Lords Sitting of 25 February 1997

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

UK Bathing Water: Quality
Lord Campbell of Lord Campbell of Croy asked Her Majesty's Government:
What proportion of the recognised bathing beaches in the United Kingdom now meet the standards prescribed by the European Union.
Baroness Miller of Hendon: My Lords, during the 1996 bathing season, 90 per cent. of the 472 United Kingdom bathing waters identified under the Bathing Water Directive met the directive's mandatory coliform bacteria standards. A full report of results for all the parameters under the directive for which sampling is required has been placed in the Library.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her reply and I welcome what appears to be a substantial improvement. Is it largely due to the installation of new treatment plants and more effective sewage outfalls? If so, will this process continue with the aim of 100 per cent. of beaches reaching the standard?
Baroness Miller of Hendon: My Lords, I am grateful that my noble friend has pointed out how good the improvement is, and that is the case. It is due to all the significant new sewerage plant that has been constructed and all the effort that has gone into that. Since the bathing water improvement scheme came about in 1989, there have been 117 schemes; 83 have already been completed. Another 12 are due to be finished soon and improvements are continuing.
As regards the figure of 100 per cent. mentioned by my noble friend, it is practically impossible to reach 100 per cent. because in order to pass the test the beaches are tested on 20 occasions. If they fail on even one out of the 20 tests, the beaches do not receive the 100 per cent. standard. However, we are delighted with the improvement.
Lord St. John of Bletso: My Lords, while we accept that the tide is turning on Britain's dirty beaches, perhaps I may ask whether the Minister agrees that one in nine of British beaches still fails to meet the minimum standards for bathers, particularly because of sewage problems. Bearing in mind the encouraging responses last year, when 31 UK beaches were awarded the European blue flag, does the Minister have any forecasts on how many beaches are likely to be awarded the European blue flag for 1997?
Baroness Miller of Hendon: My Lords, in a way, if I may say so to the noble Lord, the European blue flag is a bit of a red herring. Perhaps a more polite way of describing it is to call it a misunderstanding, because 23 different tests are carried out, and from memory I believe that about 20 have nothing to do with water quality. The blue flag is only given where the local authority applies for it. So, frankly, the fact that we have only a few blue flags is no indication of the state of our beaches and bathing waters.
Baroness Hilton of Eggardon: My Lords, first, does the Minister agree that the number of bathing places that have failed increased over the last year? It is merely because a higher total overall was identified that the proportion remained roughly the same. Secondly, does the Minister agree that it is only because of pressure from the European Union that we have progressed as far as we have in the improvement of bathing places?
Baroness Miller of Hendon: No, my Lords, I do not agree. I am pleased to tell the noble Baroness that since privatisation of water, the figures for our bathing waters that meet the requirements have increased from 68 per cent. to the 90 per cent. that I was glad to mention just now.
Lord Pearson of Rannoch: My Lords, can my noble friend tell the House whether our Department of Health still believes that the £13,500 million so far spent on the directive is largely wasted? Can she say how much our European competitors have spent on the directive and to what genuine effect?
Baroness Miller of Hendon: My Lords, I have no information on how much our European partners have spent on the directive. I know that we have spent £2,000 million, which accounts for the 117 schemes which I mentioned. We are pleased about it and feel that it is a good indication of a project where we work together to try to improve the bathing water quality of all countries across the European Union.
Lord Mackie of Benshie: My Lords, can the Minister say how many bathing beaches in Britain reached the prescribed temperature at which people would like to bathe?
Baroness Miller of Hendon: My Lords, I am afraid that I am unable to help the noble Lord. As a non-swimmer who uses a rubber ring in the swimming pool, I have no information on the temperature of the sea water.
Viscount Allenby of Megiddo: My Lords, from the work carried out by her department, can the Minister say how many cases of illness are attributable to beaches which do not reach EU standards?
Baroness Miller of Hendon: No, my Lords, I am unable to give my noble friend that information.
The Earl of Lauderdale: My Lords, can my noble friend tell the House whether there is any kind of league table of performance in the area such as exists for the Atlantic, the Mediterranean and the Baltic states?
Baroness Miller of Hendon: My Lords, data are compiled on how European countries are doing, but

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there must always be a degree of caution used when trying to make direct comparisons because all the states have different sampling and analytical methods. So it is difficult for us to work out the figures. However, I am pleased to tell the House that we are placed in the middle of the table and are getting better all the time. We certainly produce better results than Germany, France or the Netherlands.
Lord Stoddart of Swindon: My Lords, is the noble Baroness aware of a recent report which showed that the major pollution of our beaches is now caused by the users of the beaches?
Baroness Miller of Hendon: My Lords, I am not aware of that report; but that may very well be so.
Lord Pender: My Lords, is my noble friend interested to know that my home beach at Sandwich Bay has just had over £1.4 million spent on improving the foreshore and sewage treatment, and, having been red listed or contaminated listed, it now proudly flies the blue flag?
Baroness Miller of Hendon: My Lords, I am delighted to congratulate my noble friend on that excellent result for Sandwich beach.
Lord Campbell of Croy: My Lords, does my noble friend agree that two causes of unclean beaches are garbage and debris from shipping, discarded and washed up on the beaches, and pollution from dirty rivers and estuaries? Are those two sources also being addressed?
Baroness Miller of Hendon: Yes, my Lords, they are.

Organic Farming
2.47 p.m.
The Earl of Clanwilliam The Earl of Clanwilliam asked Her Majesty's Government:
Whether they propose to increase the area payments of the organic aid scheme in view of the imbalance of trade in organic produce between the United Kingdom and other European Union states.
Lord Lucas: My Lords, our policies are designed to encourage a soundly based, not subsidy driven, organic farming industry. We have no plans at present to increase organic aid scheme payments, but we have recently launched the organic conversion information service which offers a telephone helpline and free advisory visits. We also spend £1 million a year on research into the economic and practical aspects of organic farming.
The Earl of Clanwilliam: My Lords, I thank my noble friend for that interesting reply. He suggests that he is interested in organic farming, which is not subsidised. May I introduce him to something called the
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common agricultural policy, which is responsible for enormous subsidies to foreign producers of organic foods? They are responsible for imports of £260 million-worth of organic produce a year, of which £180 million-worth is from CAP-supported European Union states. Does not that imbalance of trade compare terribly with the organic aid scheme, which produces a paltry £1 million spread over five years?
Lord Lucas: My Lords, my noble friend underestimates the value of the organic aid scheme, which runs at about £1 million a year at present. Certainly, subsidies by our continental neighbours are much higher than our own—of the order of two to three times higher. But we do not see the need to enter into a competition on subsidies. There appear to be quite enough subsidies to agriculture at the moment without adding to them needlessly. It would only result in a weak and vulnerable organic farming industry if we were to water and fertilize it too heavily at this stage.
Lord Beaumont of Whitley: My Lords, does the noble Lord realise that organic farming reduces the energy used on the land to the benefit of the environment and increases the labour used on the land to the benefit of the community? For both those reasons, does he agree that it would be a good thing for the OAS to be as fully funded as our competitors in the rest of Europe?
Lord Lucas: My Lords, I agree with the noble Lord about some of the benefits of organic farming. Indeed, it has many good environmental spin-offs. But I still do not see that as a reason for subsidising it so extensively as in Europe. Research has shown that the levels of aid that we provide cover the costs of conversion, and that seems to us to be sufficient.
Baroness Nicol: My Lords, does the noble Lord agree that the environmental benefits of organic farming are considerable? Given that the United Kingdom is reputedly in pursuit of sustainable development of all kinds, including sustainable farming, is it not time to rethink the attitude shown in his first Answer to the noble Earl, Lord Clanwilliam? It seems to me unfair that the subsidies to what is now called conventional farming should be so much more than those now given to organic farming. Will he accept that the benefits environmentally and to the health of individuals are great enough to justify another look at this question?
Lord Lucas: My Lords, the noble Baroness misunderstands the present situation. All the subsidies which are available for ordinary conventional farmers are available for organic farmers. We have designed the way in which we deal with set-aside, for instance, so that those converting to organic farms can benefit from the regulations. We have designed our environmental schemes so that they are much easier and much less costly for organic farmers to comply with than those on conventional farms. So there are many additional benefits already available to organic farmers. In our view, looking at the present situation, they are sufficient.
Lord Moyne: My Lords, is it not mad to subsidise set-aside, which, after all, produces mainly weeds, and not to subsidise organic farming?
Lord Lucas: My Lords, as I said, we subsidise organic farming substantially; we do not see the need to subsidise it more.
Lord Carter: My Lords, is the Minister aware that the vast majority of farmers regard organic farming—to use an old phrase—as mystery and magic? Until recently the same attitude permeated the Ministry of Agriculture, ADAS and most of the agricultural research establishments. Is the Minister further aware that organic farming, low-input farming and environmentally friendly farming—what might be termed generically as alternative farming—is much more demanding, both technically and intellectually, than conventional, high-input farming? There is a shortage of people in research who could help farmers to convert if a large number wished to do so. I do not believe that a telephone helpline will be enough.
Lord Lucas: My Lords, I do not disagree with the noble Lord that a lot of mystery surrounds conversion to organic farming. One reason why people may not have taken advantage of the help available to them is that they are fearful of the risks involved. That is why we launched the organic conversion information service. It involves free visits and free consultation as well as the telephone helpline. A lot of research is directed at exactly what are the costs of conversion and how best to go about it. Indeed, one of the experiments at ADAS, Terrington, is showing that conversion of a pure arable farm with good farmland can yield significant profits over conventional agriculture and may be worth doing without subsidy.
Lord Mackie of Benshie: My Lords, is the Minister aware that, while organic farming can produce food that many people may wish to buy, without conventional farming and the input of synthetically produced nitrogen the world would starve?
Lord Lucas: My Lords, that is taking the Question a little wide. I am not an organic vegetable eater and I am content to eat the products of conventional farming rather than pay double the price for the organic alternative.
The Earl of Clanwilliam: My Lords, perhaps the Minister will bring to the attention of his right honourable friend in the Ministry the fact that there is an imbalance of trade of 180 million a year to this country. That amount is being wasted by the failure of the Government to support the organic movement properly.
Lord Lucas: My Lords, I do not take such a segmented view of free trade. If there is a deficit in organic farming then the farmers who are not farming organically are producing other crops which are either generating a deficit in that regard or producing a surplus elsewhere. We do not have to have an equality in the balance of payments in every individual product or type of farming.

Scottish Select Committees
2.52 p.m.
Baroness Elles Baroness Elles asked the Leader of the House:
Whether he is satisfied with the operation of Scottish Select Committees in scrutinising Scottish public Bills.
The Lord Privy Seal (Viscount Cranborne)The Lord Privy Seal (Viscount Cranborne): My Lords, yes.
Baroness Elles: My Lords, I am grateful to my noble friend for that detailed reply. Does he agree that the new procedure which is applicable so far to three Scottish public Bills has been successful? It enabled direct links to be created between selected Members of your Lordships' House and members in Scotland who are concerned with the details of the Bills as they arise. Will my noble friend further agree that this form of practical devolution is infinitely to be preferred both as to price and as to efficiency rather than some form of proposed parliamentary devolution?
Viscount Cranborne: My Lords, I agree with the suggestion of my noble friend. I was heartened by the support of the Opposition parties, after understandable caution, which is only right and proper, when this experiment was first tried. I agree that it has been extremely successful in making sure that people who were particularly interested in the proposed legislation were given a chance to give evidence in Scotland. In parallel with the initiatives of my right honourable friend the Secretary of State for Scotland, it brought Parliament closer to the Scottish people. The experiment has proved good value in the sense that the costs have varied between £7,000 and £11,000. I agree also that the experiment ensured that it is one Parliament that has been brought closer to the people rather than breaking up the United Kingdom with several.
Lady Saltoun of Abernethy: My Lords, I sat on two of those committees. Does the noble Viscount agree that the knowledge acquired by the members of those committees probably saved parliamentary time at later stages in the Bill? The Deer (Scotland) Bill and the Transfer of Crofting Estates (Scotland) Bill were specialised subjects and the knowledge acquired of the subjects probably enabled Members of the Committee and the House to concentrate their amendments and thereby take up less parliamentary time at later stages.
Viscount Cranborne: My Lords, I agree with the implication of the noble Lady's question that better prepared legislation is likely to enter into a virtuous circle in the legislative process. The more that consultation can take place, the better. I am sure that the Select Committees played their part in that, just as other government initiatives—for example, the increased publication of Bills drafted in advance—have helped in the same direction, though the steps so far have been only modest ones.
Baroness Carnegy of Lour: My Lords, is my noble friend aware that, despite much trouble being taken by

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a large number of groups and individuals to give evidence on the three Bills that have so far been scrutinised in that way, there has been scant reporting by the Scottish media? Is there any way that the House itself could make it clearer to the public when and where the special Scottish Select Committees are meeting and what they are about? Perhaps also reports could be published afterwards containing the gist of the business that was contracted.
Viscount Cranborne: My Lords, I am distressed to hear from my noble friend that the coverage in the Scottish press was rather exiguous. I equally deplore the lack of coverage of proceedings in your Lordships' House we so often receive in the national press. In that respect I hope that the appointment of a new senior information officer—I am glad to say it was approved by all sides of the House—will begin to make some impact on the amount of press coverage that takes place. Nonetheless, I am reliably informed that in relation to the Transfer of Crofting Estates (Scotland) Bill there was considerable coverage on Scottish television and in the press. Specific interests were served, in particular by the noble Lord, Lord Macaulay of Bragar, who I understood was able to inform the inhabitants of the Isle of Skye of the contents of the Bill in Gaelic.
Lord Richard: My Lords, is the Leader of the House aware that we regard this experiment as having been a modest success? We would be content for it to continue, provided it is done on a pragmatic, practical basis and in respect of one Bill at a time. However, if the Leader of the House really believes that going up to Inverness to look at the deer and going to Skye in order to consult the crofters is any substitute for the legitimate aspirations for devolution of the Scottish people, frankly, he is crazy.
Viscount Cranborne: My Lords, the noble Lord, Lord Richard, knows as well as I do that I never claimed more than a modest ambition when I suggested this device to your Lordships. He knows that that ambition, in his opinion as well as mine, has been satisfied. We will continue to choose, through the usual channels and by mutual agreement as is the way of this House, which Bills would be appropriate for that procedure. I am tempted to go down the road the noble Lord asks me to go down. I merely remind him that one of the difficulties that I suspect his party and the leader of his party will suffer from perennially on this subject as well as others is that they fail—I use the phrase used by Mr. Blair in the John Smith Lecture advisedly—to get stuck into the thickets of detail and that is where the devil always lies in their proposals.
Lord Campbell of Croy: My Lords, does my noble friend agree that the new extended system of Scottish parliamentary committees is an effective constitutional improvement? The development has produced the only advances in the past 23 years since the Royal Commission reported on the constitution. Nothing
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whatever was done and no steps were taken during the period of a Labour Government when their previous devolution scheme collapsed totally at a referendum.
Viscount Cranborne: My Lords, as a distinguished former Secretary of State for Scotland, my noble friend can yield to no one in his knowledge and experience of these affairs. Reverting to the remarks of my noble friend Lady Elles about cost, I am told that the latest estimate in sterling terms of the cost of what is proposed for what will unquestionably be an ill-thought-out attempt at a Scottish parliament which will split up the United Kingdom is £70 million. That seems an awful lot of money to spend on an experiment that is doomed to failure for the very reasons my noble friend gives.
Lord Sewel: My Lords, is the noble Viscount aware that at least on one occasion in one of the Bills the weight of Scottish opinion as collected through the evidence obtained by the Select Committee was not reflected in the final shape and content of the Bill, thus underlining the need for a Scottish parliament to make Scottish legislation more responsive to and representative of Scottish opinion?
Viscount Cranborne: My Lords, the fact that evidence is collected and the issues are aired by this device will inform the proper procedures of this House when it comes to scrutinise legislation in its remaining stages. It is for your Lordships' House to decide, in the light of that and other information, how it wishes to proceed. I certainly do not think that this is any more ambitious in its aims than the noble Lord, Lord Richard, made out a moment ago.

Asylum Seekers: Local Authority Support
3.2 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Whether, in the light of the Court of Appeal judgment on 17th February, they will fully compensate local authorities for their expenditure in complying with their duties to asylum seekers under the National Assistance Act 1948.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the Government intend, in the current financial year, to reimburse local authorities for reasonable expenditure incurred in accommodating asylum seekers.
Earl Russell: My Lords, I thank the noble Baroness for that Answer. I notice she gave no answer to the word "fully". May I take it that that was the proverbial stern reply? Does she agree that the fact that, for example, the London Borough of Westminster is supporting asylum seekers, some of whose claims go back to 1988, is no fault of that borough and that, in present circumstances,

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for the Government to treat their remaining friends in this way is not good justice, good administration or good politics?
Baroness Cumberlege: My Lords, in my reply I told the noble Earl that we are going to reimburse local authorities their reasonable expenditure. That is fair. With regard to the councils that are having to support asylum seekers—they are mainly London boroughs—we recognise that this is beyond the duties they expected to have to finance in this year and therefore we are supporting them financially and in other ways.
Lord Pearson of Rannoch: My Lords, will my noble friend go a little further than in her answer to the noble Earl, Lord Russell, bearing in mind that Westminster is something of a special case for compensation? Given its geographic position and other attractions, some 65 per cent. of its temporary housing stock is now taken up by asylum seekers, and that percentage is growing by the week.
Baroness Cumberlege: Yes, my Lords, we are having discussions with the London boroughs and the other local authorities concerned. In fact, Westminster is third in terms of the number of asylum seekers that it has to accommodate. We have taken into account the case that has been made to us and we believe that we are treating it fairly.
The Lord Bishop of Hereford: My Lords, the outcome of the Government's policy on asylum seekers was made abundantly clear by many people, not least by Church leaders. Does the Minister not now agree that, in view of the legal judgment that asylum seekers are not to be allowed to be destitute, in view of the indignities at present suffered by asylum seekers, in view of the unfairness created by the fact that different local authorities offer support at different levels and in view of the fundamental injustice that local authorities should be expected to solve a national problem, the right course of action is to restore entitlement to benefit for those who are applying for asylum and whose cases remain to be heard?
Baroness Cumberlege: My Lords, this Government support very strongly genuine asylum seekers—those who really come here because they are being persecuted abroad. As I am sure your Lordships are aware, if they declare their intentions at the port of entry, they get their benefits while their case is being heard. It was a great surprise to the Government that the court should rule that it was the National Assistance Act which should be used for this purpose. We have never accepted that the National Assistance Act applies to adults who are not elderly, infirm or disabled or in need of community care services. As your Lordships may be aware, we are appealing to the House of Lords for that ruling to be overturned.
Baroness Hollis of Heigham: My Lords, will the Minister kindly confirm the figures supplies to me by the Refugee Council this morning that an adult asylum
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seeker who applies at port of entry and gets benefit on average costs public funds £110 a week but an adult asylum seeker who applies in-country and is therefore refused benefit is now costing public funds on average £200 a week, nearly twice as much?
Baroness Cumberlege: No, my Lords, I dispute those figures. They are not correct. Our discussions with the local authorities have revealed that local authorities are spending on average £165 a week for an asylum seeker.
Lord Brabazon of Tara: My Lords, what has happened to the number of asylum seekers since the benefit rules were changed?
Baroness Cumberlege: My Lords, my noble friend asks a very pertinent question. Before benefits were withdrawn from asylum seekers we had enormous numbers coming to this country. When we passed the Act and the regulations initially, between March and August the numbers of asylum seekers fell by 35 per cent. over the same period last year. Since then it has been 50 per cent. month on month. When the benefits were restored, the number of applications from asylum seekers already in this country rose by 82 per cent. in one month alone.
Lord Dubs: My Lords, will the Minister confirm that it is the Government's intention that this support for local authorities will be through an order to be placed before Parliament shortly? Given the complexities of the issue and the heat that has been generated in discussing the subject, will the Government consider publishing that order in draft so that the details can be debated before the final Motion is presented to Parliament?
Baroness Cumberlege: My Lords, I understand that the special grant report has already been laid in another place and that it is up for debate next month.

Business
3.8 p.m.
Lord Strathclyde: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Goschen will, with the leave of the House, repeat a Statement that is to be made in another place on the future of London Underground.

Local Government and Rating Bill
Baroness Miller of Hendon: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Grand Committee to whom the Local Government and Rating Bill has been committed that they consider the Bill in the following order:

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Clause 1,

Schedule 1,

Clause 5,

Schedule 2,

Clauses 2 and 3,

Clause 6,

Clause 4,

Clauses 7 to 33,

Schedules 3 and 4,

Clauses 34 and 35.—(Baroness Miller of Hendon.)

On Question, Motion agreed to.

Northern Ireland Arms Decommissioning Bill
3.9 p.m.
Read a third time.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, I beg to move that the Bill do now pass. Since the introduction of the Bill in another place last November, the security situation in Northern Ireland has provided little ground for optimism. On 12th February, Lance Bombardier Stephen Restorick was cold-bloodedly murdered by terrorists. This despicable and cowardly act is one of a series of terrorist actions clearly intended to kill and maim, and it is a tribute to the vigilance and professionalism of the security forces that there have not been many more fatalities.
This background of worsening violence might cause some to wonder about the justification for proceeding with the Bill. In fact, of course, it underlines the need to do all we possibly can to facilitate the decommissioning of paramilitary arsenals and remove the gun and bomb from Irish political life forever.
The Government's message, and the message which they share with all who seek to make progress free from the shadow of the gun, is simple: all violence must stop and stop for ever and the implements of violence must be removed safely, visibly, and for good. And to ensure lasting stability in Northern Ireland there needs to be political agreement, widely endorsed.
It is important to be clear that decommissioning in the context of the Bill is essentially a voluntary process. Any arrangements must therefore secure the confidence of those with arms to decommission. Without that confidence there will be no decommissioning.
But your Lordships may be assured that the Government's overriding aim is to decommission the terrorist arsenals. They do not seek to remove the guilt that terrorists bear for the misery they have inflicted upon the lives of the people of both Northern Ireland and the United Kingdom and the security forces will continue to seek and bring to justice those responsible for terrorist crimes. Some may well find it abhorrent that in this Bill we should be contemplating the decommissioning of the weapon which was used to murder Stephen Restorick. The necessary loss of evidence which decommissioning
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would entail must be weighed against the opportunity to ensure that the weapons will never be used to murder again. But I emphasise that there will be no decommissioning of the crime itself. Ultimately, the Bill is a question of balance, and I believe we have chosen the right one.
The possibility of a return to full-scale terrorist violence brings home the importance of the Bill, which opens up a different, better prospect for the people of Northern Ireland. Senator Mitchell referred in his report to the need for the decommissioning of minds in Northern Ireland. He concluded that all were agreed on the principle of arms decommissioning; differences could be distilled into the question of timing. That is profoundly true. The tragedy is that guns and bombs are once more being used as an expression of minds which appear for ever locked in the past.
The Bill represents a pledge of the Government's determination to pursue the goal of permanent peace and stability in Northern Ireland.
Moved, That the Bill do now pass.—(Baroness Denton of Wakefield.)
Lord Williams of Mostyn: My Lords, the Minister rightly says that this is a very important Bill. When it becomes law it will need extremely careful scrutiny in practice. We have to bear in mind that it allows an effective amnesty in criminal proceedings. A decommissioned weapon of whatever seriousness or gravity, however many crimes it was used to commit, will be destroyed; evidence potentially available from it is ruled inadmissible in criminal proceedings; and forensic scientific tests are specifically prohibited.
I asked one or two questions at Second Reading on 30th January and the Minister was courteous enough, as always, to give me a very full reply in her letter of 11th February. That reply was placed in the Library and has also been provided to the noble Lord, Lord Holme of Cheltenham. The Minister confirms that a weapon decommissioned in Northern Ireland may not be available for use in criminal proceedings in the rest of the United Kingdom. She confirms that in practice all decommissioned weapons will be destroyed, and says,
"so it will not he possible [with a decommissioned weapon] to tell where and when, if ever",
that weapon was used for criminal purposes. The evidence which might have been available will not be available in civil proceedings. I have confirmation from her that there is a question at least about the position of co-accused where there is more than one defendant in criminal proceedings.
I gave the Minister notice of a question I wish to put about the circumstances relating to Lance Bombardier Restorick, killed recently for no other offence than doing his duty. The fact is that he was killed with a single shot from a high-velocity weapon unlawfully introduced into Northern Ireland from the United States. The further fact we need to bear in mind on this occasion is that if that weapon is handed in and decommissioned in Northern Ireland, it is likely to be the only probitive evidence against the murderer of Lance Bombardier Restorick. The effect of the Bill becoming part of our law is that that

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murder will go unprosecuted and the murderer unconvicted. That is why I have trespassed on your Lordships' patience for a moment or two to indicate the gravity of what we are doing.
Lord Holme of Cheltenham: My Lords, I shall be equally brief. I subscribe to the question which the noble Lord, Lord Williams, asked rather than repeat it. At the time we last discussed this issue the noble Baroness was kind enough to take issues about the North Report. I would like to trespass on her time and that of the House to raise a question on the report and on parades. I am sure she agrees that we have 65 very dangerous days ahead of us between now and the putative date of the British general election. We have a deteriorating security situation in Northern Ireland.
I am sure that the Minister also agrees that it is the overwhelming duty of the Government to do everything they can to ensure stability at a difficult and precarious time. When we last discussed this matter three weeks' ago, the Government said that they needed to consult further on the issue of Dr. North's report on parades. I offered from these Benches—I believe my noble colleague did the same—that there would be every possible assistance for the Government from the Opposition parties and that they would be available for consultation to allow conclusions from the North recommendations to be brought forward so that they could be implemented during this year's marching season.
The Liberal Democrats have not had any approach from the Government. I do not know whether the Labour Party has been approached for consultation. I would very much like to hear what progress the Government have made on urgently reviewing Dr. North's recommendations. I do not really apologise for raising these issues because we have so little chance to discuss general matters relating to Northern Ireland as regards decommissioning and a peaceful settlement. We read in the newspapers that there is a proposal to rush into the closing days of this Parliament a proposal for a Northern Ireland Grand Committee. That may or may not be a good thing—there are powerful arguments in favour of it—but I cannot believe that it is a good thing to do at this point. What sort of signal will it give in Northern Ireland to the minority community? Has it been discussed at all with the Irish Government? And is it the right way to proceed?
On both issues the noble Baroness will be well aware that I do not point a finger at the Northern Ireland Office which labours unceasingly in the vineyard of peace and political settlement. However, I do point a finger at the Whips of the party opposite who seem extremely concerned to secure the continuing support of the Unionists at a time when their first consideration ought to be the maintenance of peaceful progress in Northern Ireland.
Lord Alderdice: My Lords, it must be very unusual indeed for a Bill to come to this House from another place virtually uncontested yet with everyone fairly sure that the measure will not be implemented even though
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it has been passed, particularly on a matter which is so extraordinary—the disarmament of organisations within the United Kingdom.
The reason is not that it is just a practical matter: the passing of the Bill is not just a question of setting up a structure for decommissioning. It is a political matter. It has come to the fore because of a deep absence of trust, not just occasioned by 25 years of violence but also because when the peace process began the terms were set out and the most crucial term of all was acceptance of the principle of consent. When the republicans made clear that they would not accept that principle there was a search for other evidence of bone fides and the matter of decommissioning was turned to. It is a matter of some regret that that became such a leitmotiv, such a significant issue, rather than the issue of consent which is so fundamental.
However, it is to be welcomed that Mr. John Bruton, the Taoiseach of the Irish Republic, has made it very clear that he and his government will demand and require from republicans that they cease their violence for good and that he has emphasised the centrality of the principle of consent. Surely, it must also be welcomed that yesterday in Belfast Mr. Bertie Ahern, the leader of Fianna Fail and of the opposition in Dublin, also made it clear that the republican movement must come to the mountain of democracy—not the other way round. I hope that we can depend not only on the surety of Her Majesty's current Government, but on anyone else who may fill that position later this year, to ensure that there will be an absolute and steady requirement that the republicans accommodate themselves to the principles of democracy, and not any alternative.
These matters apply to us all. The rule of democracy is not something that can be applied to some, but not to others. When we see not only republicans returning to violence, but also those who gather outside the Catholic church at Harryville every Saturday evening now almost making it traditional to shout abuse and to intimidate Catholic worshippers as they proceed to worship their God; and when we see the leader of the Ulster Unionist Party proclaiming that he insists that Orangemen will walk down a particularly contentious route, not waiting for the advice of the police, despite all the difficulties of last year and the year before—we continue to remember that picture of him wagging his finger at the RUC—I trust that the current Government and any future government will insist that the rule of law is maintained and that the rights of all are protected. Without that, there is no future for our community or for the cause of peace.
I trust that no matter of political expediency or difficulty will press any government, current or otherwise, here or in the Irish Republic, to do anything but hold to those principles not only on the matter of the republicans, but also with regard to the Orangemen who have in their own way turned to the politics of political intimidation and street action.
Lord Fitt: My Lords, the Bill has now almost passed through both Houses with the minimum of difficulty, yet it contains all the elements that could cause great

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controversy among Members of this House, another place, and the people of Northern Ireland. The reason that it has not resulted in controversy is that no one in Ireland, north or south of the border—no one in any of the communities of Northern Ireland—believes that there is any possibility of it coming into force.
On Second Reading I said that there would be great opposition to the announcement that had been made—it has been reinforced today by the noble Lord, Lord Williams of Mostyn—that if weapons are handed in for decommissioning, no forensic tests will take place on them to determine whether those guns have been used to carry out murders. I cannot believe that that is right.
Both the Minister and the noble Lord, Lord Williams, mentioned the killing of the young Lance Bombadier only recently. The noble Lord questioned whether, if the weapon that killed that young man was handed in for decommissioning, it could be used to further a prosecution against the person who fired it. That is only one case among the hundreds of unsolved murders in Northern Ireland which have been carried out by both sides—by nationalist terrorists and unionist terrorists. The relatives are still alive. They will bitterly resent any legislation which states that if a gun is handed in, no forensic tests will be carried out on it. That gun might ultimately be the only evidence that could be used in court to convict a murderer, but that evidence will not be available. That means that scores of murderers in Northern Ireland will be told by this legislation, "If you hand in your gun, you will never be tried for the brutal and vile murders you have carried out." I cannot believe that that is right.
At the moment it seems from her remarks that the Minister is living in hope, a hope perhaps destined to die in despair. Since the so-called peace talks began in Northern Ireland, the noble Lord, Lord Alderdice, will be able to confirm that day after day, hour after hour, there has been controversy about decommissioning. Absolutely no agreement that would bring about decommissioning can be reached at the forum between the existing political parties. I do not think that any of them believes that it will ever come about. However, I reiterate what I said then and I fully support what has been said today by the noble Lord, Lord Williams. The Government will be taking a very retrograde step if they give an indication that the people who have used guns for murders and handed them in for decommissioning will never be charged with murder. That cannot be correct in Northern Ireland terms.
Baroness Denton of Wakefield: My Lords, I know that on many occasions in your Lordships' House, the Motion, "That this Bill do now pass", is not spoken to, but I believe that those noble Lords who have spoken are rightly deserving of a reply. This is a very important Bill. I believe that it is necessary to have it on the statute book. I can report that the Republic of Ireland took its decommissioning Bill through its final stages last week. Both governments are committed to finding a peaceful future for Northern Ireland and, indeed, for the island of Ireland.
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I understand some of the frustrations which the noble Lord, Lord Fitt, raised. The rest of us can never ourselves live the suffering of someone who has seen so much violence in Northern Ireland and seen friends and colleagues suffer from it. We sympathise with and understand the noble Lord's concerns.
However, there is a balance to be struck between looking to the future and making very difficult decisions. I emphasise the difficulty of those decisions. We must consider the balance of whether it is better to take a weapon out of commission—there must be confidence in decommissioning if it is to be viable—and thus to ensure that that weapon is never again used to murder as against the chances of pursuing the killers. I would not pretend that the decommissioning provisions will not make it more difficult for the police to pursue their investigations. However, I believe that, on balance, we must protect the future. All of us listened with pride to the Lance Bombardier's parents express their concern that their son's death should not result in more violence in Northern Ireland. I believe that this Bill works towards their wishes and that we should follow it through.
The police will not stop pursuing criminals. We are decommissioning no crimes whatever. As prosecutions are often mounted in the absence of the weapon used and as other evidence of involvement in a crime plays a more central role, we believe that other evidence unconnected with the decommissioning process can be used to support a prosecution. The important point to remember is that our aim is to persuade those in possession of unlawful armaments to decommission them. If they feel exposed they will not participate and arms will not be handed over in any other circumstances.
It is a great pleasure both to me and, I am sure, to your Lordships to hear Northern Ireland voices speaking on these matters. I welcome the commitment of the noble Lord, Lord Alderdice, to finding a peaceful solution. It is important to stress that if the republican movement continues to reject the path of democratic dialogue in achieving a peaceful resolution of the problems of political instability in Northern Ireland that dialogue will continue without it. If the republican movement does not make it possible for Sinn Fein to be invited to join the talks process it is essential that the legislative foundations for a suitable decommissioning scheme are already in place. I believe that we would be doing less than our duty if we failed to bring forward this Bill.
The noble Lord, Lord Holme, raised two matters that perhaps fell slightly outside the scope of the Bill. But, as the noble Lord rightly points out, this House has very little opportunity to discuss Northern Ireland issues. It also has very little opportunity to discuss them with so many noble Lords in their places. I am sure that all of us who are involved in trying to find solutions gain a great deal of satisfaction from knowing that there are more people who recognise the needs of Northern Ireland and are working towards meeting them. As the noble Lord said, we have taken the opportunity, instead of making a Statement on the North Report, of discussing it at Second Reading of the Bill. I am sorry

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that the noble Lord has not been kept up to date with progress but I assure him that I am aware of considerable efforts on the part of my colleagues in moving forward this matter. We are all well aware that the clock is ticking and that these dates come very quickly. People are being consulted on the formation of the commission. There is no lack of urgency. I hope that this is a matter from which everyone learned a lesson last year. There can be no disguising the fact that there must be a sense of urgency.
The noble Lord, Lord Holme, referred to the Northern Ireland Grand Committee. The Government view the existing Northern Ireland Grand Committee as a way of making government in Northern Ireland more accountable and giving MPs from Northern Ireland greater responsibility. The Prime Minister has said that Northern Ireland MPs should be able to question Ministers and scrutinise government policy directly in Grand Committee, meeting sometimes in Northern Ireland. I welcome the opportunity to be directly responsible for answering matters that fall within my portfolio. The Government are likely to bring forward proposed changes in line with recent alterations to the Scottish and Welsh Grand Committees.
We in Northern Ireland work constantly to find movement. We believe that if people are not given responsibility it is difficult to ask them to behave responsibly. We are trying to make progress. It would be wrong to tell your Lordships that it is always easy. But I should like to reassure the House that this is a peace process because that is the way in which the two governments, with the support of the United States Administration, seek to take violence out of Northern Ireland and remove the arms, bullets and bombs. I am sure that if that day arrives everyone in your Lordships' House will celebrate.
On Question, Bill passed.

