Education Bill

HL Deb 25 February 1997 vol 578 cc1063-111

4.28 p.m.

The Minister of State, Department for Education and Employment (Lord Henley)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Henley.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]

Lord Henley moved Amendment No. 42: Before Clause 3, insert the following new clause—

("Enlargement of premises

RELAXATION OF CONTROLS ON ENLARGEMENT OF PREMISES

. After section 259 of the Education Act 1996 there shall be inserted—

"Significant enlargements for the purposes of section 259.

259A.—(1) For the purposes of section 259 an enlargement of the premises of a grant-maintained school is a significant enlargement of those premises if (and only if) the effect of the enlargement, taken with all previous enlargements (if any) taking place since the appropriate date, would increase the school's capacity by more than 50 per cent. or 30 pupils (whichever is the greater) as compared with—

1. (a) its capacity on the appropriate date; or
2. (b) if at any time after that date its capacity was lower than its capacity on that date, its lowest capacity at any such time.

(2) An enlargement of the premises of a grant-maintained school is accordingly not a significant enlargement of those premises for the purposes of section 259 if its effect, taken with all such previous enlargements (if any), would not he to produce such an increase in the school's capacity.

(3) In subsection (1) "the appropriate date" means whichever is the latest of the following dates—

1. (a) the date falling four years before the date on which the governing body form the intention to make the enlargement concerned,
2. (b) the date when the school was established,
3. (c) where any proposals for a significant enlargement of the premises of the school have been approved by the Secretary of State under—
   1. (i) section 261 below or section 98 of the Education Act 1993, or
   2. (ii) section 37 or 43 above or section 12 or 13 of the Education Act 1980,
   the date (or latest date) on which any such proposals were implemented, and
4. (d) where the local education authority have determined to implement any proposals for a significant enlargement of the premises of the school under section 38 above or section 12(7) of the Education Act 1980, the date (or latest date) on which any such proposals were implemented.

(4) The Secretary of State may by regulations prescribe the method for determining a school's capacity for the purposes of this section; and in this section references to a school's capacity are references to its capacity to accommodate pupils.

(5) Nothing in this section applies to a school requiring special measures to be taken.").

The noble Lord said: I am delighted to be able to propose the reintroduction of this sensible clause to the Bill. It has, as I think the Committee knows, had a somewhat chequered history. I shall explain the purpose of the new clause. Quite simply, it increases the freedom of grant-maintained schools to offer what parents want. It will enable grant-maintained schools to enlarge their premises by up to 50 per cent. without the need to publish statutory proposals. Grant-maintained schools are popular with pupils and parents. The clause will help more parents to get their children into the school of their choice. The clause is firmly in the mainstream of the Bill, which aims to extend the choice and diversity of educational provision.

New Section 259A(1) introduced by the clause effectively changes the definition of "significant" enlargement for a grant-maintained school to one that is greater than 50 per cent. or 30 pupils (whichever is the greater). To avoid very rapid, cumulative increases occurring, schools will be required to look back over a four year period to assess whether a change is significant.

As I said, the increased freedom that the clause provides will enable grant-maintained schools to respond to the wishes of parents. It will also enable schools to decide for themselves what size of school will most usefully serve their particular area. Such changes will not necessarily require the investment of additional public funds because putting these decisions more directly into the hands of schools will increase the incentive for governors to explore alternative ways of financing the necessary capital work.

Nor is this freedom without responsibility. The Bill makes it absolutely clear that governors proposing to make an enlargement must consult those who have an interest in the matter before making a decision to go ahead. In deciding who should be consulted, and in what way, those proposing changes must have regard to guidance to be issued by the Secretary of State. This will specify those who should be consulted and will include among others the local education authority, other schools in the area and, in the case of a Church school, the appropriate diocesan authorities.

I appreciate that there may be some concerns that this change is limited to the grant-maintained sector. But we consider that it is appropriate for grant-maintained schools to take the lead in this area. Not only are many grant-maintained schools popular with pupils and parents, but they are also in the best position to look for innovative approaches to funding the additional provision. This should enable them to expand to meet the demand. I realise that in some areas this could lead to surplus places in other schools to which parents do not want to send their children, but governors and planning authorities have powers to deal with that.

I also recognise that there are many popular schools outside the grant-maintained sector. These schools will continue to be able to make proposals for significant enlargements in the normal way. We have made it clear that there will be circumstances where, in the interests of increasing choice and diversity, we shall be willing to approve increases in places where there are surplus places in the area, especially where there would be likely subsequently to be the possibility of removing unsatisfactory provision.

I trust that the Committee will accept that this is a useful step to increase the autonomy and responsibility of grant-maintained schools and give them the opportunity to respond imaginatively to the wishes of parents. I commend the clause and the amendment to the Committee. I beg to move.

[Amendments Nos. 43 and 44, as amendments to Amendment No. 42, not moved.]

Baroness Thomas of Walliswood had given notice of her intention to move, as an amendment to Amendment No. 42, Amendment No. 45: Line 24, leave out ("four") and insert ("eight"). The noble Baroness said: I apologise to the Committee that I am not quite au fait with the procedures.

Lord Henley

Perhaps I may intervene. I suspect that the noble Lord, Lord Morris, and I share a degree of confusion. It was my impression, and I believe that of the noble Lord, Lord Morris, too—I appreciate that I may be wrong—that we would debate the substantive Motion and then move on. I presume that it will be possible to debate the substantive Motion and possibly at Report stage discuss the amendments to it, if the noble Lord prefers to deal with the issue in that manner.

Lord Morris of Castle Morris

Yes.

Lord Henley

That might be more appropriate. In that case we can skate through, if I may so put it, the various amendments to Amendment No. 42, returning to the substantive Amendment No. 42.

Lord Morris of Castle Morris

I am grateful to the noble Lord. I had thought that that is what we would do. From the groupings on the Marshalled List I had thought we would dispose of Amendment No. 42 before we considered Amendment No. 43, which we did not wish to move. If the noble Lord's suggestion is the wish of the Committee, it is certainly my wish.

Baroness Thomas of Walliswood

I apologise that I am unable to hear instructions.

Lord Henley

The noble Baroness might find it easier if she did not move her amendment. The noble Lord, Lord Morris, and I consider that the best approach. We can discuss the basic principle of putting Amendment No. 42 back in the Bill. The subsequent amendments can be considered at Report stage.

[Amendment No. 45, as an amendment to Amendment No. 42, not moved.]

[Amendments Nos. 46 to 48, as amendments to Amendment No. 42, not moved.]

Lord Henley

I have spoken to Amendment No. 42. However, I hope that other noble Lords will have the opportunity to respond.

Lord Morris of Castle Morris

I do not have the remotest idea where we are. However, if we are considering, as I think we are, Amendment No. 42, the Government's new clause before Clause 3, I have to tell the Committee that with one grammatical improvement the Government's new clause is exactly the same as that which has twice failed to be agreed in another place. The grammatical improvement, which adds a pleasing touch of literacy to the Bill, is that the word "latest" has replaced "later" in the second line of subsection (3). That is in accordance with contemporary ideas of grammar, although I can remind the Members of the Committee that there is one line in Shakespeare which refers to the "most unkindest" cut of all, which would not be considered particularly grammatical in our day.

The new clause introduces parallel provisions to those on selection. It enables grant-maintained schools to step outside the requirements to publish proposals in respect of the enlargement of their premises. A threshold of 50 per cent. or 30 pupils (whichever is the larger) is set, up to which grant-maintained schools may expand with requirements only to undertake such consultation (if any) as they consider appropriate. Expansion can be repeated after four years so that the grant-maintained school can more than double its size in a period as little as eight years.

The innocent phrase in brackets "(if any)" leads us to believe that the response will be no consultation. Who in his right mind would become involved in a long process of consultation which might not bring him the result that he wishes when he finds a bracket like that in his instructions? He is running what is, after all, a business as well as an educational establishment.

I draw the period of eight years to the Committee's attention because that is the time it takes a pupil to complete secondary education. He might well find that the school had doubled in size while he was attending it.

The Government have clearly decided to pursue a new route to the expansion of the grant-maintained sector, the rate of schools transferring into that sector having slowed down to a very small trickle. The concentration is now to be on allowing those already in this sector to grow without any regard to the need for the places which will be created. It will be a matter of places first and pupils following, if they happen to be around.

Linked directly to the ability for grant-maintained secondary schools to select up to 50 per cent. of their intake without having to go through a publication procedure or seek central approval, the intention is clearly to introduce half the grammar school system through the grant-maintained sector and to enable it to grow at a faster rate than any other part of the system.

In addition to the educational issues raised by the new clause, there is a legitimate question for the Committee to consider. The new clause has been rejected once in Committee in the Commons by what I can only describe as a piece of careless indiscipline by Whips, when the Government had a built-in majority sitting there day after day, doing its correspondence, with no fewer than 16 Sittings. Someone was allowed, I believe—I say this subject to correction—to slip out for some personal purpose and was then pursued by another. The result was an unfortunate one, to say the least, for the Government.

It was not agreed again on a second occasion on the Floor of the House at Report stage. On the second occasion, the Minister sought to explain the defeat in the House of Commons as due to "procedural problems". He went on, quite properly, to say that the result at the Report stage had been a tied vote. The fact remains that the clause not only arrives without the endorsement of the Commons but has actually been excluded from the Bill on two separate occasions by them.

The question therefore arises as to whether the Government are right to ask the House of Lords to insert into the Bill a clause which has twice been excluded by the Commons. The Minister might like to inform the Committee—I am sure that he has looked it up—whether there is a precedent for the Government acting in that way. New clauses are quite naturally frequently introduced in your Lordships' House as proposals develop or in response to earlier amendments. This new clause arises quite differently: it is tabled in the Lords purely and simply because it could not be agreed in the Commons. Can the Minister point to previous instances when it has been thought proper to proceed in that way?

The importance of the clause is underlined for us by the Government's apparent adamantine determination to seek to reintroduce it. For that very reason, however, we believe that it ought to have the approval of the Commons before the Lords are asked to endorse it.

4.45 p.m.

Lord Tope

I start where the noble Lord, Lord Morris, concluded. I too share the constitutional—if it is not too strong a word—concern about the amendment, even before we consider its merits or otherwise. The Minister pooh-poohs that statement, but I question whether it is right for the House of Lords to introduce by way of amendment the approval of a clause which is both important and demonstrably controversial when they have failed to get it through the elected other place. I look forward to the Minister's answer to the question of the noble Lord, Lord Morris, about what precedent there is for the proposal under these circumstances. It is potentially quite a serious and perhaps even a dangerous step for your Lordships' House to take and it is one which we should contemplate seriously before we judge the merits or otherwise of the argument.

It will come as little surprise to the Minister or other Members of the Committee that I do not see much merit in the arguments for the clause either and will accept that to some extent that may prejudice my concern about its constitutional aspects.

It is self-evident that a school increasing its capacity by up to 50 per cent. is bound to have a significant effect on other schools, whether they are LEA schools, grant-maintained schools or even schools in the private sector. If I heard the Minister right, in his opening address he said that there would be consultation arrangements which would be covered in guidance. I hope I heard him right and that he said the guidance would include a requirement to consult LEAs. The Minister nods, so I did hear him correctly.

