HL Deb 25 February 1997 vol 578 cc1128-77

8.31 p.m.

House again in Committee on Clause 16.

[Amendment No. 86 not moved.]

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, 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 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 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 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 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 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 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 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.

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 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.

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 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 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 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.

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 moved Amendment No. 94: Leave out Clause 18 and insert the following new Clause—


(" .—(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 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 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 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.

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 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 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 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 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 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 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 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 moved Amendment No. 97:

Page 17, line 5, at end insert—

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". 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)". 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 106: Before Clause 23, insert the following new clause—


(" .—(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.

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 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 "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.

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 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


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 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.

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 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—

  1. (a) for any special educational needs of the excluded pupil to be identified; and
  2. (b) for meetings to be held with the pupil, the pupil's parents and the pupil's teachers with a view to identifying—
    1. (i) the cause or causes of the behaviour giving rise to the exclusion, and
    2. (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 moved Amendment No. 109: After Clause 23, insert the following new clause—


(" . 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—

  1. (a) all reasonable steps have been taken by the school to avoid excluding the pupil; and
  2. (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 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 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 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 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 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 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.