London Underground
3.35 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, with the leave of the House, I should like to repeat a Statement that is being made by my right honourable friend the Secretary of State for Transport in another place. The Statement reads as follows:
"With permission, I should like to make a Statement about our proposals for the future of London Underground.
"London Underground is the last of the traditional transport nationalised industries and the only major transport operator which is not in the private sector. Since 1979, we have privatised a wide range of transport businesses—for example, British Airways, the British Airports Authority and indeed London Transport's own bus operating companies. All of them have gone on to prosper, raising money from the market to invest in better services for their customers. Only London Underground remains in the public sector—its status becoming increasingly anomalous.
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"Most recently, of course, we have privatised the national passenger rail network—a process which has now been completed with the award of the last franchise, for Scotrail. The benefits are already becoming apparent: an increase in passenger numbers; new investment is already taking place or is in the pipeline. Railtrack have plans to spend £4 million a day on maintaining and renewing the rail network, on stations and depots and on network enhancements. By 2001, Railtrack estimate that they will have spent £1 billion more than the regulator expected. In addition, franchisees are committed to investing around £1.5 billion in new rolling stock, and over £100 million in improvements to stations and other facilities. The decision to proceed with Thameslink 2000 and the Channel Tunnel Rail Link show that major new projects can be undertaken within a privatised railway. Benefits for rail users are being achieved at a decreasing cost to the taxpayer. In seven years time, the private sector franchisees will require only about 40 per cent. of the support that British Rail estimated they would have needed to run the same services this year.
"Rail privatisation has shown that the fact that an industry is currently loss-making is no barrier to its successful transfer to the private sector.
"Against that background, my right honourable friend the Prime Minister announced in October that we would be considering whether the benefits of privatisation could be extended to the London Underground. We have now completed the initial stages of that work and the Government have concluded that privatisation is the right way forward.
"The package that I will outline to the House will deliver a higher quality Underground, at an affordable cost to passengers and at no extra cost to the taxpayer. Our purpose is to structure the privatisation so as to ensure that the Underground is brought up to modern standards as soon as possible. Our aim is to complete this modernisation and improvement programme—that is the elimination of the 'investment backlog'—within five years of privatisation.
"Over recent years, London Underground's management have raised customer satisfaction by a sixth, increased scheduled train services to a level not seen in 25 years, increased the Underground's operating surplus from nothing to around £200 million a year, and reduced the investment backlog from £2 billion to £1.2 billion. Despite these great strides, a lot remains to be done if we are to bring about the standards of service that passengers want, at a cost which they and taxpayers can afford. We believe that privatisation is the only means of achieving these goals. Privatisation will enable the private sector to invest in the network and respond to passengers' needs, unconstrained by the restrictions of public expenditure controls, and will create the stable financial environment which is simply not achievable in the public sector, with all the other competing demands on taxpayers' money. We want

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to privatise London Underground as soon as possible so that passengers can start enjoying these benefits without delay.
"In deciding on the detailed structure for the privatised Underground, we shall need to take account of the network's unique nature and operating characteristics, and to obtain further technical and financial advice. Specifically, detailed work will now begin on three possible models: the sale of London Underground as a single business; the sale or franchising of vertically integrated lines, or groups of lines, under which a single operator would be responsible for the stations, track and trains on each line or group of lines; or a structure like the national railways model, with a track authority owning the network and franchisees running trains on individual lines or groups of lines.
"We are already consulting London Transport and the Railways Inspectorate, and we shall now widen our discussions to involve the other key players in the railway industry, or with an interest in London's transport system, such as the London Pride Partnership and the London Regional Passengers' Committee. We also intend to start the process of appointing advisers. Our aim is to publish in the summer a White Paper with our detailed proposals for the best structural option for the future of the Underground.
"As with previous privatisations, there have been a number of scare stories in the media in recent weeks. I want to set the record straight by giving 10 commitments to passengers and employees. On safety standards, safety must always be a top priority. I shall be consulting the Health and Safety Commission in order to ensure that, whichever structural option we adopt, the very high safety standards of the network are maintained.
"Secondly, on a fully integrated network for passengers, including through-ticketing and freedom of interchange between lines, there is no question of 'breaking up the network'. Passengers will be able to use different lines for a journey and to choose the most suitable route, using one ticket in exactly the way that they do now.
"Thirdly, on the London Travelcard, regular Tube users attach great value to the Travelcard, which allows people to use the same ticket to travel by Underground, rail or bus, without any restriction on the number of journeys they make. It is used by around a million people a day and accounts for over two-thirds of Underground journeys. Our proposals will explicitly safeguard its future.
"Fourthly, on concessionary fares, the existing London-wide concessionary fares arrangements, which are of critical importance to many elderly and disabled people who rely on public transport, will not be affected by our proposals.
"Fifthly, on wider share ownership, we shall seek ways of encouraging employees and passengers to acquire a real stake in the privatised Underground.
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"Sixthly, as far as the employees are concerned, pensions and travel concessions at the time of privatisation will be safeguarded. Again, depending on the option that we choose, we will be seeking to encourage employees to participate in management or employee buy-outs.
"Seventhly, on service levels, we shall ensure that the private sector will be required to provide a guaranteed level of service broadly safeguarding the existing level of provision. The regulatory authority supervising the privatised Underground, which will be independent of the train operators, will agree to changes in service levels only after carefully considering the benefits to passengers. Again, this is a wholly new safeguard.
"Eighthly, on station safeguards, we shall retain strong and effective statutory procedures to deal with any proposals to close stations. These safeguards will be just as rigorous as those which already apply to London Underground and to the national rail network.
"Ninthly, on fares, we shall introduce controls on fares. The guiding principle will be that, for at least the first four years after privatisation, average fare rises will be no more than inflation. This is a new safeguard—previously, Underground fares have not been capped. We also intend to restrain fares in the run-up to privatisation, by capping average fare increases to inflation plus 1 per cent. a year. Again, there has been no such explicit protection in the past, and in practice fares have tended to rise faster than this. The House will recall, for example, that fares increased by 45 per cent. in real terms between 1974 and 1979. Which brings me to the tenth commitment.
"On investment, in the recent debate about the future of London Underground, a consensus has emerged on two key principles with which I believe that the whole House can agree: first, that it must be a top priority to accelerate investment in the London Underground so as to bring the network up to the standards which passengers can reasonably expect for the 21st century; secondly, that this goal can only be achieved if we create a stable funding regime which enables investment to be planned ahead with confidence.
"We are therefore developing a special funding regime for recycling privatisation proceeds into investment which recognises the unique situation and needs of the Underground. Receipts from privatisation will be recycled in order to ensure that the modernisation of the Underground's infrastructure is completed as quickly as possible, building on the work that London Underground is already doing. Our aim is to achieve this within five years of privatisation, with the private sector operator committing himself to modernising the assets for which he is responsible, in return for a guaranteed level of government support to supplement the investment funds which he himself will raise.
"After recycling privatisation proceeds to complete the modernisation of the Tube network, the majority of any remaining surplus will be channelled into

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additional support for London Underground or for transport investment elsewhere in London or other parts of the country.
"As far as modernising the Underground's basic infrastructure is concerned, the House will appreciate that there is a maximum level of annual investment beyond which it is not practicable to go. At a certain point, for example, disruptions to services from renewal works across the network would become too great, or beyond the capacity of the supply industry. Subject to these practical constraints, we aim to privatise the Underground in such a way that the network is modernised as soon as possible.
"London Underground estimates that the upper limit for sensible investment in the core Underground each year is around £750 million. Of course, passengers are interested in the results of investment—punctual and reliable services—not the amounts. I believe that the private sector will be able to deliver the results that passengers want, but more efficiently. Privatisation and the new regulatory regime will be focusing on the results of investment. But if we assumed that annual investment was around £750 million, about £350 million a year would be needed to maintain the network and renew assets as they become too old. The remaining investment would be aimed at eliminating the results of the under-investment in the Underground in the 1960s and 1970s. Sustained annual investment of around £750 million in the core Underground would be significantly above what has been managed before—in real terms, over four times what was achieved in the 1970s, about three times more than in the 1980s, and 50 per cent. more than so far in the 1990s. I do not believe that this rate of progress would be possible if London Underground were to remain in the public sector.
"The 10 commitments that I have given today show our determination to protect and enhance the aspects of the Underground which are valued by Tube users and Londoners generally. At the same time, privatisation will introduce private sector capital, ideas and energy to increase investment and raise standards. This is an outstanding package for Tube users and Londoners. I do not believe that anything as attractive would be possible under continued public ownership. I commend to the House the principle of privatising the London Underground."
That concludes the Statement.
3.48 p.m.
Lord Clinton-Davis: My Lords, I thank the Minister for repeating the Statement made by the Secretary of State in another place concerning the 10 commitments, which are unlikely to be tablets of stone. Is it not somewhat ironical that this Statement should have been made in the very week of the misery caused to thousands of commuters by the negligence of South West Trains and the inordinate gains made by the directors of Eversholt, which the Minister characterised when I mentioned them as the politics of envy? It is
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not the politics of envy but the politics of inevitability under many of the privatisation schemes which have been launched by this Government.
This Statement is made at the very time that the chairman of London Transport has complained about the news of reduced government funding, leading to £700 million of cuts affecting trains, signalling and track systems. The Minister did not deal with those immediate issues.
Is it not unusual for a government to make a Statement in Parliament, not on what they propose for this Parliament but on what they intend to include in their election manifesto? Are we now to expect that a whole series of Statements will emanate out of the ragbag of ideas that this desperate and bankrupt Government propose as to their suicidal intentions? Why do the Government find it necessary to issue with such haste, despite its length, such a flimsy imprecise Statement which, upon their own admission, is not based on expert opinion—they have not taken expert opinion—and does not even declare the shape of the proposed privatisation? Will the Minister explain that blinding ray of darkness? Why was it necessary at this time?
If, as the Government assert, this will be wildly popular with the electorate, how does he reconcile that with the assessment made by Mr. William Waldegrave that London Underground will be a very difficult privatisation to sell to the public, and even, to use the words of the Secretary of State, that:
"it may be necessary for the Government to pay somebody to take it off their hands."?
There is not one mention of that in this very long Statement. Therefore, is this not yet another example of this Government living not by reality but by make-believe? The reality is that for Londoners it will prove to be about as popular as Sir Edward Heath is with the Conservative Party at present. Can the Minister comment on the projected proceeds and subsidies and the question raised on page 6 about surpluses?
The Minister said that:
"After recycling privatisation proceeds to complete the modernisation of the Tube network, the majority of any remaining surplus will be channelled into additional support for London Underground or for transport investment elsewhere in London or other parts of the country".
How much is that majority? Is it to be 51 per cent.? Where does the rest go? How is it to be apportioned? There is not a word; just an assertion.
What assurances is the Minister able to give that the proceeds of sale will amount to perhaps £600 million—he says perhaps a little more—knowing full well, based on past experience, that there is likely to be another grotesque give-away of some £13 billion-worth of public assets and that the subsidy to be provided—the carrot—might well exceed the net sale proceeds? That comes from the Secretary of State's own lips. What happens in that event?
Does the Minister agree with the view expressed by the Centre for Policy Studies—the Right-wing think-tank—that privatisation could lead to "the commercially advantageous" closure of stations outside Zone 3?

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Yes or no? What guarantees can he give that the present PFI, with all its imprecision, failure to allocate risk and huge and wasteful tendering procedures, and with the absence of national and regional transport objectives, can deliver the goods? That was the precise question raised by the chairman of London Transport.
Our belief is that the whole system needs to be restructured. It is right that private sector skills and capital should be injected, but that should be done on the basis of a much more sensible system that we have devised—the public-private partnership scheme—thereby giving real value to taxpayers. That also involves ensuring that we have national and regional transport strategies, which, perhaps conveniently for the Government because they do not wish to talk about it, are missing from the Statement.
The Government's transport policy, if one can dignify it by that term, like so much else, is in a huge mess. In their pretence to be magicians, they resemble a somewhat humourless Tommy Cooper, with all the blunders for which he was famous, but which were at least harmless. We are content to join issue with this Government on the means that they have chosen in principle—they have dealt with the issue only in principle—to deal with under-investment and the future of London Underground. We will put them before the electors and we are confident that we, rather than they, will be required to deal with these vital matters.
Baroness Thomas of Walliswood: My Lords, I thank the Minister for his courtesy in ensuring that I had an early sight of the Statement. Obviously it was not that early and I had a brief canter through it rather than a careful analysis. However, I have managed to gain some overall impressions.
I shall deal first with what the Statement does not contain. There is no mention of the importance of public transport in the context of sustainability, in which the Government claim to believe. That is extremely important because once one adds in the need to provide public transport in order to create a sustainable future, much of the costing and the obsession with cost which the Statement contains must be altered. Nor does the Statement give any indication as to the importance which the Government place upon public transport in general and London Underground in particular as a contribution to London as a "liveable" world city.
Another impression is of the vagueness of the plans, despite references to a "package". Perhaps it is natural that there is little mention of the price that the Government seek, because they have not thought about any of the other details as regards what they will do en route to privatisation. However, an assurance that the asset will not be sold off at a price well below the network's true worth would have been valuable, considering that it is one of the many so-called scare stories which have been around for some time. Today's Evening Standard suggests that the network could carry a price tag of about £2 billion. It will be interesting to hear the Minister's comments on that.
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Furthermore, there is a lack of clarity about the timing of the project. The suggestion of the publication of a White Paper in the summer may sound ridiculous—it does to me—but it points to a fairly leisurely attitude towards implementation. That may be sensible, but it raises the question of what will happen to the current investment programme during the next two years while London Underground's ultimate fate is being determined in detail. The Evening Standard suggests that the privatisation process will not be completed until 2001. That sounds about right, bearing in mind that we start on the White Paper next summer, if for this Government next summer ever arrives.
The Statement does not indicate whether in the Government's view privatisation means less or more investment within the current London Underground plan period, which also lasts until 2001. What will happen to that investment programme in the meantime? It is impossible not to conclude that Conservative Ministers may believe that even the promise of privatisation will bring them votes. I doubt whether many people would agree with that assessment.
The Minister referred, in the self-congratulatory mood to which we have become accustomed, to the virtues of rail privatisation in general. I suggest that among dispassionate observers the verdict on that would be "too early to tell". However, the verdict among many rail users is that the present situation is more or less catastrophic. In particular, in the general context of the privatisation of the railways, there never has been any indication as to how the privatised rail companies can satisfy the need not merely to attract commercially viable passengers and freight but also to play their part in ensuring that increasing percentages of passengers and freight are moved by public transport in the interests of a more sustainable economy. I believed that the Government shared that ambition.
As regards London Underground, broadly safeguarding the present levels of service is not enough. Those with a major interest in London's future health and well-being—for instance, London First, representatives of the City and the president of the CBI—all want London to benefit from a well-run, expanding public transport system which will increase accessibility, create an attractive environment and ensure the movement of goods and employees. They fear that otherwise they will be overtaken by other capitals where those benefits are provided. The president of the CBI has specifically called for a combined public and private investment programme, whether or not London Underground remains in the public sector. It may be that he agrees that proposals to privatise the Underground are irrelevant to the desperate need to maintain and modernise London's vital transport system.
We should like to see a fresh initiative to bring in capital investment to provide the nation's capital city with a modern metro, meeting the needs of the business community, Londoners and the millions of tourists who visit this city each year. We need to follow the example of every other modern industrial country. We must free London Underground from the dead hand of the Treasury under the cloak of the PSBR. London

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Underground should be able to raise capital in the market by issuing bonds in partnership with the private sector.
It is certain that a steady and stable funding system is essential.
A noble Lord: Reading!
Baroness Thomas of Walliswood: My Lords, why should I not read? The Minister read his Statement. Why should I not read what I have to say as well?
Lord Hailsham of Saint Marylebone: Because it is boring.
Baroness Thomas of Walliswood: My Lords, it may be boring but I am standing here, I have the Floor and unless somebody gets up and makes me sit down, I shall continue to hold the Floor.
It is certain that a steady and stable funding system is essential to the future of London Transport and the London Underground—the very point that London Transport made to the Transport Committee hearing which dealt with London Underground's finances and investment on 19th February. No doubt the Government will respond to that point when they meet the committee tomorrow. That seems to me to be another aspect of the curious timing of this Statement. I await with great interest to see how the Minister will respond to the points made both by myself and by other speakers in the debate.
Viscount Goschen: My Lords, first, I thank the noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Thomas, for her far from boring intervention. I should like to pick up a number of points which they made.
First, there was an attack on railway privatisation from both the noble Lord and the noble Baroness. Remarks were made about independent commentators and where they feel that the success or otherwise of railway privatisation has led us. I believe that there is now a firm recognition across the country that rail privatisation has worked. We have seen massively increased investment; we have seen better and more services; we have seen new and imaginative service levels; we have seen statutory protection. All that is added to a steadily reducing cost to the taxpayer. Whatever one's political beliefs, that must be good news, and I believe that where there is good news, it should be welcomed.
The thread of that goes directly to the views of the parties opposite about London Underground. It is clear, and most people will realise, that something major must be done about London Underground to bring it up to modern standards. Considerable quantities of fresh investment are needed. It is equally clear that government are not going to be in a position to provide all that investment. Therefore, let us consider proposals put forward by the parties opposite. I heard none this afternoon.
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The noble Lord, Lord Clinton-Davis, complained that I had come to the House with a Statement clearing up what the Government intend to do about London Underground—and yet only a few weeks ago I was asked by the noble Lord himself and by others in the Chamber what the Government's response was and what we intended to do. It is entirely appropriate that I should come to this House and make a Statement first to Parliament. Ministers are criticised regularly by the Opposition for not doing that.
The noble Lord complained that my Statement was too long and then again that it was not long enough. I have attempted to bring all the detail that we have to the House at an early stage because it is important that Parliament should know about this.
The simple fact is that this package has taken a number of people by surprise because of the additional safeguards that it contains—the 10 commitments that people did not anticipate—and there is surprise at the bold claims that we should be able to promote a new and modernised London Underground within five years of privatisation.
I was asked about value and the subsidy. On the amount of ongoing subsidy, it is too early to say before we have decided on the model. But we shall ensure that the taxpayer gets good value for his contribution and that the Tube passenger benefits from a better service. That has happened in relation to rail privatisation, and there is no reason why it should not happen as regards tube privatisation in just the same way.
The noble Lord, Lord Clinton-Davis, asked me to say a few more words about the recycling point. We shall require the private sector to modernise the Underground's infrastructure as soon as possible, as I have outlined. That will entail a given amount of government subsidy, the amount to be tested in the market. The subsidy will be recycled from privatisation proceeds which we receive. If, as we expect, proceeds are left over, a majority will go to additional investment in London Underground or for other transport investment.
Lord Clinton-Davis: My Lords, what does a majority mean?
Viscount Goschen: My Lords, the noble Lord asks me what is a majority. My understanding of the word is that it means more than half.
I was asked about closures. Again, what I have outlined should be welcomed by the House. Just as in the case of rail privatisation, firm and rigorous procedures will have to be followed if there is any proposal to close a station. Those procedures exist for the national rail network and they have worked.
The noble Lord attacked the private finance initiative as being wasteful—and yet I understand that that is the sole plank of his policy and that he intends to broaden the PFI. The PFI has been a success. We have managed to attract private investment into the Underground network and also into many other areas. But there is a limit to what can be achieved through that device. We

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believe that a major structural change in terms of privatising the London Underground is what is required to produce the benefits which we seek.
The noble Baroness asked whether I could give a commitment as regards public transport. Of course I can. The Government believe that public transport is very important indeed, and particularly for London. That is why we have come forward with these bold proposals.
I do not know what the noble Baroness's objection is to bringing forward a White Paper in the summer. That would seem to be an eminently sensible way of proceeding. There is still a lot of work to be done. We need to decide on the model. I am sure that noble Lords will accept that. The fact is that the proposals that I have outlined today are very exciting indeed. For decades noble Lords and other commentators have been asking how we can attract more money and innovation to the Tube network. This is the way that that can be achieved and this is the way in which we can achieve a better Underground system for Londoners and for all those who travel on it.
4.7 p.m.
Lord Taylor of Gryfe: My Lords, does the Minister not have any anxiety about this vast undertaking that he has just announced, particularly as it affects the infrastructure of the country's capital city?
The Minister justified this on the basis of the success of the railway privatisation. Is it not too early to make that assessment? Would he come with me, away from the comfortable Benches of Westminster, to King's Cross station and wait for two hours, as was the case during a two-hour delay two weeks ago? The following day there was a delay of three hours and the day after that there was a delay of two hours. Does he have any feeling about the frustration which is suffered by the passengers who line up at Waterloo only to discover that there has been a management error in dismissing drivers from that particular route? There is a considerable question mark over the success of that privatisation and in any case it is far too early to judge.
Will the Minister advise the House as to who are those expensive advisers who will work on this great undertaking? What amount is likely to be spent? Will it be the same advisers who sold off £19 billion of public assets for £2 billion? As a result, vast profits were made by the people who invested in these give-aways.
The Minister said that railway privatisation has inevitably brought increased investment. But that is not what the regulator says. He has said that Railtrack has fallen down on its investment programme. All we are getting now in the glossy booklet from Railtrack are promises of additional investment. What kind of guarantee can the Minister give us in that respect? Further, is the Minister aware that his right honourable friend the Chancellor of the Exchequer said today that he expects to get assistance in paying off the national debt by the sale of London Underground? However, it has been said that the proceeds of sale will be invested in modernisation. Can the Minister say who is right and how much is involved? Perhaps the Minister can just
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think for a moment that this is a vast undertaking and he should hold on a little to see how railway privatisation works—and I hope that it will—before embarking on such an exercise.
Viscount Goschen: My Lords, the noble Lord, Lord Taylor, says that it is too early to say that railway privatisation is working. However, I recall his noble friends condemning it before it even started, so I believe that there are strictures that can be put both ways. If one takes, for example, investment, we see that Railtrack now plans to invest some £10 billion on the network by the year 2001; £4.9 billion on renewals, £0.7 billion on property maintenance, £4 billion on day-to-day maintenance and £0.9 billion on developing the network, £600 million of which is committed expenditure on identified schemes. These are very bold plans and, indeed, represent massive figures. British Rail had no such plans. In reality, I believe that the noble Lord does welcome Railtrack's bold plans.
The noble Lord referred to what the regulator said. The regulator was concerned that Railtrack had not spent all of the investment that it had planned for the first year. That is indeed correct. Railtrack had fallen short of its target. Nonetheless, for the period that I have outlined many times in the House, it had spent over £100 million more than British Rail had in the comparable period beforehand. So these are improvements. The noble Lord criticised Railtrack for the rate of improvement. Nevertheless, I believe that he really recognises that we are talking about very significant improvements.
The noble Lord also mentioned the services offered by the train operating companies. Another interesting statistic is that complaints from passengers are down some 30 per cent. That is a huge figure; indeed, it is a truly remarkable figure. I believe that that represents good news and something that we should all recognise. The noble Lord pointed to trains being late. Of course it is always very regrettable when trains are late. However, I certainly do not think that the noble Lord will stand up and tell me that he was never late on a train in the old days of British Rail. If he does, I am sure that there will be plenty of other noble Lords who take a contrary view.
This privatisation is working. One has only to look at what independent commentators are saying about it. Yes, it has been a political hot potato but now we have seen the party opposite withdraw from their commitments. The Opposition have no policy regarding any plans concerning the railways. They have not decided whether they want to take certain bits back into public ownership. Therefore, there are no alternative plans from the Opposition. We firmly believe that we can produce the benefits that we have from rail privatisation and build them into the Tube network.
Lord Dixon-Smith: My Lords, I listened with great care to the Statement repeated by my noble friend the Minister and listened with equal care to the responses from the noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Thomas of Walliswood. I found myself thinking that rational Members of this House must

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welcome the Statement. Having said that, I also found myself for a moment wondering what the reaction would have been if my noble friend had made the Statement and then said, "Oh, by the way, we intend to do this next week." That seems to me a response which is perfectly legitimate in view of the criticism of the timing of the Statement. In fact, I personally would prefer my noble friend to do it next week.
I should like to spend a little time talking about money. The noble Baroness, Lady Thomas, said that we must get London Underground out of the hands of the Treasury. Of course, the purpose of the Statement is to do precisely that. Therefore, the noble Baroness really ought to support the Government. The noble Lord, Lord Clinton-Davis, talked about public/private partnerships in finance. I do not know quite what that means. However, I do know—as we all know—that the private finance initiative, with a great deal of promotion and hard work, has not yet been able to produce the sort of funding that businesses like London Underground require.
As to the question of the sale price of the assets, I should point out to the House that you can get valuers to value businesses in all sorts of ways. But I have never yet been able to discover the value of an asset when it is losing large sums of money. I give way to the noble Lord.
Lord Richard: My Lords, I am much obliged. I should like to make one point. In my brief experience in this House, I had understood that there are 20 minutes after the Statement and Front-Bench responses within which Back-Benchers are supposed to ask questions. I know that the House is generous and flexible in its attitude towards its rules but, with great respect, the speech that we have just listened to does not seem to me to accord with the convention.
Lord Dixon-Smith: My Lords, I apologise to the House. For a moment I had forgotten the rules. I shall put my question. Will my noble friend the Minister agree that, in what we heard in response to the Statement, there was nothing likely to provide a viable long-term future for London Underground?
Viscount Goschen: Yes, my Lords. I agree that we heard no proposals from the party opposite—just a faint attempt to answer the question of how to produce a modern railway system for our capital city. My noble friend asked about the timing considerations and the use of a Statement to Parliament at this time. I should like to re-state the position. I am sure that noble Lords opposite would be complaining very loudly if announcements were made other than to Parliament concerning such a major move. The complaint is normally that too little notice is given rather than too much. We are confident about our plans and we feel that it is appropriate to announce them to Parliament. It is most unusual to be criticised for taking that approach.
My noble friend also asked about income streams and the removal of the influence of the public expenditure round on the financing of an organisation such as London Underground. My noble friend is right to draw
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attention to that point. Indeed, it is the point that the management of London Underground makes over and again: what it needs is stability. The only way that the Government can guarantee that and remove it from the public expenditure round is by the device of privatisation. Not only will it deliver a stable investment climate for the first time for this railway; it will also allow the private sector to bring forward its own management practices and raise its own investment.
My noble friend also asked about the private finance initiative. I certainly agree with him; it has certainly been a great success. We have seen large amounts of private finance put into public projects. Moreover, the party opposite has picked that up and now agrees with it but in a modified form. There is of course a limit to what can be achieved through the PFI. For this major undertaking we firmly feel that privatisation is the best option.
Lord Ezra: My Lords, I wish to ask a question on investment. The noble Viscount did not answer the question put by my noble friend Lady Thomas of Walliswood; namely, what will happen on investment in the Tube system between now and the time that privatisation comes about if the Government were in a position to do it? It would take at least two to three years. In the meantime, as the noble Viscount is surely aware, a recent press statement by London Underground management shows that it is short of £150 million in the current financial year and will continue to be short in the succeeding two financial years. As a result, it has had to put 200 maintenance projects on hold, and it cannot answer for the basic efficiency of the system following the cuts in what it had originally expected to receive. Is it the Government's intention that in the run-up to privatisation part of the strategy should be to continue to run down the capability of the system?
Viscount Goschen: My Lords, the noble Lord asks a valid question. I apologise if I did not answer it the first time around when it was asked by his noble friend. I can of course give details about this year's settlement. It left provision for the London Transport core business in 1997–98 unchanged. With PFI investment, total investment in the core business over the next three years should total around £1.5 billion. This compares with London Underground's estimate that £350 million needs to be spent each year on average in order to prevent the Tube's backlog getting larger. We have heard of the success in reducing the backlog from around £2 billion to £1.2 billion. Therefore, considerable progress has been made. We recognise there is a large backlog still to be addressed. That is why we believe that the only long-term solution is privatisation. However, for the intervening period we have detailed our investment plans in this year's settlement.
Earl Attlee: My Lords, does the Minister recall my supplementary question of several weeks ago? I am glad that he has taken my suggestion on board. Is he aware that the possibilities for employee participation that he mentioned will be welcome to the employees of that business? Does the Minister agree that London

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Underground enjoys stable demand which is the envy of many capital intensive industries and which would make it easier to raise funds in the private money markets rather than from the Treasury? Does the Minister also agree that most of the questions that have been put to him illustrate exactly why these measures are so desirable?
Viscount Goschen: My Lords, I certainly recall the noble Earl's supplementary question during Question Time a couple of weeks ago. At that stage I was not able to give the answer that I can give to the House today. I thank the noble Earl for his support. I believe he is right to recognise that none of the other alternatives we have heard offer a long-term solution to the problem, which we all agree exists, of how to bring massive investment into London to modernise the Underground. Certainly, share ownership is an important point. The Government have long felt that increasing share ownership and broadening the shareholding base is a good measure, particularly within a business such as this. We shall concentrate hard on the issue and bring forward as many innovative plans as we can on that basis.
The noble Earl mentioned stable demand. Clearly, he is right. The London Underground is heavily used, particularly at peak periods, and train frequency is high. For many journeys there is little alternative to the Underground. It is extremely popular with Londoners, but they recognise that major improvements need to take place. I believe that they will welcome the Statement.
Lord Berkeley: My Lords, I congratulate the Minister on one of his 10 key "commandments"; namely, that passengers will be able to use different lines for a journey. It is so blindingly obvious that the same words were used in the privatisation of the railways four years ago. Since then thousands of passengers have been prevented from doing that on the railways through the break-up of the system and there have been many complaints. Similar commitments were made at that time. The Government have reneged on the pensions provisions for the railways. Will the same happen as regards the Underground? Will the Minister explain how the House or the public can believe any of these commitments after all the commitments as regards railway privatisation have been reneged on in the past four years?
Viscount Goschen: My Lords, I do not accept any of the criticisms that the noble Lord puts forward. The network benefits have been preserved for the railways. There is nothing to justify what the noble Lord said. We have heard some criticism about, for example, the selling of tickets. I recall a discussion on that matter in which I believe the noble Lord participated. We are clear that the inter-availability of lines and tickets occurs on the national rail network. The noble Lord mentioned pensions and the railways. The Government have not reneged on what we said in that regard. Indeed, our provisions are built into law. I recall clearly the passage of the Railways Act
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through your Lordships' House. One of the major concerns was the rights of pensioners. Indeed, this House made changes to that Bill to guarantee the rights of pensioners. We take extremely seriously the pensions of employees and pensioners. We have given a commitment even at this early stage—it is widely recognised that we are at an early stage—that those rights will be safeguarded.
Baroness Seccombe: My Lords, the noble Lord, Lord Clinton-Davis, spent much time talking about other privatisations and the effect on the taxpayer. Does my noble friend agree that we should never forget that before privatisation nationalised industries cost the taxpayer £50 million a week and now those same companies are bringing £60 million a week into the Exchequer?
Viscount Goschen: My Lords, the privatisations that have occurred in so many different sectors of the economy have resulted in benefits. Indeed, we have now seen a lack of political opposition to those privatisations which were opposed tooth and nail by the party opposite. If we had caved in to that pressure, those privatisations would not have occurred and the £2.6 billion a year in taxes which privatised companies now contribute—they paid only £37 million a year when they operated in the public sector—would not have been received. We would not have had the benefit of that. We recognise the dogmatic opposition to privatisation of the party opposite. Of course we accept that its political views make it opposed to this measure. However, I am sure that the practical advantages that privatisations have given to the country are now widely recognised.
Lord Ponsonby of Shulbrede: My Lords, is the Minister aware that this morning I bought an annual season ticket for zones 1 and 2 which cost me £628? In the ninth commitment he gave earlier, he said that fare increases would be capped. Why cannot he give a commitment to reduce fares and thereby encourage greater use of the London transport system as a whole? There may even be a few votes in it.
Viscount Goschen: My Lords, I always take the noble Lord's recommendations for electoral advantage extremely seriously. I am glad that the noble Lord has invested in London transport by purchasing his ticket. I believe that the noble Lord, as a user of the service, should welcome the fact that fares will be capped. Inevitably, there is a balance to be drawn between those who use the service and the general taxpayer. A level has to be set at which the Government feel that an appropriate balance has been drawn between those who benefit from the service and the general taxpayer. We hear a lot about Scottish taxation these days. Perhaps people in Scotland might object to subsidising the noble Lord's rail or Underground travel card. That is an illustration that a balance must be drawn between the general taxpayer and those who benefit from the service.

Education Bill
4.28 p.m.
The Minister of State, Department for Education and Employment (Lord Henley): 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.—(Lord Henley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]
Lord Henley Lord Henley moved Amendment No. 42:
Before Clause 3, insert the following new clause—
("Enlargement of premises
RELAXATION OF CONTROLS ON ENLARGEMENT OF PREMISES
. After section 259 of the Education Act 1996 there shall be inserted—
"Significant enlargements for the purposes of section 259.
259A.—(1) For the purposes of section 259 an enlargement of the premises of a grant-maintained school is a significant enlargement of those premises if (and only if) the effect of the enlargement, taken with all previous enlargements (if any) taking place since the appropriate date, would increase the school's capacity by more than 50 per cent. or 30 pupils (whichever is the greater) as compared with—

(a) its capacity on the appropriate date; or

(b) if at any time after that date its capacity was lower than its capacity on that date, its lowest capacity at any such time.

(2) An enlargement of the premises of a grant-maintained school is accordingly not a significant enlargement of those premises for the purposes of section 259 if its effect, taken with all such previous enlargements (if any), would not he to produce such an increase in the school's capacity.
(3) In subsection (1) "the appropriate date" means whichever is the latest of the following dates—

(a) the date falling four years before the date on which the governing body form the intention to make the enlargement concerned,

(b) the date when the school was established,

(c) where any proposals for a significant enlargement of the premises of the school have been approved by the Secretary of State under—

(i) section 261 below or section 98 of the Education Act 1993, or

(ii) section 37 or 43 above or section 12 or 13 of the Education Act 1980,

the date (or latest date) on which any such proposals were implemented, and

(d) where the local education authority have determined to implement any proposals for a significant enlargement of the premises of the school under section 38 above or section 12(7) of the Education Act 1980, the date (or latest date) on which any such proposals were implemented.

(4) The Secretary of State may by regulations prescribe the method for determining a school's capacity for the purposes of this section; and in this section references to a school's capacity are references to its capacity to accommodate pupils.
(5) Nothing in this section applies to a school requiring special measures to be taken.").
The noble Lord said: I am delighted to be able to propose the reintroduction of this sensible clause to the Bill. It has, as I think the Committee knows, had a somewhat chequered history. I shall explain the purpose of the new clause. Quite simply, it increases the freedom of grant-maintained schools to offer what parents want. It will enable grant-maintained schools to enlarge their premises by up to 50 per cent. without the need to publish statutory proposals. Grant-maintained schools are popular with pupils and parents. The clause will help more parents to get their children into the school of their choice. The clause is firmly in the mainstream of the Bill, which aims to extend the choice and diversity of educational provision.
New Section 259A(1) introduced by the clause effectively changes the definition of "significant" enlargement for a grant-maintained school to one that is greater than 50 per cent. or 30 pupils (whichever is the greater). To avoid very rapid, cumulative increases occurring, schools will be required to look back over a four year period to assess whether a change is significant.
As I said, the increased freedom that the clause provides will enable grant-maintained schools to respond to the wishes of parents. It will also enable schools to decide for themselves what size of school will most usefully serve their particular area. Such changes will not necessarily require the investment of additional public funds because putting these decisions more directly into the hands of schools will increase the incentive for governors to explore alternative ways of financing the necessary capital work.
Nor is this freedom without responsibility. The Bill makes it absolutely clear that governors proposing to make an enlargement must consult those who have an interest in the matter before making a decision to go ahead. In deciding who should be consulted, and in what way, those proposing changes must have regard to guidance to be issued by the Secretary of State. This will specify those who should be consulted and will include among others the local education authority, other schools in the area and, in the case of a Church school, the appropriate diocesan authorities.
I appreciate that there may be some concerns that this change is limited to the grant-maintained sector. But we consider that it is appropriate for grant-maintained schools to take the lead in this area. Not only are many grant-maintained schools popular with pupils and parents, but they are also in the best position to look for innovative approaches to funding the additional provision. This should enable them to expand to meet the demand. I realise that in some areas this could lead to surplus places in other schools to which parents do not want to send their children, but governors and planning authorities have powers to deal with that.
I also recognise that there are many popular schools outside the grant-maintained sector. These schools will continue to be able to make proposals for significant enlargements in the normal way. We have made it clear that there will be circumstances where, in the interests of increasing choice and diversity, we shall be willing to approve increases in places where there are surplus

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places in the area, especially where there would be likely subsequently to be the possibility of removing unsatisfactory provision.
I trust that the Committee will accept that this is a useful step to increase the autonomy and responsibility of grant-maintained schools and give them the opportunity to respond imaginatively to the wishes of parents. I commend the clause and the amendment to the Committee. I beg to move.
[Amendments Nos. 43 and 44, as amendments to Amendment No. 42, not moved.]
Baroness Thomas of Walliswood Baroness Thomas of Walliswood had given notice of her intention to move, as an amendment to Amendment No. 42, Amendment No. 45:
Line 24, leave out ("four") and insert ("eight").
The noble Baroness said: I apologise to the Committee that I am not quite au fait with the procedures.
Lord Henley: Perhaps I may intervene. I suspect that the noble Lord, Lord Morris, and I share a degree of confusion. It was my impression, and I believe that of the noble Lord, Lord Morris, too—I appreciate that I may be wrong—that we would debate the substantive Motion and then move on. I presume that it will be possible to debate the substantive Motion and possibly at Report stage discuss the amendments to it, if the noble Lord prefers to deal with the issue in that manner.
Lord Morris of Castle Morris: Yes.
Lord Henley: That might be more appropriate. In that case we can skate through, if I may so put it, the various amendments to Amendment No. 42, returning to the substantive Amendment No. 42.
Lord Morris of Castle Morris: I am grateful to the noble Lord. I had thought that that is what we would do. From the groupings on the Marshalled List I had thought we would dispose of Amendment No. 42 before we considered Amendment No. 43, which we did not wish to move. If the noble Lord's suggestion is the wish of the Committee, it is certainly my wish.
Baroness Thomas of Walliswood: I apologise that I am unable to hear instructions.
Lord Henley: The noble Baroness might find it easier if she did not move her amendment. The noble Lord, Lord Morris, and I consider that the best approach. We can discuss the basic principle of putting Amendment No. 42 back in the Bill. The subsequent amendments can be considered at Report stage.
[Amendment No. 45, as an amendment to Amendment No. 42, not moved.]
[Amendments Nos. 46 to 48, as amendments to Amendment No. 42, not moved.]
Lord Henley: I have spoken to Amendment No. 42. However, I hope that other noble Lords will have the opportunity to respond.
Lord Morris of Castle Morris: I do not have the remotest idea where we are. However, if we are considering, as I think we are, Amendment No. 42, the Government's new clause before Clause 3, I have to tell the Committee that with one grammatical improvement the Government's new clause is exactly the same as that which has twice failed to be agreed in another place. The grammatical improvement, which adds a pleasing touch of literacy to the Bill, is that the word "latest" has replaced "later" in the second line of subsection (3). That is in accordance with contemporary ideas of grammar, although I can remind the Members of the Committee that there is one line in Shakespeare which refers to the "most unkindest" cut of all, which would not be considered particularly grammatical in our day.
The new clause introduces parallel provisions to those on selection. It enables grant-maintained schools to step outside the requirements to publish proposals in respect of the enlargement of their premises. A threshold of 50 per cent. or 30 pupils (whichever is the larger) is set, up to which grant-maintained schools may expand with requirements only to undertake such consultation (if any) as they consider appropriate. Expansion can be repeated after four years so that the grant-maintained school can more than double its size in a period as little as eight years.
The innocent phrase in brackets "(if any)" leads us to believe that the response will be no consultation. Who in his right mind would become involved in a long process of consultation which might not bring him the result that he wishes when he finds a bracket like that in his instructions? He is running what is, after all, a business as well as an educational establishment.
I draw the period of eight years to the Committee's attention because that is the time it takes a pupil to complete secondary education. He might well find that the school had doubled in size while he was attending it.
The Government have clearly decided to pursue a new route to the expansion of the grant-maintained sector, the rate of schools transferring into that sector having slowed down to a very small trickle. The concentration is now to be on allowing those already in this sector to grow without any regard to the need for the places which will be created. It will be a matter of places first and pupils following, if they happen to be around.
Linked directly to the ability for grant-maintained secondary schools to select up to 50 per cent. of their intake without having to go through a publication procedure or seek central approval, the intention is clearly to introduce half the grammar school system through the grant-maintained sector and to enable it to grow at a faster rate than any other part of the system.
In addition to the educational issues raised by the new clause, there is a legitimate question for the Committee to consider. The new clause has been rejected once in Committee in the Commons by what I can only describe as a piece of careless indiscipline by Whips, when the

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Government had a built-in majority sitting there day after day, doing its correspondence, with no fewer than 16 Sittings. Someone was allowed, I believe—I say this subject to correction—to slip out for some personal purpose and was then pursued by another. The result was an unfortunate one, to say the least, for the Government.
It was not agreed again on a second occasion on the Floor of the House at Report stage. On the second occasion, the Minister sought to explain the defeat in the House of Commons as due to "procedural problems". He went on, quite properly, to say that the result at the Report stage had been a tied vote. The fact remains that the clause not only arrives without the endorsement of the Commons but has actually been excluded from the Bill on two separate occasions by them.
The question therefore arises as to whether the Government are right to ask the House of Lords to insert into the Bill a clause which has twice been excluded by the Commons. The Minister might like to inform the Committee—I am sure that he has looked it up—whether there is a precedent for the Government acting in that way. New clauses are quite naturally frequently introduced in your Lordships' House as proposals develop or in response to earlier amendments. This new clause arises quite differently: it is tabled in the Lords purely and simply because it could not be agreed in the Commons. Can the Minister point to previous instances when it has been thought proper to proceed in that way?
The importance of the clause is underlined for us by the Government's apparent adamantine determination to seek to reintroduce it. For that very reason, however, we believe that it ought to have the approval of the Commons before the Lords are asked to endorse it.
4.45 p.m.
Lord Tope: I start where the noble Lord, Lord Morris, concluded. I too share the constitutional—if it is not too strong a word—concern about the amendment, even before we consider its merits or otherwise. The Minister pooh-poohs that statement, but I question whether it is right for the House of Lords to introduce by way of amendment the approval of a clause which is both important and demonstrably controversial when they have failed to get it through the elected other place. I look forward to the Minister's answer to the question of the noble Lord, Lord Morris, about what precedent there is for the proposal under these circumstances. It is potentially quite a serious and perhaps even a dangerous step for your Lordships' House to take and it is one which we should contemplate seriously before we judge the merits or otherwise of the argument.
It will come as little surprise to the Minister or other Members of the Committee that I do not see much merit in the arguments for the clause either and will accept that to some extent that may prejudice my concern about its constitutional aspects.
It is self-evident that a school increasing its capacity by up to 50 per cent. is bound to have a significant effect on other schools, whether they are LEA schools, grant-maintained schools or even schools in the private
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sector. If I heard the Minister right, in his opening address he said that there would be consultation arrangements which would be covered in guidance. I hope I heard him right and that he said the guidance would include a requirement to consult LEAs. The Minister nods, so I did hear him correctly.
That is important because if a school is to propose to increase its size by such an extent, the consultation arrangements are crucially important, particularly with the LEA but not only with the LEA. When the Minister replies, would he care to enlarge a little more on what he expects to be in the guidance? Who is to be consulted, on what terms and under what circumstances? Who then decides, as a result of the consultation, whether proposals should or should not go ahead? The purpose of the Bill is to ensure that it is not the Secretary of State who decides. Who does decide where it goes?
The Minister also acknowledged that it is probable—highly probable, I suggest—that a measure like this will increase surplus places at least in the short term. Again, that is a matter of great concern to LEAs. We were discussing yesterday Trading Places, the report from the Audit Commission which drew attention to the large waste, as the commission describes it, of public money in surplus places. I wonder how to deal with, and who will deal with, the question of the surplus places that are bound to arise, should the measure come about.
I conclude that the whole purpose of the clause is to try to pump some life back into what was yesterday admitted to be the failed policy of grant-maintained schools. That is what it is about. We discussed it yesterday. The Government have failed to encourage either governing bodies or a sufficient number of parents to ballot for schools to go grant-maintained. This is now a sixth attempt to relaunch what is demonstrably a failed policy—grant-maintained schools. It should therefore be buried more quietly than the previous five attempts and we should not go ahead with it.
Finally, another point which concerns me is that it is also a way not only to expand the number of grant-maintained schools but also to expand faster than would otherwise be the case the selective intake in grant-maintained schools. For all those reasons, this is a bad clause which should be rejected, as the other place has rightly seen fit to do. I hope that the Committee will think seriously not only about the issues in the clause but about whether your Lordships' House should pass a clause which has failed to get through the other place.
The Earl of Onslow: It is interesting that the noble Lord should bring up the constitutional issue. It is simple: if the House of Commons does not like it, it does not accept it. We know that and it has been the case since 1911. We all know, because it was admitted by both the noble Lord, Lord Morris, and the Liberal spokesman, that it was through Whip incompetence that the clauses were not put through in another place. It was not to do with the merits of the case.
There is one further small point. I believe that the clause does not go nearly far enough. Schools should be allowed to expand and contract as their market demands and as parents want them to do, without having

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complicated number systems. If there are surplus places in schools, the schools should be closed down. If the school is not working, why should we as taxpayers go on subsidising something which does not work? The way to get proper education is to ensure that parents can choose the children they want—I mean the school places they want. With modern scientific developments, it looks as though my slip of the tongue may be only too accurate anyway. Parents should be allowed to choose the schools they want and the schools will rise to the requests that parents make of them. In my view, the clause does not go nearly far enough.
Lord Monkswell: Until the noble Lord, Lord Morris, advised us of the import of what had happened in the other place, I had not intended to intervene in the debate. But I have to point out to the noble Earl, Lord Onslow, that it is not a question of how the result was determined but of what the result was. There is no question of impropriety, of wrong numbers being counted or anything of that kind.
The noble Earl introduced another element—that schools should respond to market forces. One could consider that the assisted places schemes keep in place quite a number of public schools. Maybe he feels that that is wrong as well.
Baroness Young: I am certain that my noble friend the Minister will respond on the constitutional point. When I heard the noble Lord, Lord Morris, I could not help but feel that he would agree with me that Lady Bracknell would have had something quite definite to say about carelessness on both occasions. That is perhaps rather more fitting a point to make in relation to this whole matter than a debate on the merits of the case.
On a more serious note, it is a very important amendment. I rise merely to reply to the point that was raised yet again by the noble Lord, Lord Tope, about grant-maintained schools failing. I suppose that one continues to make that assertion in the hope that people will come to believe it. But it simply is not true and needs to be rebutted every time the point is made. Grant-maintained schools are doing very well. They are getting very good academic results and they are very popular with parents. This is an opportunity to build on success and give opportunities to children who might not have them otherwise. I hope that the Committee will support the amendment.
Lord Walton of Detchant: I ask the Minister a question purely for clarification. This clause deals with enlargement of premises and enlargement of numbers within grant-maintained schools. May I take it, as my reading of the Bill implies, that it does not refer to enlargement of provision; in other words, as it stands, it would not allow a grant-maintained school which does not have a sixth form to establish a sixth form? My reading of the Bill suggests that that would fall
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under Clause 5 and not under this proposed clause. I should welcome the Minister's clarification of that point.
Lord Dixon-Smith: There is perhaps one final point that is worth reintroducing into this discussion. We continually hear that the introduction of a selective stream into a school is the reintroduction of the selective system pre-1965 with the differentiation between grammar schools and secondary modern schools. Of course, that is not the case. What we are talking about constantly and of what we ought to remind ourselves is the introduction by a proportion of all schools, if they so choose, of a selective element. That is completely different from a situation in which a very limited number of schools have total selection and other schools have none. That very clear distinction needs to be reiterated time and again.
Lord Skidelsky: I want to say a brief word in support of the amendment presented by my noble friend. It is a very important amendment. It goes to the heart of the Bill as it was originally presented. By allowing grant-maintained schools to expand their capacity in response to market demand, it establishes a very important principle. It is, I believe, the first time that the Government have acknowledged that to make a system of choice work, there needs to be a flexible supply of places to allow places to expand and contract in relation to parental demand. The Bill also establishes a mechanism for that. I agree with my noble friend that it is too complicated a mechanism to enable that to happen, but it is still a first step.
This amendment is a litmus test for those people who profess to believe in parental choice. It is self-evident that without some such mechanism for matching supply and demand, the value of parental choice is very much diminished. If the number of places in each school is fixed and parental demand varies from school to school, it means that a proportion of pupils will not be able to get their children into the school that they want. Those children will have to be reallocated to schools to which their parents do not necessarily want them to go. As the Audit Commission pointed out, that is happening. About one child in five on average is relocated and in some areas it is a much higher proportion.
Bureaucratic allocation is the opposite of choice. It goes with planning. That is why I believe that the Opposition spokespersons oppose the amendment. They are against choice. Time and again they have said that parental choice undermines local authorities' ability to plan the education provision for their area. That is a tenable position but one must not then say that one is in favour of parental choice. Those are opposite principles.
If parental choice is to be taken seriously, market demand must be allowed to have some influence on the supply of places. Successful schools should be allowed to expand. If that means empty places at schools to which parents do not want to send their children, so be it. That arises as a result of free choice freely exercised. It might at least act as a spur to those schools to make their education provision more desirable.