That is important because if a school is to propose to increase its size by such an extent, the consultation arrangements are crucially important, particularly with the LEA but not only with the LEA. When the Minister replies, would he care to enlarge a little more on what he expects to be in the guidance? Who is to be consulted, on what terms and under what circumstances? Who then decides, as a result of the consultation, whether proposals should or should not go ahead? The purpose of the Bill is to ensure that it is not the Secretary of State who decides. Who does decide where it goes?

The Minister also acknowledged that it is probable—highly probable, I suggest—that a measure like this will increase surplus places at least in the short term. Again, that is a matter of great concern to LEAs. We were discussing yesterday Trading Places, the report from the Audit Commission which drew attention to the large waste, as the commission describes it, of public money in surplus places. I wonder how to deal with, and who will deal with, the question of the surplus places that are bound to arise, should the measure come about.

I conclude that the whole purpose of the clause is to try to pump some life back into what was yesterday admitted to be the failed policy of grant-maintained schools. That is what it is about. We discussed it yesterday. The Government have failed to encourage either governing bodies or a sufficient number of parents to ballot for schools to go grant-maintained. This is now a sixth attempt to relaunch what is demonstrably a failed policy—grant-maintained schools. It should therefore be buried more quietly than the previous five attempts and we should not go ahead with it.

Finally, another point which concerns me is that it is also a way not only to expand the number of grant-maintained schools but also to expand faster than would otherwise be the case the selective intake in grant-maintained schools. For all those reasons, this is a bad clause which should be rejected, as the other place has rightly seen fit to do. I hope that the Committee will think seriously not only about the issues in the clause but about whether your Lordships' House should pass a clause which has failed to get through the other place.

The Earl of Onslow

It is interesting that the noble Lord should bring up the constitutional issue. It is simple: if the House of Commons does not like it, it does not accept it. We know that and it has been the case since 1911. We all know, because it was admitted by both the noble Lord, Lord Morris, and the Liberal spokesman, that it was through Whip incompetence that the clauses were not put through in another place. It was not to do with the merits of the case.

There is one further small point. I believe that the clause does not go nearly far enough. Schools should be allowed to expand and contract as their market demands and as parents want them to do, without having complicated number systems. If there are surplus places in schools, the schools should be closed down. If the school is not working, why should we as taxpayers go on subsidising something which does not work? The way to get proper education is to ensure that parents can choose the children they want—I mean the school places they want. With modern scientific developments, it looks as though my slip of the tongue may be only too accurate anyway. Parents should be allowed to choose the schools they want and the schools will rise to the requests that parents make of them. In my view, the clause does not go nearly far enough.

Lord Monkswell

Until the noble Lord, Lord Morris, advised us of the import of what had happened in the other place, I had not intended to intervene in the debate. But I have to point out to the noble Earl, Lord Onslow, that it is not a question of how the result was determined but of what the result was. There is no question of impropriety, of wrong numbers being counted or anything of that kind.

The noble Earl introduced another element—that schools should respond to market forces. One could consider that the assisted places schemes keep in place quite a number of public schools. Maybe he feels that that is wrong as well.

Baroness Young

I am certain that my noble friend the Minister will respond on the constitutional point. When I heard the noble Lord, Lord Morris, I could not help but feel that he would agree with me that Lady Bracknell would have had something quite definite to say about carelessness on both occasions. That is perhaps rather more fitting a point to make in relation to this whole matter than a debate on the merits of the case.

On a more serious note, it is a very important amendment. I rise merely to reply to the point that was raised yet again by the noble Lord, Lord Tope, about grant-maintained schools failing. I suppose that one continues to make that assertion in the hope that people will come to believe it. But it simply is not true and needs to be rebutted every time the point is made. Grant-maintained schools are doing very well. They are getting very good academic results and they are very popular with parents. This is an opportunity to build on success and give opportunities to children who might not have them otherwise. I hope that the Committee will support the amendment.

Lord Walton of Detchant

I ask the Minister a question purely for clarification. This clause deals with enlargement of premises and enlargement of numbers within grant-maintained schools. May I take it, as my reading of the Bill implies, that it does not refer to enlargement of provision; in other words, as it stands, it would not allow a grant-maintained school which does not have a sixth form to establish a sixth form? My reading of the Bill suggests that that would fall under Clause 5 and not under this proposed clause. I should welcome the Minister's clarification of that point.

Lord Dixon-Smith

There is perhaps one final point that is worth reintroducing into this discussion. We continually hear that the introduction of a selective stream into a school is the reintroduction of the selective system pre-1965 with the differentiation between grammar schools and secondary modern schools. Of course, that is not the case. What we are talking about constantly and of what we ought to remind ourselves is the introduction by a proportion of all schools, if they so choose, of a selective element. That is completely different from a situation in which a very limited number of schools have total selection and other schools have none. That very clear distinction needs to be reiterated time and again.

Lord Skidelsky

I want to say a brief word in support of the amendment presented by my noble friend. It is a very important amendment. It goes to the heart of the Bill as it was originally presented. By allowing grant-maintained schools to expand their capacity in response to market demand, it establishes a very important principle. It is, I believe, the first time that the Government have acknowledged that to make a system of choice work, there needs to be a flexible supply of places to allow places to expand and contract in relation to parental demand. The Bill also establishes a mechanism for that. I agree with my noble friend that it is too complicated a mechanism to enable that to happen, but it is still a first step.

This amendment is a litmus test for those people who profess to believe in parental choice. It is self-evident that without some such mechanism for matching supply and demand, the value of parental choice is very much diminished. If the number of places in each school is fixed and parental demand varies from school to school, it means that a proportion of pupils will not be able to get their children into the school that they want. Those children will have to be reallocated to schools to which their parents do not necessarily want them to go. As the Audit Commission pointed out, that is happening. About one child in five on average is relocated and in some areas it is a much higher proportion.

Bureaucratic allocation is the opposite of choice. It goes with planning. That is why I believe that the Opposition spokespersons oppose the amendment. They are against choice. Time and again they have said that parental choice undermines local authorities' ability to plan the education provision for their area. That is a tenable position but one must not then say that one is in favour of parental choice. Those are opposite principles.

If parental choice is to be taken seriously, market demand must be allowed to have some influence on the supply of places. Successful schools should be allowed to expand. If that means empty places at schools to which parents do not want to send their children, so be it. That arises as a result of free choice freely exercised. It might at least act as a spur to those schools to make their education provision more desirable.

I ask the Opposition parties not to concentrate so much on the risks in this system. There are always risks attaching to choice. Things may not work out so well as one might hope. I ask them rather to concentrate on the opportunities for better education which might be created. They should ask themselves, if they believe in parental choice, what policy that belief entails. What obligations on action does it impose? It seems to me that at the moment they bandy around the phrase "We believe in parental choice", but whenever anyone suggests extending parental choice, they say, "No, that will interfere with our planning system and make it impossible".

If Members on the Benches opposite regarded the matter in that light, I believe that they would see more virtue in the amendment than they are prepared to allow.

Baroness Warnock

I join for a moment the Benches opposite. I myself would never put parental choice as a first priority in education. It is very often impossible for parents to choose. For example, if they want a child to go to a selective school and that child is not selected, they cannot choose that he goes to that school. They can try but cannot choose to obtain a place.

I ask the Minister for information. Let us suppose that a grant-maintained school became larger or even supposing that it did not. Would it be within the terms of this legislation for it to become selective both of able children and of disabled children? That is rather an important question. Given a large and popular school which was expanding and parents who had children with special educational needs—not necessarily statemented children but those who manifestly needed special help—would it be open to one of those enlarging grant-maintained schools to say that they would take 30 per cent., say, of specially able children and 30 or 20 per cent. of specially non-able children, and have a middle range?

If that were envisaged, I should feel very much less hostile to the idea of schools which are both expanding and going up to their permitted limit of selection according to ability. I also feel that a very large number of parents would continue to prefer that school: parents of children who were specially able, parents of children who were in the middle and, it was hoped, would become specially able by being at a specially good school and parents of children with disabilities. When he comes to reply, I wonder whether the Minister could answer that question.

5 p.m.

Lord Henley

Perhaps I may deal first with the point raised by the noble Lord, Lord Walton of Detchant, when he asked whether the new clause would provide for the setting up of sixth forms. The new clause is nothing whatever to do with that. He was almost right when he referred to Clause 5. Clause 5 will deal with those matters once this clause is inserted because the numbering will be adjusted upwards from 4 to 5, if my mathematics are correct.

I start with the constitutional points made by the noble Lords, Lord Tope and Lord Morris, which were palpable nonsense, to put it more or less in the words of my noble friend Lord Onslow. I agree with him entirely, which is not something that happens with great frequency. I remind the noble Lord, Lord Morris, of what his colleague, Mr. Peter Kilfoyle, said in another place at Report stage. I appreciate that I should not quote him directly, but perhaps I may paraphrase the arguments over his lengthy speech—some five lines. He said: "As we fully deployed our arguments in Committee on some earlier occasion, we see no reason to rehearse them again and I suggest we move straight to a vote". I was interested therefore in the detail with which the noble Lords, Lord Morris and Lord Tope, felt it necessary to bring this matter before the Committee.

The fact is that there were procedural difficulties in another place—and they were merely procedural difficulties—with regard to these amendments. The noble Lord seemed to be implying—I believe it to be nonsense—that if an amendment is put forward in another place, perhaps by the noble Lord's party, and happens to be defeated twice, it would be wrong for the noble Lord to move it again in this Chamber. As I said, that is palpable nonsense. As my noble friend Lord Onslow said, it is right that we now put the clause back in so that the Commons have another chance on consideration of Lords' amendments to think again. On many occasions I have heard noble Lords opposite say that this Chamber must pass an amendment so that the elected Chamber has the opportunity to think again. I am asking this Committee to do just that on this occasion.

Perhaps I may deal with one or two of the points raised by noble Lords opposite. First, the alleged lack of consultation was mentioned. I do not want to repeat what I said yesterday on consultation. As I made clear to noble Lords opposite, that consultation will be thorough. We will expect the LEAs to be consulted; we will expect the diocesan or other Church authorities to be consulted as appropriate; and we will be putting out guidance as to how that consultation should take place. As always with the consultation-friendly Department for Education and Employment, we shall be consulting on the guidance and noble Lords and others will have an opportunity to comment on that in due course.

Secondly, this amendment has nothing whatever to do with grammar schools, selection, partial selection or whatever. Grant-maintained schools can be selective; they can be fully selective. There are grant-maintained grammar schools; there are grant-maintained voluntary secondary schools; there are also grant-maintained comprehensive schools; in fact, the vast majority are probably just that—comprehensive schools. The amendment is about expanding their numbers.

The noble Baroness, Lady Warnock, asked whether the school could select both able and special needs children. The answer is that they can, within the 50 per cent. threshold available to grant-maintained schools. That is why we use the word "ability" at this stage. On other occasions when we talk about grammar schools we talk about "high ability" to differentiate between the two. I hope that a gleam of light has come to the noble Baroness and she understands what I mean.

