble Lord, Lord McGregor of Durris who all congratulated the parliamentary draftsman. I entirely agree with the words expressed. Indeed, the clause deals with definitions in a sensible and efficient manner. I am sure that the parliamentary draftsman will note and very much appreciate the comments made. In anticipation of that, I hope that the House will now agree that the Bill do now pass.
On Question, Bill passed and sent to the Commons.

Mental Health (Amendment) Bill [H.L.]
Returned from the Commons agreed to.

New Towns (Amendment) Bill [HI.]
Returned from the Commons agreed to.
House adjourned at nineteen minutes past eight o'clock.