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I ask the Opposition parties not to concentrate so much on the risks in this system. There are always risks attaching to choice. Things may not work out so well as one might hope. I ask them rather to concentrate on the opportunities for better education which might be created. They should ask themselves, if they believe in parental choice, what policy that belief entails. What obligations on action does it impose? It seems to me that at the moment they bandy around the phrase "We believe in parental choice", but whenever anyone suggests extending parental choice, they say, "No, that will interfere with our planning system and make it impossible".
If Members on the Benches opposite regarded the matter in that light, I believe that they would see more virtue in the amendment than they are prepared to allow.
Baroness Warnock: I join for a moment the Benches opposite. I myself would never put parental choice as a first priority in education. It is very often impossible for parents to choose. For example, if they want a child to go to a selective school and that child is not selected, they cannot choose that he goes to that school. They can try but cannot choose to obtain a place.
I ask the Minister for information. Let us suppose that a grant-maintained school became larger or even supposing that it did not. Would it be within the terms of this legislation for it to become selective both of able children and of disabled children? That is rather an important question. Given a large and popular school which was expanding and parents who had children with special educational needs—not necessarily statemented children but those who manifestly needed special help—would it be open to one of those enlarging grant-maintained schools to say that they would take 30 per cent., say, of specially able children and 30 or 20 per cent. of specially non-able children, and have a middle range?
If that were envisaged, I should feel very much less hostile to the idea of schools which are both expanding and going up to their permitted limit of selection according to ability. I also feel that a very large number of parents would continue to prefer that school: parents of children who were specially able, parents of children who were in the middle and, it was hoped, would become specially able by being at a specially good school and parents of children with disabilities. When he comes to reply, I wonder whether the Minister could answer that question.
5 p.m.
Lord Henley: Perhaps I may deal first with the point raised by the noble Lord, Lord Walton of Detchant, when he asked whether the new clause would provide for the setting up of sixth forms. The new clause is nothing whatever to do with that. He was almost right when he referred to Clause 5. Clause 5 will deal with those matters once this clause is inserted because the numbering will be adjusted upwards from 4 to 5, if my mathematics are correct.
I start with the constitutional points made by the noble Lords, Lord Tope and Lord Morris, which were palpable nonsense, to put it more or less in the words of
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my noble friend Lord Onslow. I agree with him entirely, which is not something that happens with great frequency. I remind the noble Lord, Lord Morris, of what his colleague, Mr. Peter Kilfoyle, said in another place at Report stage. I appreciate that I should not quote him directly, but perhaps I may paraphrase the arguments over his lengthy speech—some five lines. He said: "As we fully deployed our arguments in Committee on some earlier occasion, we see no reason to rehearse them again and I suggest we move straight to a vote". I was interested therefore in the detail with which the noble Lords, Lord Morris and Lord Tope, felt it necessary to bring this matter before the Committee.
The fact is that there were procedural difficulties in another place—and they were merely procedural difficulties—with regard to these amendments. The noble Lord seemed to be implying—I believe it to be nonsense—that if an amendment is put forward in another place, perhaps by the noble Lord's party, and happens to be defeated twice, it would be wrong for the noble Lord to move it again in this Chamber. As I said, that is palpable nonsense. As my noble friend Lord Onslow said, it is right that we now put the clause back in so that the Commons have another chance on consideration of Lords' amendments to think again. On many occasions I have heard noble Lords opposite say that this Chamber must pass an amendment so that the elected Chamber has the opportunity to think again. I am asking this Committee to do just that on this occasion.
Perhaps I may deal with one or two of the points raised by noble Lords opposite. First, the alleged lack of consultation was mentioned. I do not want to repeat what I said yesterday on consultation. As I made clear to noble Lords opposite, that consultation will be thorough. We will expect the LEAs to be consulted; we will expect the diocesan or other Church authorities to be consulted as appropriate; and we will be putting out guidance as to how that consultation should take place. As always with the consultation-friendly Department for Education and Employment, we shall be consulting on the guidance and noble Lords and others will have an opportunity to comment on that in due course.
Secondly, this amendment has nothing whatever to do with grammar schools, selection, partial selection or whatever. Grant-maintained schools can be selective; they can be fully selective. There are grant-maintained grammar schools; there are grant-maintained voluntary secondary schools; there are also grant-maintained comprehensive schools; in fact, the vast majority are probably just that—comprehensive schools. The amendment is about expanding their numbers.
The noble Baroness, Lady Warnock, asked whether the school could select both able and special needs children. The answer is that they can, within the 50 per cent. threshold available to grant-maintained schools. That is why we use the word "ability" at this stage. On other occasions when we talk about grammar schools we talk about "high ability" to differentiate between the two. I hope that a gleam of light has come to the noble Baroness and she understands what I mean.
The last point on which I want to pick up—I am grateful for the remarks of my noble friend Lady Young—is the allegations made by the noble

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Lord, Lord Tope. The first is that the policy of grant-maintained schools has failed, and the second that I had admitted that it had failed. That is grossly misleading. The noble Lord will remember that I intervened on more than one occasion yesterday to say that I did not believe that grant-maintained schools had failed; I believed that they had been an enormous success and I can give the figures again. There are now almost 1,200 self-governing grant-maintained schools; 84 out of 119 LEAs have at least one grant-maintained school; they are educating 700,000 pupils, including nearly 20 per cent. of all secondary pupils in England; and there has been a marked increase in the grant-maintained primaries over the past three years—they now make up 40 per cent. of the grant-maintained sector. I go on to add that there are even 19 grant-maintained special schools, which again is enormously encouraging.
Quite simply, this amendment gives greater powers to the good grant-maintained schools that wish to expand to expand. I hope that the Committee will recognise it for just that and agree to accept it.
5.5 p.m.
On Question, Whether the said amendment (No. 42) shall be agreed to?
Their Lordships divided: Contents, 169; Not-Contents, 127.

Division No. 1

CONTENTS

Addison, V.

Clanwilliam, E.

Ailsa, M.

Clark of Kempston, L.

Alexander of Tunis, E.

Coleraine, L.

Ampthill, L.

Coleridge, L.

Anelay of St. Johns, B.

Cornwallis, L.

Annan, L.

Courtown, E.

Arran, E.

Cowley, E.

Ashbourne, L.

Cranbome, V. [Lord Privy Seal.]

Astor of Hever, L.

Cross, V.

Attlee, E.

Cuckney, L.

Balfour, E.

Cullen of Ashboume, L.

Belhaven and Stenton, L.

Cumberlege, B.

Beloff, L.

Dacre of Glanton, L.

Biddulph, L.

Davidson, V.

Birdwood, L.

Dean of Harptree, L.

Blatch, B.

Denbigh, E.

Bowness, L.

Denham, L.

Brabazon of Tara, L.

Denton of Wakefield, B.

Braine of Wheatley, L.

Dilhorne, V.

Brentford, V.

Dixon-Smith, L.

Bridgeman, V.

Donegall, M.

Brigstocke, B.

Dunrossil, V.

Bruntisfield, L.

Ellenborough, L.

Burnham, L.

Elles, B.

Butterworth, L.

Elliott of Morpeth,L.

Byford, B.

Elton, L.

Cadman, L.

Feldman, L.

Campbell of Croy, L.

Gage, V.

Carnegy of Lour, B.

Geddes, L.

Carnock, L.

Gisborough, L.

Chadlington, L.

Glenarthur, L.

Chalker of Wallasey, B.

Goschen, V.

Charteris of Amisfield, L.

Gray, L.

Chelmsford, V.

Gray of Contin, L.

Chesham, L. [Teller]

Griffiths of Fforestfach, L.

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Grimston of Westbury, L.

Munster, E

Hambro, L.

Murton of Lindisfarne, L.

Hanson, L.

Newall, L.

Harding of Petherton, L.

Noel-Buxton, L.

Hardinge of Penshurst, L.

Northesk, E

Harmar-Nicholls, L

O'Cathain, B.

Harris of Peckham, L.

Onslow, E.

Haslam, L.

Oxfuird, V.

Hayhoe, L.

Palmer, L.

Henley, L.

Pearson of Rannoch, L.

Hogg, B.

Peel, E.

Holderness, L.

Pender, L.

Hood, V.

Perry of Southwark, B.

Hooper, B.

Prentice, L.

Howe, E.

Pym, L.

Hylton-Foster, B.

Quinton, L.

Iddesleigh, E

Quirk, L.

Ilchester, E.

Rankeillour, L.

Inchyra,L,

Rawlinson of Ewell, L.

Inglewood, L.

Reading, M.

Jakobovits, L.

Rees, L.

King of Wartnaby, L.

Renfrew of Kaimsthorn, L.

Kinnoull, E.

Rennell, L.

Kitchener, E.

Rowallan, L.

Lane of Horsell, L.

Saatchi, L.

Lauderdale, E

St. Davids, V.

Lindsay, E

Sandford, L.

Lindsey and Abingdon, E.

Seccombe, B.

Long, V.

Shaw of Northstead, L.

Lucas, L.

Simon of Glaisdale, L.

Lucas of Chilworth, L.

Skelmersdale, L.

Luke, L.

Skidelsky.L.

McColl of Dulwich, L.

Slim, V.

Mackay of Ardbrecknish, L.

Strathclyde, L. [Teller.]

Mackay of Clashfern, L. [Lord Chancellor.]

Sudeley, L.

Swinfen, L.

Mackay of Drumadoon, L.

Terrington, L.

Macleod of Borve, B.

Teviot, L.

Malmesbury, E.

Thomas of Gwydir, L.

Marlesford, L.

Torphichen, L.

Middleton, L.

Trumpington, B.

Miller of Hendon, B.

Ullswater, V.

Milverton, L.

Wade of Chorlton, L.

Monckton of Brenchley, V.

Wakeham, L.

Monson, L.

Westbury, L.

Montgomery of Alamein, V.

Wharton, B.

Mottistone, L.

Whitelaw, V.

Mountevans, L.

Wise, L.

Mowbray and Stourton, L.

Wynford, L.

Moyne, L.

Young, B.

NOT-CONTENTS

Addington, L.

David, B.

Alderdice, L.

Dean of Beswick, L.

Allen of Abbeydale, L.

Desai, L.

Archer of Sandwell, L.

Diamond, L.

Barnett, L.

Donaldson of Kingsbridge, L.

Beaumont of Whitley, L.

Donoughue, L.

Berkeley, L.

Dormand of Easington, L.

Blackstone, B.

Dubs, L.

Blease, L.

Eatwell, L.

Borrie, L.

Falkender, B.

Broadbridge, L.

Falkland, V.

Brooks of Tremorfa, L.

Farrington of Ribbleton, B.

Bruce of Donington, L.

Fisher of Rednal, B.

Callaghan of Cardiff, L.

Gallacher, L.

Calverley, L.

Geraint, L.

Carlisle, E.

Gladwin of Clee, L.

Carmichael of Kelvingrove, L.

Glenamara, L.

Carter, L.

Gould of Potternewton, B.

Cledwyn of Penrhos, L.

Graham of Edmonton, L. [Teller.]

Clinton-Davis, L.

Grey, E.

Cocks of Hartcliffe, L.

Hampton, L.

Crook, L.

Hamwee, B.

Dahrendorf, L.

Harris of Greenwich, L.

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Haskel, L.

Paul, L.

Hayman, B.

Perry of Walton, L.

Hereford, Bp.

Peston, L.

Hilton of Eggardon, B.

Ponsonby of Shulbrede, L.

Hollis of Heigham, B.

Prys-Davies, L.

Holme of Cheltenham, L.

Ramsay of Cartvale, B.

Hooson, L.

Redesdale, L.

Howell, L.

Richard, L.

Hughes, L.

Ripon, Bp.

Hunt, L.

Robson of Kiddington, B.

Irvine of Lairg, L.

Rochester, L.

Jay of Paddington, B.

Rodgers of Quarry Bank, L.

Jeger, B.

Russell, E.

Jenkins of Hillhead, L.

Serota, B.

Jenkins of Putney, L.

Sewel, L.

Judd, L.

Shepherd, L.

Kennet, L.

Simon, V.

Kilbracken, L.

Smith of Gilmorehill, B.

Leicester, Bp.

Stallard, L.

Lockwood, B.

Stoddart of Swindon, L.

Longford, E.

Strabolgi, L.

Lovell-Davis, L.

Symons of Vernham Dean, B

McIntosh of Haringey, L.

Taylor of Blackburn, L.

Mackie of Benshie, L.

Taylor of Gryfe, L.

Thomas of Walliswood, B.

McNair, L.

Thomson of Monifieth, L.

McNally. L.

Thurso, V.

Mallalieu, B.

Tope, L. [Teller.]

Mar and Kellie, E.

Tordoff, L.

Marsh, L.

Turner of Camden, B.

Mason of Barnsley, L.

Wallace of Coslany, L.

Merlyn-Rees, L.

Wallace of Saltaire, L.

Merrivale, L.

Walton of Detchant, L.

Meston, L.

Warnock, B.

Methuen, L.

White, B.

Milner of Leeds, L.

Whitty, L.

Molloy, L.

Wigoder, L.

Monkswell, L.

Williams of Elvel, L.

Morris of Castle Morris, L.

Williams of Mostyn, L.

Nicol, B.

Winston, L.

Ogmore, L.

Young of Dartington, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.15 p.m.
Clause 3 [Relaxation of controls on changes relating to selective admissions]:
[Amendments Nos. 49 to 58 not moved.]
Clause 3 agreed to.
Clause 4 [Relaxation of controls on changes in age groups for admission etc.]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 59:
Page 5, leave out lines 9 to 12.
The noble Baroness said: Amendment No. 59 is grouped with Amendments Nos. 60, 61 and 62. In moving the amendment I intend to spare your Lordships repetition because others who intend to speak to this group of amendments will deal with the nursery aspect. I shall deal with the sixth-form aspect.
The purpose of Amendment No. 59 is to remove the power of grant-maintained schools to add sixth forms without affecting their selection threshold. An earlier amendment sought to remove the equivalent provision in relation to county schools. The arguments there apply to this amendment also. This amendment, however, deals with a particular freedom given to
1076
grant-maintained schools to move to full selection in their sixth forms or even to create a fully selective sixth form where none existed without affecting their selection threshold. In practice, therefore, a grant-maintained school could have rather more than 50 per cent. of its places on a selective basis, taking pupils post-GCE on a fully selective basis.
The danger for the structure of sixth-form provision as a whole is clearly that resources and pupils of higher ability may become disproportionately concentrated in grant-maintained sixth forms to the disadvantage of adjacent provision—be it a separate sixth-form college, a tertiary college or a voluntary or county school. In periods when the school rolls have been low the structure of sixth-form provision has often required considerable planning. I note that on the Government Benches there are those who appear to use the term "planning" in a pejorative way.
For those who can buy from a free market perhaps the idea of planning in the private sector is anathema. Perhaps there is a degree of logic in that. Those of us who have our children educated within the publicly provided sector want a degree of planning. When our children turn up at the local school to be enrolled we like to know that there are enough places for them. Similarly, in sixth-form provision, those with children within the state sector would like to know that provision is properly planned so that it is capable of being of a uniformly high quality and so that the interests of the second year sixth-form student are not distorted by a temporary whim which may occur. Those children are entitled to properly planned and resourced education. I beg to move.
Lord Walton of Detchant: Perhaps I may say at the outset that I am not in any sense opposed to the principle of selection or setting within schools. I believe that that is greatly to the benefit of children who have special educational needs, whether they are individuals of high ability or whether, as the noble Baroness, Lady Warnock, said a little earlier, they are individuals who have special educational needs of a very different type.
One of the major planks of the Education Commission which I had the privilege to chair was that there should be a substantial broadening of the sixth-form curriculum in the 16-to-18 provision not just in relation to academic provision but also in relation to vocational education. There is no doubt that many of the sixth forms in grant-maintained and LEA-maintained schools are providing a high standard of education, but so, too, are the 110 sixth-form colleges which have been progressively established throughout the country. My concern about this provision in the Bill is that it could theoretically encourage grant-maintained schools, without due consultation—the relevant wording in the clause says "consultation (if any)"—which do not at present have sixth forms to establish small sixth forms. They would be incapable of offering the wide range of academic and vocational education which is relevant at the present time and which the sixth-form colleges, funded as they are through the Further Education Funding Council, are able to provide.

1077
As I have done in the past on occasion, perhaps I may use the health service analogy. One of the concerns that many of us have in the National Health Service is that, with the creation of independent hospital trusts, there is some evidence to suggest that independent trusts are ignoring previous plans of regional health authorities relating to the distribution of so-called "super specialties" throughout the health service sector and are seeking to establish consultant posts in super specialties in hospitals where, under previous planning arrangements, they would have been regarded as being unsatisfactory or incapable of attracting all the ancillary facilities required.
I believe very much in the future of specialised education, and it is absolutely right that in parental choice schools should be able to embark on specialisation. But I am gravely concerned that this particular clause in this Bill could allow grant-maintained schools, without proper consultation and without taking full account of local educational needs and of the other provisions being offered by sixth-form colleges in the relevant areas, to establish small and perhaps non-viable sixth forms. I believe that that would be contrary to the interests of the children, particularly in the light of the Dearing proposals to broaden the sixth-form curriculum very much in line with what the education commission, which I chair, suggests. Hence, I support these amendments which make it clear that full consultation would have to be carried out before a grant-maintained school without one was able to establish a sixth form.
Baroness Ramsay of Cartvale: I support Amendments Nos. 59 to 62, but I would like to speak specifically to Amendments Nos. 60 and 62. The purpose of these two amendments is to ensure that no new nurseries are created without procedures being followed which safeguard effective planning and the effective use of resources—two laudable objectives with which I hope the Minister will agree.
The Bill proposes an expansion of the grant-maintained nursery sector without reference to statutory procedures and following only such consultation as the governing body sees fit. That could mean that the LEAs have to meet the cost without being able to express a view on the need for it. There seems to be little regard paid to the question of the LEAs' existing provisions or plans for expansion.
At present grant-maintained schools are funded either through the annual maintenance grant or an allocation under the common funding policy. Costs are recouped from the relevant local authority. The introduction at short notice of new nursery provision in grant-maintained schools could undermine that process, which is currently subject to a well-established planning procedure under which local authorities at least know what their obligations will be and can plan accordingly.
Nursery education is a discretionary service and the level of provision the LEA chooses to make is not directly reflected in its standard spending assessment. Indeed, the AMA had correspondence with the Minister
1078
for schools in another place in 1994 about whether it would be constitutionally improper to force an authority to pay for provision that was neither statutorily required nor funded by an SSA. That was discussed at the Committee stage of the Bill in another place. The Minister's honourable friend, Mr. Eric Forth, undertook to write to Mr. Win Griffiths, which he duly did last December. I am sure that the Minister is well aware of all this. I shall be very grateful to him if he can tell me—because I do not find it at all clear—whether the letter from Mr. Forth means that, even though the clause will remove the requirement to publish statutory proposals where a grant-maintained school proposes to expand or establish nursery provision, the Government still intend to continue to take account of LEA policy in considering whether to approve the change in nursery capacity or the establishment of new nursery provision. We shall all find it very helpful if the Minister can give us a reply to that when he has the opportunity.
Baroness David: My name is attached to Amendment No. 61, which is part of this group of four amendments. Its purpose is to prevent new schools being established or existing schools being closed without reference to statutory procedures. This amendment incorporates the purpose of Amendment No. 62, which seeks to retain the requirement of published proposals in the case of pre- and post-compulsory school age provision by ensuring that proposals must be formally published to introduce or to end provision for any age range.
Clause 5(1) specifies those circumstances in which existing publication procedures would not apply. Instead, the governing body may carry out whatever consultation it sees fit. The existing requirement to publish statutory proposals under the Education Act 1996 ensures that all those who may be affected by the proposals, in particular local schools, colleges and nurseries and local residents, have the opportunity to express a view on how they will be affected.
What I am particularly concerned about—and I have had a great deal of correspondence on the subject—is the likely effect on sixth-form colleges. The noble Lord, Lord Walton, has made many of the points that I would wish to make. I have had a huge correspondence on this subject. I have been sent a copy of a letter from the FEFC to the Secretary of State. It has great concerns about this matter and it has expressed its reasons to the Secretary of State. It fears that the numbers recruited by colleges will be reduced and the range of subjects offered will become much more limited. The curriculum will, of course, become narrower.
The council also asks the Secretary of State to retain power to reject proposals. If the 24 grant-maintained schools which have had proposals rejected previously take advantage of the new opportunities now provided in the Bill to establish a new sixth form, that could be disastrous for the colleges which have been such a tremendous success. Two schools which have resubmitted proposals have already had approval granted. The Funding Agency for Schools has also questioned the ability of the boards of governors of

1079
grant-maintained schools to operate responsibly in an unregulated market. Surely the FAS is in a good position to comment.
As regards the cost-effectiveness of the proposals, most colleges can find extra places at the demand-led element (DLE) rate, which is about £1,000, but the new grant-maintained schools sixth forms would recoup £2,500 plus per year per full-time place. Where is the logic of such an arrangement? It seems absolutely illogical to me when the Government, I thought, were rather keen on being careful about money. I hope that the Minister can be persuaded to look again at these disquieting proposals in the Bill. There are very real anxieties and, I believe, they are rightly founded.
Baroness Thomas of Walliswood: My name is also attached to Amendment No. 59 and I would like to speak briefly in support of all of the amendments in this group. I was particularly struck by the reasons given by the noble Lord, Lord Walton of Detchant, in supporting the amendment relating to sixth-form education. I am extremely concerned about the totally disorderly increase in nursery provision and the effect that that could have on the finances of local education authorities. Some Members of the Committee may remember that on Second Reading I raised the matter of how the provisions of this Bill would impact on the finances of LEAs. This is quite a good illustration of the relevance of that concern. I support the amendments and hope that, even if the Minister does not accept them today, he will at least reconsider the matter and perhaps return at a later stage with some thoughts in this direction.
The Deputy Chairman of Committees (Lord Dean of Harptree): The Question is—
5.30 p.m.
Lord Henley: I think that I should be allowed to respond to the amendment. I am sure that it would be appropriate.
I am afraid that I cannot accept the amendments, which seek to wreck our policy to give grant-maintained schools more freedom to introduce sixth forms or nursery provision and to extend choice for parents. We think that it is right that they should have more freedom. Grant-maintained schools are more than able to make a considered judgment about whether such provision is needed and is likely to be attractive to parents and pupils. It would clearly be foolhardy of any school to attempt to add new provision where there was no demand for it.
I made it clear earlier that there will be consultation. Consultation will be a requirement. The noble Lord, Lord Walton, was concerned about that consultation and quoted the words "consultation (if any)". I cannot remember whether the noble Lord was in his place yesterday when, if I remember correctly, we discussed that phrase. I think that I made it clear then that the provision sought to rule out consultation in those cases where the change being proposed was so small as not to warrant consultation. However, in the vast majority of cases—and obviously when a school is setting up a sixth
1080
form or a new nursery—consultation is appropriate. Again, I have made it clear on a number of occasions that the consultation will be thorough and that we shall be issuing guidance on it. As I made clear on an earlier amendment, the guidance itself will be issued in draft for consultation and we shall await interested comments on who should or should not be consulted—
Lord Walton of Detchant: Although I fully appreciate the strength of the Minister's argument, I wonder whether he would agree that the inclusion of those words on the face of the Bill would allow a maverick grant-maintained school to go ahead and establish a sixth form without any consultation whatever when in all the circumstances it was quite inappropriate to do that. That is my principal concern.
Lord Henley: That would not be the case. If a so-called "maverick" school went ahead and did such a large thing without consultation, it would obviously not be acting reasonably. I am sure that there would be ways and means and legal processes to stop such a school from acting in that way. Again, I have made it clear that we shall be issuing guidance on the consultation. I hope that when in due course the noble Lord sees that guidance, he will agree that it is appropriate in all the circumstances.
I appreciate that many Members of the Committee feel that new provision could sometimes appear to be a threat to other providers. We have heard about sixth form colleges from various noble Lords and I agree that, in the main, sixth form colleges do a very good job. I am very pleased with how they work. However, there is always a tendency to try to protect existing provision whatever the cost. I do not think that it is necessarily a line that we should pursue. If we are truly to increase choice within the system and the quality of what is available, individual governing bodies need the freedom to respond to the needs and wishes of pupils and parents in the area.
The noble Baroness, Lady Ramsay, also asked about the funding of nurseries. The power contained in the clause for grant-maintained schools to set up nursery classes does not change in any way the existing funding mechanisms. It will remain the case that the money will not necessarily be recovered from the LEA for the running costs of the new nurseries. In that case, the LEAs have nothing to fear.
As I said at the beginning, the amendments undermine our policy of giving grant-maintained schools the greater freedoms that we think are necessary in order to extend choice for parents. Therefore, I urge the Committee to reject the amendment.
Baroness Farrington of Ribbleton: The Government are behaving in a very strange and illogical way. I say that because, after many years of experience in local government—the Minister has had such local government experience—surely the Government are aware that parents do not think in groups in a discrete way and do not all follow a logical grouping. The result of totally free parental choice without control or planning is that parents demand half a sixth form in

1081
place A, half a sixth form in place B while retaining the choice for the next child in the family in place C. Only two things then occur: either the young people have their resource diminished because—sometimes part way through the year—the range of options is not available to the second-year pupils who started a particular course; or, the amount of money has to be increased at the expense of other parts of the system.
The Government's view that parents meet in groups and make logical, joint decisions on their own shows that the Minister has never consulted parents day after day. Schools do not close on their own. Sixth forms do not close on their own. When one or two parents are gathered together, they demand that the resource stays open in terms of choice. I know that the noble Lord, Lord Dixon-Smith, has been through that experience. Maintaining choice for the remaining parents and providing an alternative for the rest costs money. I shall read carefully what the Minister has said—and I hope that he will read carefully what we have said on this subject—but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 60 not moved.]
Clause 4 agreed to.
Clause 5 [Consultation and notification where proposals do not need to be published]:
[Amendments Nos. 61 to 64 not moved.]
The Lord Bishop of Ripon The Lord Bishop of Ripon moved Amendment No. 65:
Page 6, line 13, at end insert ("and if the school is a Church in Wales school, a Church of England school or a Roman Catholic school they shall consult the appropriate diocesan authority unless the implementation of the proposals requires that authority's consent.").
The right reverend Prelate said: Amendment No. 65 seeks to amend that part of Clause 5 which refers to consultation. I begin by making clear the attitude of the Church of England Board of Education towards grant-maintained schools. We have taken the view that it is not the responsibility of the board to make recommendations about whether it is right or wrong for a school to seek grant-maintained status. That is a matter for the governors of the school. The hoard's responsibility has been limited to drawing attention to those factors of which a governing body ought to take account and to suggesting that the governing body examines those factors before reaching any conclusion about whether to seek grant-maintained status.
It is clear that those schools which were formerly voluntary schools continue to be church schools after they have achieved grant-maintained status—if that is what happens. A considerable number of church schools have sought and achieved grant-maintained status. Therefore, within the total grant-maintained sector is a group of schools that are still church schools—that is made clear by their trust deed and by the appointment of foundation governors—but those schools have all the rights and privileges that belong to that status.
Clause 5 gives rights of consultation. We have already had considerable debate on that. In particular, we have already considered the provision which speaks of,
"consultation (if any) as appears to [governing bodies] to be appropriate".
In the case of those schools which have grant-maintained status and were church schools, and therefore continue to be church schools, surely it is right that the consultation should always include the appropriate diocesan authority. I was grateful that earlier the Minister referred to consultation, in particular with the appropriate diocesan authorities. The Committee has already heard a description of those diocesan authorities, and I will not repeat it. Surely, it is always appropriate that a grant-maintained school which is a Church in Wales, Church of England or Roman Catholic school should consult the appropriate diocesan authority. I believe it is right that that should appear on the face of the Bill. I shall be most interested to hear the comments of the Minister. I beg to move.
Baroness Farrington of Ribbleton: We support this amendment and await the Minister's reply.
Lord Henley: We do not believe that this is the most appropriate way to approach these matters. I repeat—perhaps for the third or fourth time—that I agree with the right reverend Prelate that consultation is necessary and that the diocesan or appropriate church authorities should be consulted about changes to church schools. However, we do not believe that there is any need to place the requirement on the face of the Bill. Governing bodies will be required to consult having regard to the guidance issued by my right honourable friend. Obviously, such guidance will include dioceses in the case of church schools. I ask the Committee to accept that that is the way in which these matters are normally handled in education legislation. I refer the right reverend Prelate to the present statutory guidance along these lines contained in Circular 23/94. Sadly, I do not have a copy with me, but if the right reverend Prelate wants one I shall ensure that he receives it. We will be issuing guidance and consulting on it in due course. I hope therefore that the right reverend Prelate will not feel it necessary to press his amendment.
The Lord Bishop of Ripon: I am grateful for the Minister's assurance. I would be glad to receive a copy of the circular, although I suspect that there is already a copy of it somewhere within the board's library. I take the points that the Minister has made and I shall read carefully what he has said. It may be that at Report stage I shall return to the matter with an amendment of this kind. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris Lord Morris of Castle Morris moved Amendment No. 66:
Page 6, line 13, at end insert—
("(2A) In addition to the requirements of subsection (2) above, the governing body shall, before determining whether to implement their proposals, give notice of them to every registered parent of every registered pupil at the school, such other parents, governing bodies of schools affected by them or other persons as appear to them to be concerned, and the provisions of section (Objections on notification

1083
to proposals which do not need to be published) of the Education Act 1997 shall apply to the governing body as though it were the admission authority under that section.").
The noble Lord said: This amendment was spoken to earlier. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 67 and 68 not moved.]
The Lord Bishop of Ripon The Lord Bishop of Ripon moved Amendment No. 69:
Page 7, line 10, at end insert—
("Notification of objection.
265E.—(1) Any person who has been consulted by the governing body under section 265C or who has been given notice by the governing body under sections 265C or 265D may within fourteen days of such consultation or notification give notice in writing to the Secretary of State and to the governing body that he objects to the proposals.
(2) Where the Secretary of State receives notice of objection under subsection (1) he may direct that the publication procedure shall apply to the proposals if he considers that the proposals if implemented could be detrimental to the interests of—

(a) pupils attending the school,

(b) the local community,

(c) the local education authority for the area in which the school is situated,

(d) other maintained schools in that area, or

(e) if the school is a Church in Wales school, a Church of England school or a Roman Catholic school, the appropriate diocesan authority.".").

The right reverend Prelate said: Amendment No. 69 gives to the Secretary of State a reserve power in certain circumstances to direct that the publication procedures shall apply to proposals. Surely, there is in principle no hostility to the idea of a reserve power. Indeed, Clause 11 gives such a power to the Secretary of State. We had understood that it might have been slightly wider than that provided by Clause 11. Clause 11 provides that in certain circumstances the Secretary of State may designate a particular area as one within which the provisions for overcoming statutory consultation shall not apply. Why is that right for certain areas but not in certain circumstances? Is it not the case that in certain circumstances the Secretary of State may need such a reserve power that does not apply to all schools in a particular area but simply to one?
The amendment provides the Secretary of State with a reserve power in the particular case referred to in the amendment; that is to say, when a person gives notice in writing to the Secretary of State and the governing body that he objects to the proposals. The Secretary of State has a permissive not mandatory power. He may direct that the publication procedure shall apply to these proposals. I argue that this is a modest amendment which expands the reserve power already provided in Clause 11. It will provide the Secretary of State with a power that he or she may want to use in the limited circumstances described in the amendment. I beg to move.
5.45 p.m.
Lord Henley: I did not know whether noble Lords from the Benches opposite wanted to leap to their feet and offer their usual support to this amendment. We do not believe that the increased freedoms that we are providing to grant-maintained schools are such that they require the extra safeguards that the right reverend Prelate proposes in his amendment. We believe that the consultation and notification requirements of the clause, together with departmental guidance, will be sufficient. We do not believe that it is right to introduce new freedoms and then undermine the way in which they operate by re-introducing—which is what the amendment amounts to—a requirement to publish proposals. We believe that that would only result in unnecessary delay and confusion. I regret that I cannot offer any comfort to the right reverend Prelate or any support for his amendment.
The Lord Bishop of Ripon: Before the noble Lord sits down, perhaps he will clarify the intention of Clause 11. As I understand it, it provides such a reserve power. Why is it right in those circumstances but not in the circumstances described in the amendment?
Lord Henley: I refer to the Notes on Clauses to the Bill. Clause 11 is designed to provide the Secretary of State with certain safeguards in areas where it is felt that there is a degree of selection that interferes with the provision of places for other people; in other words, that there is almost too much selection. Obviously, that will give the Secretary of State the reserve power to designate by order those areas where schools' freedom to select up to those thresholds should be curtailed. Therefore, they will be in the old position of having to publish proposals as and when appropriate if they want to go beyond those levels. The circumstances in which the Secretary of State may decide to make or revoke such an order will be set out in regulations, which will obviously come before this House.
The Lord Bishop of Ripon: I am a little disappointed by the argument of the Minister, but at this stage I do not propose to press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5, as amended, agreed to.
Clause 6 agreed to.
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 70:
After Clause 6, insert the following new clause—
(" . After section 266A of the Education Act 1996 there shall be inserted—
"Schools requiring special measures: transfer etc. to local education authority.
266B. Regulations may make provision—

(a) for the Secretary of State to direct that any school to which subsection (1) of section 266A of this Act applies shall cease to be a grant-maintained school and shall instead be a school maintained by the local

1085
education authority in whose area the school is situated and for the Secretary of State to make further provision consequent upon such a direction; or

(b) for the Secretary of State to direct that the local education authority in whose area the school is situated shall have the power to appoint such number of additional governors to the governing body of the school as the Secretary of State may specify in such a direction.".").