The last point on which I want to pick up—I am grateful for the remarks of my noble friend Lady Young—is the allegations made by the noble Lord, Lord Tope. The first is that the policy of grant-maintained schools has failed, and the second that I had admitted that it had failed. That is grossly misleading. The noble Lord will remember that I intervened on more than one occasion yesterday to say that I did not believe that grant-maintained schools had failed; I believed that they had been an enormous success and I can give the figures again. There are now almost 1,200 self-governing grant-maintained schools; 84 out of 119 LEAs have at least one grant-maintained school; they are educating 700,000 pupils, including nearly 20 per cent. of all secondary pupils in England; and there has been a marked increase in the grant-maintained primaries over the past three years—they now make up 40 per cent. of the grant-maintained sector. I go on to add that there are even 19 grant-maintained special schools, which again is enormously encouraging.

Quite simply, this amendment gives greater powers to the good grant-maintained schools that wish to expand to expand. I hope that the Committee will recognise it for just that and agree to accept it.

5.5 p.m.

On Question, Whether the said amendment (No. 42) shall be agreed to?

Their Lordships divided: Contents, 169; Not-Contents, 127.

Division No. 1
CONTENTS
Addison, V.	Clanwilliam, E.
Ailsa, M.	Clark of Kempston, L.
Alexander of Tunis, E.	Coleraine, L.
Ampthill, L.	Coleridge, L.
Anelay of St. Johns, B.	Cornwallis, L.
Annan, L.	Courtown, E.
Arran, E.	Cowley, E.
Ashbourne, L.	Cranbome, V. [Lord Privy Seal.]
Astor of Hever, L.	Cross, V.
Attlee, E.	Cuckney, L.
Balfour, E.	Cullen of Ashboume, L.
Belhaven and Stenton, L.	Cumberlege, B.
Beloff, L.	Dacre of Glanton, L.
Biddulph, L.	Davidson, V.
Birdwood, L.	Dean of Harptree, L.
Blatch, B.	Denbigh, E.
Bowness, L.	Denham, L.
Brabazon of Tara, L.	Denton of Wakefield, B.
Braine of Wheatley, L.	Dilhorne, V.
Brentford, V.	Dixon-Smith, L.
Bridgeman, V.	Donegall, M.
Brigstocke, B.	Dunrossil, V.
Bruntisfield, L.	Ellenborough, L.
Burnham, L.	Elles, B.
Butterworth, L.	Elliott of Morpeth,L.
Byford, B.	Elton, L.
Cadman, L.	Feldman, L.
Campbell of Croy, L.	Gage, V.
Carnegy of Lour, B.	Geddes, L.
Carnock, L.	Gisborough, L.
Chadlington, L.	Glenarthur, L.
Chalker of Wallasey, B.	Goschen, V.
Charteris of Amisfield, L.	Gray, L.
Chelmsford, V.	Gray of Contin, L.
Chesham, L. [Teller]	Griffiths of Fforestfach, L.

Grimston of Westbury, L.	Munster, E
Hambro, L.	Murton of Lindisfarne, L.
Hanson, L.	Newall, L.
Harding of Petherton, L.	Noel-Buxton, L.
Hardinge of Penshurst, L.	Northesk, E
Harmar-Nicholls, L	O'Cathain, B.
Harris of Peckham, L.	Onslow, E.
Haslam, L.	Oxfuird, V.
Hayhoe, L.	Palmer, L.
Henley, L.	Pearson of Rannoch, L.
Hogg, B.	Peel, E.
Holderness, L.	Pender, L.
Hood, V.	Perry of Southwark, B.
Hooper, B.	Prentice, L.
Howe, E.	Pym, L.
Hylton-Foster, B.	Quinton, L.
Iddesleigh, E	Quirk, L.
Ilchester, E.	Rankeillour, L.
Inchyra,L,	Rawlinson of Ewell, L.
Inglewood, L.	Reading, M.
Jakobovits, L.	Rees, L.
King of Wartnaby, L.	Renfrew of Kaimsthorn, L.
Kinnoull, E.	Rennell, L.
Kitchener, E.	Rowallan, L.
Lane of Horsell, L.	Saatchi, L.
Lauderdale, E	St. Davids, V.
Lindsay, E	Sandford, L.
Lindsey and Abingdon, E.	Seccombe, B.
Long, V.	Shaw of Northstead, L.
Lucas, L.	Simon of Glaisdale, L.
Lucas of Chilworth, L.	Skelmersdale, L.
Luke, L.	Skidelsky.L.
McColl of Dulwich, L.	Slim, V.
Mackay of Ardbrecknish, L.	Strathclyde, L. [Teller.]
Mackay of Clashfern, L. [Lord Chancellor.]	Sudeley, L.
	Swinfen, L.
Mackay of Drumadoon, L.	Terrington, L.
Macleod of Borve, B.	Teviot, L.
Malmesbury, E.	Thomas of Gwydir, L.
Marlesford, L.	Torphichen, L.
Middleton, L.	Trumpington, B.
Miller of Hendon, B.	Ullswater, V.
Milverton, L.	Wade of Chorlton, L.
Monckton of Brenchley, V.	Wakeham, L.
Monson, L.	Westbury, L.
Montgomery of Alamein, V.	Wharton, B.
Mottistone, L.	Whitelaw, V.
Mountevans, L.	Wise, L.
Mowbray and Stourton, L.	Wynford, L.
Moyne, L.	Young, B.

NOT-CONTENTS
Addington, L.	David, B.
Alderdice, L.	Dean of Beswick, L.
Allen of Abbeydale, L.	Desai, L.
Archer of Sandwell, L.	Diamond, L.
Barnett, L.	Donaldson of Kingsbridge, L.
Beaumont of Whitley, L.	Donoughue, L.
Berkeley, L.	Dormand of Easington, L.
Blackstone, B.	Dubs, L.
Blease, L.	Eatwell, L.
Borrie, L.	Falkender, B.
Broadbridge, L.	Falkland, V.
Brooks of Tremorfa, L.	Farrington of Ribbleton, B.
Bruce of Donington, L.	Fisher of Rednal, B.
Callaghan of Cardiff, L.	Gallacher, L.
Calverley, L.	Geraint, L.
Carlisle, E.	Gladwin of Clee, L.
Carmichael of Kelvingrove, L.	Glenamara, L.
Carter, L.	Gould of Potternewton, B.
Cledwyn of Penrhos, L.	Graham of Edmonton, L. [Teller.]
Clinton-Davis, L.	Grey, E.
Cocks of Hartcliffe, L.	Hampton, L.
Crook, L.	Hamwee, B.
Dahrendorf, L.	Harris of Greenwich, L.

Haskel, L.	Paul, L.
Hayman, B.	Perry of Walton, L.
Hereford, Bp.	Peston, L.
Hilton of Eggardon, B.	Ponsonby of Shulbrede, L.
Hollis of Heigham, B.	Prys-Davies, L.
Holme of Cheltenham, L.	Ramsay of Cartvale, B.
Hooson, L.	Redesdale, L.
Howell, L.	Richard, L.
Hughes, L.	Ripon, Bp.
Hunt, L.	Robson of Kiddington, B.
Irvine of Lairg, L.	Rochester, L.
Jay of Paddington, B.	Rodgers of Quarry Bank, L.
Jeger, B.	Russell, E.
Jenkins of Hillhead, L.	Serota, B.
Jenkins of Putney, L.	Sewel, L.
Judd, L.	Shepherd, L.
Kennet, L.	Simon, V.
Kilbracken, L.	Smith of Gilmorehill, B.
Leicester, Bp.	Stallard, L.
Lockwood, B.	Stoddart of Swindon, L.
Longford, E.	Strabolgi, L.
Lovell-Davis, L.	Symons of Vernham Dean, B
McIntosh of Haringey, L.	Taylor of Blackburn, L.
Mackie of Benshie, L.	Taylor of Gryfe, L.
	Thomas of Walliswood, B.
McNair, L.	Thomson of Monifieth, L.
McNally. L.	Thurso, V.
Mallalieu, B.	Tope, L. [Teller.]
Mar and Kellie, E.	Tordoff, L.
Marsh, L.	Turner of Camden, B.
Mason of Barnsley, L.	Wallace of Coslany, L.
Merlyn-Rees, L.	Wallace of Saltaire, L.
Merrivale, L.	Walton of Detchant, L.
Meston, L.	Warnock, B.
Methuen, L.	White, B.
Milner of Leeds, L.	Whitty, L.
Molloy, L.	Wigoder, L.
Monkswell, L.	Williams of Elvel, L.
Morris of Castle Morris, L.	Williams of Mostyn, L.
Nicol, B.	Winston, L.
Ogmore, L.	Young of Dartington, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.15 p.m.

Clause 3 [Relaxation of controls on changes relating to selective admissions]:

[Amendments Nos. 49 to 58 not moved.]

Clause 3 agreed to.

Clause 4 [Relaxation of controls on changes in age groups for admission etc.]:

Baroness Farrington of Ribbleton moved Amendment No. 59: Page 5, leave out lines 9 to 12.

The noble Baroness said: Amendment No. 59 is grouped with Amendments Nos. 60, 61 and 62. In moving the amendment I intend to spare your Lordships repetition because others who intend to speak to this group of amendments will deal with the nursery aspect. I shall deal with the sixth-form aspect.

The purpose of Amendment No. 59 is to remove the power of grant-maintained schools to add sixth forms without affecting their selection threshold. An earlier amendment sought to remove the equivalent provision in relation to county schools. The arguments there apply to this amendment also. This amendment, however, deals with a particular freedom given to grant-maintained schools to move to full selection in their sixth forms or even to create a fully selective sixth form where none existed without affecting their selection threshold. In practice, therefore, a grant-maintained school could have rather more than 50 per cent. of its places on a selective basis, taking pupils post-GCE on a fully selective basis.

The danger for the structure of sixth-form provision as a whole is clearly that resources and pupils of higher ability may become disproportionately concentrated in grant-maintained sixth forms to the disadvantage of adjacent provision—be it a separate sixth-form college, a tertiary college or a voluntary or county school. In periods when the school rolls have been low the structure of sixth-form provision has often required considerable planning. I note that on the Government Benches there are those who appear to use the term "planning" in a pejorative way.

For those who can buy from a free market perhaps the idea of planning in the private sector is anathema. Perhaps there is a degree of logic in that. Those of us who have our children educated within the publicly provided sector want a degree of planning. When our children turn up at the local school to be enrolled we like to know that there are enough places for them. Similarly, in sixth-form provision, those with children within the state sector would like to know that provision is properly planned so that it is capable of being of a uniformly high quality and so that the interests of the second year sixth-form student are not distorted by a temporary whim which may occur. Those children are entitled to properly planned and resourced education. I beg to move.

Lord Walton of Detchant

Perhaps I may say at the outset that I am not in any sense opposed to the principle of selection or setting within schools. I believe that that is greatly to the benefit of children who have special educational needs, whether they are individuals of high ability or whether, as the noble Baroness, Lady Warnock, said a little earlier, they are individuals who have special educational needs of a very different type.

One of the major planks of the Education Commission which I had the privilege to chair was that there should be a substantial broadening of the sixth-form curriculum in the 16-to-18 provision not just in relation to academic provision but also in relation to vocational education. There is no doubt that many of the sixth forms in grant-maintained and LEA-maintained schools are providing a high standard of education, but so, too, are the 110 sixth-form colleges which have been progressively established throughout the country. My concern about this provision in the Bill is that it could theoretically encourage grant-maintained schools, without due consultation—the relevant wording in the clause says "consultation (if any)"—which do not at present have sixth forms to establish small sixth forms. They would be incapable of offering the wide range of academic and vocational education which is relevant at the present time and which the sixth-form colleges, funded as they are through the Further Education Funding Council, are able to provide.

As I have done in the past on occasion, perhaps I may use the health service analogy. One of the concerns that many of us have in the National Health Service is that, with the creation of independent hospital trusts, there is some evidence to suggest that independent trusts are ignoring previous plans of regional health authorities relating to the distribution of so-called "super specialties" throughout the health service sector and are seeking to establish consultant posts in super specialties in hospitals where, under previous planning arrangements, they would have been regarded as being unsatisfactory or incapable of attracting all the ancillary facilities required.

I believe very much in the future of specialised education, and it is absolutely right that in parental choice schools should be able to embark on specialisation. But I am gravely concerned that this particular clause in this Bill could allow grant-maintained schools, without proper consultation and without taking full account of local educational needs and of the other provisions being offered by sixth-form colleges in the relevant areas, to establish small and perhaps non-viable sixth forms. I believe that that would be contrary to the interests of the children, particularly in the light of the Dearing proposals to broaden the sixth-form curriculum very much in line with what the education commission, which I chair, suggests. Hence, I support these amendments which make it clear that full consultation would have to be carried out before a grant-maintained school without one was able to establish a sixth form.

Baroness Ramsay of Cartvale

I support Amendments Nos. 59 to 62, but I would like to speak specifically to Amendments Nos. 60 and 62. The purpose of these two amendments is to ensure that no new nurseries are created without procedures being followed which safeguard effective planning and the effective use of resources—two laudable objectives with which I hope the Minister will agree.

The Bill proposes an expansion of the grant-maintained nursery sector without reference to statutory procedures and following only such consultation as the governing body sees fit. That could mean that the LEAs have to meet the cost without being able to express a view on the need for it. There seems to be little regard paid to the question of the LEAs' existing provisions or plans for expansion.

At present grant-maintained schools are funded either through the annual maintenance grant or an allocation under the common funding policy. Costs are recouped from the relevant local authority. The introduction at short notice of new nursery provision in grant-maintained schools could undermine that process, which is currently subject to a well-established planning procedure under which local authorities at least know what their obligations will be and can plan accordingly.

Nursery education is a discretionary service and the level of provision the LEA chooses to make is not directly reflected in its standard spending assessment. Indeed, the AMA had correspondence with the Minister for schools in another place in 1994 about whether it would be constitutionally improper to force an authority to pay for provision that was neither statutorily required nor funded by an SSA. That was discussed at the Committee stage of the Bill in another place. The Minister's honourable friend, Mr. Eric Forth, undertook to write to Mr. Win Griffiths, which he duly did last December. I am sure that the Minister is well aware of all this. I shall be very grateful to him if he can tell me—because I do not find it at all clear—whether the letter from Mr. Forth means that, even though the clause will remove the requirement to publish statutory proposals where a grant-maintained school proposes to expand or establish nursery provision, the Government still intend to continue to take account of LEA policy in considering whether to approve the change in nursery capacity or the establishment of new nursery provision. We shall all find it very helpful if the Minister can give us a reply to that when he has the opportunity.

Baroness David

My name is attached to Amendment No. 61, which is part of this group of four amendments. Its purpose is to prevent new schools being established or existing schools being closed without reference to statutory procedures. This amendment incorporates the purpose of Amendment No. 62, which seeks to retain the requirement of published proposals in the case of pre- and post-compulsory school age provision by ensuring that proposals must be formally published to introduce or to end provision for any age range.

Clause 5(1) specifies those circumstances in which existing publication procedures would not apply. Instead, the governing body may carry out whatever consultation it sees fit. The existing requirement to publish statutory proposals under the Education Act 1996 ensures that all those who may be affected by the proposals, in particular local schools, colleges and nurseries and local residents, have the opportunity to express a view on how they will be affected.

What I am particularly concerned about—and I have had a great deal of correspondence on the subject—is the likely effect on sixth-form colleges. The noble Lord, Lord Walton, has made many of the points that I would wish to make. I have had a huge correspondence on this subject. I have been sent a copy of a letter from the FEFC to the Secretary of State. It has great concerns about this matter and it has expressed its reasons to the Secretary of State. It fears that the numbers recruited by colleges will be reduced and the range of subjects offered will become much more limited. The curriculum will, of course, become narrower.

The council also asks the Secretary of State to retain power to reject proposals. If the 24 grant-maintained schools which have had proposals rejected previously take advantage of the new opportunities now provided in the Bill to establish a new sixth form, that could be disastrous for the colleges which have been such a tremendous success. Two schools which have resubmitted proposals have already had approval granted. The Funding Agency for Schools has also questioned the ability of the boards of governors of grant-maintained schools to operate responsibly in an unregulated market. Surely the FAS is in a good position to comment.

As regards the cost-effectiveness of the proposals, most colleges can find extra places at the demand-led element (DLE) rate, which is about £1,000, but the new grant-maintained schools sixth forms would recoup £2,500 plus per year per full-time place. Where is the logic of such an arrangement? It seems absolutely illogical to me when the Government, I thought, were rather keen on being careful about money. I hope that the Minister can be persuaded to look again at these disquieting proposals in the Bill. There are very real anxieties and, I believe, they are rightly founded.

Baroness Thomas of Walliswood

My name is also attached to Amendment No. 59 and I would like to speak briefly in support of all of the amendments in this group. I was particularly struck by the reasons given by the noble Lord, Lord Walton of Detchant, in supporting the amendment relating to sixth-form education. I am extremely concerned about the totally disorderly increase in nursery provision and the effect that that could have on the finances of local education authorities. Some Members of the Committee may remember that on Second Reading I raised the matter of how the provisions of this Bill would impact on the finances of LEAs. This is quite a good illustration of the relevance of that concern. I support the amendments and hope that, even if the Minister does not accept them today, he will at least reconsider the matter and perhaps return at a later stage with some thoughts in this direction.

The Deputy Chairman of Committees (Lord Dean of Harptree)

The Question is—

5.30 p.m.

Lord Henley

I think that I should be allowed to respond to the amendment. I am sure that it would be appropriate.

I am afraid that I cannot accept the amendments, which seek to wreck our policy to give grant-maintained schools more freedom to introduce sixth forms or nursery provision and to extend choice for parents. We think that it is right that they should have more freedom. Grant-maintained schools are more than able to make a considered judgment about whether such provision is needed and is likely to be attractive to parents and pupils. It would clearly be foolhardy of any school to attempt to add new provision where there was no demand for it.

I made it clear earlier that there will be consultation. Consultation will be a requirement. The noble Lord, Lord Walton, was concerned about that consultation and quoted the words "consultation (if any)". I cannot remember whether the noble Lord was in his place yesterday when, if I remember correctly, we discussed that phrase. I think that I made it clear then that the provision sought to rule out consultation in those cases where the change being proposed was so small as not to warrant consultation. However, in the vast majority of cases—and obviously when a school is setting up a sixth form or a new nursery—consultation is appropriate. Again, I have made it clear on a number of occasions that the consultation will be thorough and that we shall be issuing guidance on it. As I made clear on an earlier amendment, the guidance itself will be issued in draft for consultation and we shall await interested comments on who should or should not be consulted—

Lord Walton of Detchant

Although I fully appreciate the strength of the Minister's argument, I wonder whether he would agree that the inclusion of those words on the face of the Bill would allow a maverick grant-maintained school to go ahead and establish a sixth form without any consultation whatever when in all the circumstances it was quite inappropriate to do that. That is my principal concern.

Lord Henley

That would not be the case. If a so-called "maverick" school went ahead and did such a large thing without consultation, it would obviously not be acting reasonably. I am sure that there would be ways and means and legal processes to stop such a school from acting in that way. Again, I have made it clear that we shall be issuing guidance on the consultation. I hope that when in due course the noble Lord sees that guidance, he will agree that it is appropriate in all the circumstances.

I appreciate that many Members of the Committee feel that new provision could sometimes appear to be a threat to other providers. We have heard about sixth form colleges from various noble Lords and I agree that, in the main, sixth form colleges do a very good job. I am very pleased with how they work. However, there is always a tendency to try to protect existing provision whatever the cost. I do not think that it is necessarily a line that we should pursue. If we are truly to increase choice within the system and the quality of what is available, individual governing bodies need the freedom to respond to the needs and wishes of pupils and parents in the area.

The noble Baroness, Lady Ramsay, also asked about the funding of nurseries. The power contained in the clause for grant-maintained schools to set up nursery classes does not change in any way the existing funding mechanisms. It will remain the case that the money will not necessarily be recovered from the LEA for the running costs of the new nurseries. In that case, the LEAs have nothing to fear.

As I said at the beginning, the amendments undermine our policy of giving grant-maintained schools the greater freedoms that we think are necessary in order to extend choice for parents. Therefore, I urge the Committee to reject the amendment.

Baroness Farrington of Ribbleton

The Government are behaving in a very strange and illogical way. I say that because, after many years of experience in local government—the Minister has had such local government experience—surely the Government are aware that parents do not think in groups in a discrete way and do not all follow a logical grouping. The result of totally free parental choice without control or planning is that parents demand half a sixth form in place A, half a sixth form in place B while retaining the choice for the next child in the family in place C. Only two things then occur: either the young people have their resource diminished because—sometimes part way through the year—the range of options is not available to the second-year pupils who started a particular course; or, the amount of money has to be increased at the expense of other parts of the system.

The Government's view that parents meet in groups and make logical, joint decisions on their own shows that the Minister has never consulted parents day after day. Schools do not close on their own. Sixth forms do not close on their own. When one or two parents are gathered together, they demand that the resource stays open in terms of choice. I know that the noble Lord, Lord Dixon-Smith, has been through that experience. Maintaining choice for the remaining parents and providing an alternative for the rest costs money. I shall read carefully what the Minister has said—and I hope that he will read carefully what we have said on this subject—but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 60 not moved.]

Clause 4 agreed to.

Clause 5 [Consultation and notification where proposals do not need to be published]:

[Amendments Nos. 61 to 64 not moved.]

The Lord Bishop of Ripon moved Amendment No. 65: Page 6, line 13, at end insert ("and if the school is a Church in Wales school, a Church of England school or a Roman Catholic school they shall consult the appropriate diocesan authority unless the implementation of the proposals requires that authority's consent.").

The right reverend Prelate said: Amendment No. 65 seeks to amend that part of Clause 5 which refers to consultation. I begin by making clear the attitude of the Church of England Board of Education towards grant-maintained schools. We have taken the view that it is not the responsibility of the board to make recommendations about whether it is right or wrong for a school to seek grant-maintained status. That is a matter for the governors of the school. The hoard's responsibility has been limited to drawing attention to those factors of which a governing body ought to take account and to suggesting that the governing body examines those factors before reaching any conclusion about whether to seek grant-maintained status.

It is clear that those schools which were formerly voluntary schools continue to be church schools after they have achieved grant-maintained status—if that is what happens. A considerable number of church schools have sought and achieved grant-maintained status. Therefore, within the total grant-maintained sector is a group of schools that are still church schools—that is made clear by their trust deed and by the appointment of foundation governors—but those schools have all the rights and privileges that belong to that status.