The noble Lord said: Amendment No. 70 is a probing amendment, and I shall speak to it briefly. In the Government's White Paper there is a promise that grant-maintained schools can be placed under education authority control should special measures not work. The purpose of the amendment is to place a grant-maintained school under the control of the local authority if it is not working. This is intended as a probing amendment to see exactly what will be the fate of a grant-maintained school. Is it to be looked after by a LEA or is it to be left to look after itself? I look forward to hearing the reply of the Minister. I beg to move.
Lord Monkswell: I support the amendment. As I understand it, the resources and abilities of the LEA to provide assistance to a failing grant-maintained school would not be available unless some specific measure such as this were implemented to allow it to provide that assistance. The Minister may be able to comment on that point also.
Lord Henley: I am grateful to the noble Lord for making it clear that this is merely a probing amendment and was not to be taken seriously. The idea that a grant-maintained school which happened to be failing and which happened to be in Islington should then be handed back to the authority filled me with horror. As regards the matters about which the noble Lord was probing, I can say that to date the FAS school improvement unit and the power to appoint governors have done the trick. But in a few cases such a remedy may work far too slowly and that is why last summer's White Paper, Self-Government for Schools, to which the noble Lord referred, suggested the possibility of an education association-type arrangement for grant-maintained schools.
I should remind the noble Lord that to date about 1 per cent. only of grant-maintained schools that have been inspected have failed, compared to nearly 3 per cent. of LEA-maintained schools. The White Paper proposed a range of other measures to strengthen the governance of grant-maintained schools, including some prompted by the recommendations of the committee chaired by the noble and learned Lord, Lord Nolan. Those proposals were set out in fairly general terms. They need further development and consultation. It is premature to legislate on those matters now, but work is proceeding with the aim of introducing legislation on the whole package—that is, the remainder of the White Paper, because as the noble Lord will remember not all the White Paper proposals are contained in the Bill—in the next Parliament.
Lord Ponsonby of Shulbrede: I am somewhat surprised by that response. If 1 per cent. of
1086
grant-maintained schools are failing, I find it difficult to see why there should not be a clear path for those schools to be changed. The amendment suggests that they return to the LEA. The Government White Paper suggests that they go under the control of an education association. But why do we have to continue thinking about it? Why cannot there be some proposal from the Government to make the position of those schools clear? However, I shall read with interest what the Minister has said. I beg leave to withdraw the amendment.
Lord Henley: Before the noble Lord sits down, perhaps I may make it clear that the mere fact that a school is failing does not mean that an education association—in the case of an LEA school—goes in immediately. Other measures are taken first. It is rare to get as far as an EA. What I made clear was that so far, with those that are failing, a school improvement unit and the various other powers seem to have done the trick.
Lord Ponsonby of Shulbrede: I thank the Minister for that clarification. Nevertheless, there is a discrepancy between the status of failing schools and the type of school that they are. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Duty of governing body to review selective admission policy]:
[Amendment No. 71 not moved.]
Clause 7 agreed to.
Clause 8 [Alteration of admission numbers for grant-maintained schools]:
[Amendments Nos. 72 to 75 not moved.]
Clause 8 agreed to.
Clauses 9 and 10 agreed to.
Clause 11 [Secretary of State's reserve power to limit appropriate threshold]:
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 76:
Page 11, line 41, leave out ("20") and insert ("10").
The noble Lord said: This, too, is a probing amendment. Its purpose is to amend the upper limit for selection which the Secretary of State may impose from 20 per cent. to 10 per cent. The reserve powers in Clause 11 are important to enable the Secretary of State at least to step in where a selection may get out of hand and threaten the operation of an admissions system. The figure to which the Secretary of State may reduce the selection, however, is less effective than it might be. The 20 per cent. fixed figure equates with the levels to which county schools, GM primary schools and GM schools with special measures will in any case be able to select. In other words, the powers are operative only against specialist schools which can select up to 30 per cent. or GM secondary schools which can select up to 50 per cent. That may betray the Government's anxiety as to the point of pressure in the system, but it does not produce an effective remedy.
It would surely be better were additional powers to be included to enable the Secretary of State to push selection down to a lower figure across the board. If the Government are sympathetic to that, it is possible to envisage an amendment that enabled the Secretary of State to lower the selection threshold as she thought appropriate. Perhaps that should be down to a minimum of 10 per cent. That would preserve some flexibility. At this stage, the amendment is designed to test the principle with Ministers as to whether a lower figure would not be more attractive and more likely to preserve the functioning of the admissions system. I beg to move.
Lord Dormand of Easington: The Minister may remember that yesterday I asked him what was magic about some of these figures. He does remember. It seems to me that this is slightly different today, so I partly repeat the question. What is magic about 20 per cent. in these circumstances?
Lord Henley: It is a marginally different discussion from yesterday's. I am grateful to the noble Lord for repeating the question: what is magic about these figures? As he will be aware, on the amendments moved by his noble friend Lord Monkswell we did to some extent discuss the 15 per cent., 20 per cent., 30 per cent. and 50 per cent. figures and what was the magic about them. We believe that a 20 per cent. threshold is sensible. There are no grounds for believing that a 20 per cent. threshold would adversely affect the supply of places in an area so designated under Clause 11.
Obviously pitching the threshold is a matter of judgment rather than an exact science. There can be no science in this, and that may be why the noble Lord, Lord Dormand of Easington, preferred to use the word "magic". We believe that 20 per cent. is about right. It makes it a real option for a school, rather than just tinkering around the margins. For many schools, 10 per cent. would not be sufficient to produce a separate form of entry if that is how they wished to teach their pupils admitted on the basis of selection.
I do not think that I can take the matter further, other than to repeat that it is not a matter of science; it is a matter of judgment. We believe that 20 per cent. is about the right figure.
Lord Ponsonby of Shulbrede: I am disappointed that the Minister did not pick up the point I made that there may be a case for the Secretary of State to be able to lower the threshold if she was so disposed down to a minimum figure of 10 per cent. The Minister talked about judgment. Perhaps we should give the Secretary of State the power to make that judgment and give her greater flexibility in doing so. I am sorry that the Minister did not feel disposed to give the Secretary of State that flexibility and wanted to stick with the blanket figure of 20 per cent. Nevertheless, as I said, this is a probing amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Clause 12 agreed to.
Schedule 2 agreed to.
Clause 13 [Extension of power of funding authority to establish grant-maintained schools]:
6 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 77:
Page 12, line 26, at beginning insert ("Subject to subsection (1A) below").
The noble Baroness said: It may be for the convenience of the Committee if I speak also to Amendment No. 78. The purpose of the amendments is clear. It is to require the FAS to investigate whether there is a genuine need for a school and to require it to publish an analysis of need before creating a new school. The amendment would cause the FAS to have to meet the same requirement as LEAs before it proposes to establish a new school in the area.
The department's Circular No. 23/94 outlines the principal factors that the Secretary of State will take into account where she is required to consider proposals for the new school capacity. The circular acknowledges that the planning of school places requires careful consideration of local circumstances. The planning of school places in an area is a complicated matter which requires all providers and users to work closely together. This function has been performed fairly successfully by LEAs in partnership with their schools and neighbouring authorities. The Education Act 1993 established the FAS and gave it powers in some LEA areas to share and in others to be wholly responsible for planning to achieve the required supply of school places.
There is little point in rehearsing many of the arguments that have previously been made. It is important that the FAS must have regard to educational, financial and organisational factors prior to determining whether a new school is needed. That is only fair. The same rules apply to the voluntary sector for capital allocation and to the local authority county schools in their separate form of capital approval.
The FAS must be required to publish the basis for its case for a new school in the light of the following: information from LEAs as they are required, including plans for rationalisation places at other schools; census information; birth rate; present pupil population; actual capacity; projections of pupil population; new building development; and cost-effective analysis of need.
That requirement is logical; it provides a level playing field; it applies to the voluntary-aided sector; and it applies to the local authority sector. It is a built up, tried and tested practice in the interests of the good use of public money. I commend the amendment to your Lordships and I beg to move.
Lord Tope: I support the amendment. The noble Baroness, Lady Farrington, set out the case very well. It is self-evidently right and necessary that the FAS should investigate whether there is a genuine need for a school

1089
and that we should know in what way it has done that. We are pleased to support the amendment and we look forward to receiving the Minister's support.
Baroness Young: Would it not be the case that when the FAS was considering such an issue it would of necessity have to consider whether there was a need for this rule and whether there was a genuine demand from parents for such a school? The whole principle behind grant-maintained schools is that they give a wide measure of freedom to the schools to act. Anyone who is in any way responsible for a school would hardly be likely to attempt to establish a school in an area which, for clear educational reasons, would not be successful. I shall listen with great care to what my noble friend says, but I should have thought that it would self-evidently be the case that the FAS would not wish to go ahead and establish a school unless it had satisfied itself on all those matters.
Baroness Warnock: There is an important point to be made. I entirely take the point made by the noble Baroness, Lady Young, that of course the FAS will consider the need for a school before wantonly setting one up. On the other hand, unless the amendment is accepted there is nothing to suggest that the FAS must publish the analysis which points to the need. It is important that it should do so in order that the parents in the area as well as the LEA can understand why there is felt to be the need for a school. Therefore, I support the amendment largely on the ground that it would require the publication of the analysis of a situation which demands a school.
Lord Henley: Perhaps I may begin by making it clear to the noble Baroness, Lady Farrington, that the LEAs' powers to propose new schools are not restricted to circumstances where all the extra places to be provided are required to meet basic need. So Clause 13 does not restrict the FAS's parallel powers in this way.
But new schools are expensive, and capital funding is always limited. For these if no other reasons we would expect the FAS to propose new schools where extra places are needed and not to propose a new school where there was reasonable doubt that the extra places would not be filled, as my noble friend Lady Young made clear.
The need for extra places would have to be demonstrated in the statement of case for the new school, which would have to be submitted to the Secretary of State as part of the statutory proposals process. To support proposals for a new school, the FAS would have to analyse projected need for pupil places in the area. It would also have to include the results of this work in its statement of case. So the agency would be bound to carry out the kind of analysis mentioned in the amendment.
As for making the results more widely available, the guidance given to the FAS on statutory proposals for new GM schools is likely to recommend that the agency should make the statement of case it has submitted to the Secretary of State available on request. That will
1090
be in the guidance. Given that such statements will be substantial and detailed documents, I think this is a much more sensible way of making them available to interested parties than publication.
Two years ago, our policy on the provision of extra places—including new schools—was set out in Circular 23/94. The circular stated that, in considering proposals for new schools, the Secretary of State would take account of the educational as well as financial merits of the proposals. In other words, she would look not only at the extent to which a new school was needed to provide extra places but also at the extent to which it would enhance the diversity and quality of educational provision in the area.
The circular made it clear that, in certain circumstances, the Secretary of State would be prepared to approve a new school even if there was no projected shortfall of places in the area. This might happen where, for example, the new school would significantly enhance choice, diversity and quality, and there was scope for rationalising places at other schools in the area. The circular also made it clear that this policy applied equally to proposals for new schools from the FAS and LEAs.
Clause 13 is consistent with that policy. LEAs' power to propose new schools is not limited to circumstances where all the places proposed are required to meet basic need, and the FAS's power is also not limited in this way. I hope that the noble Baroness will not find it necessary to press the amendment.
Baroness Farrington of Ribbleton: I cannot help but believe that the Government are investing on a whim in a mad rush—a Gadarene swine rush—towards allowing the wasteful duplication of public resources in a way which the average parent concerned about what happens to their child in the local school will find incomprehensible. I find it incredible that it is possible to consider, in the interests of notional choice, having more school places than are needed in order to satisfy the whim of a minority of parents in any particular school. Therefore, I wish to seek the view of the Committee.
6.9 p.m.
On Question, Whether the said amendment (No. 77) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 135.

Division No. 2

CONTENTS

Addington, L.

Carmichael of Kelvingrove, L

Archer of Sandwell, L.

Carter, L.

Barnett, L.

Clinton-Davis, L.

Berkeley, L.

Cocks of Hartcliffe, L.

Blackstone, B.

David, B.

Blease, L.

Dean of Beswick, L.

Borrie, L.

Desai, L.

Broadbridge, L.

Diamond, L.

Brooks of Tremorfa, L.

Donoughue, L.

Calverley, L.

Dormand of Easington. L.

1091

Dubs, L.

Mason of Barnsley, L.

Eatwell, L.

Meston, L.

Elis-Thomas, L.

Milner of Leeds, L.

Falkender, B.

Molloy, L.

Farrington of Ribbleton, B.

Monkswell, L.

Gallacher, L.

Morris of Castle Morris, L.

Geraint, L.

Murray of Epping Forest, L.

Gladwin of Clee, L.

Nicol, B.

Glenamara, L.

Ogmore, L.

Gould of Potternewton, B. [Teller.]

Perry of Walton, L.

Peston, L.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Gregson, L.

Prys-Davies, L.

Grey, E.

Ramsay of Cartvale, B.

Hampton, L.

Rea, L.

Hamwee, B.

Richard, L.

Harris of Greenwich, L.

Rodgers of Quarry Bank, L.

Haskel, L.

Russell, E.

Hayman, B.

Sewel, L.

Hilton of Eggardon, B.

Shepherd, L.

Hollis of Heigham, B.

Simon, V.

Howell L

Stoddart of Swindon, L.

Hughes, L.

Strabolgi, L.

Jay of Paddington, B.

Symons of Vernham Dean, B.

Jenkins of Putney, L.

Taverne, L

Judd, L.

Taylor of Gryfe, L.

Kennet, L.

Thomas of Walliswood, B.

Kilbracken, L.

Thomson of Monifieth, L.

Lockwood, B.

Thurso, V.

Longford, E.

Tope, L. [Teller.]

Wallace of Coslany, L.

Lovell-Davis, L.

Walton of Detchant,L.

McIntosh of Haringey, L.

Warnock,B.

Mackie of Benshie, L.

White, B.

McNair, L.

Whitty, L.

McNally, L.

Williams of Elvel, L.

Mallalieu, B.

Williams of Mostyn, L.

Mar and Kellie, E.

Winston, L.

Marsh, L.

Young of Dartington, L.

NOT-CONTENTS

Addison, V.

Courtown, E.

Ailsa, M.

Cowley, E.

Alexander of Tunis, E.

Craigavon, V.

Anelay of St. Johns, B.

Cranborne, V. [Lord Privy Seal.]

Ashbourne, L.

Cross, V.

Balfour, E.

Cuckney, L.

Belhaven and Stenton, L.

Cumberlege, B.

Belstead, L.

Dacre of Glanton, L.

Biddulph, L.

Dean of Harptree, L.

Birdwood, L.

Denbigh, E.

Blatch, B.

Denham, L.

Bowness, L.

Denton of Wakefield, B.

Brabazon of Tara, L.

Dilhorne,V.

Brentford, V.

Dixon-Smith, L.

Brigstocke, B.

Dundee, E.

Brougham and Vaux, L.

Elles, B.

Bruntisfield, L.

Elliott of Morpeth, L.

Burnham, L.

Elton, L.

Butterfield, L.

Erroll, E.

Butterworth, L.

Feldman, L.

Byford, B.

Flather, B.

Cadman, L.

Gage, V.

Campbell of Croy, L.

Geddes, L.

Carnegy of Lour, B.

Gisborough, L.

Carnock, L.

Glenarthur, L.

Chalker of Wallasey, B.

Goschen, V.

Charteris of Amisfield, L.

Gray, L.

Chelmsford, V.

Gray of Contin, L.

Chesham, L. [Teller.]

Griffiths of Fforestfach, L.

Clanwilliam, E.

Grimston of Westbury, L.

Clark of Kempston, L.

Hambro, L.

Coleraine, L.

Hardinge of Penshurst, L.

Coleridge, L.

Harris of Peckham, L.

Cornwallis, L.

Haslam, L.

1092

Hayhoe, L.

Onslow, E.

Henley, L.

Oxfuird, V.

Holderness, L.

Peel, E.

Hooper, B.

Perry of Southwark, B.

Howe, E.

Prentice, L.

Iddesleigh, E.

Pym, L.

Jeffreys, L.

Quinton, L.

Kilmarnock, L.

Rankeillour, L.

Lauderdale, E.

Rees, L.

Lindsay, E.

Rennell, L.

Lindsey and Abingdon, E.

Rotherwick, L.

Long, V.

Rowallan, L.

Lucas, L.

St. Davids, V.

Lucas of Chilworth, L.

St John of Fawsley, L.

Luke, L.

Shaw of Northstead, L.

McColl of Dulwich, L.

Skelmersdale, L.

Mackay of Ardbrecknish,

Skidelsky, L.

L. Mackay of Drumadoon, L.

Stodart of Leaston, L.

Macleod of Borve, B.

Strathclyde, L. [Teller.]

Marlesford, L.

Strathcona and Mount Royal

Merrivale, L.

Sudeley, L.

Miller of Hendon, B.

Swinfen, L.

Milverton, L.

Taylor of Warwick, L.

Monson, L.

Teviot, L.

Montgomery of Alamein, V.

Teynham, L.

Thomas of Gwydir, L.

Mottistone, L.

Torphichen, L.

Mountevans, L.

Trumpington, B.

Mowbray and Stourton, L.

Ullswater, V.

Munster, E.

Wade of Chorlton, L.

Murton of Lindisfarne, L.

Whitelaw, V.

Newall, L.

Wise, L.

Northesk, E.

Wynford, L.

O'Cathain, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.17 p.m.
[Amendments Nos. 78 and 79 not moved.]
Clause 13 agreed to.
Clause 14 [Grants to promoters of grant-maintained schools]:
Lord Tope Lord Tope moved Amendment No. 80:
Page 13, line 9, at end insert ("for which the authority is satisfied that there is demonstrable public support,").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 82. The purpose of the amendment is to test whether public money should be given to promoters to generate public support for the establishment of a GM school. The amendment is an attempt to prevent the spending of public money on the promotion of new GM schools in areas where there is no demonstrable need. It is about avoiding waste, although those grants pale into insignificance when compared with the huge sums which this Government have already wasted on the promotion of GM schools.
The issue was raised in Committee in the Commons and the Government responded on Report with what are now subsections (2) and (3) of the new Section 213A. Those import a test of inability or potential inability before grants can be made. While those changes show that the Government recognise the legitimate concern, they do not solve the problem. As the clause stands currently—and there was no debate on the government amendment to the clause in the other place—subsection (2)(b) seems to

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give carte blanche or at any rate a blank cheque for the promoters of a GM school to spend public money to drum up support for a school in any area of the country, including areas in which there are plenty of places in existing schools and no demand for a new one.
It is ironic that this Government, who have repeatedly criticised local education authorities for failing to remove surplus places, now believe that it is all right for the FAS to encourage the establishment of new schools with no notice being taken of the local situation. While it is considered a vice to have a few too many places in an LEA school, it seems that it is a virtue to have whole new GM schools where there is no shortage of places. A private company seeking to enter any market will, as a first step, undertake some market research to see whether there is a need for its product in an area. As the clause stands, the FAS will be able to pay for that market research out of the public purse in order to establish that a school would be viable. The amendment will require there to be "demonstrable public support" before any public money is handed out to GM promoters. That must mean taking account of, and being accountable to, the public; that is, the local community. It seems that the Government are not happy with the concept of public support for a GM school, believing it,
"too difficult a concept not only to describe but to institutionalise".
That was said by the Minister of State, Mr. Eric Forth, in Committee in another place. The Government prefer the notion of viability or, in the case of subsection (2)(b), potential viability. Viability is defined in subsection (3) as a school for which,
"there would be a sufficient demand for places … to ensure that a satisfactory education was provided there".
There will be a very high level of interest in how the concept of "viability" is to be defined. The responsibility for such definition, however, will be delegated to the FAS.
The amendment suggests replacing the subjective judgment of a quango with the objective judgment of the local community. If parents know best, as we are constantly told, there can be scant reason for not seeking their views before more of their money is spent in promoting a type of school which they may not want. I beg to move.
Lord Morris of Castle Morris: In supporting what the noble Lord, Lord Tope, said, I should like to ask the Minister three questions. First, the noble Lord said that, as the clause currently stands, subsection (2)(b) appears to give carte blanche to promoters of a grant-maintained school to go around spending public money to drum up support for the kind of school they want. Can the Minister say what controls there are on such activity? Do these promoters, whoever they may be, have to satisfy any form of examination or inquiry before they start promoting?
Further, can such promoters specify what sort of school they would wish to promote? For example, could a Quaker promoter say, "I want to set up a Quaker GM school?" One would perhaps have no objection to that but some people, alas, might have an objection if the
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promoter were a Moslem who wished to set up a Moslem school. Perhaps even more people might have their hackles rising if it was a Moonie with plenty of money who wished to propose a Moonie school. What are the limits to be placed on promoters?
Secondly, the noble Lord, Lord Tope, drew attention to the fact that, as the clause stands, the FAS will be able to pay for market research out of the public purse in order to establish whether or not a school will be viable. So, Her Majesty's Government and, behind them, the British taxpayer, will be sponsoring a feasibility study. Can the Minister give some idea as to how much all that will cost?
Thirdly, the noble Lord drew our attention to the fact that there will be a very high level of interest in how the concept of "viability" will be defined. However, we notice that the responsibility for establishing such a definition is delegated to the FAS. Therefore, is not the agency judge, jury and hangman in its own case?
Lord Dormand of Easington: When the Minister replies, perhaps he can give the Committee some indication—or, indeed, some accurate figures—as to how much public money has been spent in promoting GM schools? If we are to have a realistic debate on the amendment, it seems that we ought to have that information.
Baroness Young:Once again, we are discussing a most important issue which concerns the whole establishment of GM schools. Before one is set up, everyone needs to be satisfied that it is both needed and viable. I should tell the noble Lord, Lord Morris, that many of the detailed questions that he raised are answered in the Notes on Clauses, which I shall not read out. As I understand the Notes, the promoters are people other than the funding authority who propose to establish a GM school under the terms of Section 212 of the Education Act 1996. The Notes provide that where promoters propose to establish such a school they must, after consultation with the funding authority and other interested parties, publish proposals and submit them to the Secretary of State. The Notes go on to say that the funding authority is prevented from paying grant unless it is satisfied that the proposed school is likely to be viable. It has to be satisfied, if necessary, that further steps need to be taken before it would be viable.
One might well answer the noble Lord, Lord Dormand, by saying, "Very well, this is public money to promote GM schools. But how much public money has been spent in preventing some being set up?" We do not know the answer to that question. Noble Lords opposite may shake their heads but I can tell them that the number of letters sent out in some cases must have amounted to a certain amount of public expenditure. However, as I said, we do not know the sum involved.
Where it is believed that there should be a grant-maintained school it seems to me most important that there should be the opportunity to assess the situation and find out whether it would be viable before

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going ahead. That is a perfectly reasonable expenditure of money for something which has a proven track record.
Lord Henley: I shall start by dealing with the concern expressed by the noble Lord, Lord Morris, over who, in effect, controls promoters. I can tell the noble Lord that anyone can put forward proposals for promoting a new GM school; that is only right and proper. All a promoter can do is publish statutory proposals for setting up a school. The decision to approve such proposals obviously rests with the Secretary of State.
The Secretary of State welcomes any sound proposals from promoters of all kinds. To date the Secretary of State for Education and Employment and the Secretary of State for Wales have, I understand, approved proposals from six Roman Catholic schools, one being in Wales. I also understand that there are a further 11 proposals from Jewish, Moslem and Christian promoters, including a Seventh Day Adventist promoter, which are under consideration in England. A proposal for a non-denominational all-age school is also under consideration in Wales. Those are matters for the respective Secretaries of State to consider in determining statutory proposals. They will be considered on their merits against the specific criteria. I give way to the noble Lord.
Lord Morris of Castle Morris: I am much obliged to the Minister. Perhaps the noble Lord can go further. For example, would the Secretary of State be liable to approve such a proposal if it were put forward by, shall we say, the Co-operative Society?
Lord Henley: As I made clear, that is something that the Secretary of State would consider on its merits. It would be wrong for me at this stage to say, "No, the Secretary of State would not consider one from the Co-operative Society but she would consider one from Sainsbury's". As I said, such matters would be considered on their merits, taking account of the specific criteria.
I turn now to the amendment. Under Clause 14 the funding authority is able to help prospective promoters of new GM schools develop their proposals by providing grant. The purpose is to ensure that sound proposals can go forward to publication which might not otherwise have done so without such development grant. I should tell the noble Lord, Lord Dormand, that I cannot give a figure as to how much has been spent in that area. However, I shall endeavour to find out whether there is such a figure and, if there is, I shall communicate with the noble Lord.
Amendment No. 80 makes it a condition of grant payment that there should be demonstrable public support for the proposed school. I have every sympathy with the view that public resources should be used sensibly and that grant should not be paid to help promoters develop their proposals where it is perfectly clear that the new school would not attract sufficient pupils. The noble Lord will be aware that there was considerable discussion at the Committee stage in
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another place on these issues. My honourable and right honourable friends listened carefully to the arguments put forward. But they feel that the clause as it now is achieves that purpose because they introduced the government amendment in another place at Report stage—which the noble Lord, Lord Tope, accepted—to address that point.
We believe the issue to be whether or not a school is likely to be viable; that is, likely to attract sufficient demand from parents to secure a satisfactory standard of education. We do not believe that a test of demonstrable public support adds anything to the clause, or the clause as amended at Report stage. I am grateful to the noble Lord for underlining the two subsections which were added. Expressions of public support are not necessarily synonymous with expressions of parental demand. Such a test gives no clue as to the persons demonstrating support or how many would be required to demonstrate support before the test was passed.
The viability test has sufficient merit in itself. It includes evidence of demand in terms of expressions of parental support for a proposed new school and that would be a significant factor in the assessment. It also enables the funding authority to take account of other factors in assessing viability such as future parental demand arising, for example, from a new housing development. Those parents obviously would not be present to express their views but they would want a school with places for their children.
Amendment No. 82 would remove an important aspect of the funding authority's powers contained in subsection (2)(b). That subsection takes account of circumstances where the funding authority might consider that further work needs to be done before it is satisfied as to viability, but thinks it likely that it will be so satisfied when that work has been done. In those circumstances the funding authority would be able to pay grant to enable the further work to go ahead.
If I may, I shall give the noble Lord an example. The promoters might be able to present the funding authority with initial evidence of parental demand in response to fairly embryonic proposals for a new school, for example, the new Co-operative Society school put forward by the noble Lord, Lord Moms. The funding authority may take the view that there is a reasonable prospect, once the proposals have been developed a little more, that a further parental survey would produce a more informed and complete response. In those circumstances the funding authority would be able to pay grant linked to the further work required.
It is important that the funding authority is able to exercise such judgment where it believes there is a reasonable prospect that the school will be viable. Otherwise, promoters who could demonstrate viability satisfactorily if grant was available for further work, would be unable to do so precisely because they were ineligible for grant.
I fear therefore—put briefly to the noble Lord—that his amendments are not acceptable. I feel that Clause 14 as it stands secures that public funds will be used properly. I do not believe that these two amendments would add to its merits.
6.30 p.m.
Lord Morris of Castle Morris: Before the noble Lord sits down, he has been so helpful to me on the first of the three questions that I asked that I wonder has it perhaps slipped his mind inadvertently that I asked him two others: one, whether the feasibility study as I called it is costed in any way? Any private company going into a market will undertake market research to see whether there is a need for a product. As the clause stands, the FAS will be able to pay for that market research out of the public purse. Can the noble Lord give us some idea what will be the order of magnitude of the cost of this kind of feasibility study? What will it include? Secondly, could he address himself for a moment to the question of why it is the FAS which will decide what viability is? As the noble Lord, Lord Tope, memorably said, this amendment that we are putting forward suggests replacing the subjective judgment of a quango with the objective judgment of the local community—parents know best.
Lord Henley: I am afraid that the amendment which the noble Lord, Lord Morris, put his name to—the amendment of the noble Lord, Lord Tope—does not achieve that. We believe that the FAS is perfectly capable of deciding on viability. But obviously in the end the decision of the school itself—as the noble Lord well knows—will be made by the school. We are talking here about the promoters looking at the possibility of a school. It is quite right that the FAS should be able to consider spending money on these matters. If I have any more information on possible costs, order of magnitude, and that sort of thing, I shall, if I may, write to the noble Lord if he would find that more helpful, because I certainly cannot answer that question at the moment.
Lord Morris of Castle Morris: I am grateful to the noble Lord.
Lord Dormand of Easington: The Minister said that if he could get the information that I asked for he would write. If he cannot get the information, will he also write to me? I ask that quite seriously for two reasons. First of all, I think that is of immense importance to the amendment we are discussing. But, what is perhaps even more important, this is the Government who are always, they say, looking after the pounds and the pennies the whole time and who criticise the Labour Party for what they consider to be profligate spending. Therefore we are entitled to know that this Government are keeping a careful eye on the money they are spending on something which is strongly opposed by people on these Benches.
Lord Henley: I think we have a pretty good record of keeping a tight control on public finances, particularly compared to the promises amounting to some £30 billion of extra expenditure offered by the party opposite. I do not think today is the time or the place to engage in financial or economic debate, but I just thought I would have the beginnings of it. Certainly I give an assurance to the noble Lord that
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I shall write to him whatever the case may be. Or, if I may write to the noble Lord, Lord Morris, I shall copy that letter to the noble Lord, Lord Dormand.
Lord Tope: I am grateful to the Minister. I shall resist the bait that he offers me to consider how either party will pay for its proposals. Perhaps we should not pursue that tonight. I am grateful to the Minister for his careful reply. I am sure that he will copy to me as the mover of the amendment the prolific correspondence he is about to engage in as a result of my amendment. I shall consider both the report of his speech and the correspondence. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 81:
Page 13, line 10, at end insert ("or professional development fees").
The noble Baroness said: We are continuing the debate on expenditure with this amendment. The purpose of this amendment is to define more specifically the purposes for which the funding agency may make grants, thus seeking to safeguard the effective and efficient use of public funds, which we know is almost priority No. 1 for the Government. Therefore I am sure that the Minister will look favourably on this amendment.
The power proposed in Clause 14 for the funding authority not only conflicts with the Government's original remit for the FAS, but, more significantly, it introduces the risk of wasting public money on formulating proposals which are already the responsibility of the LEA.
The current drafting of subsection (4),
"Grants may be made under this section on such terms and conditions as the funding authority think fit",
lacks adequate definition to prevent the funding agency from making grants to promoters for public relations activities which might include lobbying in support of their proposals. One hopes, of course, that that would not occur. But whether or not it is likely that such expenditure would occur is a matter for conjecture, and the intention is not to cast aspersions on the motivation of the funding agency. The purpose of this amendment however is to ensure that it is not legally possible for money to be spent in such a way.
Public expenditure should be constrained to those professional development fees which are legitimate costs incurred in the preparation of proposals. This may include fees, for example, for architects, quantity surveyors, engineers, building control inspectors, legal advice or preliminary planning applications. This would reflect the services which LEAs are currently entitled to pay for in developing proposals.
During debate of this clause in another place, the Minister indicated that he would seek advice on whether the clause as it currently stands would enable the FAS to permit money to be spent on propaganda. That is at col. 336 of the Official Report of 10th December. It would be helpful to have clarification on this point and

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to understand how the Government would ensure that sufficient safeguards are in place to prevent public funds from being abused.
The amendment would clarify the purpose of such grants and constrain the funding agency's expenditure in the interests of public probity to fees for services which are a legitimate contribution to the formulation of proposals. I beg to move.
Lord Henley: As an aside, I am interested in the news about the miscounting by our Whips on an earlier amendment. They seem to have been two out, out of 171. Our colleagues in the Commons were only out by one out of 273. I suspect from now on that we should refrain from criticising our colleagues in another place. It might reflect upon the golden age of education from which many of us ventured so long ago.
Turning to the amendment, prospective promoters of new grant-maintained schools can incur a number of costs in developing their proposals. Typical examples might be architects' and surveyors' fees on premises-related aspects of proposals and legal advice on land tenure and trust arrangements. They might also incur expenditure related to advice on curriculum and financial matters or on a survey of parents. Some items of expenditure might be described as professional development fees. Others will not.
The point is that the term "expenditure" in Clause 14 includes all types of costs, including professional development fees. The amendment is therefore unnecessary.
The noble Baroness expressed concern as to whether the grants could be used for propaganda purposes and referred to the consideration that one of my honourable friends gave to these matters. I cannot say that the wording of Clause 14 in itself expressly prohibits the payment of grant for the purposes of propaganda, whatever that means. However, I think it odd to focus on that aspect of the funding authority's power to pay grants to help prospective promoters to develop their proposals.
The funding authorities are themselves responsible bodies. In Wales, the funding authority is the Secretary of State and in England it is the Funding Agency for Schools. It is not a function of the Funding Agency for Schools in England to fund propaganda or to promote the grant-maintained sector. The functions of the agency are set out in legislation and in its management statement and corporate plans. The agency's management statement and the code of conduct made clear that board members have a key responsibility to ensure that activities undertaken by the agency are consistent with the legal framework governing the operation of the agency. Moreover, the terms and conditions attached to the grant to be paid to the FAS are set out in the financial memorandum. Responsibilities placed on the agency's accounting officer include safeguarding all public funds and assets in the agency's charge and ensuring that they are applied only to the purposes of the agency as approved by Parliament.
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I hope that that will reassure the noble Baroness that the money will not be spent on what she describes as propaganda, whatever that might mean.
6.45 p.m.
Lord Morris of Castle Morris: Since the intention of the amendment is, if I understand it correctly, to define more specifically the purposes for which the funding agency may make grants, first, can the Minister assist us as regards the problem which my noble friend put forward? She said that the power proposed in Clause 14 for the funding authority conflicts with the Government's original remit for the FAS. Is that the case? If so, can the Minister reconcile the discrepancy, or should we be considering some other amendment?
Secondly, as regards propaganda, can the Minister take us a little further and give some clarification? For example, if it were alleged that propaganda had been supported by public funds, how would this be tried, proved or not proved? What sanctions would the Government have against alleged offenders found guilty by whatever means we hope to employ?
Lord Henley: The usual accountancy processes would be the obvious route through which one would pursue these matters. The fact that the funding agency accounts have to be approved by whatever bodies—I forget them—would surely allow for that.
As regards the noble Lord's first point, I shall read carefully what he said. I fail to understand how Clause 14 conflicts with the original purposes for which the funding agency was set up. I shall read carefully tomorrow what the noble Lord said, but I do not see any conflict.
Baroness David: If the Minister is willing to find out exactly how the proposal in Clause 14 conflicts with the original remit, perhaps he will have another look at the amendment in the light of his lack of knowledge. That would be helpful. Will the noble Lord agree to look at the provision so that he can tell us what he really thinks?
Lord Henley: As always—it is one of the points of the Committee stage of a Bill—one gives a commitment that one will look at a particular clause and concerns. I shall study carefully what the noble Baroness said as regards Amendment No. 81 and what the noble Lord, Lord Tope, said on other amendments. I am content with the provision. If I have misunderstood some of the concerns, it would be right that I should consider the matter again. But I am not sure that that is the case.
Baroness David: I think that that is almost a commitment that the noble Lord will have another look at the position. In the light of that, I am happy to beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
[Amendment No. 82 not moved.]
Clause 14 agreed to.
Clause 15 [Recovery from local funds of sums in respect of start-up grants]:
Baroness David Baroness David moved Amendment No. 83:
Page 14, line 8, leave out ("determine") and insert ("consider, after consultation with the local education authority or with any appropriate body which appoints foundation governors to one or more schools in the area, corresponds to the amount which the authority or as the case may be that body would have been likely to have expended during that period in respect of the initial costs of the school if it had been a school provided by them.").
The noble Baroness said: We are still discussing money. The purpose of the amendment is to limit the amount of money which might be recovered from the LEA to the level which would have been spent on the start-up costs of a county or voluntary-aided school: the GM school is not to be treated differently.
Clause 15 gives the Secretary of State powers to recoup the start-up grant paid to a new GM school before it opens. This amendment seeks to limit the amount of money which might be recouped from the LEA to the level which would have been spent on the start-up costs of a new county or voluntary-aided school. The underlying principle here is the need to ensure consistent treatment between GM and LEA maintained schools.
The principle of equity between GM and LEA-maintained schools is particularly important in this context. The Secretary of State, in exercising her powers to recoup moneys from the LEA, would in many cases be making a precept on the LEA's budget in circumstances where the LEA had initially opposed the establishment of the new GM school since it considered that the establishment of the new school was unnecessary. The exercise of the power to recoup by the Secretary of State, in circumstances where the LEA considers the establishment of a new school to be unnecessary, would cut across a fundamental principle of public accountability. It is quite unacceptable to expect any public authority to bear the costs for decisions for which it was not itself responsible and accountable. Rather than recoup from the LEA in these circumstances, the costs of the establishment of the new GM school should be borne by the Secretary of State or the Funding Agency for Schools, or by the third party (if any) which was promoting the establishment of the school in the first place.
Most new LEA schools are generally replacement schools, albeit that they may sometimes be larger than their predecessor school. It is rarely the case that a new school is needed simply to cater for a wholly new set of pupils. Therefore, in most cases, the effect of establishing a new GM school will be to decrease further the overall level of efficiency of administration within the LEA area, mainly through reduction in economies of scale. It will reduce the viability of neighbouring schools and it will impose further burdens on the already overstretched education budget of the LEA concerned, where there will not have been a corresponding increase to the roll-related element of the education grant for the LEA.
It would be quite unacceptable if LEA-maintained schools were to be penalised by any measures under this clause which sought to claw back more funding than
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was strictly fair or necessary—to the benefit of the new GM school—at the direct expense of the majority of pupils in the area attending LEA-maintained schools.
The funding arrangements for new county or VA schools would normally be determined in accordance with the LEA's scheme of local management of schools formula. This amendment simply aims to restrict the Secretary of State's powers in respect of recoupment to ensure that any recoupment from the relevant LEA would be in accordance with the agreed local funding formula. The amendment also provides for appropriate consultation with the LEA concerned (or the appropriate denominational body concerned in respect of VA schools)—something which (at cols. 343 and 344 of the Official Report, Commons, for 10th December 1996) the Parliamentary Under-Secretary of State for Education and Employment, Mrs. Cheryl Gillan, conceded should take place when the Opposition moved a similar amendment in Standing Committee D. The Minister also conceded that,
"The Secretary of State must use her powers to recoup start-up grants reasonably … [and that] she would consider each case on its merits, taking account of LEA representations, before making decisions".
If this is the Government's stated position, can they now accept an entirely reasonable amendment which is apparently in accordance with the Government's own views? I hope so. I shall listen with great interest to the Government's response. I beg to move.
Lord Henley: Before reaching decisions on recoupment under Clause 15, as my honourable friend said in another place—and the noble Baroness quoted her—the Secretary of State will consider each case on its merits, in the light of representations from LEAs. The noble Baroness also made the point that my honourable friend made it quite clear that the Secretary of State would have to react reasonably. Indeed, the Secretary of State could be challenged in the courts if she did not take the views of the LEAs into account and did not act reasonably.
It is our intention to consult the LEAs in individual cases so that the LEA view can be taken fully into account. We already engage LEAs in consultation as necessary on recoupment questions which arise under existing provisions in the 1996 Act. In this way, the Secretary of State ensures that she is able to come to reasonable decisions on recoupment.
But the amendment would require the Secretary of State, in reaching her decision, to take into account what might be a corresponding sum for start-up costs if the grant-maintained school had been an LEA-maintained school. It would certainly be part of the process of consideration to look, where we can, at LEAs' own practices in relation to the support they provide to new schools before they open. But not all LEAs, I have to say, would necessarily have recent experience of setting up a new school; or if they did, it would not necessarily be a school of the same type or similar size. Ascertaining likely costs would be bound to be speculative in the extreme in such LEAs.