Clause 5 gives rights of consultation. We have already had considerable debate on that. In particular, we have already considered the provision which speaks of, consultation (if any) as appears to [governing bodies] to be appropriate".

In the case of those schools which have grant-maintained status and were church schools, and therefore continue to be church schools, surely it is right that the consultation should always include the appropriate diocesan authority. I was grateful that earlier the Minister referred to consultation, in particular with the appropriate diocesan authorities. The Committee has already heard a description of those diocesan authorities, and I will not repeat it. Surely, it is always appropriate that a grant-maintained school which is a Church in Wales, Church of England or Roman Catholic school should consult the appropriate diocesan authority. I believe it is right that that should appear on the face of the Bill. I shall be most interested to hear the comments of the Minister. I beg to move.

Baroness Farrington of Ribbleton

We support this amendment and await the Minister's reply.

Lord Henley

We do not believe that this is the most appropriate way to approach these matters. I repeat—perhaps for the third or fourth time—that I agree with the right reverend Prelate that consultation is necessary and that the diocesan or appropriate church authorities should be consulted about changes to church schools. However, we do not believe that there is any need to place the requirement on the face of the Bill. Governing bodies will be required to consult having regard to the guidance issued by my right honourable friend. Obviously, such guidance will include dioceses in the case of church schools. I ask the Committee to accept that that is the way in which these matters are normally handled in education legislation. I refer the right reverend Prelate to the present statutory guidance along these lines contained in Circular 23/94. Sadly, I do not have a copy with me, but if the right reverend Prelate wants one I shall ensure that he receives it. We will be issuing guidance and consulting on it in due course. I hope therefore that the right reverend Prelate will not feel it necessary to press his amendment.

The Lord Bishop of Ripon

I am grateful for the Minister's assurance. I would be glad to receive a copy of the circular, although I suspect that there is already a copy of it somewhere within the board's library. I take the points that the Minister has made and I shall read carefully what he has said. It may be that at Report stage I shall return to the matter with an amendment of this kind. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Castle Morris moved Amendment No. 66:

Page 6, line 13, at end insert— ("(2A) In addition to the requirements of subsection (2) above, the governing body shall, before determining whether to implement their proposals, give notice of them to every registered parent of every registered pupil at the school, such other parents, governing bodies of schools affected by them or other persons as appear to them to be concerned, and the provisions of section (Objections on notification to proposals which do not need to be published) of the Education Act 1997 shall apply to the governing body as though it were the admission authority under that section.").

The noble Lord said: This amendment was spoken to earlier. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 67 and 68 not moved.]

The Lord Bishop of Ripon moved Amendment No. 69:

Page 7, line 10, at end insert—

("Notification of objection.

265E.—(1) Any person who has been consulted by the governing body under section 265C or who has been given notice by the governing body under sections 265C or 265D may within fourteen days of such consultation or notification give notice in writing to the Secretary of State and to the governing body that he objects to the proposals.

(2) Where the Secretary of State receives notice of objection under subsection (1) he may direct that the publication procedure shall apply to the proposals if he considers that the proposals if implemented could be detrimental to the interests of—

1. (a) pupils attending the school,
2. (b) the local community,
3. (c) the local education authority for the area in which the school is situated,
4. (d) other maintained schools in that area, or
5. (e) if the school is a Church in Wales school, a Church of England school or a Roman Catholic school, the appropriate diocesan authority.".").

The right reverend Prelate said: Amendment No. 69 gives to the Secretary of State a reserve power in certain circumstances to direct that the publication procedures shall apply to proposals. Surely, there is in principle no hostility to the idea of a reserve power. Indeed, Clause 11 gives such a power to the Secretary of State. We had understood that it might have been slightly wider than that provided by Clause 11. Clause 11 provides that in certain circumstances the Secretary of State may designate a particular area as one within which the provisions for overcoming statutory consultation shall not apply. Why is that right for certain areas but not in certain circumstances? Is it not the case that in certain circumstances the Secretary of State may need such a reserve power that does not apply to all schools in a particular area but simply to one?

The amendment provides the Secretary of State with a reserve power in the particular case referred to in the amendment; that is to say, when a person gives notice in writing to the Secretary of State and the governing body that he objects to the proposals. The Secretary of State has a permissive not mandatory power. He may direct that the publication procedure shall apply to these proposals. I argue that this is a modest amendment which expands the reserve power already provided in Clause 11. It will provide the Secretary of State with a power that he or she may want to use in the limited circumstances described in the amendment. I beg to move.

5.45 p.m.

Lord Henley

I did not know whether noble Lords from the Benches opposite wanted to leap to their feet and offer their usual support to this amendment. We do not believe that the increased freedoms that we are providing to grant-maintained schools are such that they require the extra safeguards that the right reverend Prelate proposes in his amendment. We believe that the consultation and notification requirements of the clause, together with departmental guidance, will be sufficient. We do not believe that it is right to introduce new freedoms and then undermine the way in which they operate by re-introducing—which is what the amendment amounts to—a requirement to publish proposals. We believe that that would only result in unnecessary delay and confusion. I regret that I cannot offer any comfort to the right reverend Prelate or any support for his amendment.

The Lord Bishop of Ripon

Before the noble Lord sits down, perhaps he will clarify the intention of Clause 11. As I understand it, it provides such a reserve power. Why is it right in those circumstances but not in the circumstances described in the amendment?

Lord Henley

I refer to the Notes on Clauses to the Bill. Clause 11 is designed to provide the Secretary of State with certain safeguards in areas where it is felt that there is a degree of selection that interferes with the provision of places for other people; in other words, that there is almost too much selection. Obviously, that will give the Secretary of State the reserve power to designate by order those areas where schools' freedom to select up to those thresholds should be curtailed. Therefore, they will be in the old position of having to publish proposals as and when appropriate if they want to go beyond those levels. The circumstances in which the Secretary of State may decide to make or revoke such an order will be set out in regulations, which will obviously come before this House.

The Lord Bishop of Ripon

I am a little disappointed by the argument of the Minister, but at this stage I do not propose to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

Lord Ponsonby of Shulbrede moved Amendment No. 70: After Clause 6, insert the following new clause— (" . After section 266A of the Education Act 1996 there shall be inserted—

"Schools requiring special measures: transfer etc. to local education authority.

266B. Regulations may make provision—

1. (a) for the Secretary of State to direct that any school to which subsection (1) of section 266A of this Act applies shall cease to be a grant-maintained school and shall instead be a school maintained by the local 1085 education authority in whose area the school is situated and for the Secretary of State to make further provision consequent upon such a direction; or
2. (b) for the Secretary of State to direct that the local education authority in whose area the school is situated shall have the power to appoint such number of additional governors to the governing body of the school as the Secretary of State may specify in such a direction.".").

The noble Lord said: Amendment No. 70 is a probing amendment, and I shall speak to it briefly. In the Government's White Paper there is a promise that grant-maintained schools can be placed under education authority control should special measures not work. The purpose of the amendment is to place a grant-maintained school under the control of the local authority if it is not working. This is intended as a probing amendment to see exactly what will be the fate of a grant-maintained school. Is it to be looked after by a LEA or is it to be left to look after itself? I look forward to hearing the reply of the Minister. I beg to move.

Lord Monkswell

I support the amendment. As I understand it, the resources and abilities of the LEA to provide assistance to a failing grant-maintained school would not be available unless some specific measure such as this were implemented to allow it to provide that assistance. The Minister may be able to comment on that point also.

Lord Henley

I am grateful to the noble Lord for making it clear that this is merely a probing amendment and was not to be taken seriously. The idea that a grant-maintained school which happened to be failing and which happened to be in Islington should then be handed back to the authority filled me with horror. As regards the matters about which the noble Lord was probing, I can say that to date the FAS school improvement unit and the power to appoint governors have done the trick. But in a few cases such a remedy may work far too slowly and that is why last summer's White Paper, Self-Government for Schools, to which the noble Lord referred, suggested the possibility of an education association-type arrangement for grant-maintained schools.

I should remind the noble Lord that to date about 1 per cent. only of grant-maintained schools that have been inspected have failed, compared to nearly 3 per cent. of LEA-maintained schools. The White Paper proposed a range of other measures to strengthen the governance of grant-maintained schools, including some prompted by the recommendations of the committee chaired by the noble and learned Lord, Lord Nolan. Those proposals were set out in fairly general terms. They need further development and consultation. It is premature to legislate on those matters now, but work is proceeding with the aim of introducing legislation on the whole package—that is, the remainder of the White Paper, because as the noble Lord will remember not all the White Paper proposals are contained in the Bill—in the next Parliament.

Lord Ponsonby of Shulbrede

I am somewhat surprised by that response. If 1 per cent. of grant-maintained schools are failing, I find it difficult to see why there should not be a clear path for those schools to be changed. The amendment suggests that they return to the LEA. The Government White Paper suggests that they go under the control of an education association. But why do we have to continue thinking about it? Why cannot there be some proposal from the Government to make the position of those schools clear? However, I shall read with interest what the Minister has said. I beg leave to withdraw the amendment.

Lord Henley

Before the noble Lord sits down, perhaps I may make it clear that the mere fact that a school is failing does not mean that an education association—in the case of an LEA school—goes in immediately. Other measures are taken first. It is rare to get as far as an EA. What I made clear was that so far, with those that are failing, a school improvement unit and the various other powers seem to have done the trick.

Lord Ponsonby of Shulbrede

I thank the Minister for that clarification. Nevertheless, there is a discrepancy between the status of failing schools and the type of school that they are. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Duty of governing body to review selective admission policy]:

[Amendment No. 71 not moved.]

Clause 7 agreed to.

Clause 8 [Alteration of admission numbers for grant-maintained schools]:

[Amendments Nos. 72 to 75 not moved.]

Clause 8 agreed to.

Clauses 9 and 10 agreed to.

Clause 11 [Secretary of State's reserve power to limit appropriate threshold]:

Lord Ponsonby of Shulbrede moved Amendment No. 76: Page 11, line 41, leave out ("20") and insert ("10").

The noble Lord said: This, too, is a probing amendment. Its purpose is to amend the upper limit for selection which the Secretary of State may impose from 20 per cent. to 10 per cent. The reserve powers in Clause 11 are important to enable the Secretary of State at least to step in where a selection may get out of hand and threaten the operation of an admissions system. The figure to which the Secretary of State may reduce the selection, however, is less effective than it might be. The 20 per cent. fixed figure equates with the levels to which county schools, GM primary schools and GM schools with special measures will in any case be able to select. In other words, the powers are operative only against specialist schools which can select up to 30 per cent. or GM secondary schools which can select up to 50 per cent. That may betray the Government's anxiety as to the point of pressure in the system, but it does not produce an effective remedy.

It would surely be better were additional powers to be included to enable the Secretary of State to push selection down to a lower figure across the board. If the Government are sympathetic to that, it is possible to envisage an amendment that enabled the Secretary of State to lower the selection threshold as she thought appropriate. Perhaps that should be down to a minimum of 10 per cent. That would preserve some flexibility. At this stage, the amendment is designed to test the principle with Ministers as to whether a lower figure would not be more attractive and more likely to preserve the functioning of the admissions system. I beg to move.