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A further factor is the extent to which LEA support for a new school would be indirect expenditure in the form of overheads, such as advice and support from LEA officers, which is not available to a new grant-maintained school and might have to be bought in. Such support would not appear to be caught by the amendment. The Secretary of State would therefore need to come to a judgment on whether some or all of the indirect expenditure might be recouped in individual cases.
I think, therefore, that the noble Baroness will understand that my reservations about the content of her amendment point to the very good sense of consulting LEAs in individual cases, without any pre-set agenda imposed by legislation. But above all, I am unconvinced that such matters are in any case for the face of the Bill. I am unhappy about provisions which attempt to prescribe the sorts of considerations which the Secretary of State necessarily brings to bear on questions of recoupment, in order to reach a reasonable decision. I hope, therefore, after I have explained it in that manner, the noble Baroness will feel able to withdraw her amendment.
Baroness David: The Minister raised a great number of objections. I shall have to read them carefully before I decide whether or not he has a case. I think the LEA has a good case. It is possible, if it has not just built a new school itself, to find out easily what the costs might have been. I do not think I am totally convinced by the Minister's arguments, but I should like to read them carefully and decide whether it would be suitable to come back at a later stage with the same or a similar amendment. I am not altogether convinced by the Minister's arguments, but for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 84:
After Clause 15, insert the following new clause—
CHANGE OF STATUS OF GRANT-MAINTAINED SCHOOL
(" .—(1) At the end of section 184(1) of the Education Act 1996 there shall be inserted "and any school with that status shall he eligible to become a county school (unless it was previously a voluntary school, in which case it shall be eligible to become a voluntary school)".
(2) At the end of section 185(1) of that Act, there shall be inserted "or which are grant-maintained".
(3) In section 185(2) of that Act, after the word "status" there shall be inserted "or, as the case may be, county or voluntary school status". ").
The noble Baroness said: This new clause is directed to the peculiar situation where a school which is currently a county or voluntary school can become a grant-maintained school but a grant-maintained school cannot decide to become a county or voluntary school. In other words, the current situation is a one-way track. The amendment was argued as long ago as the Education Reform Act 1988 when the late Lady Faithfull moved an amendment to similar effect.
In terms of the competition model of schools which the Government appear to be pursuing, it is paradoxical that schools may exchange one status for another, but only in one direction. That appears to cut against the notion that schools should be able to choose the structure which best suits them. Equally, the creation of a once-and-for-all decision over grant-maintained status has always meant that a particular group of parents was in the position of binding the hands of its successors. if the principle behind grant-maintained status is that the wishes of parents at the time should be followed, then a logical conclusion would be that future groups of parents should similarly have the right to determine the direction of the school, if they so chose. An opt-back provision would be needed to enable that principle to be effective. In the most serious cases, grant-maintained schools may find the experience uncongenial, or the practical difficulties that they faced might be such that they might wish to move under the umbrella of the local education authority for the purposes of ensuring their survival.
Given that the primary concern must be the educational well-being of pupils at any school, it follows that the maximum range of choice should be available to a school and its staff and to the parents who have been called upon to approve such a move. I beg to move.
Baroness David: My name is also to the amendment and I support it wholeheartedly. I was here in 1988 when the Education Reform Bill was going through the House. I well remember the efforts we made to get the proposal accepted at that time. It seems a totally reasonable amendment. If parents, who apparently are now all-important on this side of the House, can choose that they shall have a grant-maintained school, surely the parents can then decide that they have had enough of it and they would like the embrace of the local education authority, for the greater comfort of having its advice, help and its wide knowledge available to them. This is a very important amendment and I hope that it will have support from all round the Committee. I am very keen that we should push this matter.
The Lord Bishop of Ripon: I do not wish to oppose the amendment but I should like to raise a particular difficulty in relation to voluntary schools, which are mentioned in the amendment.
As the Minister will know, voluntary aided schools are required to contribute 15 per cent. toward capital costs. But when such voluntary aided schools become grant maintained, that requirement is removed and the capital cost is provided by the funding agency. Were such a former voluntary aided school to wish to return to its voluntary status, what would it be required to do by way of refunding funds that had been spent in capital expenditure?
The Minister may say that that is an entirely hypothetical situation. But I should be grateful if he would give the matter a little thought. Would it be the case that, after so many years, a contribution to capital

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funding might be written off? Might there be some kind of sliding scale? Would voluntary aided schools wishing to revert in status be required to pay the full amount of their 15 per cent. contribution? I wonder whether the Minister can give any indication of what the position would be.
7 p.m.
Baroness Farrington of Ribbleton: For once I should like to spring in advance to the defence of the Government and express concern that the right reverend Prelate the Bishop of Ripon could think that the Government would be so churlish as even to consider that a period of absence followed by the return of a prodigal to the voluntary aided fold would lead to some kind of penalty for that period of time when the voluntary aided school had ceased to be a voluntary aided school. I beg the right reverend Prelate's pardon but I am quite sure that the Government would never take that view.
If the Government were to take that view, presumably they would take the same view about former county schools which had benefited from the greater percentage—that seems to be the least pejorative term—of capital availability for grant- maintained schools than for county schools. I well remember at the North of England Education Conference in Nottingham the present Chancellor of the Exchequer, when he was Secretary of State, saying that if there was a belief among voluntary aided schools and county maintained schools that capital preference was given to grant-maintained schools, they knew the answer, which was to opt out.
Should a voluntary aided school's governing body or a county maintained school's governing body have been tempted, lured by Mammon, for a short period of time to avail itself of the need to repair a leaking roof, I am quite sure that this Government could not possibly ask successive children and parents to repay that particular deliberate piece of government overfunding, generous funding or, as the Government would perhaps have said, just realistic funding to meet its needs. Similarly, I cannot see that the concern expressed by my noble friend Lady David and the noble Baroness, Lady Thomas of Walliswood, about the Government having any doubts about parental choice could possibly be founded in fact.
The Government's whole policy is about parental choice; the Government's whole view is that there should be diversity and freedom; and the Government's whole theme is that every governing body in a county or voluntary aided school should have the opportunity at governing body level once a year to decide that the school wishes to avail itself of grant-maintained status. If, misguidedly, that group of parents, governors and teachers should decide that it is in their interests, or if it is their view at a particular time, that they would like to go in the opposite direction, I believe that this Government would welcome it because they have stated
1106
so often that parental choice is the most important issue. Here we make the Government a present of an extension of parental choice.
Lord Henley: I fear the Greeks even bearing gifts and I fear the noble Baroness's support equally. I ought to make our position clear. We have always made it clear that becoming grant maintained is a permanent change in a school's status. That means that governors and parents need to think very carefully about the issue before making that change. It would be wrong to have a situation where a minority of parents who remain discontented with the status of the school could continue to campaign for the school to return to LEA control. That could create a permanently unstable situation and distract the school from the main task of improving the quality of the education that it has to provide for its children.
Baroness Farrington of Ribbleton: Would the Minister care to comment on the following situation? If there is a parental ballot and parents vote against grant-maintained status and are in a majority, would a small minority of parents be allowed to continue to campaign to have that ballot decision reversed in subsequent years?
Lord Henley: I think it is unlikely that they would do so, there having been a ballot. We have always made clear that moving to grant-maintained status is a permanent change and that is it. That is the reason why I shall resist the amendment most strongly. We do not believe that there should be to-ing and fro-ing through the system. Once a school has become grant maintained it should stay grant maintained.
That leads me to the question put by the right reverend Prelate, which in fact is a question that should not be put to me but to the promoters of this particular amendment. It is for them to answer. It is a hypothetical question and is not one that I am prepared to answer, on the basis that we are not prepared to accept this amendment.
Baroness David: Parents change and the parents of one set of school children will not be the parents of the next set. There will possibly be very different views between the generations, half generations, quarter generations or whatever. In another five years there may be some sisters and brothers but the children may be quite different and the parents may be quite different people.
Lord Henley: It is perfectly true that parents change. That is why we believe that this change should be permanent, to allow the school to have stability—that very stability that noble Lords ask us to bring to the education system.
Baroness Farrington of Ribbleton: Does the Minister care to answer not whether in his opinion parents who have lost a ballot in favour of going to grant-maintained status would or would not hypothetically be likely to continue in subsequent years

1107
to raise the issue, but whether legally the Government, having given them that right to continue to raise the issue each year, if that is what they wish, in turning down this amendment deny exactly that right to parents who have lost the battle in the other direction?
Lord Henley: We believe that the advantages of being grant maintained are so self-evident that it is right that a school should consider it every year. That is why the existing legislation proposes it. We do not believe that there is a case once a school has gone grant maintained for reversing that decision.
Baroness Thomas of Walliswood: I listened with great interest to the responses of the Minister and also to his suggestion that I should respond to the point made by the right reverend Prelate. I simply say that when schools go grant maintained, they take with them schools which have been created by the taxpayers' investment. I do not see why it should be any different when they come back again. That would be my response to that particular point. Nevertheless, we have heard some very obdurate responses from the Minister. I should like to test the opinion of the Committee.
7.9 p.m.
On Question, Whether the said amendment (No. 84) shall be agreed to?
Their Lordships divided: Contents, 49; Not-Contents, 102.

Division No. 3

CONTENTS

Blackburn, Bp.

Kilbracken, L.

Blackstone, B.

Mackie of Benshie, L.

Carlisle, E.

McNally, L.

Carmichael of Kelvingrove, L.

Monkswell, L.

David, B.

Morris of Castle Morris, L.

Dean of Beswick, L.

Nicol, B.

Dean of Thornton-le-Fylde, B.

Perry of Walton, L.

Dormand of Easington, L.

Peston, L.

Durham, Bp.

Ponsonby of Shulbrede, L.

Farrington of Ribbleton. B.

Ramsay of Cartvale, B.

Gallacher, L.

Ripon, Bp.

Geraint, L.

Rodgers of Quarry Bank, L.

Gladwin of Clee, L.

Russell, E.

Gould of Potternewton, B. [Teller.]

Sewel, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Symons of Vernham Dean, B

Taylor of Gryfe, L.

Gregson, L.

Thomas of Walliswood, B. [Teller.]

Grey, E.

Hampton, L.

Tope, L.

Hayman, B.

Tordoff, L.

Hereford, Bp.

Whaddon, L.

Hollis of Heigham, B.

White, B.

Hooson, L.

Williams of Elvel, L.

Jay of Paddington, B.

Winston, L.

Jenkins of Putney, L.

Young of Dartington, L.

NOT-CONTENTS

Aberdare, L.

Balfour, E.

Addison, V.

Belhaven and Stenton, L.

Anelay of St. Johns, B.

Belstead, L.

Annan, L.

Biddulph, L.

Ashbourne, L.

Birdwood, L.

1108

Blatch, B.

Howe, E.

Bowness, L.

James of Holland Park, B.

Brabazon of Tara, L.

Lindsay, E.

Brentford, V.

Lindsey and Abingdon, E.

Brigstocke, B.

Long, V.

Brougham and Vaux, L.

Lucas, L. [Teller.]

Bruntisfield, L.

Lucas of Chilworth, L.

Burnham, L.

Luke, L.

Butterfield, L.

McColl of Dulwich, L.

Byford, B.

Mackay of Ardbrecknish, L.

Carlisle of Bucklow, L.

Mackay of Drumadoon, L.

Carnegy of Lour, B.

Mackintosh of Halifax, V.

Carnock, L.

MacLehose of Beoch, L.

Chalker of Wallasey, B.

Massereene and Ferrard, V.

Chesham, L.

Miller of Hendon, B.

Clanwilliam, E.

Montgomery of Alamein, V.

Clark of Kempston, L.

Mottistone, L.

Coleraine, L.

Mountevans, L.

Coleridge, L.

Munster, E.

Courtown, E.

Murton of Lindisfarne, L.

Cowley, E.

Newall, L.

Cranborne, V. [Lord Privy Seal.]

Northesk, E.

Crickhowell, L.

O'Cathain, B.

Cross, V.

Oxfuird, V.

Cumberlege, B.

Peel, E.

Dacre of Glanton, L.

Prentice, L.

Dean of Harptree, L.

Pym, L.

Denbigh, E.

Rennell, L.

Denham, L.

Rowallan, L.

Denton of Wakefield, B.

St.John of Bletso, L.

Dixon-Smith, L.

Seccombe, B.

Elles, B.

Shaw of Northstead, L.

Elliott of Morpeth, L.

Skelmersdale, L.

Elton, L.

Stodart of Leaston, L.

Flather, B.

Strathclyde, L. [Teller.]

Gage, V.

Strathcona and Mount Royal, L

Geddes, L.

Thomas of Gwydir, L.

Gisborough, L.

Torphichen, L.

Glenarthur, L.

Trumpington, B.

Goschen, V.

Ullswater, V.

Gray, L.

Walton of Detchant, L.

Gray of Contin, L.

Weatherill, L.

Harris of Peckham, L.

Whitelaw, V.

Haslam, L.

Wise, L.

Henley, L.

Wynford, L.

Holderness, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
7.17 p.m.
Clause 16 [Ballot observers]:
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 85:
Page 14, line 35, leave out ("may") and insert ("shall").
The noble Lord said: The purpose of Amendment No. 85 is to ensure that ballot observers are appointed for every ballot, removing the need for case by case consideration by the Secretary of State and making the appointment of an independent ballot observer an integral part of the GM ballot process. That would enhance public confidence in the fairness of GM ballots which are sometimes very sensitive and highly charged matters of central importance to local parents and communities.
In the Government's White Paper, Self-Government for Schools, paragraphs 56 to 57, it was acknowledged that the case for the appointment of ballot observers to oversee GM ballots was sound. However, in Standing

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Committee D, on 10th December last, Ministers chose to reject an amendment which sought to ensure that ballot observers be appointed in every case. The Government argued that that was unnecessary. They took the view that sensible, reasonable people would generally conduct ballots "sensibly and reasonably". The Minister of State, the right honourable Eric Forth, conceded that there were regrettable exceptions to that which would undoubtedly occur on both sides of the argument and the observer mechanism in the Bill is intended to deal with such occurrences.
The central issue underlying the amendment is the extent to which the introduction of ballot observers under the Bill will serve to enhance the credibility of the GM ballot process in practice if the decision to appoint ballot observers is not left entirely to the discretion of the Secretary of State but is made automatic, as the amendment would provide.
In December, the DfEE published a consultation paper which set out the Government's developing policy on how they would envisage the GM ballot observer arrangements working. That consultation period closed at the end of January and Ministers have hitherto made no further announcements regarding the comments received in response to the consultation nor indicated the Government's current position and future intentions. This may well be the first available opportunity to probe the Government's position in the light of the consultation which Ministers were, perhaps understandably, reluctant to pre-empt.
The Local Authorities Association made a number of points when it responded to the government document. It said that there were significant weaknesses in the Government's approach in that the Secretary of State would not be under a duty to appoint a ballot observer upon receipt of a request from any interested party. A second point it made concerned the Government's apparent predisposition to consider favourably requests from schools and parental petitioners while simultaneously proposing criteria of very dubious validity which appeared to suggest that LEAs would automatically request the appointment of ballot observers in every case, regardless of the circumstances and real need for such appointments. The LEAs would support a more pragmatic solution which provided for an exception to be made so that ballot observers would not automatically be appointed if all parties could agree following consultation.
A third point was the desirability that GM ballot observers should have prior knowledge and experience of the education service and of GM issues, which contrasts with the Government's position in paragraph 20 of the consultation paper. It states:
"Candidates would not he required to have prior knowledge of the education service and of GM issues in particular".
In paragraph 18, the consultation paper conceded:
"Criteria for eligibility would need to be set identifying useful or necessary skills, capacity and experience".
But it gave no indication as to what the government criteria might be. I hope the Minister will have something to say on that.
An additional point made by the LAA concerned the detailed procedural issues where further clarification was required in relation to the selection of ballot observers under a system which might be administered by the electoral reform ballot service. Lastly, it made the point that important issues of principle relating to the functions of the ballot observer required further consultation. Some of those go well beyond the monitoring or observer role envisaged in the Bill: for example, the screening or vetting of published written material for parents; and an interventionist role for the observer in correcting misinformation during the course of the ballot and even, maybe, chairing public meetings. I look forward with interest to the Minister's response. I beg to move.
Lord Tope: I support the amendment. It is undeniably the case that a number of ballots have been controversial. Accusations have been made, whether fairly or otherwise, of undue pressure, some have said from the LEA side. There have certainly been cases, albeit fewer, where Ministers have accepted that there has been undue pressure on the part of those promoting GM status. Experience shows that it has happened. Regrettably, it is quite probably going to happen again. Therefore, rather than leaving it in the hands of the Secretary of State to decide in each and every case whether it is necessary or appropriate to have a ballot observer, it would be much quicker, simpler and straightforward were that to be an inherent part of the ballot process. Where a GM ballot was to take place, simply by virtue of that, a properly qualified ballot observer would automatically be appointed. Perhaps there could be an exception where all parties agreed that it was not necessary. Nevertheless, that should be the exception rather than the norm.
The purpose of the amendment is to make it the norm that where there is to be a ballot, before any possibility of accusations arise from either side of improper practice, a ballot observer is appointed who can oversee it and can so judge. This is a fairly simple, straightforward and practical amendment which we hope will be accepted by the Minister.
Lord Henley: The noble Lord, Lord Ponsonby, asked whether I can respond to the consultation initiated in December. We are not yet in a position to do that, but in due course we shall. With regard to the amendment itself, I am grateful that noble Lords opposite now accept the general principle of ballot observers but I do not accept that there should be a ballot observer on every occasion. The purpose of observers is to help avoid or deal with problems arising in the course of a ballot.
Most ballots are perfectly orderly and peaceful events. It is only in a minority of cases that parents are misled or intimidated, or irregularities occur in the carrying out of procedures. It is in those cases that the ballot observer has a role. Therefore I think it is right that the Secretary of State should have as much discretion as possible in deciding whether or not to make the appointment. I do not think we should be wasting other people's time and, for that matter, money

1111
by appointing a ballot observer on every occasion. We will develop and use that resource where it is most needed. For that reason, I cannot accept the amendment.
Lord Tope: Does the Minister accept that appointing a ballot observer after irregularities have taken place or after there are allegations of irregularities is a little late? Would it not be preferable to have the ballot observer there in the first place so as to avoid the irregularities arising or at the very least so as to be able to say authoritatively and independently whether or not there have been irregularities? To come in after the event is surely too late.
Lord Henley: They would not necessarily always be coming in after the event. On certain occasions one would be fairly clear that parents had been misled or that there had been intimidation. In such cases a ballot observer could be applied. However, I do not accept the noble Lord's point. I do not accept it would be right to waste other people's time and money by having a ballot observer in every case, bearing in mind that the vast majority of ballots are orderly and peaceful events.
Lord Ponsonby of Shulbrede: I thank the noble Lord for his reply. I am sorry that he was not able to enlarge on his response to the consultation process. However, having said that, he enlarged to the extent that he was not considering any mandatory appointment of observers. He did not quite go far enough to say that he would have observers as a norm but said that in cases where all parties agreed there would not need to be observers. I am not quite sure how open the noble Lord's mind is on the issue. Nevertheless, this is a probing amendment, although it did not probe very far. I shall have to consider whether to return to the issue at a later stage of the Bill. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon: I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

West London Hospitals: Specialties
7.30 p.m.
Lord Glenarthur Lord Glenarthur rose to ask Her Majesty's Government what progress is being made on reallocation of specialties among West London hospitals and what is their expectation of the effect upon research of any further reallocation.
The noble Lord said: My Lords, in asking this Unstarred Question I must declare an interest. For over five years now I have been chairman of St. Mary's, Paddington, NHS Trust, one of those important elements in the NHS in West London whose activities and skills could be affected by any reallocation of specialties.
I am delighted that so many noble Lords with deep knowledge of health issues have chosen to speak this evening. I am sure that I speak for the whole House when I say how particularly pleased I am that the noble Lord, Lord Hussey of North Bradley, has chosen this occasion to make his maiden speech. His experience in the health field as well as in many other fields, is enormous and I know that we all keenly look forward to his intervention.
I begin by saying that I am an enthusiastic supporter of reforms introduced to the National Health Service over recent years—reforms which were beginning when I was a Minister in the then DHSS in the early 1980s. I am a supporter particularly because, in my present role, I have seen just how much the reforms have improved the care of patients, and that, surely, is what all of us in the health service, indeed in this House, want above all. But any attempt to introduce a more businesslike approach to such a complex service as the NHS was never going to be easy. It was never guaranteed to bring perfect results, not least because technical developments continue to grow apace and with them grows the number of patients needing, and able to benefit from, more advanced treatments.
The health service is about combining medical science and research, both academic and applied, and teaching with established facilities for patients. Each element has its vested interests. But each can work—and does work—together for the good of patients, coupled inevitably and quite properly, with careful use of resources.
The introduction of the internal NHS market in parallel with the autonomy of trusts, has helped bring back a sense of purpose and focused management at a local level. I would, however, be the first to accept that the health service market cannot be a "pure" market—a total free-for-all. It must to some degree be a "managed" market.
My reason for asking this Question this evening primarily relates to the management of this market. Despite the Tomlinson Report, the specialty reviews of about four years ago and the work of the London Implementation Group, uncertainty still exists in West London. There have been positive developments in medical education (for example the integration of medical schools through Imperial College) which have helped set the scene for the future. Indeed, a huge amount has been settled. London's health service will be the better for it. But recommendations to resolve site issues in West London have never been wholly followed through and further studies are in train.
Academic medicine, and the institutions in which it is mostly practised, is an essential element in NHS provision. The recent report of the King's Fund London Commission, The Contribution of London's Academic Medicine to Healthcare and the Economy, rightly makes that clear. It highlights the strengths and world-wide reputation of the capital's academic medicine, and describes its contribution to the population's healthcare. But let me inject a note of caution from where I see things: we must not allow academic institutions to be the tail that wags the health service dog.
The health service must not be reorganised simply in order to suit academic strategists, important though they may be. That would be folly; it would ill serve patients and it would undermine existing real centres of excellence.
At the risk of what may sound like special pleading, but more to make my point, perhaps I may give your Lordships two examples of how such a policy could affect my hospital, St. Mary's. We have a long tradition of treating patients with end stage renal failure. We have been performing kidney transplants for many years and we have now developed into pancreatic transplants. We perform about 50 kidney transplants a year. The Hammersmith—a famous hospital and academic foundation, in which the noble Lord, Lord Winston, plays a major part—does less than 30 renal transplants. St. Mary's has 100 per cent. survival rate at one year after the operation, which is something that we take particular pride in. At St. Mary's we are the largest provider of haemodialysis in Greater London. Our standards are above those set by the Renal Association. We deal with more acute renal failure cases than others and we have all the necessary pathology services to support them. We have developed a ground-breaking "hub and spoke" model, so that patients can be treated closer to their homes. But all these achievements would be put at nought if some of the thinking that we believe is taking place becomes a reality. It would spell the end of St. Mary's renal service apparently because having such a specialty at St. Mary's simply would not fit the academics' plans, regardless of the needs of the patients.
Perhaps I may give noble Lords another example at St. Mary's and that is cardiac care. There are four hospitals primarily involved in cardiac care in West London—Harefield, The Brompton, Hammersmith and St. Mary's. Each of course has its special features. The Harefield has an outstanding surgeon, Sir Magdi Yacoub, among many others. The Brompton specialises in cardio-thoracic care. The Hammersmith is the Royal Postgraduate Medical School, the only one of its kind in the United Kingdom. And St. Mary's uniqueness in part stems from its wide range of other specialties, which are intrinsically linked to our cardiac care. Both our renal and our vascular expertise means that we are better able to deal with any associated complications that arise from cardiac work. However, if one looks at a breakdown of activity by procedure at each of these four world-famous hospitals, the stark facts are that the Hammersmith, the leading academic base for tertiary work, treats the lowest number of cardiac patients. The Brompton, focusing as it does on cardio-thoracic work, treats only about half as many again as St. Mary's, which is a teaching hospital, has many specialties and is a local district general hospital. This is not in any sense to denigrate the enormously high standards of any of those other institutions, I merely use them to illustrate a statistical fact.
Since the initial specialty reviews, St. Mary's has been able to double the number of heart operations performed and has pioneered new techniques such as angioplasty and stenting. We have developed and taught
1114
these procedures. Without such advances many patients would have required coronary artery surgery. So what we are doing is good news for all our patients.
About 30 per cent. of our activity is from our immediate local purchasing health authority, Kensington, Chelsea and Westminster, which the noble Baroness, Lady Jay, knows so well, and 70 per cent. from our top four purchasers. So we are providing support for our local populations in each case. I would argue that this must not be put at risk. St. Mary's is now a leader in a number of fields because we have made the internal market work. In both renal and cardiac specialties we went out and won the business and that is what my noble friend and her colleagues in the department have been keen to encourage others to do as well. We have developed far higher standards and considerable expertise. Now they are a success at St. Mary's and for St. Mary's patients. We cannot loosen our grasp on such advances. It would be more than foolish; it would be a derogation of our duty to patients.
The underlying purpose of my Question is to seek an assurance from my noble friend Lady Cumberlege that she will not allow the intellectual might of academic institutions to be the main driving force in the provision of high quality, local healthcare and this must be a question which affects other trusts in London as well as my own. What are the considerations her department is weighing up? What are the timescales involved? Does she accept the effect upon business planning for trusts of the uncertainty the current review generates? And will her department bear in mind that what matters above all else is that collaborations and partnerships bring effective academic science to bear, without putting at risk the stability of institutions which have increasingly demonstrated an ability to manage resources, improve patient care and help make a success of the internal market.
7.39 p.m.
Lord Winston: My Lords, it was a pleasure to listen to the noble Lord, Lord Glenarthur, who is a wonderful advocate for St. Mary's Hospital. He has introduced a most important debate which is obviously very dear to my heart also. I promise your Lordships that I shall not be speaking on behalf of Hammersmith Hospital; I am not sure that I could match the noble Lord's advocacy. I am sure that all noble Lords will listen with great pleasure to the noble Lord, Lord Hussey of North Bradley, who is to speak next and to make his maiden speech.
I should like briefly to draw your Lordships' attention to what is truly a unique opportunity. It is a world-class opportunity for west London. With the opportunity afforded by Imperial College School of Medicine, we have the opportunity to make what by any standards will truly be a world-class medical school with St. Mary's Hospital, the National Heart & Lung Institute, Hammersmith Hospital, Queen Charlotte's Hospital and Charing Cross and Westminster Hospital. That medical school will have a budget which will probably exceed that of Harvard and which will compare more than favourably with the Mayo Clinic and with Johns Hopkins Hospital. There is no doubt that it is a fantastic

1115
opportunity for Britain and for British medicine. It is most important that it does not founder. As your Lordships will know, it has an outstanding HEFCE rating which is improving all the time. We are pleased to see that happening at St. Mary's Hospital. It is great news. We are dealing with five-star institutions which will contribute greatly to medical education.
There is no doubt in my mind that the research done at that medical school will have the most major impact on the whole of the NHS. It is not just a question of individual specialties, although some have been mentioned, such as chest disease, vascular medicine, obstetrics and gynaecology and renal and liver medicine. It is also important to point out that at St. Mary's Hospital major and important research has been conducted into the value of primary care. Added to that, which is of crucial interest and great importance to the health service, there has been throughout the medical school an increasing focus placed on the need for evidence-based medicine and the evaluation of results.
Two essential problems face Imperial College School of Medicine. The first is the inevitable concern about the Culyer exercise. It is an important exercise and it is understandable that the Government want to spread the funding across the country, but there is a risk of diluting academic funds to be truly competitive. We feel strongly that the Government are right to recognise the need for selectivity. That is something that the Government have emphasised and this is an ideal opportunity to implement it. We hope very much that the funds will not be diluted too much. Of course, they need to be competed for, but they are important. Clearly, one problem is that if those funds are withdrawn to any extent, the effect on the trusts will be profound. They may founder in consequence because they depend on that sort of money.
The other concern was raised by the noble Lord, Lord Glenarthur. I refer to the question of competition between trusts. It is most important that we find a way to increase co-operation between trusts. We have done that in my own group. We have a close collaboration with St. Mary's Hospital on reproductive medicine. I believe that it could be a model for many other branches. It is ridiculous, for example, that 50 renal transplants are carried out at St. Mary's with rather a few more than 30 being carried out at Hammersmith. Whatever the figures, surely it is much more sensible to share the proceeds and the academic value. It would be terrible if such a strong academic institution which has such potential foundered simply because of failed NHS partnerships. I hope that the Government will do all that they can to support this.
7.43 p.m.
Lord Hussey of North Bradley: My Lords, it is a great honour, albeit a daunting one, to address your Lordships for the first time and I hope I may crave your customary indulgence to those making their maiden speech.
I am most grateful to the noble Lord, Lord Glenarthur, for raising this important issue. I must first declare an interest. I have been chairman of the Royal
1116
Marsden Hospital since 1985 and on the board of the Institute of Cancer Research. They work as one. On behalf of the King's Fund, I am chairing for the second time its Commission on London Health—possibly another triumph of hope over experience.
We have just received a formidable report from the deans of London's medical schools stressing that London is a medical power-house with a world-wide reputation for clinical care, research and education. It is an under-valued national asset, contributing notably to our economy. Brains, ideas and their application are the currency of the future. Top quality patient care depends on top quality research. Yet university funding for equipment has been cut by 30 per cent. and core staff numbers are being reduced. Investment in London's academic medicine must be a priority for our national prosperity.
What is true of London as a whole is certainly true of west London which on its own has an outstanding concentration of medical excellence. Many changes have taken place since the Tomlinson and King's Fund reports. Among their recommendations was further rationalisation in research and patient care. I firmly supported that, but I did not support the suggestion that the Royal Marsden and the Royal Brompton should be closed and rebuilt on the site of Charing Cross Hospital. Happily, those eccentric proposals were blown away. The Marsden was not closed and I should like to thank your Lordships for your great support, for which the hospital and, more importantly, its patients are deeply grateful.
Five years later, I hope that your Lordships will feel that your efforts were not wasted. For each of its first three years, the Marsden Trust has operated within its budget. Moreover, in the recent HEFCE review, the institute and the Marsden came second out of 30 undergraduate and post-graduate medical schools—second to Oxford University. If it had to be a university, I must say that I am glad that it was Oxford.
Imperial College, the Hammersmith and the Brompton also finished high in the merit table. We need not fear for the quality of research in west London, but for its funding. The Marsden's research grant is reduced by £15 million and NHS prices will increase by 140 per cent. Although the money is redistributed among the authorities, I fear that they may use it for purposes other than the referral of their patients to specialist hospitals. That is bad for patients, bad for research and bad for the hospital. We must maintain the necessary patient flow critical to our clinical research programme. But, as the noble Lord, Lord Winston, said, there is increasing collaboration. I believe that the most important is the grouping around Imperial College. I hope that the Institute of Cancer Research will shortly become involved in that.
However, there are problems. More people are reaching an age when they are likely to need treatment and are living longer just at the moment that that treatment becomes more expensive. There has been an explosive growth in medical technology, especially in expensive but effective drugs. The cost of treatment in some areas outweighs the savings in others. More capital investment is needed. In the Marsden, we have

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opened a new breast and diagnostic unit, entirely paid for by voluntary contributions. I believe that it will be increasingly difficult to sustain the health service on its present funding, a point also made by the academic deans.
Finally, I should like to pay a tribute to the nursing profession with which I have been connected for many years, starting during the war when I was nursed by German Catholic nuns who tended us prisoners with dedication and compassion, demonstrating also an unexpected talent for bartering our cigarettes for eggs and vegetables on the black market. In retrospect, they were quite exceptionally politically correct. The part played by nurses and their impact on the morale and health of patients is often overlooked, as is the benefit of nursing research. There is increasing evidence that the care of specialist nurses, accustomed to handling the challenging problems of pain, disability and emotional stress can lead to patients getting better more quickly or at least to making their lives more comfortable. For that reason, the institute has recently established a Chair of Nursing Research. Specialist cancer nurses are at the forefront of cancer treatment.
I believe in the health service. Support for it is deeply rooted across the nation and across all political parties, but in the past 50 years the terms of trade have changed. The equation between what the national budget can afford and what treatments the developments in research technology and medicine have made possible is increasingly difficult to balance. In some way, that balance must be restored.
7.50 p.m.
Lord Butterfield: My Lords, I am greatly honoured that I have been given the opportunity to speak immediately after my old colleague the noble Lord, Lord Hussey, and to congratulate him on his splendid maiden speech. That is the main responsibility of the immediately following speaker. He has spoken knowledgeably. I shall spend most of my few minutes praising Duke Hussey rather than developing the themes that may come forward in the health service.
I agree with much of what previous speakers have already said. As a former professor of the University of London who is very concerned about the London schools, I hope that there will not be a battle between the academic units and the clinicians. What this city needs is collaboration. That word has been used on all sides of the House. Whatever happens, I make the plea to leaders and Ministers that collaboration should be encouraged.
I should like to say a little about the noble Lord, Lord Hussey. In the summer of 1942 a number of cricketers were sitting around in Vincent's Club in Oxford. They were greatly worried about how they would dismiss John Bridger, who was then a leading and prolific all-rounder for Cambridge. Somebody said that there was a chap in Trinity who had got Bridger out in all of the house matches when he was at Rugby. We called in Duke Hussey who did exactly as we wished. He got Bridger out at the very beginning of his bowling spell. He complained, quite rightly, that I had taken him off
1118
too soon; otherwise, the match would have been won before tea. Never mind. He then went off to join the Grenadier Guards and served bravely and splendidly in Italy. He was wounded and lost a foot. Noble Lords have heard that he was nursed by some splendid German nuns.
Since the Second World War he has had what can only be described as an incredible career. I consulted Who's Who and Dod's and made a few notes. This man was managing director of Harmsworth Publications soon after his return in top gear. He was on the executive board of the Thomson Organisation. He was chief executive and managing director of The Times during a very difficult period for that newspaper. Those of us who watched him in his time there were firmly of the opinion that Duke would make sure that good sense prevailed rather than wild politics.
He went on to become director of William Collins, and for 10 years was chairman of the BBC. Some of your Lordships went with me to a luncheon with Duke just before he stepped down. He made a prodigious after-lunch speech. We have much to look forward to if we can get this man on his feet many times. The most memorable point in the speech that I remember, which is related very closely to the remarks of the noble Lord, Lord Glenarthur, about the need to watch the costs of the health service, was Duke's comment that he was the man who taught the BBC a four-letter word. I was rather shocked. He said that the word was "cash". One had to appreciate that one could not do everything one wished because there were cash limits.
Duke Hussey has been on the board of the British Council and chairman of the King's Fund London Committee. He is also a trustee of the Rhodes Trust, which is quite an achievement, and also an honorary Fellow of his college, Oxford Trinity. I say to the noble Lord, Lord Hussey, that we look forward with immense pleasure to hearing him make many contributions from the Floor of this House, and perhaps elsewhere, in the future.
7.54 p.m.
Lord Walton of Detchant: My Lords, I am sure that many noble Lords share my sense of frustration in not being able, because of constraints of time, to hear a longer contribution from the noble Lord, Lord Hussey, whose distinction in so many fields, as the noble Lord, Lord Butterfield, said, is outstanding. He has given us an intriguing foretaste of things to come; we trust that we shall hear from him many more times.
In discussing this Question, I propose to depend to an extent on my personal experience in many years of practice in neuroscience. When I first began training in this field there were consultants who worked for part of the time at the London teaching hospitals and for part of the time at hospitals like the National, Queen Square, or Maida Vale. They were able through their observational and descriptive skills to make major advances in that field. How the situation has changed. There has been the development of new technology—magnificent new methods of imaging—and the related clinical neurosciences of neurophysiology and so many

1119
more, and the burgeoning advances in molecular biology bringing in sight gene therapy for some of the most crippling neurological disorders which have transformed the situation. All are demanding of time, expertise, expensive equipment and, very largely, demanding of collaboration between doctors and scientists working in the laboratory.
Why does this Question concentrate on research? Research is the lifeblood of medicine. Today's discovery in basic laboratory research brings tomorrow's practical developments in patient care. I believe that in today's health service it is increasingly difficult to bring home that message to some managers who are obsessed, very reasonably, with the crucial importance of increasing patient throughput. In neurology one can take the example of Parkinson's disease. The discovery by some Viennese pharmacologists many years ago revealed that the substance dopamine was not being secreted by cells at the base of the brain. This led to the introduction of levodopa.
When the Tomlinson Committee and the King's Fund Committee began their work there were 11 departments of clinical neuroscience scattered throughout London and 10 departments of oncology. Frankly, some of them were not viable because of limited resources and staffing. Hence, it has become crucially important that these highly specialised skills should be concentrated into much larger units where doctors can work alongside basic scientists, with particular emphasis on their being placed in association with multi-faculty colleges such as Imperial College, to which the noble Lord, Lord Winston, and others have referred. That policy is bearing fruit. Previously many of those isolated departments scattered throughout London received rather low ratings in the research assessment exercise. But as the Deans Report on academic medicine in London has clearly demonstrated, these multi-faculty institutions and the departments of clinical science with which they are associated are now rising steadily within the research assessment scale.
I had the privilege of chairing an inquiry by your Lordships' Select Committee on Science and Technology into academic medicine, particularly medical research in the light of the NHS reforms. We were pleased that the Government were committed to devoting 1.5 per cent. of the NHS budget to R&D. It is crucial that part of that budget should be used to preserve the infrastructure for biomedical research within our teaching hospitals and within these institutions in London. It is also crucial that part of that money should be used to preserve the tertiary referrals that are the lifeblood of clinical research and which have seriously declined. In particular, as a consequence, the interests of the special hospitals such as Hammersmith, the National Heart and the National Hospital for Neurology and Neurosurgery must be preserved.
Finally, there is a very serious concern about the future of clinical academic medicine. There are 57 vacant chairs in the UK, and far too many early retirements are occurring at the moment. We trust that the inquiry sponsored by the committee of vice-chancellors and chaired by Sir Rex Richards will come up with firm
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recommendations on the future of clinical academic medicine of which the Minister and her colleagues will take careful note.
8 p.m.
Lord Dainton: My Lords, perhaps I may first express my gratitude to the noble Lord, Lord Glenarthur, for asking this Unstarred Question. I should like also to congratulate my noble friend Lord Hussey of North Bradley on his maiden speech. I hope that his future contributions to our debates will be frequent and as persuasive as the one we have just heard. I hope also that having hitherto been known universally as "Duke Hussey" he will not feel too diminished by being addressed in this Chamber as a mere Lord.
In accordance with the rules of your Lordships' House, I must declare formally an interest in my role as president and formerly chairman of the Royal Postgraduate Medical School based at the Hammersmith Hospital, which, as has already been said, is the only academically led hospital in the country. I need not speak about its international reputation which is well known.
For well over 40 years I have had a deep personal and professional interest in research in clinical medicine carried out by staff of university medical schools and institutes. For various periods in my life—for example, as chairman of the Advisory Board for Research Councils and its predecessor, the Council for Scientific Policy, and subsequently as chairman of the University Grants Committee—I was responsible for the allocation of public funds to be used for that purpose. I learned many lessons.
First and foremost was that the quality of future patient treatment rests upon the quality and extent of medical education and research today, which in turn are increasingly and critically dependent upon basic scientific research, as the noble Lord, Lord Walton, eloquently stated. That is why I have always advocated close collaboration between high quality departments of biological and physical sciences and with medical schools and institutes of the University of London. Therefore I welcome the marriage of Imperial College to the Royal Postgraduate Medical School.
It is equally important that the specialist referral hospitals and their units associated with those institutes and schools but owned by the NHS should be funded appropriately for their special purposes. There is abundant evidence that for obvious reasons, not least the longer investigations and therefore longer patient stay and more sophisticated equipment and technical support in those research hospitals, the cost per patient treated is necessarily higher than the average elsewhere. That is why, as chairman of the UGC, I supported enthusiastically the proposal of the late Lord Ennals to establish special health authorities with their own funding streams. But now the SHAs have gone, and I do not mourn that necessarily, and the Government have accepted the Colyer Report's recommendation that special funding for those hospitals and what is called the special increment for teaching and research should be replaced by a single funding stream.