Lord Dormand of Easington

The Minister may remember that yesterday I asked him what was magic about some of these figures. He does remember. It seems to me that this is slightly different today, so I partly repeat the question. What is magic about 20 per cent. in these circumstances?

Lord Henley

It is a marginally different discussion from yesterday's. I am grateful to the noble Lord for repeating the question: what is magic about these figures? As he will be aware, on the amendments moved by his noble friend Lord Monkswell we did to some extent discuss the 15 per cent., 20 per cent., 30 per cent. and 50 per cent. figures and what was the magic about them. We believe that a 20 per cent. threshold is sensible. There are no grounds for believing that a 20 per cent. threshold would adversely affect the supply of places in an area so designated under Clause 11.

Obviously pitching the threshold is a matter of judgment rather than an exact science. There can be no science in this, and that may be why the noble Lord, Lord Dormand of Easington, preferred to use the word "magic". We believe that 20 per cent. is about right. It makes it a real option for a school, rather than just tinkering around the margins. For many schools, 10 per cent. would not be sufficient to produce a separate form of entry if that is how they wished to teach their pupils admitted on the basis of selection.

I do not think that I can take the matter further, other than to repeat that it is not a matter of science; it is a matter of judgment. We believe that 20 per cent. is about the right figure.

Lord Ponsonby of Shulbrede

I am disappointed that the Minister did not pick up the point I made that there may be a case for the Secretary of State to be able to lower the threshold if she was so disposed down to a minimum figure of 10 per cent. The Minister talked about judgment. Perhaps we should give the Secretary of State the power to make that judgment and give her greater flexibility in doing so. I am sorry that the Minister did not feel disposed to give the Secretary of State that flexibility and wanted to stick with the blanket figure of 20 per cent. Nevertheless, as I said, this is a probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 agreed to.

Schedule 2 agreed to.

Clause 13 [Extension of power of funding authority to establish grant-maintained schools]:

6 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 77: Page 12, line 26, at beginning insert ("Subject to subsection (1A) below").

The noble Baroness said: It may be for the convenience of the Committee if I speak also to Amendment No. 78. The purpose of the amendments is clear. It is to require the FAS to investigate whether there is a genuine need for a school and to require it to publish an analysis of need before creating a new school. The amendment would cause the FAS to have to meet the same requirement as LEAs before it proposes to establish a new school in the area.

The department's Circular No. 23/94 outlines the principal factors that the Secretary of State will take into account where she is required to consider proposals for the new school capacity. The circular acknowledges that the planning of school places requires careful consideration of local circumstances. The planning of school places in an area is a complicated matter which requires all providers and users to work closely together. This function has been performed fairly successfully by LEAs in partnership with their schools and neighbouring authorities. The Education Act 1993 established the FAS and gave it powers in some LEA areas to share and in others to be wholly responsible for planning to achieve the required supply of school places.

There is little point in rehearsing many of the arguments that have previously been made. It is important that the FAS must have regard to educational, financial and organisational factors prior to determining whether a new school is needed. That is only fair. The same rules apply to the voluntary sector for capital allocation and to the local authority county schools in their separate form of capital approval.

The FAS must be required to publish the basis for its case for a new school in the light of the following: information from LEAs as they are required, including plans for rationalisation places at other schools; census information; birth rate; present pupil population; actual capacity; projections of pupil population; new building development; and cost-effective analysis of need.

That requirement is logical; it provides a level playing field; it applies to the voluntary-aided sector; and it applies to the local authority sector. It is a built up, tried and tested practice in the interests of the good use of public money. I commend the amendment to your Lordships and I beg to move.

Lord Tope

I support the amendment. The noble Baroness, Lady Farrington, set out the case very well. It is self-evidently right and necessary that the FAS should investigate whether there is a genuine need for a school and that we should know in what way it has done that. We are pleased to support the amendment and we look forward to receiving the Minister's support.

Baroness Young

Would it not be the case that when the FAS was considering such an issue it would of necessity have to consider whether there was a need for this rule and whether there was a genuine demand from parents for such a school? The whole principle behind grant-maintained schools is that they give a wide measure of freedom to the schools to act. Anyone who is in any way responsible for a school would hardly be likely to attempt to establish a school in an area which, for clear educational reasons, would not be successful. I shall listen with great care to what my noble friend says, but I should have thought that it would self-evidently be the case that the FAS would not wish to go ahead and establish a school unless it had satisfied itself on all those matters.

Baroness Warnock

There is an important point to be made. I entirely take the point made by the noble Baroness, Lady Young, that of course the FAS will consider the need for a school before wantonly setting one up. On the other hand, unless the amendment is accepted there is nothing to suggest that the FAS must publish the analysis which points to the need. It is important that it should do so in order that the parents in the area as well as the LEA can understand why there is felt to be the need for a school. Therefore, I support the amendment largely on the ground that it would require the publication of the analysis of a situation which demands a school.

Lord Henley

Perhaps I may begin by making it clear to the noble Baroness, Lady Farrington, that the LEAs' powers to propose new schools are not restricted to circumstances where all the extra places to be provided are required to meet basic need. So Clause 13 does not restrict the FAS's parallel powers in this way.

But new schools are expensive, and capital funding is always limited. For these if no other reasons we would expect the FAS to propose new schools where extra places are needed and not to propose a new school where there was reasonable doubt that the extra places would not be filled, as my noble friend Lady Young made clear.

The need for extra places would have to be demonstrated in the statement of case for the new school, which would have to be submitted to the Secretary of State as part of the statutory proposals process. To support proposals for a new school, the FAS would have to analyse projected need for pupil places in the area. It would also have to include the results of this work in its statement of case. So the agency would be bound to carry out the kind of analysis mentioned in the amendment.

As for making the results more widely available, the guidance given to the FAS on statutory proposals for new GM schools is likely to recommend that the agency should make the statement of case it has submitted to the Secretary of State available on request. That will be in the guidance. Given that such statements will be substantial and detailed documents, I think this is a much more sensible way of making them available to interested parties than publication.

Two years ago, our policy on the provision of extra places—including new schools—was set out in Circular 23/94. The circular stated that, in considering proposals for new schools, the Secretary of State would take account of the educational as well as financial merits of the proposals. In other words, she would look not only at the extent to which a new school was needed to provide extra places but also at the extent to which it would enhance the diversity and quality of educational provision in the area.

The circular made it clear that, in certain circumstances, the Secretary of State would be prepared to approve a new school even if there was no projected shortfall of places in the area. This might happen where, for example, the new school would significantly enhance choice, diversity and quality, and there was scope for rationalising places at other schools in the area. The circular also made it clear that this policy applied equally to proposals for new schools from the FAS and LEAs.

Clause 13 is consistent with that policy. LEAs' power to propose new schools is not limited to circumstances where all the places proposed are required to meet basic need, and the FAS's power is also not limited in this way. I hope that the noble Baroness will not find it necessary to press the amendment.

Baroness Farrington of Ribbleton

I cannot help but believe that the Government are investing on a whim in a mad rush—a Gadarene swine rush—towards allowing the wasteful duplication of public resources in a way which the average parent concerned about what happens to their child in the local school will find incomprehensible. I find it incredible that it is possible to consider, in the interests of notional choice, having more school places than are needed in order to satisfy the whim of a minority of parents in any particular school. Therefore, I wish to seek the view of the Committee.

6.9 p.m.

On Question, Whether the said amendment (No. 77) shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 135.

Division No. 2
CONTENTS
Addington, L.	Carmichael of Kelvingrove, L
Archer of Sandwell, L.	Carter, L.
Barnett, L.	Clinton-Davis, L.
Berkeley, L.	Cocks of Hartcliffe, L.
Blackstone, B.	David, B.
Blease, L.	Dean of Beswick, L.
Borrie, L.	Desai, L.
Broadbridge, L.	Diamond, L.
Brooks of Tremorfa, L.	Donoughue, L.
Calverley, L.	Dormand of Easington. L.

Dubs, L.	Mason of Barnsley, L.
Eatwell, L.	Meston, L.
Elis-Thomas, L.	Milner of Leeds, L.
Falkender, B.	Molloy, L.
Farrington of Ribbleton, B.	Monkswell, L.
Gallacher, L.	Morris of Castle Morris, L.
Geraint, L.	Murray of Epping Forest, L.
Gladwin of Clee, L.	Nicol, B.
Glenamara, L.	Ogmore, L.
Gould of Potternewton, B. [Teller.]	Perry of Walton, L.
	Peston, L.
Graham of Edmonton, L.	Ponsonby of Shulbrede, L.
Gregson, L.	Prys-Davies, L.
Grey, E.	Ramsay of Cartvale, B.
Hampton, L.	Rea, L.
Hamwee, B.	Richard, L.
Harris of Greenwich, L.	Rodgers of Quarry Bank, L.
Haskel, L.	Russell, E.
Hayman, B.	Sewel, L.
Hilton of Eggardon, B.	Shepherd, L.
Hollis of Heigham, B.	Simon, V.
Howell L	Stoddart of Swindon, L.
Hughes, L.	Strabolgi, L.
Jay of Paddington, B.	Symons of Vernham Dean, B.
Jenkins of Putney, L.	Taverne, L
Judd, L.	Taylor of Gryfe, L.
Kennet, L.	Thomas of Walliswood, B.
Kilbracken, L.	Thomson of Monifieth, L.
Lockwood, B.	Thurso, V.
Longford, E.	Tope, L. [Teller.]
	Wallace of Coslany, L.
Lovell-Davis, L.	Walton of Detchant,L.
McIntosh of Haringey, L.	Warnock,B.
Mackie of Benshie, L.	White, B.
McNair, L.	Whitty, L.
McNally, L.	Williams of Elvel, L.
Mallalieu, B.	Williams of Mostyn, L.
Mar and Kellie, E.	Winston, L.
Marsh, L.	Young of Dartington, L.

NOT-CONTENTS
Addison, V.	Courtown, E.
Ailsa, M.	Cowley, E.
Alexander of Tunis, E.	Craigavon, V.
Anelay of St. Johns, B.	Cranborne, V. [Lord Privy Seal.]
Ashbourne, L.	Cross, V.
Balfour, E.	Cuckney, L.
Belhaven and Stenton, L.	Cumberlege, B.
Belstead, L.	Dacre of Glanton, L.
Biddulph, L.	Dean of Harptree, L.
Birdwood, L.	Denbigh, E.
Blatch, B.	Denham, L.
Bowness, L.	Denton of Wakefield, B.
Brabazon of Tara, L.	Dilhorne,V.
Brentford, V.	Dixon-Smith, L.
Brigstocke, B.	Dundee, E.
Brougham and Vaux, L.	Elles, B.
Bruntisfield, L.	Elliott of Morpeth, L.
Burnham, L.	Elton, L.
Butterfield, L.	Erroll, E.
Butterworth, L.	Feldman, L.
Byford, B.	Flather, B.
Cadman, L.	Gage, V.
Campbell of Croy, L.	Geddes, L.
Carnegy of Lour, B.	Gisborough, L.
Carnock, L.	Glenarthur, L.
Chalker of Wallasey, B.	Goschen, V.
Charteris of Amisfield, L.	Gray, L.
Chelmsford, V.	Gray of Contin, L.
Chesham, L. [Teller.]	Griffiths of Fforestfach, L.
Clanwilliam, E.	Grimston of Westbury, L.
Clark of Kempston, L.	Hambro, L.
Coleraine, L.	Hardinge of Penshurst, L.
Coleridge, L.	Harris of Peckham, L.
Cornwallis, L.	Haslam, L.