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Unfortunately, the NHS Executive has interpreted that stream as coming from purchasers anywhere within the UK. Because of that differential cost, as I pointed out to your Lordships on 2nd December 1992, such an arrangement could only mean rationing by price of referred patients and a very doubtful financial future for those special hospitals.
It is no wonder that many who work in those hospitals, and especially clinical academic staff, are deeply worried. I should be grateful if in her reply the Minister could answer a few questions. First, does she accept that without special safeguards the quality of research in hospitals such as the Hammersmith and the Royal Brompton will diminish to levels which will adversely affect the postgraduate medical schools and institutes; secondly, that such a diminution will inevitably work through in time to lower the quality of patient care in the future; thirdly, that that is such a grave matter that steps should be taken now to remedy the situation? Could she—I should be grateful for this—tell us what those steps are or will be? I am sure that her department must be well aware of that problem.
8.4 p.m.
Lord Phillips of Ellesmere: My Lords, I must first add my tribute to those that have already been paid to my noble friend Lord Hussey of North Bradley on his notable maiden speech. I shall return in a moment to one of the important points that he made. Before that, however, I am bound to recollect that just three years ago Sir Rex Richards and I reported to the Secretary of State for Health on how the research strengths of the Hammersmith and Charing Cross Hospitals could best be preserved and extended if the two institutions were brought together on one site. At that time our main concern was that adequate resources should be made available to allow the creation of an outstanding and fully integrated medical school, comprising a new centre at Imperial College and the associated hospitals and research institutes in west London.
Happily, in the past three years enormous strides have been made towards the creation of that medical school and all seems set for the intake of the first cohort of students in the autumn of 1998. Those students will have the privilege of completing modular intercalated science degrees during their training and engaging in project work during that time within a clinical environment.
When I decided to intervene briefly in this important debate I had two points in mind that I wished to make in particular. The first was to express concern that so far the Royal Marsden Hospital and Institute of Cancer Research had not yet agreed to be associated—however loosely—with the new medical school. I was therefore enormously pleased to hear my noble friend say that he confidently expected the Royal Marsden and ICR to join the venture before long.
My second concern has been shared by a number of other speakers. It is that the abandonment of the special health authorities and the incorporation of their resources in the general NHS research funds will lead to an erosion of clinical research in west London just
1122
as the plans to create a medical school of international standing are coming to fruition. I hope that in replying to this short debate the Minister will be able to reassure your Lordships on that point.
8.7 p.m.
Lord Annan: My Lords, even though I have only four minutes I must congratulate my noble friend Lord Hussey on his maiden speech. He is what those English aristocrats who used to control boxing in the 18th century (the Corinthians) called a glutton for punishment. As chairman of the Kings' Fund, as chairman of the governors of the BBC, as director of Times Newspapers, he knows what it is to be assaulted by fire from all sides. Few have had more courage or sagacity than he. That is why we very much hope to hear him in the future.
I do not want to follow the noble Lord and the noble Lord, Lord Dainton, for example, who have intimate experience of the West London situation, except to say that I hope that the Minister will give us some optimism that anomalies can sometimes be ironed out, such as the example which I heard only this afternoon, of a great research hospital which keeps patients in bed longer than a district hospital for the very good reason that it wants to observe those patients to see what is wrong with a complicated case.
I want to say something in defence of the Government's policy of reallocating specialties. Since the 1960s when Lord Todd reported on medical education, the department and the funding authorities have been trying to rationalise resources in the West London hospitals. It has been a long and discouraging task, opposed often tooth and nail by the doctors concerned. But in the end it has been successful and, for example, the pre-clinical schools are now integrated in multi-faculty schools and the institutes of London are now following suit.
I must warn the Minister that from what I hear there is keen competition between the four main centres to lure those institutes with promises of additional funding to join them. Institutes which for long have been linked with one multi-faculty school are now being wooed to move to another. Will the Minister say who monitors, and, if necessary, intervenes to thwart palpably inequitable arrangements?
Nevertheless, great progress has been made in bringing together specialists, but the difficulty arises when one has such a galaxy of talent as exists in the four West London schools, as to how to proceed further in rationalising the particular specialties in those schools. Can the noble Baroness give an indication of the troubles ahead? Having listened to the speeches, it is clear that there are great troubles and difficulties ahead. Naturally, each school wishes to preserve what it regards as the specialty for which it is world famous. No doubt, some accommodations will have to be made and I am asking the Minister whether she is optimistic about that.
I wish to comment on a matter which perhaps is not totally relevant but is of concern in relation to specialists. How far has the new scheme of specialist

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registrar training affected the supply of specialists and their distribution? The European Union ruled that anyone who was a specialist was eligible to apply immediately for a consultancy post. That led the General Medical Council and the Royal Colleges setting up a specialist training authority to supervise the mechanism of issuing certificates of specialist training. That shortened the time before which registrars could apply for a consultancy. Is the Minister satisfied that the problem referred to in Section 17 of the guide to specialist registrar training is viable? Is she convinced that those who opt for a period of research—that is, for a Ph.D—will not be handicapped in their competition for a consultancy post?
8.12 p.m.
Baroness Jay of Paddington: My Lords, I too thank the noble Lord, Lord Glenarthur, for asking this important Question tonight. I am delighted to have the opportunity to congratulate the noble Lord, Lord Hussey, on his characteristically powerful and lucid speech. He has been a long distant but admired acquaintance ever since our paths first crossed some 25 years ago in the world of journalism. More recently I very much enjoyed the experience of working closely with him on the second version of the London King's Fund Commission. I must declare that interest tonight as many of the issues we discuss are relevant to the debate.
Another interest that I must declare, as referred to by the noble Lord, Lord Glenarthur, is that I am a member of the Kensington, Chelsea and Westminster Health Authority, which is the main purchaser of the health services provided by the St. Mary's Trust, which the noble Lord chairs. It is as a purchaser that I wish to make my few remarks tonight.
As one would expect in your Lordships' House, we have heard several distinguished contributions from highly distinguished academic experts in the field of medicine. But my main preoccupation is the impact of the Question on services to patients and on the overall effective use of NHS resources in London. I echo the concerns that the noble Lord expressed in that regard. Obviously, we must continue to provide high quality specialist services in London which are accessible on an equitable basis to the whole population. But that does not preclude sensible rationalisation of those specialist services.
One of the most disturbing aspects of the past few years has been the fact that there has been so little change in the organisation of specialties since the original King's Fund Report, chaired by the noble Lord, Lord Hussey, the Tomlinson Report entitled Making London Better, and the Government's response to that, and the six detailed speciality reviews which were commissioned after Making London Better was published. The progress has rightly been described as glacial in that there has been virtually no movement at all. One could take the totally revisionist view that that was simply because all the proposals made in the special reviews and in the original reports were completely wrong. I am more inclined to agree with the review of one paper recently submitted to the second King's Fund Commission which states:
"The only conclusion to be drawn",
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about specialist rationalisation being so slow,
"is that powerful vested interests have been able to frustrate some of the objectives of the specialty reviews".
It would be useful if in reply the Minister could address the general question of why change has been so slow and what her department is inclined to do to improve the management of change in the next period in order to improve services and benefits for patients in West London.
I wish to ask a further specific question relating to the influence of the private finance initiative on change. Have the uncertainties about the existence of the private finance initiative made a considerable difference to progress, because people are concerned that the capital expenditure needed to make some of the changes will not be forthcoming?
As several noble Lords have emphasised, there has been considerable progress in the reorganisation of the medical schools. Of course, we are enormously impressed and delighted by the strength of the Imperial College reorganisation. We support and applaud its aspirations to nationally excellent standards in research as well as being a base for clinical services. However, as the noble Lord, Lord Glenarthur, said in his introductory remarks, we must be careful that that tail does not wag the dog.
In practical terms, I would be disturbed as a west London purchaser if it were the case that for academic reasons, which might be very good, all the serious and important specialties were concentrated on the Hammersmith site. I should be grateful if the Minister would indicate the department's reaction to that possibility if it becomes a practical reality. That cannot be the best possible solution for patients, however good it may be for the academic situation seen in isolation. Although my noble friend Lord Winston is constantly reassuring me about the accessibility of Hammersmith Hospital, my personal experience, and the experience of the patients to whom I have talked, is that it is still a difficult hospital to reach, despite what I understand are very important changes to the car parking.
My overall feeling is that it is refreshing, if slightly depressing, to revisit the original specialty reviews which were published four years ago and to see what their proposals were. Their overall ambition of reorganising specialties had a great deal of sense, although, as did the noble Lord, Lord Hussey, one might quarrel with the individual proposals, in particular in his case concerning the Royal Marsden Hospital.
I conclude by quoting what is succinctly put in the specialty review on cancer, which should guide our thoughts about how the whole enterprise on specialties should be challenged. I should be grateful if the Minister would respond to the question of whether the Governments as a whole accept the overall recommendations of the specialty reviews. In the specialty review on cancer, the simple conclusion was:
"The overwhelming majority of cancer specialists in London accept that the historic pattern of specialist centres need major change and that a smaller number of larger centres would he more effective in delivering high quality service, teaching and research".
Is that still the Government's position?
8.18 p.m.
Baroness Cumberlege: My Lords, I thank my noble friend Lord Glenarthur, who among many other things is a distinguished trust chairman, for tabling the Question and for opening the debate. I also congratulate the noble Lord, Lord Hussey of North Bradley, on his maiden speech. It was a speech which befits a noble Lord who is not only admired and respected throughout the country for his courage, achievements, charm and prodigious talents, but in your Lordships' House, as my noble friend Lord Butterfield said, for his huge bravery.
I have no experience of warfare, but I know that the noble Lord fought not only on the battlefield for us, our futures and our children's futures, but for his own life in a hospital bed. Six consecutive birthdays were spent in some hospital or another. That surely demonstrates a will to live. And what a life, what a contribution to the welfare of the nation's good. We are enriched by his membership of this House, and the quality of speakers in tonight's debate is a testimony to that.
London occupies a unique position in world medicine. It is recognised for its expertise, excellence and talent. Not only does it excel in clinical medicine but also in scientific achievement. In a recent report from the University of London, the contribution to this country is made clear.
Academic medicine generates £225 million each year from undergraduate students, a quarter of whom come from abroad. Every year around 1,000 overseas postgraduate students (from 115 countries) come to study medicine and dentistry in London. Each of those will also of course make a contribution to the local economy, but most important of all, they will return to their homeland taking with them knowledge, techniques, skill, wisdom and often affection for the United Kingdom.
On a recent visit to South Africa I was heartened to hear of the good experience which the Minister for Health, Dr. Zuma, had of her medical training in this country. As the leader of health policy for the emerging South Africa, her experience will influence not only the way in which healthcare is provided but also teaching, research and academic medicine in South Africa.
London has great strengths, not least in pharmaceuticals—46 of the world's top 50 companies and more than 40 American bio-technology companies have chosen London or the south-east as their base. Our capital city has many fine hospitals and medical research institutions which are nationally and internationally recognised as centres of world excellence. I am told that we have more than Boston, Paris or New York. A number of your Lordships, as we have learned tonight and as many of us have known for some time, are of course not only associated with these great institutions but indeed have made them what they are today.
But London is of course the place where Londoners receive their healthcare and while it strives to excel in all fields, it also has to provide day-to-day health services. As a Government, we are conscious of this and have adopted four clear principles: first, we seek to develop high quality, more accessible primary and
1126
community services; secondly, to achieve a better balanced hospital service on fewer sites; thirdly, to concentrate specialist services, reinforcing and building on their excellence and improving their effectiveness; and, fourthly, to ensure London retains its premier position by merging free-standing undergraduate medical colleges with institutes and with the University of London's multi-faculty colleges to form four world class institutions—a move welcomed by the noble Lord, Lord Dainton, who has such a deep knowledge of those issues.
The noble Baroness, Lady Jay, mentioned the framework for the future of London medicine which was set out in Making London Better, the Government's response to Professor Tomlinson's report. The Government accepted that there was duplication of specialist services. There was a need to improve the quality of patient care and to maintain the critical mass essential for world-class education and research. Given the number of NHS trusts, health authorities and academic institutions, it has been a complex business to bring the parties together.
Although I understand the concern of my noble friend Lord Glenarthur about the uncertainty, we have achieved a great deal in the past four years. I understand too the impatience of the noble Baroness, Lady Jay, but we all know that when we are trying to achieve what appears to be a Herculean task, many people need to be involved and reaching decisions is not easy.
The noble Lord, Lord Hussey, and the noble Baroness, Lady Jay, quite rightly highlighted cancer services. We have developed our strategy to ensure the best possible services for patients. Starting at the beginning when patients first suspect a problem, we have set out to improve primary care so that frightened and worried people can get a speedy and accurate diagnosis, with a quick referral from a knowledgeable GP. If necessary, they should be referred to a cancer unit of sufficient size to support a multi-disciplinary team, a team with the expertise and facilities to treat common cancers; lastly, if it is a rare or complex carcinoma, to a centre specialising in the treatment of these sometimes obscure but always difficult cases.
These proposals are in hand, with each region designating cancer services as centres or units. In North Thames, the process has been led by health authorities with the region in a co-ordinating role. Centres will be designated provisionally this spring and given an action plan. Confirmation of the designation will depend on the level of progress made in 12 months towards implementing the plan, but designation is only the beginning of a longer-term programme. Decisions about cancer centres will of course affect research in two ways: first, the London centres, which currently lead the field in terms of research, will be encouraged to link with others in order to widen the research base and encourage patients to take part in clinical trials; secondly, changes in referral patterns will be gradual and influenced by the type of cancer to be treated. I take the point made by my noble friend Lord Glenarthur that we want to ensure that trusts are able to align their services with research interests and not simply be feeders for research.

1127
As my noble friend mentioned, health authorities have jointly reviewed the specialist cardiac activities of the four centres—at the Royal Brompton, Hammersmith, St. Mary's and Harefield hospitals. They have been working with the trusts and Imperial College and have been discussing the options for future development as it affects not only cardiac services but the impact on teaching and research. We hope the work will be completed later in the year.
Renal, neurosciences and children's services are also under discussion. Good progress has been made. Health authorities and academic bodies in west London have agreed on a process but further discussion is needed before a decision can be reached. I know this will be disappointing for my noble friend but I can assure him that patient care will not be eclipsed by the needs of teaching and research. They are not competing demands but ingredients which when combined form the bedrock of a forward looking healthcare system, in which I know St. Mary's will play a pivotal role.
The noble Lord, Lord Winston, drew attention to the excellence of research in west London which has been independently recognised by the recent Research Assessment Exercise (RAE) published by the Higher Education Funding Council for England (HEFCE). Five star rating (the highest possible) was awarded to not only the Institute of Cancer Research (associated with the Royal Marsden) but also the Royal Postgraduate Medical School (associated with Hammersmith Hospital), the National Heart and Lung Institute (associated with the Royal Brompton). Imperial College (associated with St. Mary's) obtained a grade 4 for both clinical laboratory sciences and hospital clinical-based research. The Institute of Cancer Research also obtained a grade 5 for pharmacy and a grade 3A for nursing. As the noble Lord, Lord Hussey, said, those ratings were among the best in the country.
I have talked about both research and service excellence in general terms but it is important to translate that into practice. What have been the contributions to science and improved services? What have been the benefits to patients? I do not have time today to list all the developments there have been but I should like to mention a few of them.
The MRI scanner—the magic magnet, as it is known—at the Hammersmith Hospital is the only one of its kind in the world. It reduces the potential problems of brain-damaged children. In his modesty, I do not think that the noble Lord, Lord Hussey, mentioned the fact that the Royal Marsden and the Institute of Cancer Research carry out more research than any other cancer centre in Europe. Harefield Hospital has undertaken the world's largest programme of heart and lung transplantation and carries out more thoracic surgery than any other centre in England. The Royal Brompton Hospital runs leading edge services, including a unit for cystic fibrosis services, which is a world leader. In addition, the medical informatics team is at the front of an eight-country project to develop networked medical information systems for diagnosis and the tracking of patients. At St. Mary's, as my noble friend Lord Glenarthur is so aware, there are important
1128
developments in heart surgery. A team is developing a new technique for early detection of abnormal electrical activity.
Those are all exceptional innovations. But I understand the concerns of the noble Lord, Lord Winston. However, I am heartened that with his expertise and inside knowledge he supports the Culyer proposals. I endorse the views expressed by many noble Lords this evening in regard to collaboration. In particular, the noble Lord, Lord Walton, mentioned that. I can assure your Lordships—in particular, the noble Lords, Lord Annan, Lord Dainton and Lord Phillips—that funding has been a top priority in our considerations.
We believe that the Culyer proposals will show a way forward. In future, R&D support funding will be allocated competitively where it will be best used. Indeed, it is hard to argue against that principle. The NHS Executive has already published assessment criteria which cover dimensions such as quality, importance and cost. In assessing bids, it will also give careful attention to how R&D funding is to be co-ordinated with other education and training and, of course, patient care.
Trusts in England have until the end of June to make a bid for funding for up to four years ahead. Clearly, I cannot say at this stage what the outcome will be for any trust or, indeed, for any part of the country. That will depend on their bids. However, I can say with confidence that the new system will allow us to make increasingly good use of the enormous capacity for R&D in the NHS and the money that we allocate to the NHS locally to exploit that capacity, which is considerably more than £300 million a year.
We have had a most interesting debate. I know that many noble Lords will continue to play a key part in the development of services in west London. It is a challenging agenda, but a worthwhile one, which should deliver even better standards to patients and encourage the development of high quality teaching and research. As the noble Lord, Lord Hussey, told us, top quality patient care depends on top quality research.
I am aware that I have not answered all the questions that were put to me, not least those posed by the noble Baroness. I shall certainly follow them up in a written form later in the week.

Education Bill
8.31 p.m.
House again in Committee on Clause 16.
[Amendment No. 86 not moved.]
Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede moved Amendment No. 87:
Page 14, line 41, at end insert
("(2A) Any person appointed as a ballot observer under this section shall be an independent person who has appropriate experience of either the conduct of ballots or the provision of education.").
The noble Lord said: The purpose of this amendment is to ensure that any person appointed as a ballot observer is both independent of the particular grant-maintained ballot concerned and can, therefore, command the support and confidence of all interested parties to act properly as an impartial observer, and also to ensure that such persons are appropriately experienced either in the conduct of ballots or have appropriate experience in the provision of education.
The amendment is straightforward and essentially pragmatic. It seeks to ensure that, whatever the process adopted for administering the appointment of ballot observers, the question of the impartiality and independence of the ballot observer should not be in question. It is this issue, which needs to be incorporated on the face of the Bill, which will ultimately determine the extent to which all interested parties in the GM ballot process can have real and well-founded confidence that the introduction of ballot observers will serve genuinely to enhance the procedures as they currently stand.
The role of independent ballot observer is very well established and familiar. The DfEE's December consultation paper acknowledged, in paragraph 19,
"the existence of the pool of observers of elections abroad maintained by the international side of the Electoral Reform Society",
as one of the options for sources of suitably experienced candidates for ballot observers. It should not therefore be necessary for us to debate at length the issue of independence nor the specific personal qualities and attributes that any person would require properly to fulfil the role of independent ballot observer under the Bill.
The amendment does, however, suggest that, as an alternative requirement, an independent person should have appropriate experience of the education service. The law and procedures for ballots on GM status are complex. While an independent person with experience of observing ballots in other contexts might reasonably be expected to be able to familiarise himself with the necessary specific knowledge required to fulfil the responsibilities envisaged quite readily—providing there is sufficient training—it is clear that an appreciation of the context in which ballots on grant-maintained status can occur, gleaned from some prior experience of the wider education service, would greatly enhance the observer's ability properly to carry out his duties expected under the Bill.
However, how realistic is it to expect that a lay person, with no experience of the education service, could undertake competently and expeditiously, as would be necessary, the sort of roles envisaged by the Government's consultation paper, particularly where the Government appear to envisage that such a role might go beyond that of monitoring, observing and reporting on the conduct of any ballot? I have in mind the screening/vetting of published written material for parents or intervening to ensure that any misinformation is corrected as necessary if a complaint is received during the course of ballot, and, indeed, the possibility,
1130
allowed for in the MEE consultation paper, that the observer might be invited to chair a public meeting on the question of acquiring GM status for a particular school where all parties consented to such a role for the observer.
Those are examples of where some specialist knowledge of the education service and of the special complexities surrounding the balloting of grant-maintained schools would lead to a greater degree of expertise being needed by the observer. I beg to move.
Lord Tope: I express my support for the amendment. It is clearly in the best interests of the smooth, rather than the proper, conduct of the ballot if a properly experienced and qualified person undertakes that duty. It is a very sensible amendment and one which I wholeheartedly support.
Lord Henley: I agree with the noble Lord that it is of considerable importance that observers should be of the right calibre and that they should have the appropriate skills and experience which will enable them to do the job properly. Obviously, the selection of such people will need to be handled with considerable care. Officials in the department have given much thought to the matter.
Having said that, it would be unfortunate if one allowed such an amendment to go through. I say that because it would actually reduce the Secretary of State's discretion by imposing limitations on who can or cannot be appointed as a ballot observer. We have been talking to neutral and very well-respected organisations, especially the Electoral Reform Society which administers grant-maintained ballots. The society has agreed to select observers and make the appointment where the Secretary of State has decided that that is appropriate.
I am sure that the noble Lord will accept that it is not appropriate for this to be spelt out in legislation. If it were to be, I would not support the particular formulation which has been put forward by the noble Lord. For example, there may be very highly suitable candidates for such a job—I have in mind retired judges—who do not have the experience spelt out in the amendment. I can assure Members of the Committee that we shall continue to discuss these matters with the ERS. I believe that the approach we are proposing is probably a more appropriate one.
Lord Ponsonby of Shulbrede: I thank the Minister for his reply which seems entirely reasonable. I should point out that the consultation document says in paragraph 20 that candidates would not be required to have prior knowledge of the education service. However, as the Minister indicated, that would indeed be in a person's favour when the Secretary of State is considering who to appoint. In the light of the Minister's response, I feel content to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
Clause 17 [Provision of advice and assistance by funding authority]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 88:
Page 16, line 8, leave out ("free of charge or").
The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 89. The purpose of the amendment is to ensure that the provision of advice and assistance to grant-maintained schools by the Funding Agency for Schools (FAS) is chargeable to the GM school receiving the service from the agency.
A similar amendment was only briefly debated in Standing Committee D on 10th December when the Government defeated the amendment and made no pretence to debate the issues underlying it. These were that GM schools should be expected to pay for services from the FAS on the same basis that LEA maintained schools pay for a range of advisory and support services provided by LEAs, and sometimes other providers, out of their delegated budgets.
The amendment is proposed on the basis that there should be a fair and consistent approach to GM and LEA maintained schools. GM schools should not benefit from the ever increasing range of support services provided under the auspices of FAS and out of public funds on a "free ride" basis when LEA maintained schools cannot similarly benefit but are expected to pay for such services out of their delegated budgets.
The Minister of State, Eric Forth, refused to address the arguments put forward by Opposition MPs and did not attempt to debate the real issue arising from the powers in Clause 17 which would have the effect of giving the FAS unlimited powers to supply advice and assistance to the governing bodies of GM schools in connection with the discharge of any of the functions of the governing body. The Minister simply argued that the Opposition amendments were unnecessary but conceded that the Bill gives great flexibility to the FAS.
Surely it is not right that within the education system there should be an extension of the powers of the FAS in this particular model and in the way proposed by the Government. The Government make great play with the need for parental choice and with the importance of public accountability for public money that is spent. Yet here we have an example where the Government appear to have denied the argument that there ought to be public accountability and a level playing field. I look forward to hearing the Minister say that the Government have now had time to consider this matter at greater leisure and that he will be prepared to consider approving this amendment. I beg to move.
Baroness Thomas of Walliswood: In rising to support this amendment I wish to add another line of argument. After 12 years in local government, where everything one does has to be paid for and accounted for—that includes everything that is done in terms of services delivered to, or required by, our schools—it seems to me extraordinary that side by side with that system, which has been forced on most of the public
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service, one sets up another publicly funded series of institutions which do not have to obey those rules. I look forward to hearing the Minister's response to that.
Lord Henley: The funding agency, as we all know, already offers support to grant maintained schools experiencing financial difficulties and offers assistance to grant maintained schools which are operating under special measures. I think it is something of the order of under 1 per cent. or about 1 per cent. This support is at no extra cost to the school. What Clause 17 proposes is a modest extension of the circumstances in which non-financial support can be provided. It envisages no more than the targeted additional support given by LEAs to LEA maintained schools in difficulty. We do not expect many grant maintained schools to be caught by the new provisions. The cost will be accommodated within the existing arrangements.
If I may, I wish to turn to Amendment No. 89. The funding agency is already accountable to the Secretary of State and operates within a clear framework of accountability and reporting consistent with the department's other non-departmental public bodies, sometimes known as quangos. For that reason Amendment No. 89 is unnecessary.
I now turn again to Amendment No. 88. I can assure the Committee that the Secretary of State will issue guidance on the instances where an offer of support would be appropriate. This guidance will make clear that the funding agency will expect to offer assistance only in a limited number of cases of serious difficulty. The funding agency is not expected to incur substantial new costs. Grant maintained schools will be able to accept or decline an offer of support from the funding agency and other avenues of advice will remain open to them in the usual way on a paid or unpaid basis. For that reason I feel that the first of the two amendments moved by the noble Baroness, Lady Farrington, is unnecessary. I hope therefore that the noble Baroness will feel able, with that explanation, to withdraw her amendments.
Baroness Farrington of Ribbleton: I find it difficult to understand how a school faced with an offer of free advice from the funding agency would then go elsewhere and pay for help and support from another source. The Government seem to be absolutely determined to create an unaccountable cuckoo in the education nest. Every time we make any suggestion that the FAS or the grant maintained schools should be subject to scrutiny or that the planning arrangements have to relate to the Audit Commission, the Government dismiss it as unnecessary. Either what we have is the beginning of a total U-turn in terms of the Government's attitude towards public spending and public spending controls, or we have a blatant fear on the part of the Government that grant maintained schools would be neither popular nor able to survive without allowing them favourable conditions. The Government have to keep resorting in every piece of legislation to treating them differently from other schools. With these amendments we are not arguing that schools should not have additional help. We are merely arguing that they

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ought to pay for that in the same way as they do for other services. The Government's response is disappointing. However, at this time of night, with the indulgence of the Committee, I shall withdraw the amendment, though I do so with disappointment. This is a subject that will not go away because the position is blatantly unfair. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 89 not moved.]
Clause 17 agreed to.
Clause 18 [Extension of assisted places scheme to schools providing only primary education]:
Lord Morris of Castle Morris Lord Morris of Castle Morris moved Amendment No. 90:
Page 16, line 17, after ("education),") insert ("for").
The noble Lord said: In moving Amendment No. 90, I wish to some extent to speak also to Amendment No. 91.
Lord Henley: We did originally group Amendment No. 90, I think, with Amendment No. 91 and one or two others. Obviously the Opposition decided not to do that and have decided to put forward Amendment No. 90 on its own. However, Amendment No. 90 on its own is meaningless, as I think even the noble Lord would accept. Even the meanest intelligence would accept that is meaningless. Are we now grouping it with Amendment No. 91 or not?
Lord Morris of Castle Morris: I think it would be sensible to put the two together. I am not at all sure how they became separated. When I left them, certainly they were grouped. They then went somewhere else and came back severed from one another.
Lord Henley: I am perfectly happy to accept the noble Lord's explanation, which seems to imply a degree of—dare I say it?—incompetence.
Lord Morris of Castle Morris: It certainly does, but not on our part. With the leave of the Committee I shall move Amendment No. 90 and speak to Amendment No. 91. I shall speak principally to Amendment No. 91, although it is a fact that the amendment that we have before us is a fairly wide-ranging amendment. The purpose is to ensure that the interests of children benefiting from the assisted places scheme are safeguarded by requiring that participating independent schools meet the standards expected of maintained schools in relation to the national curriculum and assessment; the reporting of the results of inspection; ensuring that inspection standards apply as they do in the maintained sector; and that children's safety in relation to the vetting of criminal records of potential employees is the equivalent of the standard required in the maintained sector. We wish to be vigilant about the comparison.
The issues covered by the amendments were debated in depth and at length—I hesitate to say at inordinate length, but at great length—in Standing Committee D in another
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place on 10th December, reported at cols. 374 to 414. It was quite some debate. It ranged extraordinarily widely and produced a great deal of irrelevant material as well as some useful nuggets which I think even Members of the Committee would find helpful to read. I shall not read them out tonight but it was a wide-ranging debate on this topic.
In the course of the debate, reference was made to research work carried out by Professor Edwards, who interviewed a number of headteachers of private schools which had benefited financially from the assisted places scheme. Reports of two headteachers in particular were mentioned. The first headteacher said:
"I think there are self-employed people with good accountants who do extremely well from it. I know, we have someone here … who was the only daughter of a family where there were three, if not four, sons and they were all in independent schools and she came here, her father was a barrister at law, they lived in Riverside, they had a Volvo".
The second headteacher said that,
"one of the things that we have found irritating is paying … for people's divorces, you know there are occasions when, because a mother is living with but not married to another chap, who will not take responsibilities for the fees, then because of her income or lack of it then she's eligible. Now that doesn't mean that there isn't money in the household and I think that's something that has rankled a bit".—[Official Report, Commons, Standing Committee D, 10/12/97; col. 381.]
I remind the Committee that those are headteachers of schools which have benefited from the assisted places scheme.
In the course of that long debate, the Government resisted arguments from Opposition Members and claimed that their rejection of the amendments stemmed from the fact that subjecting independent schools to the provisions in statute would have the effect of nullifying their status as independent schools. I must confess that although initially that argument seems to have force, it perhaps has less force than was originally apparent when one considers that they are taking public money in quite large amounts.
The Government attempted to avoid the logic and force of Opposition arguments and simply sought to ensure that schools choosing—no one forces them—to participate in the assisted places scheme, choosing to take public money, should be held to standards consistent with the statutory framework which ensures effective public accountability for the vast majority of schools in our maintained schools system which, I remind Members of the Committee, educates some 94 per cent. of our children. Choosing to take part surely implies the need to conform to some extent with national standards. This means surely that the APS schools must conform, for example, to the national requirements in the national curriculum.
The amendment provides a further opportunity for reasoned debate on these important issues. The lengthy debate in Standing Committee highlighted significant concerns in relation to the quality of education provided in those independent schools which participate in the APS scheme. We learn that Ofsted has published just 14 inspection reports on schools participating in the APS in the past five years and it has revealed plans to carry out full inspections for "up to 3" further schools in

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the current academic year, 1996–97. Ofsted, this mighty monster, so efficient, dashing around the nation's schools, can get round to inspect up to three schools; that means either three, two, one or none. Is this not tantamount to dangerous complacency on the part of Government as to the standards of the education provided in those participating independent schools?
The debate in Standing Committee also highlighted some further issues of concern which related to allegations of fraud or abuse on the part of some parents whose children benefit from places under the scheme which the DfEE, it was alleged, had failed to investigate thoroughly. Again I shall forbear to quote any of the debate but refer Members of the Committee to the Sunday Times of 12th November 1995, the report of which is given at col. 380 of that debate on 10th December. If one tenth of those allegations has any foundation, then surely that requires pretty immediate investigation.
The debate also highlighted research findings published in the Journal of Educational Policy, which is a good, refereed, important journal, which cast grave doubts over the Government's claims that the assisted places scheme is, as it hopes to be, successful in opening up independent schooling to children who otherwise would not have been able to benefit from such opportunities. The discussion on that is to be found at col. 382.
Finally, the discussion drew attention to the stringency, or lack of it, with which some participating independent schools follow the DfEE's advice to carry out proper police checks on members of staff employed in independent schools. That serious issue, this dynamite issue in our days, is discussed at length at cols. 387, 394–395, and 406–407. I suggest seriously that it should be compulsory reading for those of us concerned with the Bill. Standing Committee D met on no fewer than 16 separate occasions to discuss the Bill. I have read every word of the debates. I was not particularly illuminated by most of the discussions, but that debate stands out and is relevant to the amendments before us. I think that it reveals real causes for concern and none for complacency. That is why I put forward the amendments for the Committee to discuss tonight. I beg to move.
Lord Tope: I am grateful to the Minister for his intervention at the beginning of the debate. I have been sitting here as an innocent victim of the groupings, whoever was responsible for them. My party certainly is not. It is always a puzzle for me to know how to follow the noble Lord, Lord Morris. However, I was trying to work out what Amendment No. 90 means. For once I was grateful to have the Minister tell me that the amendment means nothing unless it is taken with Amendment No. 91.
I support most strongly all that the noble Lord, Lord Morris, said. Like him, I have looked at the debate in Standing Committee on 10th December. Unlike him, I could not bring myself to read the reports of all 16 sittings. I have them but I could not quite manage that. However, he is right to say that the debates drew attention, even allowing for a certain degree of
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overstatement on these occasions, to matters of considerable concern. To a large extent, that is addressed by the amendment.
The nub of the matter is what the noble Lord, Lord Morris, said at the beginning of his speech. In the other place the Minister seemed to be concerned that if the amendment were passed it would somehow impinge upon the independence of the independent schools. However, it could just as easily be said that that independence is impinged upon by the schools' choosing—a word emphasised by the noble Lord, Lord Morris—to accept public money through the assisted places scheme. That is a self-chosen restriction, to a small extent, on their independence. I should have thought it was entirely reasonable that if schools choose to accept public money in that way they must similarly accept the responsibility that goes with it to meet the same standards in terms of both curriculum and inspection as those required in the maintained sector. That seems an entirely fair and proper arrangement. It would stand regardless of what may or may not have been said in the other place. It becomes even more the case when we examine the concerns expressed in the other place, to which the noble Lord. Lord Morris, referred so ably. It is an important and fair amendment which I am pleased to support.
9 p.m.
Lord Henley: I start with an apology to the noble Lord, Lord Morris. I possibly made a somewhat intemperate response to him in describing as "incompetence" getting the groupings wrong. As we all know, on the morning of any Committee or Report stage or, for that matter, Third Reading of a Bill, getting the groupings right is a difficult art. I think it is right to describe it as an art and not a science. As the note at the top of the groupings list states every day:
"Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List".
The noble Lord eased our job on this occasion by grouping together the two amendments that were ungrouped. I offer him my wholehearted apology.
Having said that, the amendment seeks to apply the various maintained sector provisions to APS schools. The assisted places scheme is about providing different opportunities for children. It is not about bringing the independent sector into line with the maintained sector. Perhaps I may say that in response to the noble Lord, Lord Tope. Independent schools are not part of the maintained sector of education. It is not, therefore, appropriate simply to import such provisions.
Existing levels of regulation, both for the independent sector schools generally—and there are a number of regulations to which I shall come in due course—and APS schools in particular have been framed to take account of the particular ethos of the sector. They strike the right balance between freedom for those independent bodies—and they are independent—and central controls.

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As we all know, the best independent schools are models of high standards which help create the climate of excellence. We are firmly committed to the existence of a healthy and vigorous independent sector, free from unnecessary interference by the state. We do not believe that any part of the independent sector should have to comply with provisions designed specifically for the maintained sector. Independent schools obviously value highly the flexibility available to them to shape provision in the light of parental demand and their own circumstances. Their achievements are testament to the sense of that approach.
Schools which participate in the assisted places scheme have been selected on the basis of stringent criteria for admission and are among the best independent schools in the country. One of the conditions of acceptance into the scheme has always been that the school has to offer a broad and balanced curriculum. Although APS schools are not statutorily obliged to implement the national curriculum, many have implemented it in total, and most track it closely. They have indicated their support for its fundamental aims of raising standards.
The Secretary of State's responsibilities in relation to all independent schools require her to be satisfied that they meet certain standards in terms of premises, accommodation, curriculum and instruction and for the welfare of pupils in boarding establishments. All schools are covered by the cycle of inspections carried out by Ofsted and that includes the independent schools which are inspected by Her Majesty's chief inspector and by Ofsted over a five to eight-year cycle to ensure that they maintain standards required for registration. Virtually all, I think 98 per cent., of the 355 schools now in the assisted places scheme have been inspected within the past eight years. Over 80 per cent. of them have been inspected in the past five years. The performance of those schools is also monitored through examination results and audit surveys and through analysis of the school's statistical returns.
The noble Lord, Lord Morris, raised a number of other concerns which I should like to address. Part V of the Police Bill seeks to widen access to full criminal record checks for more sensitive areas of employment. That includes the tightening of the existing arrangements to allow checks to be performed on staff, even where their access to vulnerable people like children might be minimal. Independent schools will be able to gain access to the service. Independent schools, in common with the maintained schools, cannot employ teachers who appear on what I am told is described as List 99, the department's register of barred teachers. Furthermore, all independent schools are provided with relevant information on how to conduct criminal background checks on staff who will have access to children. The arrangements for undertaking checks are not materially different for independent schools compared, for example, with grant-maintained schools.
To place the requirements outlined in this amendment on independent schools would amount to a restriction which would be inconsistent with their status as independent institutions. These schools achieve
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excellent results and can demonstrate very high standards of achievement. We support their right to exercise appropriate discretion over curricular and other matters. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Morris of Castle Morris: Before the noble Lord sits down, perhaps I may ask him one question, genuinely for information. How many of the Ofsted reports on those schools are available to the public?
Lord Henley: As I said earlier about bearing gifts, what I really fear are questions merely asking for information. I do not know the answer to the noble Lord's question. I shall let him know in due course.
The Lord Bishop of Ripon: I too wish to ask a question on a point of information. The Minister may not have the answer but can possibly find out. Among the prep schools of excellence that he mentioned are the cathedral choir schools which provide not only a superb education in singing, in instrumental music and in understanding music but also a wide ranging education. As one who has a close connection with a particular choir school, I am aware of the importance of what might be described as a balanced social intake. Most choir schools attempt to provide this by having bursaries or scholarships of some kind, but clearly their resources are stretched. The assisted places scheme would seem to be an opportunity for ensuring that such schools are open to a wide range of youngsters. Among the schools which have been invited to bid for such assisted places, are there any choir schools?
Lord Henley: I can imagine the particular choir school with which the right reverend Prelate has some connection and that it is not unadjacent to Ripon. But having said that, I cannot answer his question at this moment. I do not know whether there are any choir schools involved. Certainly I shall write to the right reverend Prelate.
Lord Morris of Castle Morris: The Minister will not be staggered to learn that I find his response less than totally satisfactory. It is not a matter of trying in any way to bring one kind of school in line with the other, making the one the same as the other—the Lord forfend! We have heard enough times the myth that every comprehensive school is the same as every other comprehensive school. One only has to visit three to see the enormous difference between them.
But in this case, he who pays the piper must to some extent call the tune. In the assisted places scheme there were 335 schools at the last count, costing over £100 million per annum to the taxpayer. We can add to that the service boarding schools, which also benefit and which take £110 million plus from the public purse. So the cost in total seems to be nearer £350 million per annum from the British taxpayer. All that we ask in these amendments is that for that price there should be a certain degree of conformity.

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But I see I have not penetrated the noble Lord's armour. I seldom do. In fact, I do not remember an occasion in the last two Bills that we have debated together on which he has ever given me the sheer shock and pleasure of saying, "Well, there might be just something in what the noble Lord and his noble friends have said and, although I shall not in any way commit myself to anything whatsoever, I shall perhaps take it away and give it a few moments' thought before I come hack and reject it".
In the hope that before we finish with the Bill I might just crack the noble Lord's iron resolve never to let anything past his bat, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 91 not moved.]
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 92:
Page 16, line 18, at end insert—
("(2) In subsection (4) of that section, at the end there shall be added the words "and to the availability of places in grant-maintained schools and schools maintained by local education authorities".").
The noble Baroness said: The purpose of this amendment is to ensure that the Secretary of State, among other considerations which are a requirement upon the Secretary of State when having regard to the allocation of places under the assisted places scheme, has regard to the availability of places in the LEA maintained schools and in the grant-maintained school sector.
In seeking to introduce a further requirement in that regard, the amendment raises the important issue of surplus places in the maintained school system. While surplus places are inevitably a part of any system to a limited degree to allow a reasonable level of choice, it would be a very unfortunate result if the unplanned consequences of the Government's proposals in the Bill to extend the number of places in the assisted places scheme preparatory schools were seriously to increase the level of surplus places in the maintained sector.
There are arguments about whether or not the Government will seek to portray this proposal as a deliberate attempt to restrict parental choice in opposition to their proposals to extend the scheme. The Minister in the other place, in Standing Committee D, refused to address the issue of the risk of an increase in surplus places in the maintained sector and the consequent threat of rising unit costs for the children to be educated in maintained schools.
This is an issue that needs to be addressed seriously. Local government, local authorities and the schools within the grant-maintained school sector, notwithstanding their more favourable treatment, are constrained not to undertake action which deliberately wastes public resources.
It is important that the Government are challenged seriously on not duplicating the spending of money. Two outcomes may result: one is the reduction of parental choice for other parents in the locality; the other
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is that the Government push the situation in the grant-maintained and local authority-maintained sector to a higher unit cost to sustain the level of provision they require of that sector, but do not require of the independent sector. I beg to move.
9.15 p.m.
Lord Henley: I can assure the noble Baroness that the Secretary of State is already required to have regard to the desirability of securing an equitable distribution of assisted places throughout the country and between boys and girls. Those are proper considerations in the allocation of places. The noble Baroness is seeking to place an additional requirement on the Secretary of State; that is, to consider the availability of maintained school places.
We do not accept that it would be proper to restrict parental choice in that way. Parents should be able to choose an independent education for their children regardless of income and regardless of whether or not a specific LEA has a high number of surplus places. Children who happen to live in those areas where there are a high number of surplus places should not be denied the chance to benefit from the scheme. Parents should have the opportunity to make an informed choice for the best education of their child. The exercise of that choice should not be dependent on where they live. I hope therefore that the noble Baroness will feel able to withdraw her amendment.
Baroness Farrington of Ribbleton: I am disappointed in the Minister's response. The Government persist in behaving as though parents were evenly spread; as though the number of children they have is equally evenly spread across the country; and as though all other elements can be applied regardless of local circumstances. There may be a degree of logic in the Government's argument in relation to some areas of the country, but not in relation to others.
In the Lancashire and Yorkshire fells there is a pressure to maintain provision of small, rural primary schools. In those areas the demand from the parents, under parental choice, is not for an Anglican denominational school alone to serve each village, but also for a Catholic school. The local authorities maintain access to those primary schools at exceptionally high cost.
Village schools, by their nature and the nature of the settlement, inevitably have surplus places. How can it be sensible, rational or fair to deliberately impose on them the requirement to spend public money to exacerbate that situation in those localities? The Government's attitude is incomprehensible in any other terms than those of dogma. I heard the Minister's reply. As my noble friend Lord Morris said. I despair of obtaining a sensible response to any logical case put forward. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 93:
Page 16, line 18, at end insert—
("(2) In subsection (5) of that section, at the end of paragraph (b) there shall be inserted "and
(c) shall require priority for the remission of fees to be given to pupils who have not previously attended an independent school".").
The noble Baroness said: This amendment relates to the assisted places scheme. Its purpose is to give priority,
"for the remission of fees…to pupils who have not previously attended an independent school".
The arguments underpinning the amendment are that there are two disturbing trends in the assisted places scheme and the proposals of the Bill will only serve to exacerbate them. The point was debated in Standing Committee D on 10th December, when the amendment was lost.
The two issues are that, first, preparatory schools may arrange links with independent secondary schools to offer continuity in the assisted places scheme. Parents who want an assisted secondary place are encouraged to go for an assisted primary place in preparatory schools to enhance their chances of securing a place in the independent secondary school of their choice. An artificial inducement is provided by the Bill for parents to move into the independent sector earlier by means of the expanded assisted places scheme.
Secondly, the fact that the assisted places scheme effectively gives an unnecessary state subsidy to parents who can afford a place at an independent school anyhow or to families who are already paying makes it more difficult for those who have not benefited under the scheme to secure support for their children. The amendment would counter both these undesirable aspects.
The Government's response to the amendment in the Commons failed to address these two issues and the Minister, Mrs. Gillan, sought to reject the amendment on the grounds that it would,
"entail undue fettering of schools' freedom over pupil selection and could result in the most deserving candidate not receiving an assisted place".—[Official Report, Commons, Standing Committee D, 10/12/96; col. 412]
This is not a credible or sufficient response to the issues which the amendment sought to address. I hope for a better response from the Minister. I beg to move.
Baroness Thomas of Walliswood: I very much support this amendment. I have a rather personal attitude towards the whole business of assisted places. I think that when the Government are spending money they should spend it in their own schools. However, that may be beside the point. Meanwhile, as that is something we shall not achieve during the course of proceedings on the Bill, I support the amendment.
Lord Henley: The noble Baroness, Lady David, hoped for a better response from the Minister than her colleagues received in another place. I hope that on this occasion she will be grateful for a consistency of responses, because we believe in consistency within the Government.
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The assisted places regulations, which this House and another place debate annually, provide for schools to select children for places in accordance with such methods and procedures as appear to them appropriate. But the regulations also place an important restriction on schools' discretion over the allocation of places. They are required to fill at least 60 per cent. of their assisted places with pupils from the maintained sector.
The amendment seeks to place a further restriction on schools' freedom over the allocation of places. It would require a school always to give priority to a maintained sector applicant even over a better qualified independent sector applicant. That would severely restrict schools' freedom as regards pupil selection and might result in the most deserving candidate not receiving an assisted place. It could lead to an independent school candidate being ruled out of consideration even if on income grounds he or she was eligible and had previously only attended that independent school by virtue of, for example, a scholarship. If the amendment were passed, schools would not have the discretion to take account of individual circumstances such as that.
We believe that a balance has to be struck between the school's discretion over the selection of pupils and the conditions the Government attach to the exercise of that discretion. We believe that the present arrangements—the 60 per cent. I mentioned—strike an appropriate balance. I hope, therefore, that the noble Baroness will feel able to withdraw her amendment.
Baroness David: I do not find that a very convincing answer. If the young person has a scholarship, he or she is presumably not really in need of an assisted place. It seems to me that it really is pre-empting choice for other pupils. I am not in favour of the assisted places scheme but at least it ought to work fairly if it does work. This seems to be giving an unfair advantage to those children who are already in independent schools and their parents.
We may think again about this. I am not convinced by the Minister's argument but I shall not divide the Committee at this time of night. The provision seems to be very discriminatory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 94:
Leave out Clause 18 and insert the following new Clause—
EDUCATION IN PARTICIPATING SCHOOLS
(" .—(1) Sections 479 to 481 of the Education Act 1996 shall cease to have effect save to the extent that they shall continue to apply to provision made prior to the coming into force of this Act, whereby education is provided in participating schools as defined in section 479(2) of that Act.
(2) The Secretary of State may apply monies available to him for the purposes of the implementation of sections 479 to 481 of the Education Act 1996 prior to the passing of this Act and not required under subsection (1) of this section for such other purposes as he considers appropriate.").
The noble Baroness said: The effect of this amendment, as a replacement clause, would be to limit the assisted places scheme to its current provision prior

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to that which would be made with the coming into effect of the Act. It gives the Secretary of State the power to use the funding allocated to the proposed extension of the scheme for such other purposes as she or he considers appropriate.
We oppose the assisted places scheme, injecting as it does public resources into the private sector at a time when almost all areas of the public sector are being squeezed of resources. Furthermore, as my noble friend Lord Morris of Castle Morris has indicated, evidence suggests that the majority of places on the scheme do not necessarily go to children of parents on low income to increase opportunity, as the scheme is intended to do. Sir George Walden MP commented during the Queen's Speech debate that there are only two things wrong with the assisted places scheme—the principle and the practice. A further extension of the assisted places scheme to the independent schools providing primary education is an attempt to expand and revive the scheme and it is a misuse of resources.
The Government seem to believe that the education system in this country needs to be starved of resources with the exception of a small sector which they favour and to which they are prepared to give in some cases uncontrolled, unlimited and ever-expanding resources. The Government's belief that this is what the country needs and what the overwhelming majority of parents want to see could not be further from the truth. We on these Benches believe that at a time when the Government have taken money from local government and circulated nursery vouchers to parents—this is relevant because it is a case of coals to Newcastle—who are on the maximum income and whose vouchers are worth £1,800 a year approximately, as opposed to parents on the lowest incomes, they should relent for once and see that the majority of the nation's children should come first.
Giving cake to the few and meagre rations to the many is not a way to equip us for the future. I notice that the noble Baroness, Lady Young, was indicating disagreement when I referred to "meagre rations" for the rest. Parents in this country whose children are being educated in local primary schools with ever-increasing class sizes view that as meagre rations, while even the crumbs are kept on the rich man's table. I beg to move.
Lord Tope: I support this amendment. The Minister responded to the concern of the noble Lord, Lord Morris, that he had been unable to accept any Opposition amendment on the last two Bills—in fact they are the only two Bills that I have had to deal with—and explained it by saying that it was consistent. It is certainly that; we cannot disagree with that. The Minister is saying that he will consistently oppose amendments from the Opposition Benches regardless of the merits of the arguments and the strength of the case but simply on the grounds that they come from those Benches. At least we are clear now that our suspicions are well founded.
I never had any expectations of the Government accepting this amendment. We on these Benches have consistently opposed the assisted places scheme—and still do. It must follow logically from that that we shall
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oppose the extension of the scheme into the primary sector. The Government have consistently supported the assisted places scheme and I suppose that in their endeavours to spread it wider from their point of view it must be logical to extend the scheme to the primary sector. I have no expectations of the amendment, but nevertheless think that it is important.
The noble Baroness, Lady Farrington, explained all the reasons why in our view the scheme is a wholly inappropriate use of public money. On the previous amendment my noble friend Lady Thomas put it succinctly but extremely well. In her view—a view which all of us on the Opposition Benches share; I certainly do—government money should be used in what we might call "government schools". I hasten to add that I use the term loosely.
The assisted places scheme is a wrong priority for the use of public money. I said earlier that one of the problems facing this country's maintained education sector is its chronic underfunding. The additional money that is being used for assisted places would not go very far towards helping to ameliorate that chronic underfunding, but it would at least be a step in the right direction. In my opinion, this is very much a misuse of public funding. It is a wrong priority. As resources are always scarce, the priorities that we set for using that money are what is important. None of us will ever be able to have the resources to do all that we would wish, so we must prioritise. It is wrong to prioritise the assisted places scheme; extending the scheme to the primary sector is even worse. We resist that wrong priority. Therefore, I support the amendment most warmly.
9.30 p.m.
Lord Haslam: I have been wincing now for some time when listening to Opposition speeches about the assisted places scheme. I happen to be chairman of the governors of Bolton School, which has 2,000 pupils. We have over 550 assisted places. The present school buildings were endowed by the first Lord Leverhulme in 1926. One of his criteria was that any child in Bolton who had the academic ability to benefit from an education at Bolton School should have the opportunity irrespective of the financial circumstances of the family. That concept is revered in Bolton.
What would happen if the assisted places scheme was to be abandoned? As I have said, we have 550 assisted places and we could find at least 550 or even 1,000 parents prepared to pay the fees for Bolton School. The result would be that 550 talented children from humble families would be denied that education, but the Government would still have to finance their education elsewhere. To pretend that the assisted places scheme is a great bonanza is nonsense.
This matter needs putting into perspective. The Opposition are on the wrong track in trying to abolish the assisted places scheme. I come from Bolton and I have seen the benefits of the scheme for quite humble

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families whose youngsters have benefited enormously. It is nonsensical for the Opposition to talk in these terms.
Lord Henley: I am grateful to my noble friend Lord Haslam for his support for the scheme. I believe that that support is shared 100 per cent. on the Benches behind me.
The noble Lord, Lord Tope, implied that I was unbending, as did the noble Lord, Lord Morris, earlier, when he said that I refuse ever to accept any Opposition amendments. However, I have written to both noble Lords following Second Reading, setting out just where I was prepared to unbend a little and outlining a number of government amendments. Furthermore, the noble Lords are aware of the amendments that have been tabled by the right reverend Prelate—I appreciate that the right reverend Prelate does not sit on the Opposition Benches, although sometimes the Benches on which the right reverend Prelate sits can appear not dissimilar to the Opposition Benches—and I can give the teeniest weeniest hint that we might be prepared on Monday to accept the right reverend Prelate's amendments. Noble Lords also know that we listen to all the arguments that are put before us, as I explained earlier to the noble Baroness, Lady David.
I was somewhat concerned by the remarks of the noble Lord, Lord Morris of Castle Morris. When speaking to an earlier amendment he referred to those going to the private sector with support from either the Armed Services or the Foreign and Commonwealth Office. I believe that the electorate and all those serving in the Armed Forces and the Foreign and Commonwealth Office will be interested to know whether the arrangements from which they now benefit may suffer as a result of the faint possibility of a Labour Government coming to power. I believe that that ought to be spelt out to those who serve this country in both the Armed Forces and the Foreign and Commonwealth Office.
Lord Morris of Castle Morris: All of us are breaking conventions, and so will I. The noble Lord asks me a perfectly fair question. I will give him an answer. We have nothing against the service boarding school scheme. I simply point out what it costs.
Lord Henley: I am most grateful to the noble Lord. I imagine that his comments will be greeted with cheers throughout the land. However, I believe that it would have been more helpful had he spelt it out at the beginning because his earlier remarks might have caused some alarm.
I shall not spend time in outlining why this particular amendment is technically flawed, save to say that legally binding participation agreements govern the availability of assisted places at schools that currently participate in the scheme. Schedule 35 of the 1966 Act defines procedures for their termination. I say to the noble Baroness that, whatever she believes, the amendment is defective and does not achieve exactly what she wishes to achieve.
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Having said that, under this Government the assisted places scheme will continue and expand. My right honourable friend the Prime Minister has given a commitment so to do. We have no intention of providing for its phased reduction. On the contrary, we want to widen access for parents in every part of the country. That is why we are committed to doubling the number of places available and providing for preparatory schools to participate. Since its inception the scheme has supported over 80,000 children. Future generations should not be denied the same opportunities, as my noble friend Lord Haslam put it so well.
We believe in extending opportunities for pupils. The assisted places scheme plays a vital part in this process. It is achieving its objectives of giving access to some of the best independent schools to children who would not otherwise have been able to contemplate them. We intend to give twice as many children that opportunity and extend the scheme accordingly.
Despite the overwhelming success of the scheme, noble Lords opposite seek its abolition. We have heard much about their plans to use the funds released to reduce class sizes in the maintained sector. But it is not clear whether their figuring takes account of the costs of educating children who would otherwise have benefited from the scheme in the maintained sector. A range of figures has been quoted. What is clear is that savings from the abolition of the assisted places scheme would not cover the cost of a maximum infants class size of 30, as has been proposed on a number of occasions. A recent report by the Institute of Public Finance demonstrates that savings from abolition would be at least £250 million short of what is required by the party opposite.
We do not accept that any arbitrary limit on class sizes would have a significant effect. As Her Majesty's chief inspector has made quite clear, the educational benefits of small reductions in class sizes are not proven. Such a limit would restrict the head teacher's discretion to make the best use of his resources. In stark contrast, spending on the assisted places scheme provides very real benefits for thousands of children. Recent research by the London School of Economics, which is so well represented on the Benches opposite, confirms that assisted places pupils achieve better A-level results than their counterparts of similar ability in maintained schools. I hope that with that explanation the noble Baroness will feel able to withdraw her amendment.
Baroness Farrington of Ribbleton: In considering the response of the Minister, my understanding of this amendment is that it deals with the non-extension of the assisted places scheme. The Government and the Minister may repeat for evermore that if a child is in a large class to reduce the class size by a small amount makes no difference and that only if one is able to reduce class size to that being considered in assisted places schools can there be a difference. It may convince those whose children are already in small classes, but those of us whose children are educated in large classes know that, if a teacher has to deal with one, two or three extra children, particularly if those one, two or

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three extra children have non-statemented special needs, the amount of time the teacher can spend with them is reduced.
Nothing we on these Benches have said can have caused the Minister to end up wondering where in the Committee are the Benches upon which the right reverend Prelate the Bishop of Ripon sits. The Benches have not moved. The Government have moved. The Government have moved away from the Conservative philosophy of my childhood, which sought to extend opportunities to more and more people. This surplus places proposal, extending the expenditure of public money to a small number of children who the Government have admitted are selected on grounds of ability, and who are not within the large bulk of average and below average attainment children who need help and additional high quality teaching, is a foolish and folly-driven plan.
With the Committee's agreement I shall withdraw the amendment, but I find it tragic that those who speak on the Government Benches seem to feel that, with the exception of a few who are lifted out of large classes, to take money from the rest and worsen their education opportunity is acceptable. On these Benches we can never accept that. I beg leave to withdraw the amendment.
Lord Carlisle of Bucklow: The noble Baroness and I come here from the same area of the country. I had something to do with the introduction of the assisted places scheme. Does she agree with me that the education provided at Bolton Grammar School, Blackburn's grammar school, Manchester Grammar school, and Bradford Grammar School, is of a standard which should be open to those other than those whose parents can afford to pay the bills? Surely the whole purpose of the assisted places scheme was to give to the bright child from the inner city the opportunity to benefit from those advantages. As someone who was involved in the inception of the scheme, I am bound to say that I have never understood the Labour Party's objection to it. I bitterly regret that New Labour appears to be equally opposed to it.
Baroness Farrington of Ribbleton: We remain opposed to it. The answer to the noble Lord's question is simple. It would be inaccurate and churlish to deny that the schools he mentioned are good schools. It would be equally unacceptable for me to deny the existence of excellent comprehensive schools, grant-maintained schools, and comprehensive voluntary aided schools in the North West.
All the evidence, including the evidence provided by the Government, shows that children with higher than average ability do well in the comprehensive system and achieve well. They make up a large percentage of the children who go on to university as a result of the increase in the number of pupils going to university and into higher education. None of us on these Benches nor any Member on the Liberal Democrat Benches seeks to deny that the majority of schools to which pupils are sent with public money under the assisted places scheme are good schools. That is not the point at issue. The
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question is whether more money needs to be spent on sending them to such schools rather than sending them to equally good schools in their own locality as part of the comprehensive system. Our attitude is not churlish. This is an unnecessary diversion of public resources and it is not necessary for the ablest young people in our country that those resources are diverted.
Lord Haslam: I wish to underline something that I have already said. Bolton School is very high in the league tables; higher than Manchester Grammar School, which is a very renowned school. Out of 2,000 pupils it has 550 with assisted places. If in future those 550 places were to be abolished, we could fill them by means of willing fee-paying parents. Therefore, the Government will not have an extra bundle of money but indeed will have to educate 550 pupils elsewhere. Hence, there will be no pot of money available to reduce class sizes.
9.45 p.m.
Baroness Farrington of Ribbleton: The subject of the amendment is whether the assisted places scheme should be expanded. The subject of the amendment is not that there are no places for pupils and therefore the Government are buying places through the assisted places scheme. The noble Lord who has just spoken—forgive me, but I do not know his name—referred to the fact that pupils are going to Bolton School and that money is being spent there. During the period of the assisted places scheme, the Bolton education authority has to my knowledge carried surplus places in schools which could have been filled by those pupils.
The noble Lord, Lord Haslam, knows well that if two more pupils are taken into a class of 12 learning French one does not have to provide an extra French teacher.
I do not seek to denigrate Bolton School. I am aware that it has excellent results. However, on behalf of those schools which take pupils with moderate and severe learning difficulties, whose pupils are counted for league table comparisons with Bolton School, I am bitterly resentful of the comparisons that are made. The issue of comparing like with like is one of the most important in establishing how we measure educational attainment. To the best of my knowledge, under the assisted places scheme or outside it, Bolton School does not take children with moderate or severe learning difficulties. It cannot then ask to be compared with schools which do.
We all know that an important issue is being debated here. I have no vested interest. On 1st May I shall seek to be a county councillor in the Lancashire County Council, but Bolton is no longer in Lancashire. I have no interest, but I demand that when we discuss the results of Bolton School we do so on the basis of fair comparison with the schools which take children with moderate and severe learning difficulties and with those which serve the entire community regardless of the child's ability, be they voluntary-aided or comprehensive in the maintained sector. I believe that those comparisons are important.
When resources are scarce, I believe that we should garner them wisely and spend them on those children whose results show the greatest need for additional

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support and help. It is my belief—and all the research shows this—that those who would be selected by Bolton School would do well in all schools. The level of their results would be as high. The average is dragged down when schools serve those with special educational needs. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 [Responsibility for discipline: LEA-maintained schools]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 95:
Page 16, line 29, after ("shall-) insert ("in consultation with the local education authority and, in the case of a voluntary school, the body which appoints its foundation governors").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 96 and 99. The purpose of the amendments is to ensure that the LEA or, in the case of voluntary schools, the relevant diocesan authority is consulted on school behaviour policies; and that the governors of maintained schools have regard to the advice issued on that subject. The amendments will also require grant-maintained schools' governors to be aware of the plans and policies of the relevant LEA.
These amendments are very straightforward and are simply intended to acknowledge on the face of the Bill the role which LEAs have in supporting schools in drawing up and implementing sound and effective pupil behaviour policies at school level. LEAs routinely offer guidance and advice to schools on a wide range of matters. Teachers, governors, parents and the wider community accept and value that as a vital element of the LEA's role in supporting and promoting the efficient and effective running of schools.
The Bill as currently drafted rightly acknowledges that, in drawing up individual school policies to promote good behaviour and discipline, the governing body should have regard to any guidance which the Secretary of State may give from time to time.
The Bill does not appear to acknowledge the contribution which LEAs similarly can and do make, and indeed which the Bill requires them to make. These amendments are intended to rectify that apparent oversight. LEAs have considerable expertise and experience in the administration and management of schools. They have a unique contribution to make in the provision of support to local schools. As a chair of governors of a county primary school, I know that that support is of outstanding value. I hope that these amendments can be accepted. I beg to move.
Baroness Thomas of Walliswood: We now come to a part of the Bill which is a good deal less contentious than the one that we have just left and where the Government can reasonably claim to have hit several spots quite well. These amendments suggest a small but significant change to their proposals. I hope that the
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Government will be moved to indicate that the amendments are not entirely out of order or, perhaps, even to accept them.
Lord Henley: As the noble Baroness, Lady Thomas, said, we have come into calmer waters. I have got through Clauses 1 to 19, possibly bloodied but unbowed.
We believe that it is important that the head teacher and staff should be seen to be implementing and operating a behaviour and discipline policy with the full support of the governors. That is why we are placing a new duty on the governing body to draw up and review periodically a written statement of general principles upon which the head will determine the school's discipline policy. By so doing, we have increased the role of the governing body in promoting good behaviour and discipline within the school. Many governing bodies already do this, but that good practice needs to be disseminated more widely. Clauses 19 and 20 will ensure that every governing body determines the broad principles for its school's behaviour and discipline policy.
It is clear that the governing body and head teacher have distinct roles in that process: the governing body makes the statement of general principles; the head teacher determines the measures which make up the school's code of conduct. Each school is unique. The behaviour and discipline policy needs to reflect the particular circumstances of each school and of its pupils. We believe that the governing body and head teacher are best placed and have the principal roles in determining that. It would be impracticable to impose a blanket policy on all schools in an LEA or diocesan area reflecting those bodies' priorities or philosophies on disciplinary matters. If I may say so, that would be the implication behind, and potential unwelcome effect, of the amendment.
Since the Education Act 1988, schools have been autonomous in a significant number of ways. Even before the 1988 Act, the measures for maintaining behaviour and discipline were determined at the school level. We believe that schools are best placed to carry this out. They are, of course, free to seek the advice of the LEA and diocesan authorities as they see fit. But I do not think that it is sensible to require them to do so. For that reason, I certainly would not want to go down the line proposed by the noble Baroness, although I appreciate the good intentions behind Amendment No. 95.
As for Amendments Nos. 96 and 99, when the governing body is making its written statement of general principles it will be important that it should have access, as needed, to guidance on pupil behaviour and discipline. That will ensure that the governing body is as well informed as possible about these important issues. That is why Clauses 19 and 20 require the governing body to have regard to any guidance given from time to time by the Secretary of State.
I believe that many noble Lords will be familiar with our circular of guidance 8/94, which I bring forward again as an exhibit, issued in May 1994 which dealt specifically with pupil behaviour and discipline. It built on the findings of the report of my noble friend

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Lord Elton of 1989 entitled, Discipline in Schools, and offered guidance to help schools maintain good behaviour. I am pleased to see that my noble friend is present in the Chamber this evening. The report gave advice—and I stress that it was advice—among other things, on the responsibilities of head teachers and governing bodies; and it encouraged them to develop whole-school behaviour policies. I believe I can say both to Members of the Committee and to my noble friend that it was genuinely well received and widely used. We intend to build on that guidance in the light of the provisions on discipline in the Bill and on further consultations with all appropriate interested parties.
There is some attraction in the amendments put forward by the noble Baroness. But the effect would be specifically to require the governing body to have regard to any guidance given either by my right honourable friend the Secretary of State or by the LEA. That could have far-reaching implications for how a governing body approached the important task of making its statement of general principles.
No two LEAs are identical in every respect; indeed, the noble Baroness will know that better than I do. Their approach to, or their philosophy about, pupil behaviour could differ markedly and the guidance could be variable in quality. More importantly, a governing body could be faced with guidance from an LEA which conflicted with or contradicted that from the Secretary of State; for example, on which particular sanctions to use as a reasonable response to a disciplinary incident.
Further, Amendment No. 99, which relates to grant-maintained schools, would be wholly inappropriate. Grant-maintained schools are self-governing and, as a result, are independent of LEAs. It would, therefore, be quite inappropriate to require them to have regard to any guidance given by the LEA. It would be for GM schools themselves to decide whether or not to do so. With that explanation, I hope that the noble Baroness will feel able to withdraw her amendment.
10 p.m.
Baroness Ramsay of Cartvale: I am afraid I join the ranks of the disappointed on these Benches tonight. The response of the Minister is rather mean spirited. All the amendments sought to do was to put on the face of the Bill an acknowledgment of the role that LEAs play in the general advice they give to schools. The amendment states,
"in consultation with the local education authority".
Therefore there is no question of LEAs imposing any blanket formula on schools and certainly not as regards a whole LEA area. I am sure the Minister is well aware that that is not what happens in these cases in local education authorities. Local education authorities can lay down some principles and give advice but each individual school and governing body makes its own decisions on whether to accept them, reject them or amend them. The fears that the Minister expressed about a blanket imposition from an LEA do not stand up. As it is late and I do not wish to
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divide the Committee I shall reserve our position to think again; in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Baroness David Baroness David moved Amendment No. 97:
Page 17, line 5, at end insert—

("(c) the registered pupils at the school, and

(d) teaching and non-teaching staff at the school.").

The noble Baroness said: As the noble Baroness, Lady Thomas, and indeed the Minister, said, we are now moving into rather calmer waters. I think there is a certain amount of agreement about what happens in the ensuing clauses.
We are trying in a number of amendments to improve the Bill and to make what the Government propose just that little bit better. I hope that the amendments will be accepted in the spirit in which they are proposed. I am delighted to see the noble Lord, Lord Elton, is present. I shall refer to him and I may echo a few of the points that the Minister has just made.
In moving Amendment No. 97, I shall speak also to Amendment No. 98. The amendment requires governors and head teachers to give consideration to the views of pupils, staff and parents on discipline measures. It seems to me an obvious amendment.
The amendment places a duty, first, on the governing body when drawing up the general principles underpinning the behaviour policy, and, secondly, on headteachers when determining the details of the policy to seek to give due consideration to the views of pupils, staff and parents. At Commons Committee stage the Government agreed to amend the Bill so as to require the governing body to consult with heads and parents on the general principles. The amendment to subsection (3) was introduced at Commons Report stage. It seems strange that the Government declined to accept the involvement of the school staff and pupils in this process, given that they are both in situ and crucial to the success of the policy.
It is perhaps important to note that the amendment does not give pupils, staff and parents any powers to decide these measures; it simply represents the commonsense principle that measures will be more effective if the whole school community has been involved in the process of drawing them up.
The amendment represents the advice of the most recent government guidance on Pupil behaviour and discipline (circular 8/94) to which the Minister has just referred, reflecting the recommendations of the government inquiry chaired by the noble Lord, Lord Elton, into Discipline in schools in 1989.
That report recommended all schools adopt a "whole school behaviour policy". This was accepted by the Government who sent out guidance after the Education Act 1993 with the express aim of,
"encouraging a whole-school approach to behaviour and discipline".

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As regards pupils it said:
"Schools can … nurture a greater sense of responsibility in pupils, and greater commitment to the aims of the school, by encouraging them to discuss the aims and rules of the school … Many schools have found that pupils can play a positive role; for example in exposing bullying in their school, in helping design play areas … Schools' councils … are possible means of encouraging pupils to become involved".
The recent Ofsted report Exclusions from secondary school noted:
"The great majority of schools (and almost all high excluders) made little effort to involve pupils themselves in fostering and setting high standards of behaviour. The senior pupils interviewed by HMI showed a perceptive understanding of the strengths and weaknesses of their schools and a broad appreciation of what the staff were trying to achieve, yet they felt insufficiently consulted or trusted by staff; expectations of behaviour were set by staff. Sometimes this lack of trust was reciprocated, and a quite unnecessary distance between staff and pupils grew, as it were, by default".
As regards staff, it should go without saying that a good head teacher would involve his teaching staff in the formulation of the school behaviour code. The amendment, however, refers to "staff' which includes the non-teaching staff. This is deliberate because, for example, it is playground and lunch supervisors who are at the sharp end of dealing with disruptive pupils and incidents of bullying or vandalism. It is obvious what the amendment seeks to do and I hope that the Government will accept it. I hope, too, that I shall have support from the noble Lord, Lord Elton, who advised this policy in his report. I beg to move.
Lord Elton: I thank the noble Baroness for her kind remarks and my noble friend for his. I welcome the introduction of a whole school policy with statutory force. I believe that that goes in entirely the right direction.
However, I should like to reassure the noble Baroness that if I understand the Bill as drafted her amendment is unnecessary and might detract from the simplicity of the process that should take place. I agree with her that it is necessary to involve both the teaching and non-teaching staff and the pupils in the generation of school rules and a school discipline management system. But the process starts with the governors and the head teacher agreeing the sort of school it is, the governors laying down the policy. That is not a level at which involvement of the children can positively be encouraged, in particular in a large school. It would not have the benefit that the noble Baroness suggests. She drew attention to instances where there was a gap between, not the governors and the pupils, but the staff and the pupils. The stage at which consultation should take place is when the aims of the policy have been set by the governors and the method of the policy is arrived at by the head teacher with his staff, both academic and otherwise.
If I understand correctly—my noble friend will tell me if I am wrong—when drawing up the policy under subsection (5)(b) the head teacher shall,
"have regard to any notification or guidance given to him under subsection (2)(b)".
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The head teacher has to have regard to what the governors advise and in preparing that advice the governors have to have regard to what the Secretary of State advises. At present what he advises is in circular 8/94. Paragraph 19 states:
"The policy should be discussed with parents and pupils, and should feature in the annual report to parents".
In other words, in his circular or guidance the Secretary of State is in a position to direct the governors to advise the head teacher to evolve the policy in the only way that really works: that is, to obtain the support of the children by giving them the feeling that they, in some way, own it. When we wrote the report, we saw that policy working and it is magic.
Lord Henley: I am most grateful to my noble friend for quoting from circular 8/94. As I mentioned, I have a copy in front of me, open at paragraph 19. It was not planted on my noble friend but I have highlighted exactly the same extract from which my noble friend quoted. Paragraph 19 also makes it clear earlier on that, although the governing body should take a clear lead in proposing principles and standards, the school's behaviour policy should be worked out in a spirit of co-operation with the head teacher and the whole of the teaching and non-teaching staff.
I entirely agree with the noble Baroness about the importance of involving pupils and staff, whether teaching or non-teaching, in the development of the school's disciplinary code. That is clearly good practice. It is recommended in Circular 8/94 which has now been in existence for three years. I shall make sure that the point is given added emphasis in the revised guidance that we shall need to issue following the enactment of the Bill. As always, I can assure the noble Baroness that the revised guidance will go out to consultation, so she will have her opportunity to make comments on it.
However, the important issue here is at what stage in drawing up the school's discipline policy it would be most beneficial to involve pupils and staff. It seems to us that the nature and timing of such involvement will need to vary to fit the circumstances of individual schools. Some may consider that the involvement should be before the governing body makes its statement of general principles. Others may take the view that it would be sensible and more beneficial if the head teacher were to consult pupils and staff when determining the school's rules and codes of conduct and their day-to-day application. Circular 8/94 offers an illustrative model of how the head could involve others in the school community in developing the discipline policy.
I do not wish to sound as though I am totally rejecting the noble Baroness's amendments—which of course I am—but I am not convinced of the need to put this on the face of the legislation, nor of the need to write the particular details that we have in the amendments. They could well constrain the dialogue which the noble Baroness, my noble friend Lord Elton and I would like to see happen. Difficulties could be created in formalising it. There would be the obvious problem as

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regards nursery and infant schools. The necessary flexibility can on this occasion be much better encompassed in guidance than in primary legislation.
Therefore, with that explanation, which was as sympathetic as I am sure the noble Baroness would expect, I hope that she will feel able to withdraw her amendment.
Baroness David.Baroness David. Perhaps I may ask a question. Circular 8/94 was obviously highly praised and admirable in every way. But is it actually working? It is nearly three years since it came out. Are we satisfied with what is happening? Discipline in schools is a very tricky point.
Lord Henley: We heard late last year of one or two problems about discipline in schools. I suspect that whatever code of practice and whatever polices are pursued by a school, that will always be the case. As we all know as parents, by their very nature children can often create disciplinary problems. The system is working well but, as I made clear, the guidance, good though it is, will need a degree of revision in the light of the Bill.
As I said to the noble Baroness, when the Bill gets on the statute book and we start producing new guidance, we shall put it out to consultation, as always.
Lord Elton: Before we close the discussion, I wish to put on the record in support of the noble Baroness—though not of the amendment—the great importance of involving the non-teaching staff. It is essential that all teachers understand and adhere to the policy and that all other members of staff do so as well. It is just as easy to have a really ugly incident happen in the dinner break under the care of non-professionals as it is in the classroom. We noticed that, having expected things to be quieter in the afternoon because of the spotted dick and other heavy consumables that had gone down the red lane, we found a considerable increase in disorder and activity. It was because at that time dinner breaks were not properly supervised. Two of my colleagues witnessed the unintentional but very skilled escalation of a private quarrel into a general riot by the well-meaning dinner lady. So the head teacher had to be brought in to quell it.
I have many anecdotes, but I just want to say that everyone must understand the code and obey it. If teachers expect pupils to be courteous, the teachers must be courteous. If the teachers expect the pupils to be well dressed and properly turned out, the teachers must be well dressed and properly turned out. Otherwise it all becomes hypocrisy and does not work.
Baroness David: It has been very interesting and indeed fascinating to hear the noble Lord's contribution. I shall of course have to read it in Hansard. Perhaps I may make just one comment. The Minister spoke about primary school pupils and nursery school pupils not being able to be involved. I believe that it is perfectly possible for the teacher to have discussions with the class about discipline and how the children should behave. That is quite possibly
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because they cannot make written contributions or whatever. Discussion is very good. I do not want to rule out primary pupils and even nursery pupils from the whole discussion.
I have had a fairly sympathetic response from the Minister. It is just a case of whether or not this point should be written into the Bill. I should like to read carefully what both the Minister and the noble Lord said before deciding whether it is worth bringing back this point at a later stage. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98 not moved.]
10.15 p.m.
On Question, Whether Clause 19 shall stand part of the Bill?
Lord Elton: I am sorry not to have given notice of my question. In new subsection (7)(b) the head teacher is required:
"in particular, at least once in every school year, [to] take steps to bring [the rules or the policy] to the attention of all such pupils and parents and all persons employed at the school".
In many schools English is not the first language and in some cases it is not a language at all of the parents. I merely ask my noble friend, after due thought perhaps, to let me know what provision there will be to ensure that such vital information is transmitted to parents who are not familiar with the English language. Even if pupils bring back the incomprehensible document, they can tell their parents that it means anything that the children like. That is very dangerous. I know of a large school in London where a charity with which I am concerned is launching a mentoring scheme and there is a difficulty in that the parents do not know anything about the school rules or anything at all about the school except what the children tell them, which often is nothing. That has a disastrous effect on discipline.
Lord Henley: My noble friend makes a very good point. Also, the children might not tell the parents nothing but tell them something which is in fact wrong. My noble friend's point is that there are a number of schools where there are a large number of non-English-speaking parents whose children's mother tongue is not English. In the main, most of those schools have fairly good arrangements about communicating with their particular parents.
I should like to consider the point made by my noble friend and perhaps I may write to him in somewhat greater detail about the kind of arrangements that we expect schools to make in those circumstances.
Clause 19 agreed to.
Clause 20 [Responsibility for discipline: grant-maintained and grant-maintained special schools]:
[Amendment No. 99 not moved.]
Clause 20 agreed to.
Clause 21 [Power of numbers of staff to restrain pupils]:
Baroness David Baroness David moved Amendment No. 100:
Page 19, line 23, leave out from ("himself)") to end of line 28.
The noble Baroness said: In moving Amendment No. 100 I shall speak also to Amendment No. 101. These are probing amendments. Clause 21 seeks to give staff members of schools power physically to restrain pupils who are injuring persons or damaging property. It is welcome to members of a joint working group of the Council of Local Education Authorities (CLEA) and the teachers' organisations, which has produced guidelines to deal with allegations of physical or sexual abuse made against classroom teachers and heads. The working group is aware of many allegations made against teachers which would have been difficult to sustain had teachers the right physically to intervene in a range of situations; for example, from fighting between pupils and bullying to destruction of property. Existing common law rights are not sufficient by way of a reassurance to teachers faced with the need to act.
It is unfortunate that the new clause was needed, but it was accepted at Report stage in the House of Commons. I have a briefing, the meaning of which is not very clear to me. Perhaps I can read it because apparently it contains genuine queries which should be resolved. It states:
"There are, however, two aspects of the clause which CLEA and the local education authority associations believe should be explored further. First, 37A(1) and sub-clauses (a) and (b) are precisely to the point; (c) is less so because it is altogether more subjective and begins to blur the otherwise clear difference between physical restraint and corporal punishment. The Government should be asked to provide illustrations of circumstances in which, while no pupil was committing an offence nor causing injury to, or damaging the property of, any person, yet it was necessary for a member of staff to use force to change these circumstances.
"Secondly, and arguably more seriously, the Government should be asked to reconsider sub-clause (4) which defines 'member of the staff', in relation to the school as a teacher and any other person who, with the authority of the head, has lawful control or charge of pupils at the school. At present the definition includes, for example, classroom assistants, laboratory assistants, welfare assistants and parent and other volunteers in respect of whom there can be no guarantee they will have received appropriate training either in the necessary skills to be employed in physically restraining children and young people or in the particular circumstances when the use of force is appropriate".
"If members of the Lords are not satisfied with Government responses to questions on sub-clauses (1)(c) and (4), then it is recommended that support for clause 37A be confined to (1)(a) and (b), (3) and (4), subject to a re-definition in (4) of 'member of staff' to be restricted to a teaching member of staff".
I apologise that the wording is not clear, but there may be some genuine queries in the briefing. That is why I read it out. I do not understand it, but I hope the Minister will have a good response from his civil servants. I beg to move.
Baroness Thomas of Walliswood: There is a wide welcome for the statutory enactment of what has been the common law position with regard to teachers' rights; that comes in the first part of this clause. The noble
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Baroness, Lady David, tabled two amendments as probing amendments and I look forward with interest to the Minister's reply.
Lord Henley: The noble Baroness, Lady David, did not understand what she was saying and I must admit that I too have some doubts about it. I will read Hansard carefully and there may be some points to which I need to respond.
It may help if I say a little about what the clause seeks to do. It is intended to help teachers, and on all sides of the Chamber we welcome that, as the teacher unions welcome it. Its purpose is to clarify the circumstances in which teachers and other staff—it is important that other staff be included—authorised by the head teacher may use reasonable force where necessary to stop pupils from harming themselves or others, committing a crime or causing serious disruption.
As we all know, at present many head teachers and teachers—we hear this from the unions themselves—are afraid to lay a finger on pupils for fear of being accused of assault of one kind or another. There have been cases of teachers being investigated by social services departments or by the police for trivial instances of restraint of pupils such as intervening to break up a playground fight. Obviously that is not right and we feel that teachers should be afforded some protection from charges of assault which can arise in those situations. We believe that keeping discipline is a major part of a teacher's job. Again, I think there would be general agreement on that.
Teachers, and other supervisory staff, should be allowed to use physical restraint in certain prescribed circumstances without fear of prosecution. I stress, though, that this has absolutely nothing whatever—I say this knowing the concerns of the noble Baroness, Lady David—to do with corporal punishment. That, in the maintained sector, remains unlawful. Prevention and punishment are two very different things.
I must also emphasise that where a teacher has to restrain a pupil, he or she may only use such force as is reasonable in the circumstances. Ultimately it is for the courts to decide what is reasonable or not in the circumstances. It is not something the department can lay down. But I can say that we shall issue detailed guidance on the use of physical restraint, again, after consulting with the relevant interests. I have to stress again that what is or is not reasonable has in the end to be decided by the courts.
I shall look carefully tomorrow at precisely what the noble Baroness had to say. Should I feel that it is necessary to respond to any further points, I shall be more than happy to do so.
Baroness David: I thank the Minister for that reply. I am very pleased indeed that he has repeated that there is no question of bringing back corporal punishment in schools. I just wish that it was also forbidden in independent schools. It is quite ridiculous that it is not. I am grateful for his response. I hope that this rather mysterious amendment will become clearer in the course of time. I do not know whether the Minister