Hayhoe, L.	Onslow, E.
Henley, L.	Oxfuird, V.
Holderness, L.	Peel, E.
Hooper, B.	Perry of Southwark, B.
Howe, E.	Prentice, L.
Iddesleigh, E.	Pym, L.
Jeffreys, L.	Quinton, L.
Kilmarnock, L.	Rankeillour, L.
Lauderdale, E.	Rees, L.
Lindsay, E.	Rennell, L.
Lindsey and Abingdon, E.	Rotherwick, L.
Long, V.	Rowallan, L.
Lucas, L.	St. Davids, V.
Lucas of Chilworth, L.	St John of Fawsley, L.
Luke, L.	Shaw of Northstead, L.
McColl of Dulwich, L.	Skelmersdale, L.
Mackay of Ardbrecknish,	Skidelsky, L.
L. Mackay of Drumadoon, L.	Stodart of Leaston, L.
Macleod of Borve, B.	Strathclyde, L. [Teller.]
Marlesford, L.	Strathcona and Mount Royal
Merrivale, L.	Sudeley, L.
Miller of Hendon, B.	Swinfen, L.
Milverton, L.	Taylor of Warwick, L.
Monson, L.	Teviot, L.
Montgomery of Alamein, V.	Teynham, L.
	Thomas of Gwydir, L.
Mottistone, L.	Torphichen, L.
Mountevans, L.	Trumpington, B.
Mowbray and Stourton, L.	Ullswater, V.
Munster, E.	Wade of Chorlton, L.
Murton of Lindisfarne, L.	Whitelaw, V.
Newall, L.	Wise, L.
Northesk, E.	Wynford, L.
O'Cathain, B.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.17 p.m.

[Amendments Nos. 78 and 79 not moved.]

Clause 13 agreed to.

Clause 14 [Grants to promoters of grant-maintained schools]:

Lord Tope moved Amendment No. 80: Page 13, line 9, at end insert ("for which the authority is satisfied that there is demonstrable public support,").

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 82. The purpose of the amendment is to test whether public money should be given to promoters to generate public support for the establishment of a GM school. The amendment is an attempt to prevent the spending of public money on the promotion of new GM schools in areas where there is no demonstrable need. It is about avoiding waste, although those grants pale into insignificance when compared with the huge sums which this Government have already wasted on the promotion of GM schools.

The issue was raised in Committee in the Commons and the Government responded on Report with what are now subsections (2) and (3) of the new Section 213A. Those import a test of inability or potential inability before grants can be made. While those changes show that the Government recognise the legitimate concern, they do not solve the problem. As the clause stands currently—and there was no debate on the government amendment to the clause in the other place—subsection (2)(b) seems to give carte blanche or at any rate a blank cheque for the promoters of a GM school to spend public money to drum up support for a school in any area of the country, including areas in which there are plenty of places in existing schools and no demand for a new one.

It is ironic that this Government, who have repeatedly criticised local education authorities for failing to remove surplus places, now believe that it is all right for the FAS to encourage the establishment of new schools with no notice being taken of the local situation. While it is considered a vice to have a few too many places in an LEA school, it seems that it is a virtue to have whole new GM schools where there is no shortage of places. A private company seeking to enter any market will, as a first step, undertake some market research to see whether there is a need for its product in an area. As the clause stands, the FAS will be able to pay for that market research out of the public purse in order to establish that a school would be viable. The amendment will require there to be "demonstrable public support" before any public money is handed out to GM promoters. That must mean taking account of, and being accountable to, the public; that is, the local community. It seems that the Government are not happy with the concept of public support for a GM school, believing it, too difficult a concept not only to describe but to institutionalise".

That was said by the Minister of State, Mr. Eric Forth, in Committee in another place. The Government prefer the notion of viability or, in the case of subsection (2)(b), potential viability. Viability is defined in subsection (3) as a school for which, there would be a sufficient demand for places … to ensure that a satisfactory education was provided there". There will be a very high level of interest in how the concept of "viability" is to be defined. The responsibility for such definition, however, will be delegated to the FAS.

The amendment suggests replacing the subjective judgment of a quango with the objective judgment of the local community. If parents know best, as we are constantly told, there can be scant reason for not seeking their views before more of their money is spent in promoting a type of school which they may not want. I beg to move.

Lord Morris of Castle Morris

In supporting what the noble Lord, Lord Tope, said, I should like to ask the Minister three questions. First, the noble Lord said that, as the clause currently stands, subsection (2)(b) appears to give carte blanche to promoters of a grant-maintained school to go around spending public money to drum up support for the kind of school they want. Can the Minister say what controls there are on such activity? Do these promoters, whoever they may be, have to satisfy any form of examination or inquiry before they start promoting?

Further, can such promoters specify what sort of school they would wish to promote? For example, could a Quaker promoter say, "I want to set up a Quaker GM school?" One would perhaps have no objection to that but some people, alas, might have an objection if the promoter were a Moslem who wished to set up a Moslem school. Perhaps even more people might have their hackles rising if it was a Moonie with plenty of money who wished to propose a Moonie school. What are the limits to be placed on promoters?

Secondly, the noble Lord, Lord Tope, drew attention to the fact that, as the clause stands, the FAS will be able to pay for market research out of the public purse in order to establish whether or not a school will be viable. So, Her Majesty's Government and, behind them, the British taxpayer, will be sponsoring a feasibility study. Can the Minister give some idea as to how much all that will cost?

Thirdly, the noble Lord drew our attention to the fact that there will be a very high level of interest in how the concept of "viability" will be defined. However, we notice that the responsibility for establishing such a definition is delegated to the FAS. Therefore, is not the agency judge, jury and hangman in its own case?

Lord Dormand of Easington

When the Minister replies, perhaps he can give the Committee some indication—or, indeed, some accurate figures—as to how much public money has been spent in promoting GM schools? If we are to have a realistic debate on the amendment, it seems that we ought to have that information.

Baroness Young:

Once again, we are discussing a most important issue which concerns the whole establishment of GM schools. Before one is set up, everyone needs to be satisfied that it is both needed and viable. I should tell the noble Lord, Lord Morris, that many of the detailed questions that he raised are answered in the Notes on Clauses, which I shall not read out. As I understand the Notes, the promoters are people other than the funding authority who propose to establish a GM school under the terms of Section 212 of the Education Act 1996. The Notes provide that where promoters propose to establish such a school they must, after consultation with the funding authority and other interested parties, publish proposals and submit them to the Secretary of State. The Notes go on to say that the funding authority is prevented from paying grant unless it is satisfied that the proposed school is likely to be viable. It has to be satisfied, if necessary, that further steps need to be taken before it would be viable.

One might well answer the noble Lord, Lord Dormand, by saying, "Very well, this is public money to promote GM schools. But how much public money has been spent in preventing some being set up?" We do not know the answer to that question. Noble Lords opposite may shake their heads but I can tell them that the number of letters sent out in some cases must have amounted to a certain amount of public expenditure. However, as I said, we do not know the sum involved.

Where it is believed that there should be a grant-maintained school it seems to me most important that there should be the opportunity to assess the situation and find out whether it would be viable before going ahead. That is a perfectly reasonable expenditure of money for something which has a proven track record.

Lord Henley

I shall start by dealing with the concern expressed by the noble Lord, Lord Morris, over who, in effect, controls promoters. I can tell the noble Lord that anyone can put forward proposals for promoting a new GM school; that is only right and proper. All a promoter can do is publish statutory proposals for setting up a school. The decision to approve such proposals obviously rests with the Secretary of State.

The Secretary of State welcomes any sound proposals from promoters of all kinds. To date the Secretary of State for Education and Employment and the Secretary of State for Wales have, I understand, approved proposals from six Roman Catholic schools, one being in Wales. I also understand that there are a further 11 proposals from Jewish, Moslem and Christian promoters, including a Seventh Day Adventist promoter, which are under consideration in England. A proposal for a non-denominational all-age school is also under consideration in Wales. Those are matters for the respective Secretaries of State to consider in determining statutory proposals. They will be considered on their merits against the specific criteria. I give way to the noble Lord.

Lord Morris of Castle Morris

I am much obliged to the Minister. Perhaps the noble Lord can go further. For example, would the Secretary of State be liable to approve such a proposal if it were put forward by, shall we say, the Co-operative Society?

Lord Henley

As I made clear, that is something that the Secretary of State would consider on its merits. It would be wrong for me at this stage to say, "No, the Secretary of State would not consider one from the Co-operative Society but she would consider one from Sainsbury's". As I said, such matters would be considered on their merits, taking account of the specific criteria.

I turn now to the amendment. Under Clause 14 the funding authority is able to help prospective promoters of new GM schools develop their proposals by providing grant. The purpose is to ensure that sound proposals can go forward to publication which might not otherwise have done so without such development grant. I should tell the noble Lord, Lord Dormand, that I cannot give a figure as to how much has been spent in that area. However, I shall endeavour to find out whether there is such a figure and, if there is, I shall communicate with the noble Lord.

Amendment No. 80 makes it a condition of grant payment that there should be demonstrable public support for the proposed school. I have every sympathy with the view that public resources should be used sensibly and that grant should not be paid to help promoters develop their proposals where it is perfectly clear that the new school would not attract sufficient pupils. The noble Lord will be aware that there was considerable discussion at the Committee stage in another place on these issues. My honourable and right honourable friends listened carefully to the arguments put forward. But they feel that the clause as it now is achieves that purpose because they introduced the government amendment in another place at Report stage—which the noble Lord, Lord Tope, accepted—to address that point.

We believe the issue to be whether or not a school is likely to be viable; that is, likely to attract sufficient demand from parents to secure a satisfactory standard of education. We do not believe that a test of demonstrable public support adds anything to the clause, or the clause as amended at Report stage. I am grateful to the noble Lord for underlining the two subsections which were added. Expressions of public support are not necessarily synonymous with expressions of parental demand. Such a test gives no clue as to the persons demonstrating support or how many would be required to demonstrate support before the test was passed.

The viability test has sufficient merit in itself. It includes evidence of demand in terms of expressions of parental support for a proposed new school and that would be a significant factor in the assessment. It also enables the funding authority to take account of other factors in assessing viability such as future parental demand arising, for example, from a new housing development. Those parents obviously would not be present to express their views but they would want a school with places for their children.

Amendment No. 82 would remove an important aspect of the funding authority's powers contained in subsection (2)(b). That subsection takes account of circumstances where the funding authority might consider that further work needs to be done before it is satisfied as to viability, but thinks it likely that it will be so satisfied when that work has been done. In those circumstances the funding authority would be able to pay grant to enable the further work to go ahead.

If I may, I shall give the noble Lord an example. The promoters might be able to present the funding authority with initial evidence of parental demand in response to fairly embryonic proposals for a new school, for example, the new Co-operative Society school put forward by the noble Lord, Lord Moms. The funding authority may take the view that there is a reasonable prospect, once the proposals have been developed a little more, that a further parental survey would produce a more informed and complete response. In those circumstances the funding authority would be able to pay grant linked to the further work required.