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might be willing to write to me if he manages to discover anything more about it. I should be grateful if he would. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 101 not moved.]
Clause 21 agreed to.
Clause 22 [Detention outside school hours lawful despite absence of parental consent]:
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 102:
Page 20, line 39, after ("given") insert ("directly").
The noble Baroness said: In moving this amendment I shall refer briefly to Amendment No. 103. Amendment No. 102 deals with the issue of parental notification with regard to a child being detained outside school hours. All parents have come across the situation where notices that came from the school may have been slightly reluctantly accepted for delivery by pupils and have occasionally ended up in the pocket of school clothes in the wash rather than being handed to the parents. There is also the forgetting to give the parent the notice and the quite genuine case of the parent not being given information.
If we are to have good relationships between home and school it is important that the home knows what is happening. It is also important because in a variety of circumstances, particularly with the older pupil of, say, 14, the parent may assume that he or she is carrying out a responsibility with regard to younger siblings such as being available when they are home from school. The amendment is quite clear. Anyone who has had children knows that they have a marked reluctance to pass on bad news. If we are to have good relationships between home and school, this is a good way of achieving them.
The 48 hours' notice in rural areas would allow for the direct transmission of information and the possibility for parents to make alternative provision. I recollect that on previous occasions the Minister has said that this would be a normal practice in rural areas. I believe that it would be helpful to strike a good balance between the crime being committed, whatever it is, and the punishment following shortly afterwards and ensuring that there is adequate time for parents to make alternative arrangements.
We are dealing with wording that is put on the face of the Bill. We have to consider that there are occasions—I say this as someone who has very seldom come across them, but I am sure that even the National Association of Headteachers and CHA would accept it occurs once in a blue moon—when a head teacher may behave unreasonably. It is remotely possible. I know that it will come as a shock to most Members of the Committee who have never come across it, but it is a very serious point.
We tend to talk about the relationship between home and school as though it was always dealing with two parties who are in a state of calm deliberation and making judgments very carefully. Just occasionally things go wrong at the school end and at the home end. I am talking about a time when one of the parents may be terminally ill and there may be enormous stress
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within the family. This is a mere safeguard, and it would not be required on many occasions. But as the Government propose to put 24 hours on the face of the Bill in rural areas not less than 48 hours would be appropriate. I beg to move.
10.30 p.m.
Lord Henley: The noble Baroness suggested possible criticisms of the NAHT and CHA. I would never wish to do that.
Baroness Farrington of Ribbleton: Neither would I. I said that even NAHT and CHA, whose opinions I respect at all times, may have to admit that just occasionally a head teacher, possibly not even one of its members—probably not one of its members—could behave in an unreasonable way.
Lord Henley: Even Homer nods and even I occasionally might get certain things wrong. I return to the amendments. We want detention, as I believe do Members of the Committee opposite and the noble Baroness in particular, to be an effective punishment in the armoury of sanctions available to schools. Clause 22 therefore allows a pupil to be detained on disciplinary grounds after the end of the school session without the consent of the parent. That does not give the schools an unqualified right to impose detention. That is why we have specified on the face of the Bill, among other things, the requirement of at least 24 hours' written notice. I make it clear to the noble Baroness that detention can only be used where reasonable. If, for example, the child was unable to get home the school would have to find some other form of punishment. The noble Baroness gave the example of a child over the age of 14 being wanted at home to look after a younger child. That would be appropriate.
I believe that 24 hours' written notice allows for that to take place. The Bill requires that notice to be given by effective means. Pupil post could be an effective means of giving that notice but only if backed up by a phone call. We all know what happens to those odd little messages that get stuck at the bottom of the satchels of much younger children. Obviously, all that will be covered in the guidance that we shall put out to the schools.
Turning to the second part of the amendment, I am not persuaded that a pupil's parents in a rural area need the extra 48 hours' written notice. The requirement of 24 hours reflects the response to our consultation on this new statutory framework. Our original proposal required parents to be given at least two days' written notice in all cases. Many respondents argued that two days could be too long. It would weaken the effectiveness of the sanction by delaying its imposition. That is something well worth bearing in mind. Many schools, including those in rural areas, argued that one day's written notice was sufficient and already worked well in practice. We accepted the force of those arguments. I accept that it is a question of balance here, but we feel that 24 hours are better than the 48 hours that have been suggested for rural areas. Therefore, I hope that the noble Baroness will accept that, although these are difficult balances to

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get right, we have come to the correct decision. We shall ensure that appropriate guidance is given on making sure that the information reaches the parents by the most effective and appropriate means.
Lord Elton: I endorse what my noble friend said about the immediacy of punishment. The effectiveness of a punishment diminishes with delay. Therefore, unnecessary delay is to be avoided, but the safety of the child is an important consideration, as is the parent's knowledge of the child's whereabouts. My noble friend said that a telephone call would do it, but an awful lot of parents do not have a telephone, so some other means must be found. That point needs to be borne in mind when writing the guidance.
Lord Henley: I accept my noble friend's point. Obviously, the guidance will reflect that point. We were talking about written notice going by means of what I understand is called "pupil post", but in those circumstances and knowing well what the little mites can do with the notes that are sent back with them, such communication might be more appropriately backed up by means of a telephone call.
Baroness Farrington of Ribbleton: The Minister was right when he said earlier that he should at least give careful scrutiny to those bearing gifts. The gift that I bring him (because I believe that his children are fairly young) is the information that the capacity of the fairly young child to lose things at the bottom of his satchel is as nothing compared to the capacity of the 14, 16 or even 18 year-old to lose information. The Minister has not yet got to that stage, but I ask him when drafting the guidelines to bear in mind the fact that on this sort of front things occasionally get worse before they get better. With those words of warning to the Minister and in the hope that he will take advice from his noble friends behind him who are smiling in agreement with the points that I am making, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 103 not moved.]
Baroness David Baroness David moved Amendment No. 104:
Page 20, line 46, after ("case;") insert—
("( ) whether regard has been had to the safety of the child, the length of the walking route between the school and the pupil's home having regard to his age, and whether the cost of transport if required would be available to the school other than from resources otherwise allocated in its annual budget;").
The noble Baroness said: This amendment would add reference to the length of the walking route and additional transport costs as issues to be taken into account in considering whether a child's compulsory detention is reasonable.
The issue was debated in another place, when the Minister of State argued that it was unnecessary to put such a reference on the face of the Bill as it already contained the all-inclusive phrase "any special circumstances". He argued that the sort of detail that the
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amendment seeks to introduce into the Bill is best dealt with in guidance - doubtless "after further consultation", a phrase that we seem to hear a good deal.
The purpose of tabling the amendment is to seek information from the Government as to what progress has been made on the drafting of suitable guidelines and to seek assurances as to the nature and timetable for the consultation on guidelines upon which the Minister gave a commitment. The Minister apparently offered assurances that there would be no cost implications for schools and made clear the Government's position that the responsibility for transport arrangements should lie with the parents. I beg to move.
Baroness Thomas of Walliswood: I rise to add my support for the words of the noble Baroness, Lady David.
Lord Henley: I think I have got this right and that the noble Baroness is really putting this amendment forward as a probing amendment to ask where we are on the guidelines—sorry, on the guidance. I can remember one Bill on which we had long arguments about the difference between "guidelines" and "guidance". Fortunately, that is not a problem that we have today. I prefer to write to the noble Baroness explaining exactly where we are with the guidance and what it will and will not include. As always, I repeat—for the umpteenth time—that when the guidance appears we will consult upon it. We shall welcome the views of the noble Baroness as well as those to whom we will send the guidance for consultation.
Baroness David: Given the Minister's response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No.105:
Page 21, line 17, at end insert—
("(6) Any failure by the pupil to attend a detention shall not constitute grounds for exclusion under section 23 below." ").
The noble Baroness said: I beg to move Amendment No.105. Clause 22 provides that a school may impose detention outside school hours without parental consent. This amendment would ensure that failure to attend such a detention would not of itself constitute grounds for exclusion.
Exclusions continue to rise and pose a problem for the education system. Refusal to accept detention or to attend one imposed without parental consent should surely not be grounds for exclusion of itself unless there are other associated factors. There is otherwise a real risk that detention may lead to a more confrontational approach between schools and parents and to further increases in exclusion. This amendment, even if unsuccessful, provides an opportunity for the Government to record in Hansard that failure to comply with this new legislation will not necessarily be grounds for exclusion. This must make sense, not least if non-attendance is due to sickness, failure to make transport arrangements and so on. Such a statement might help to reduce any further pressure on the exclusions system.
It may be useful to refer back to experience of corporal punishment when that was available for use in schools. Many LEAs would have had a number of exclusions cases running a year where a school had suspended and then excluded children because of their or their parents' refusal to accept corporal punishment. The problem would have been exacerbated if neighbouring schools had run the same policy. Is there not a danger that this problem might be recreated? The simple question is whether, if a parent refuses detention for a child or if the child refuses to be detained, there are reasonable grounds for exclusion and, if the child is then excluded, whether it will be a justifiable response by a school or an LEA, in considering whether to direct re-admission, that the child or parent had refused detention. It would be helpful to have an answer to this in Hansard. At the very least the DfEE must be pressed to provide clarification about this in its exclusions document.
Lord Henley: I regret that I am unable to give the noble Baroness the assurances that she seeks. We have already made clear that it is the head teacher who is responsible for determining measures to secure discipline and good behaviour in schools. The head is responsible for enforcing the school's discipline policy on a day-to-day basis. If a pupil fails to attend detention given within the provisions of this clause for a disciplinary offence I believe that it is for the head teacher to determine how the pupil should atone for that non-attendance and the original misbehaviour that led to that detention. Normally, that would call for a more severe sanction. I agree that the disciplinary offence for which the pupil has been given detention may well not be one which in the normal course of events warrants exclusion.
However, what follows detention in a school's hierarchy of sanctions is for the head to determine. There may be circumstances in which the head will give the pupil a fixed term exclusion for failing to attend a detention. Such cases will be relatively rare. During that time efforts could be made to reach an accommodation with the parents about that detention. If that failed and the circumstances were repeated and the pupil and parents continued to defy the head teacher, as a last resort I believe that the head could well be justified in permanently excluding the pupil. But to put on the statute book a provision of the kind suggested by the noble Baroness which provides that in no circumstances can failure by the pupil to attend the detention constitute grounds for exclusion is wrong, in that it limits the options available to the head concerned. I repeat that I expect such circumstances to be very rare indeed, but I believe that this should still be part of the armoury of measures available to the head concerned.
10.45 p.m.
Baroness David: I hope that the Minister did not mean one thing that he said, which I believe I heard correctly, which was that it might lead to permanent exclusion. That would be quite unjustified. As the Minister probably knows, we are not happy with the clause and this after-school detention. I shall read what
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he said. I think that he has tried to give us some reassurance. Whether I am happy enough with what we have heard remains to be seen. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Baroness Young Baroness Young moved Amendment No. 106:
Before Clause 23, insert the following new clause—
EXCLUSION OF PUPILS: CONSIDERATIONS
(" .—(1) Schedule 15 to the Education Act 1996 (reinstatement of pupils excluded from county, voluntary or maintained special schools) shall be amended as follows—
(2) After paragraph 2 there shall be inserted—
"2A. In deciding whether the pupil in question should he reinstated, the authority shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(3) After paragraph 3 there shall be inserted—
"3A. In deciding whether to direct reinstatement of the pupil in question, the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(4) After paragraph 5 there shall be inserted—
"5A. In deciding whether to direct reinstatement of the pupil in question, the authority or governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(5) After paragraph 9 there shall he inserted—
"9A. In deciding whether the pupil in question should he reinstated, the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(6) After paragraph I I there shall be inserted—
"11A. In deciding whether to direct the reinstatement of the pupil in question, the authority or the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".").
The noble Baroness said: The amendment would require at each decisive stage of the appeals process relating to exclusions that the interests of other pupils and the staff of the school are considered in addition to those of the pupil being excluded. It is a straightforward point. The amendment makes that clear.
The Bill rightly introduces a requirement that, in considering reinstatement of an excluded pupil on appeal, an appeal committee must have regard not just to the interests of the pupil concerned but the interests of other pupils in the school and members of the staff. Rather than merely introduce that requirement at the final stage of an exclusion process, it seems sensible, not least in order to establish consistent criteria against which a decision to exclude can be properly judged, that the same obligation be required throughout all the appeal stages.
There is no reason why, if it is accepted that considerations relating to other pupils and staff are valid in deciding whether to uphold the head teacher's decision to exclude at the final appeal, their validity should not also be made clear at the earlier appeal proceedings. It is obvious why this matter is considered, because clearly when one is considering discipline matters one needs to consider the effect on all the pupils, not just the one who is being disciplined.
My understanding is that in Committee in another place an undertaking was given that the new guidance that the department of my noble friend the Minister is to put out on exclusions would reflect the effect of the amendment. Such an assurance is of course welcome, but it has been put to me that in the light of the Government's proposals to require an appeal committee to consider the interests of staff and other pupils during its deliberations, it is sensible for the above reasons to reflect that throughout all appeal stages and to put it in primary legislation. I beg to move.
Lord Elton: In support of my noble friend I would just say two things. First, we have a spate of reports of schools most reluctantly being forced to receive pupils they do not want to contain. Without knowing the facts of the cases, one can do little more than guess. There is a suspicion in my mind that on some occasions those hearing an appeal have very much considered the case of the individual child and not the effect of the return of that child on the upwards of 20 children in the class in which he or she will be taught.
Secondly, we live in an increasingly litigious age. I hope that the reassurance that is given to my noble friend that the matter rests on guidance or circulars will be lawyer-proof; in other words, that appeal bodies can be confident that if they are taken to court for not upholding an appeal—I believe that that is justiciable—they will be protected in the court from that suit by whatever guidance or other measure my noble friend has in mind.
Lord Henley: I have considerable sympathy for the idea behind my noble friend's new clause, though not in terms of putting it into primary legislation. What it seeks to do is to replicate provisions in Clauses 24 and 25 relating to the independent exclusion appeal committees and to require those committees to consider the interests of other pupils and members of staff at the school as well as the interests of the excluded pupil when considering reinstatement. That is an important point. We do not want, as it were, one rotten apple corrupting the rest of the barrel.
However, I do not consider that we need to prescribe this in primary legislation. As it stands, Schedule 15 to the 1996 Act does not go into this kind of detail on arrangements for LEAs and governing bodies when considering reinstatement of pupils at the first stages of the exclusion appeal procedures; nor was it intended to do so. LEAs and governing bodies are closer to the life of the school than independent appeal committees and are quite naturally going to take account of the wider interests of the school in considering reinstatement.
The present provisions in Schedule 15 allow significant flexibility at local level in the handling of procedures for hearing parents' representations. That seems right, given the variation in local circumstances, and I would not want to start laying down detailed procedures in statute for those first stages of the appeal arrangements.
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However, I take the point that it is important to ensure that the wider interests of the school are never overlooked when reinstatement is being considered, and we shall ensure that the new guidance which the department will be producing on exclusions will give added emphasis to this point. I will also ask my officials to look at the new guidance and other matters in terms of what my noble friend Lord Elton described as "ensuring that they are lawyer-proof'. Most of us would recognise that as being difficult to achieve, but no doubt they can give thought to it. I hope that with those assurances my noble friend will feel able to withdraw her new clause.
Baroness Young: I thank my noble friend for that reply. I am sure that he has taken on board the point, but I did not follow the argument that one should not go into such detail at the first stages of an appeals procedure. The difficulty of one child coming back into the class and disrupting everybody else is just as serious at the beginning as at the end. In fact, for teachers and head teachers in particular, weighing up the balance between the difficulty with one ill-disciplined child and the effect of that on the rest of the class is tricky. I believe that they require a great deal of support in discipline matters.
However, it is late and this is not a matter which I should think of pressing to a Division. I shall look closely at what my noble friend has said and I hope that he will bear closely in mind what was said by my noble friend Lord Elton. One of the ways that teachers can be helped is to strengthen the law and to prevent the possibility of litigation when they believe that they are acting perfectly reasonably in trying to enforce discipline in schools, which is essential for the good learning of the children and very much desired by the parents. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Variation of limit on fixed-period exclusions: all maintained schools]:
Lord Tope Lord Tope moved Amendment No. 107:
Page 21, line 20, after ("school)-) insert—
(" (a) after subsection (1) there shall be inserted—
"(1A) Where the head teacher of a school exercises his power to exclude a pupil for a period of more than three days, he shall ensure that the educational needs of that pupil continue to be met.": and.
(b)").
The noble Lord said: It has been agreed that Amendments Nos. 107 and 108 should be taken together. I intend to speak primarily to Amendment No. 107 and I believe that the noble Lord, Lord Morris of Castle Morris, will primarily address Amendment No. 108 which stands in his name.
The purpose of Amendment No. 107, which is part of a package designed to clarify and strengthen the section of the Bill relating to exclusion from school, is to put beyond doubt the duty of the school to be responsible for contributing to the continuing education of a pupil who has been temporarily excluded.
There is a clear distinction between a fixed-term exclusion and a permanent exclusion. The distinction is perhaps better expressed in the old terminology of

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"suspension", in terms of the fixed-term exclusion and "expulsion". When pupils are expelled they are removed from the roll of the school. The connection between school, pupil and parent is severed and the school no longer has a duty to educate the pupil. That duty remains with the parent and reverts to the LEA to secure suitable provision. However, when a pupil is excluded for a fixed period—suspended, as we used to say—the school still retains its responsibility towards that excluded pupil.
The sanction of fixed-term exclusion should be understood properly as part of the school's tool kit for upholding its disciplinary policies. There is some debate about that but I understand that the weight of professional opinion is that a fixed term exclusion should not be seen as a punishment in itself. Withdrawing the opportunity to be educated from a troublesome individual is, from society's point of view, a self-defeating policy. The lack of a successful education is associated closely with socially damaging behaviour later in life.
Rather, a temporary exclusion is a device to facilitate other measures designed to deal with the disciplinary problem which is being experienced. During fixed exclusion that has been imposed as a matter of urgency, it may not be practical to require the continuation of the excluded pupil's school work. Nevertheless, it is always important that the school should seek to take positive steps to ensure that the excluded pupil's education continues while he is out of school.
It is clear from the advice and guidance set out in the DfEE circular on the topic that that is government policy. Paragraph 51 states:
"The head teacher of the excluding school should wherever practicable make arrangements for the pupil who is excluded for a fixed period to receive school work to do at home and to have it marked until he or she returns to school. The governing body should keep these arrangements under review".
However, that is not made explicit on the face of the legislation and it is possible to misread Section 19 of the Education Act 1996, which provides that LEAs should have responsibility for "excluded pupils" without drawing a distinction between temporary and permanent exclusions. This amendment seeks to put the matter beyond doubt by setting out that the duty of the head teacher to prevent a temporary exclusion from being a complete interruption to a child's education appears clearly in primary legislation.
The current framing of statute law appears to conflict with government policy that schools should take a measure of responsibility in these matters. The amendment brings the position more into balance and makes clear that schools and LEAs must both have a role in securing the education of excluded pupils. I beg to move.
Lord Morris of Castle Morris: Amendment No. 108 empowers the Secretary of State to make regulations, under Clause 23, to secure that head teachers take appropriate steps during any period of fixed term exclusion to return the child to school as quickly as possible, including assessing special needs and meeting parents, pupil and staff.
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This amendment does not prescribe the precise content of those regulations, which can be left, as it happens, until after the general election. But it flags up three main principles. First, the head teacher should aim to get the pupil back in school as quickly as possible. That means that even if a pupil is told that he is suspended for the full 45 days, he can and should be readmitted at an earlier date if the school is satisfied that his behaviour has improved or will improve.
Secondly, the pupil's special educational needs should be considered. That is extremely important. Very few excluded pupils do not have special educational needs. Ofsted, in its report found that:
"Most support to pupils with behavioural problems was reactive, disciplinary and seldom sufficiently linked to learning, rather than planned and rooted in a diagnosis of pupils' learning difficulties. Many excluded pupils (58 of the 112 whose case-histories were studied) had literacy difficulties which were often undetected, detected too late or not deemed sufficiently severe to warrant allocation of scarce additional support … Only about a quarter of the schools had good systems for modifying the curriculum or for varying either its organisation or the groupings of pupils, for pupils in difficulty. By contrast, about a third made no concessions when pupils presented behavioural problems, providing no opportunities, for example, for pupils to change sets to resolve personality clashes with other pupils or with teachers".
Discovering that pupils have special educational needs does not, of course, mean that they must be moved to a special school. Mostly they can, and by law should, be kept in ordinary mainstream schools, with the national curriculum modified where necessary to meet their abilities and with additional help provided, either out of the school budget or from the LEA under a statement of special needs.
The third recommendation is that there should be meetings with the pupil, parents and teachers to identify and remedy the causes of the behaviour giving rise to the exclusion. It should be self-evident that schools ought to take these steps during a fixed-term exclusion, so there ought to be no problem about making this a legal requirement.
The amendment was debated by Standing Committee D on 17th December 1966 (Hansard cols. 463–69); indeed, it was quite a brief debate for that committee. The Government did not argue with the aim of the amendment. They simply said that it would appear in the guidance to schools which would be issued under the amendment. But, given the need for schools to treat fixed term exclusions as serious emergencies needing immediate action, rather than just—and this is highly tempting—breathing spaces from difficult children, and given the great temptation that overstressed schools are under to treat a fixed-term exclusion as just a breathing space from an impossible child, it is surely wise to give the Secretary of State powers to require schools to take more active steps to identify what is wrong and put it right.
11 p.m.
Lord Elton: I find myself less attracted to Amendment No. 107 than Amendment No. 108. Almost by definition, a child who is excluded is already not having his educational needs met. Indeed, even if it is a case of him causing so much disruption that other

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children's needs are also not being met, he is not being taught the lessons that he ought to learn. Merely sending the material that he should have been studying home with him is unlikely to achieve any improvement in his situation. A statutory requirement to make arrangements for his educational needs to be met that went beyond that is something which the head teacher would probably not have within his command. I believe that this is just an occasion to air opinions on the system.
However, perhaps I may also use the next amendment to air opinions. The speed of what I call "re-entry" into the normal system is an absolute requirement because the longer a pupil stays out of his study of the curriculum the more difficult it will be for him to pick up where he should be, the greater the drag he therefore becomes on the rest of the class and, indeed, the more likely that difference between them will cause further friction and get him excluded again.
Exclusion must always be a matter of last resort because, however unavoidable, it is a confession of failure in ability to contain a pupil and must indeed be a matter of great regret in a school. As for the other aspects in subsection (4) of the noble Lord's amendment, I do not believe that it matters too much how they are dealt with. If my noble friend the Minister says that they will be dealt with by guidance or a circular, I shall be happy. They are certainly counsels of best practice.
Baroness David: Perhaps I may make one point as regards reasons for not allowing children to be out of school for long. The Audit Commission recently found that 42 per cent. of offenders of school age who were sentenced in the youth court had been excluded from schools and that, conversely, 78 per cent. of permanently excluded and 31 per cent. of temporarily excluded pupils commit offences. The Home Office Research Unit has also identified school exclusions, including temporary exclusions, as one of the four main factors characterising young offenders. I hope that that information adds another reason for getting such children back into school as soon as possible.
Lord Henley: I shall start by posing a question for the noble Lord, Lord Tope, and I do so out of general interest. I believe that he quoted from circular 8/94—
Lord Tope: 10/94.
Lord Henley: I see; hence my confusion. I had only 8/94 in front of me. I shall read most carefully in Hansard what the noble Lord said. His paragraph 51 was different from my paragraph 51.
I start by saying to the noble Lord that I am sympathetic to the reasons behind Amendment No. 107. It is clearly important to ensure that exclusion from school does not mean exclusion from education. Schools do not lose responsibility for pupils who remain on their roll but who are not currently attending.
The amendment, however, goes too far in the practical burden it would place on schools. For a school itself to meet fully the educational needs of each
1170
individual excluded pupil, which in most cases would presumably mean individual tuition at home, would be extremely difficult to arrange, not to mention expensive—all the more so, of course, if that pupil had special educational needs to be met. Moreover, as phrased, the amendment would apply not just to pupils on a fixed period exclusion but also to permanently excluded pupils who were no longer on the school roll. I appreciate that is probably not the intention behind the noble Lord's amendment, but I hope he would agree that it would be unfair to expect schools to continue to educate pupils in those circumstances.
I believe it is much more appropriate in the case of pupils excluded for any significant period for local education authorities, rather than individual schools, to take responsibility for ensuring that suitable education is provided. That is why in the 1993 Act, for the first time ever, we placed a statutory duty on LEAs to arrange for suitable education to be provided for pupils who would not otherwise receive it, by reason of exclusion or otherwise. That duty, now contained in Section 19 of the 1996 Act, applies in the cases both of pupils who have been permanently excluded and of those excluded for a fixed period. So I think the noble Lord's amendment would conflict with the existing statutory duty on LEAs.
I can give an assurance to the noble Lord that after this Bill is enacted the department will as always be issuing comprehensive new guidance to schools and LEAs about all aspects of school exclusions. That guidance will certainly cover their respective responsibilities towards excluded pupils in ensuring their continuing education.
Turning to Amendment No. 108, I acknowledge that there may be occasions when a teacher, having excluded a pupil for a fixed period, may then find that the pupil is ready to return to school before that period is completed. In the majority of cases, however, the punishment of a fixed-term exclusion should be exactly that. Commuting the sentence—if I can put it in Home Office terms—would not be appropriate. Nevertheless, I agree that there may be circumstances where an earlier return is justified and we shall certainly include advice on this point in the new guidance which the department will need to issue to schools on exclusions. No pupil should be kept out of school longer than is necessary.
The actions to be taken by head teachers during a fixed period exclusion are also, it seems to me, best left to guidance—as I think my noble friend Lord Elton put it—rather than being prescribed in regulations. Head teachers will be best placed to judge what should be done on a case-by-case basis, bearing in mind the circumstances of the exclusion, any problems underlying the individual pupil's behaviour and the length of the exclusion. We intend to put into guidance relevant factors for head teachers to consider which will cover among other things the specific points raised by this amendment as regards pupils with special educational needs and the involvement of a pupil's parents.

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I hope therefore with those explanations of the sort of guidance that will be available, both noble Lords will feel able to withdraw their amendments.
Baroness Farrington of Ribbleton: Before the Minister sits down, is he prepared to offer a response, now or later, to the following query? With regard to Amendment No. 107, would he consider it reasonable that where immediate remedial action is deemed to be appropriate, where a pupil is referred to a specialist team, place or system to try to get the child back in the system as quickly as possible, there ought to be some provision whereby the school at the very least uses the money that was provided for that child's education to pay for such immediate action?
Lord Henley: I take the point that the noble Baroness makes. I should like to consider it. I shall write to her.
Lord Tope: I apologise to the Minister if I said circular 8/94. I do not think that I did so. I am reassured that I did not; it was a mishearing. A little earlier I inadvertently left out a couple of words when referring to the period of a fixed exclusion. I meant to say during the first three days of a fixed exclusion. That is probably clear from the amendment. However, the record should indicate clearly what I meant.
The noble Lord, Lord Elton, is temporarily not in his place. I took his point about it not being of great benefit to send school work to be done at home to a pupil who has had to be excluded. I merely point out that those were not my words but those of the DfEE circular. I think that the Minister was talking about permanent exclusions. The amendment amends Clause 23, which deals specifically with fixed term exclusions. That is what we refer to.
I have made my points. I am sorry that again I have failed to convince the Minister. It leaves me with little choice at this stage but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris of Castle Morris Lord Morris of Castle Morris had given notice of his intention to move Amendment No. 108:
Page 21, line 27, at end insert—
(3) The Secretary of State may make regulations requiring the head teacher to take steps to ensure that a pupil who has been excluded for a fixed period returns to school as quickly as possible.
(4) The regulations made under subsection (3) may, in particular, make provision—

(a) for any special educational needs of the excluded pupil to be identified; and

(b) for meetings to be held with the pupil, the pupil's parents and the pupil's teachers with a view to identifying—

(i) the cause or causes of the behaviour giving rise to the exclusion, and

(ii) steps which can be taken by the school, parents or pupil to prevent reoccurrence of that behaviour.".").

The noble Lord said: With the same regrets, and for the same reasons as those eloquently expressed by the noble Lord, Lord Tope, I shall not move the amendment.
[Amendment No. 108 not moved.]
Clause 23 agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 109:
After Clause 23, insert the following new clause—
CONDITIONS FOR PERMANENT EXCLUSIONS
(" . In section 156 of the Education Act 1996, after subsection (1) there shall be inserted—
"(1A) The articles of government for every maintained school, grant-maintained school, maintained special school and non-maintained special school shall provide that no pupil shall be permanently excluded unless—

(a) all reasonable steps have been taken by the school to avoid excluding the pupil; and

(b) allowing the pupil to continue to attend the school would be seriously detrimental to the education or welfare of the pupil, other pupils or staff at the school.".").

The noble Baroness said: Amendment No. 109 brings into law what is already in government practice. Circular 10/94 provides that,
"The Secretary of State believes that it should be clear in each case of permanent exclusion that: it is a last resort: the school has taken all reasonable steps to avoid excluding the child; and allowing the child to remain in school would be seriously detrimental to the education or welfare of the pupil, or to that of others at the school".
When these grounds were formulated in 1992, and debated both in this House and in another place for the Education Act 1993, they had the support of most of those working with children in schools, including the main teaching and head teacher unions. It does not seem right or sufficient that the measure should have been put into guidance only. I do not wish to quote at great length at this time of night from the recent Ofsted report but, among other things, it said:
"A few [schools] were irresponsibly profligate in the use made of exclusion, devaluing it as a sanction".
Perhaps I may paraphrase what would otherwise require lengthy quotation to justify. The message is that significant numbers of pupils should not have been excluded, and, to a lesser extent, that a few schools had failed to exclude under those grounds and thus have put other pupils in the school at risk.
The amendment seeks to correct that by stating a clear principle of last resort, as well as seeking to improve relationships between schools and families, and schools and LEAs. The arguments for having the grounds in law are many. I limit myself to two. First, if the new clause's criteria were established, parents and governors would have a much better and fairer opportunity to question unnecessary exclusions, and schools would have to be more careful about why they excluded. On the other hand, maintained schools would be in a stronger position to challenge what they regard as unfair reinstatement orders by the LEA.
The second point I wish to make as an argument for having the grounds in law—and I feel very strongly

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about this—is that pupils are frequently excluded because they have special needs, for example, learning difficulties or emotional problems. Often the school could manage these needs during a period of assessment and statementing and then acquire additional resources from the statement to keep the child on. Instead, often the child is thrown out and is assessed out of school or in a special school and so loses any chance to have mainstream education. Exclusions are therefore vitally connected to the issue of how schools are to be helped to make adequate special educational provision. The amendment would assist schools to distinguish between those special needs they can cope with during a period of assessment and those regrettably with which they cannot cope. I beg to move.
11.15 p.m.
Baroness Thomas of Walliswood: It is extremely late and I will be brief. I very much support the amendment. First, everyone knows and agrees that permanent exclusion is a serious matter for the child and its family. Secondly, as the noble Lord, Lord Morris, said in speaking to an earlier amendment, many of the people who are permanently excluded are children with particular difficulties. Thirdly, although the Minister has suggested to us on a number of occasions that he dislikes having matters put in the Bill, particularly those which appear to limit the absolute freedom of schools to manage their own affairs, I believe this is an area where absolute clarity would be of great help to everyone involved in this serious matter: teachers, head teachers, parents and in some cases pupils. I therefore very much support the amendment.
Lord Henley: I shall respond with extreme brevity. As the noble Baroness put it, the words in the amendment—and I imagine that she took them from it—are almost identical to what is said in paragraph 5 of the department's guidance to schools on exclusions in Circular 10/94. I got it right this time.
In my view, this is another attempt, that I would try to discourage, to put into legislation what properly belongs in guidance. In answer to the point put by the noble Baroness, Lady Thomas, the new clause, if we accepted it, would deny heads the flexibility they need to make judgments on individual cases and would put into legislation what belongs in guidance. I appreciate that both noble Baronesses differ from me on the matter, but we will have to agree to differ on this occasion.
Baroness Ramsay of Cartvale: I am sorry the Minister does not feel he can accept this, which is, after all, just the guidance. But, for all the reasons that the noble Baroness, Lady Thomas, and I have put, we think it would be much better in legislation. I regret that the
1174
Minister cannot see his way to including it, but in view of what he said I will go away and think about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Exclusion or reinstatement appeals: LEA-maintained schools]:
Baroness David Baroness David moved Amendment No. 110:
Page 22, line 14, at end insert ("and
(e) in a case where the appellant is the parent, the pupil to make written representations and to appear to make oral representations.".").
The noble Baroness said: This amendment is linked with Amendment No. 111 in the name of my noble friend Lord Morris. The amendment aims to entitle pupils to attend appeals hearings. I am often involved in trying to get children more involved and to get their rights acknowledged and this is another attempt.
It is unclear why pupils are not entitled to attend their own exclusion hearings. The proposal is obviously sensible, given that the pupil needs to understand the reasons for his exclusion and it is a vital source of information about the causes of that behaviour to the appeals committee. The amendment does not force pupils to attend appeals hearings. Probably young pupils would not attend the whole of the hearing or sometimes they would not come at all. It simply requires the appeals committee to allow the pupil to attend.
The right of parties affected to attend arbitration is an essential principle of natural justice. It is also an undertaking under Article 12 of the UN Convention on the Rights of the Child. The Committee on the Rights of the Child specifically criticised the UK for not allowing children to attend their exclusion appeals and has recently issued guidelines worldwide encouraging their attendance at exclusion hearings.
Children attend other hearings deciding their fate, principally criminal and care proceedings, without administrative or psychological difficulties. It is our understanding that at present many exclusion appeals committees do invite the pupil to attend. This amendment seeks to make that good practice standard practice. I beg to move.
Lord Morris of Castle Morris: Amendment No. 111 seeks to change the emphasis of the Bill in relation to the matters that independent appeals committees are required to take into account in their deliberations. It is right that such committees should have regard to the interests of the excluded pupil in an appeal hearing. It is also appropriate that the interests of other pupils at the school should be taken into account. But this amendment would require that the appeals committee should consider specifically the safety of members of staff rather than the vaguer notion of the interests of members of staff.
While it is quite right for an appeals committee to consider broader issues in relation to the welfare and provision of education which the excluded pupil and

1175
other pupils receive when directing that an appeals committee had to have regard to the consequences of reinstating or not reinstating an excluded pupil, so far as staff are concerned it is appropriate to identify this more precisely in terms of the safety of members of staff. Teachers and all other staff in common with all other employees have a legitimate expectation that their employer will have regard to the need to ensure that they are working within a safe working environment. Obviously, that is a primary responsibility on all employers.
However, it is in the interest of teachers to have an easy and quiet life and to avoid, if they can, being exposed to pupils who might be very difficult and troublesome. But teachers are expected to work professionally and should not be encouraged to exercise any form of veto as to the particular pupils that they are expected to teach.
The clause as presently worded provides just that encouragement. There have been a number of high profile cases recently where groups of teachers have sought by industrial action to overturn the decision of a governing body to reinstate a pupil. The Government seem to be offering an open invitation for that sort of action to be emulated up and down the country. Enshrining teachers' interests on the face of legislation will provide backing to just the kind of activity that Ministers so recently condemned.
There would appear to be a significant risk, if no steps are taken by the Government to clarify what is meant by the word "interests", that the preference of individual teachers or teachers in general in a school not to teach a particular pupil could override the rights and interests of the pupil concerned to be educated in that particular school.
During the debate in another place, the Minister, Mrs Gillan, said at column 472 of Hansard of Standing Committee D on 17th December 1996:
"It will always be appropriate for an appeal committee to have regard to the broader interests of the school staff. The amendment could mean that appeal committees might not consider the interests of staff members other than those related to their safety".
That is, in fact, the precise intention of this amendment. It is our contention that safety is the only legitimate interest of staff that should be taken into account. It is the only consideration sufficiently important to override the educational interests of children.
If the Government wish to defend the wording in their Bill, they should be prepared to say exactly what staff interests other than safety would be sufficient ground to uphold an exclusion that might otherwise be unnecessary or unsatisfactory. Provided that an independent appeals committee is satisfied that the reinstatement of a particular pupil would not pose a threat to the safety of members of staff in that school and by implication necessarily to that of other pupils in the school, the appeals committee should primarily be
1176
focusing on what is in the wider interests of the pupil in question and those of other pupils in the school.
So, this amendment simply seeks to clarify these issues in order to ensure that independent appeals committees are properly directed to have regard to those issues which it is necessary for them to balance when coming to a decision over the future of an excluded pupil. It should be made crystal clear that where there is a conflict of interests, the interests of the pupils should be overridden only if there is an actual threat to the safety of staff.
Lord Henley: We are nearing the end of a long day. Perhaps I can start by saying that I have some sympathy with the first amendment proposed by the noble Baroness, Lady David. It is right and sensible that, at least in some circumstances, an excluded pupil under 18 should be able to attend an independent exclusion appeal hearing on his or her case and to speak at that hearing. I acknowledge that the interests of parents and pupil will not in every case be identical. It may be that the pupil will have useful information to offer to the committee which his parents would not be able to provide.
However, having considered the matter carefully, we are not persuaded of the case for amending the law in this way. First, I understand that the department has not received any representations or complaints about the operation of the law as it stands in this regard. That suggests that appeal committees are generally exercising sensibly their present discretion to allow any pupil to attend the hearing and speak on his or her behalf.
Secondly, there would be obvious practical problems in giving all pupils, even the young and immature, a separate, unfettered right to attend a hearing and address the committee. But providing a qualified right would be no substantive advance on the present discretionary provision and, on balance, the Government believe that it is preferable to continue with that.
However, I can assure the noble Baroness that we recognise the importance of the issue that she raised in Amendment No. 110 and I am grateful that she did so raise it. We will ensure that it is given greater emphasis in the revised guidance we plan to issue after the enactment of the Bill. The matter will certainly be kept under review.
Turning to the amendment of the noble Lord, Lord Morris, Amendment No. 111 would appear to be unnecessary. As presently worded, Clause 24 requires an independent appeal committee, when considering whether or not to reinstate an excluded pupil, to,
"have regard to both the interests of that pupil and the interests of other pupils at his school and members of its staff".
An appeal committee will therefore have to take account of the interests of members of staff of the school which excluded the pupil.
It seems to me that the interests of members of school staff will necessarily involve their safety. That is one of

1177
the important interests that individuals have. However, it is better to have in the clause a broad term like,
"the interests of members of staff",
rather than to use the narrow term "safety", for the simple reason that not all exclusion appeals arise from incidents of violence and therefore the safety of members of staff will not always be in question when the reinstatement of pupils is being considered. For an appeal committee to have regard to the broader interests of school staff will always be appropriate.
I hope therefore that the noble Lord will agree that his amendment is not necessary and that, if we were to accept it, it would mean that the interests of staff members other than those related to safety might not be considered by the appeal committee. It would therefore exclude certain matters that ought to be included. I hope that when it comes to his turn the noble Lord will therefore feel he does not wish to pursue his amendment.
Baroness David: I thank the Minister for that reply. He gave some slight encouragement. I hope, as he says, that the guidance, when it comes, will be positive. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 111 not moved.]
Clause 24 agreed to.
[Amendment No. 112 not moved.]
Clause 25 agreed to.
Schedule 3 agreed to.
House resumed.

Planning (Consequential Provisions) (Scotland) Bill [H.L.]
Returned from the Commons agreed to.
Planning (Hazardous Substances) (Scotland) Bill [H.L.]
Returned from the Commons agreed to.
National Heritage Bill [H.L.]
Returned from the Commons agreed to with an amendment; the Commons amendment ordered to be printed.
Planning (Listed Buildings and Conservation Areas) (Scotland) Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.

Town and Country Planning (Scotland) Bill [H.L.]
Returned from the Commons agreed to with a privilege amendment; the amendment considered and agreed to.
House adjourned at half past eleven o'clock.