It is important that the funding authority is able to exercise such judgment where it believes there is a reasonable prospect that the school will be viable. Otherwise, promoters who could demonstrate viability satisfactorily if grant was available for further work, would be unable to do so precisely because they were ineligible for grant.

I fear therefore—put briefly to the noble Lord—that his amendments are not acceptable. I feel that Clause 14 as it stands secures that public funds will be used properly. I do not believe that these two amendments would add to its merits.

6.30 p.m.

Lord Morris of Castle Morris

Before the noble Lord sits down, he has been so helpful to me on the first of the three questions that I asked that I wonder has it perhaps slipped his mind inadvertently that I asked him two others: one, whether the feasibility study as I called it is costed in any way? Any private company going into a market will undertake market research to see whether there is a need for a product. As the clause stands, the FAS will be able to pay for that market research out of the public purse. Can the noble Lord give us some idea what will be the order of magnitude of the cost of this kind of feasibility study? What will it include? Secondly, could he address himself for a moment to the question of why it is the FAS which will decide what viability is? As the noble Lord, Lord Tope, memorably said, this amendment that we are putting forward suggests replacing the subjective judgment of a quango with the objective judgment of the local community—parents know best.

Lord Henley

I am afraid that the amendment which the noble Lord, Lord Morris, put his name to—the amendment of the noble Lord, Lord Tope—does not achieve that. We believe that the FAS is perfectly capable of deciding on viability. But obviously in the end the decision of the school itself—as the noble Lord well knows—will be made by the school. We are talking here about the promoters looking at the possibility of a school. It is quite right that the FAS should be able to consider spending money on these matters. If I have any more information on possible costs, order of magnitude, and that sort of thing, I shall, if I may, write to the noble Lord if he would find that more helpful, because I certainly cannot answer that question at the moment.

Lord Morris of Castle Morris

I am grateful to the noble Lord.

Lord Dormand of Easington

The Minister said that if he could get the information that I asked for he would write. If he cannot get the information, will he also write to me? I ask that quite seriously for two reasons. First of all, I think that is of immense importance to the amendment we are discussing. But, what is perhaps even more important, this is the Government who are always, they say, looking after the pounds and the pennies the whole time and who criticise the Labour Party for what they consider to be profligate spending. Therefore we are entitled to know that this Government are keeping a careful eye on the money they are spending on something which is strongly opposed by people on these Benches.

Lord Henley

I think we have a pretty good record of keeping a tight control on public finances, particularly compared to the promises amounting to some £30 billion of extra expenditure offered by the party opposite. I do not think today is the time or the place to engage in financial or economic debate, but I just thought I would have the beginnings of it. Certainly I give an assurance to the noble Lord that I shall write to him whatever the case may be. Or, if I may write to the noble Lord, Lord Morris, I shall copy that letter to the noble Lord, Lord Dormand.

Lord Tope

I am grateful to the Minister. I shall resist the bait that he offers me to consider how either party will pay for its proposals. Perhaps we should not pursue that tonight. I am grateful to the Minister for his careful reply. I am sure that he will copy to me as the mover of the amendment the prolific correspondence he is about to engage in as a result of my amendment. I shall consider both the report of his speech and the correspondence. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness David moved Amendment No. 81: Page 13, line 10, at end insert ("or professional development fees").

The noble Baroness said: We are continuing the debate on expenditure with this amendment. The purpose of this amendment is to define more specifically the purposes for which the funding agency may make grants, thus seeking to safeguard the effective and efficient use of public funds, which we know is almost priority No. 1 for the Government. Therefore I am sure that the Minister will look favourably on this amendment.

The power proposed in Clause 14 for the funding authority not only conflicts with the Government's original remit for the FAS, but, more significantly, it introduces the risk of wasting public money on formulating proposals which are already the responsibility of the LEA.

The current drafting of subsection (4), Grants may be made under this section on such terms and conditions as the funding authority think fit", lacks adequate definition to prevent the funding agency from making grants to promoters for public relations activities which might include lobbying in support of their proposals. One hopes, of course, that that would not occur. But whether or not it is likely that such expenditure would occur is a matter for conjecture, and the intention is not to cast aspersions on the motivation of the funding agency. The purpose of this amendment however is to ensure that it is not legally possible for money to be spent in such a way.

Public expenditure should be constrained to those professional development fees which are legitimate costs incurred in the preparation of proposals. This may include fees, for example, for architects, quantity surveyors, engineers, building control inspectors, legal advice or preliminary planning applications. This would reflect the services which LEAs are currently entitled to pay for in developing proposals.

During debate of this clause in another place, the Minister indicated that he would seek advice on whether the clause as it currently stands would enable the FAS to permit money to be spent on propaganda. That is at col. 336 of the Official Report of 10th December. It would be helpful to have clarification on this point and to understand how the Government would ensure that sufficient safeguards are in place to prevent public funds from being abused.

The amendment would clarify the purpose of such grants and constrain the funding agency's expenditure in the interests of public probity to fees for services which are a legitimate contribution to the formulation of proposals. I beg to move.

Lord Henley

As an aside, I am interested in the news about the miscounting by our Whips on an earlier amendment. They seem to have been two out, out of 171. Our colleagues in the Commons were only out by one out of 273. I suspect from now on that we should refrain from criticising our colleagues in another place. It might reflect upon the golden age of education from which many of us ventured so long ago.

Turning to the amendment, prospective promoters of new grant-maintained schools can incur a number of costs in developing their proposals. Typical examples might be architects' and surveyors' fees on premises-related aspects of proposals and legal advice on land tenure and trust arrangements. They might also incur expenditure related to advice on curriculum and financial matters or on a survey of parents. Some items of expenditure might be described as professional development fees. Others will not.

The point is that the term "expenditure" in Clause 14 includes all types of costs, including professional development fees. The amendment is therefore unnecessary.

The noble Baroness expressed concern as to whether the grants could be used for propaganda purposes and referred to the consideration that one of my honourable friends gave to these matters. I cannot say that the wording of Clause 14 in itself expressly prohibits the payment of grant for the purposes of propaganda, whatever that means. However, I think it odd to focus on that aspect of the funding authority's power to pay grants to help prospective promoters to develop their proposals.

The funding authorities are themselves responsible bodies. In Wales, the funding authority is the Secretary of State and in England it is the Funding Agency for Schools. It is not a function of the Funding Agency for Schools in England to fund propaganda or to promote the grant-maintained sector. The functions of the agency are set out in legislation and in its management statement and corporate plans. The agency's management statement and the code of conduct made clear that board members have a key responsibility to ensure that activities undertaken by the agency are consistent with the legal framework governing the operation of the agency. Moreover, the terms and conditions attached to the grant to be paid to the FAS are set out in the financial memorandum. Responsibilities placed on the agency's accounting officer include safeguarding all public funds and assets in the agency's charge and ensuring that they are applied only to the purposes of the agency as approved by Parliament.

I hope that that will reassure the noble Baroness that the money will not be spent on what she describes as propaganda, whatever that might mean.

6.45 p.m.

Lord Morris of Castle Morris

Since the intention of the amendment is, if I understand it correctly, to define more specifically the purposes for which the funding agency may make grants, first, can the Minister assist us as regards the problem which my noble friend put forward? She said that the power proposed in Clause 14 for the funding authority conflicts with the Government's original remit for the FAS. Is that the case? If so, can the Minister reconcile the discrepancy, or should we be considering some other amendment?

Secondly, as regards propaganda, can the Minister take us a little further and give some clarification? For example, if it were alleged that propaganda had been supported by public funds, how would this be tried, proved or not proved? What sanctions would the Government have against alleged offenders found guilty by whatever means we hope to employ?

Lord Henley

The usual accountancy processes would be the obvious route through which one would pursue these matters. The fact that the funding agency accounts have to be approved by whatever bodies—I forget them—would surely allow for that.

As regards the noble Lord's first point, I shall read carefully what he said. I fail to understand how Clause 14 conflicts with the original purposes for which the funding agency was set up. I shall read carefully tomorrow what the noble Lord said, but I do not see any conflict.

Baroness David

If the Minister is willing to find out exactly how the proposal in Clause 14 conflicts with the original remit, perhaps he will have another look at the amendment in the light of his lack of knowledge. That would be helpful. Will the noble Lord agree to look at the provision so that he can tell us what he really thinks?

Lord Henley

As always—it is one of the points of the Committee stage of a Bill—one gives a commitment that one will look at a particular clause and concerns. I shall study carefully what the noble Baroness said as regards Amendment No. 81 and what the noble Lord, Lord Tope, said on other amendments. I am content with the provision. If I have misunderstood some of the concerns, it would be right that I should consider the matter again. But I am not sure that that is the case.

Baroness David

I think that that is almost a commitment that the noble Lord will have another look at the position. In the light of that, I am happy to beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

[Amendment No. 82 not moved.]

Clause 14 agreed to.

Clause 15 [Recovery from local funds of sums in respect of start-up grants]:

Baroness David moved Amendment No. 83: Page 14, line 8, leave out ("determine") and insert ("consider, after consultation with the local education authority or with any appropriate body which appoints foundation governors to one or more schools in the area, corresponds to the amount which the authority or as the case may be that body would have been likely to have expended during that period in respect of the initial costs of the school if it had been a school provided by them.").

The noble Baroness said: We are still discussing money. The purpose of the amendment is to limit the amount of money which might be recovered from the LEA to the level which would have been spent on the start-up costs of a county or voluntary-aided school: the GM school is not to be treated differently.

Clause 15 gives the Secretary of State powers to recoup the start-up grant paid to a new GM school before it opens. This amendment seeks to limit the amount of money which might be recouped from the LEA to the level which would have been spent on the start-up costs of a new county or voluntary-aided school. The underlying principle here is the need to ensure consistent treatment between GM and LEA maintained schools.

The principle of equity between GM and LEA-maintained schools is particularly important in this context. The Secretary of State, in exercising her powers to recoup moneys from the LEA, would in many cases be making a precept on the LEA's budget in circumstances where the LEA had initially opposed the establishment of the new GM school since it considered that the establishment of the new school was unnecessary. The exercise of the power to recoup by the Secretary of State, in circumstances where the LEA considers the establishment of a new school to be unnecessary, would cut across a fundamental principle of public accountability. It is quite unacceptable to expect any public authority to bear the costs for decisions for which it was not itself responsible and accountable. Rather than recoup from the LEA in these circumstances, the costs of the establishment of the new GM school should be borne by the Secretary of State or the Funding Agency for Schools, or by the third party (if any) which was promoting the establishment of the school in the first place.

Most new LEA schools are generally replacement schools, albeit that they may sometimes be larger than their predecessor school. It is rarely the case that a new school is needed simply to cater for a wholly new set of pupils. Therefore, in most cases, the effect of establishing a new GM school will be to decrease further the overall level of efficiency of administration within the LEA area, mainly through reduction in economies of scale. It will reduce the viability of neighbouring schools and it will impose further burdens on the already overstretched education budget of the LEA concerned, where there will not have been a corresponding increase to the roll-related element of the education grant for the LEA.

It would be quite unacceptable if LEA-maintained schools were to be penalised by any measures under this clause which sought to claw back more funding than was strictly fair or necessary—to the benefit of the new GM school—at the direct expense of the majority of pupils in the area attending LEA-maintained schools.

The funding arrangements for new county or VA schools would normally be determined in accordance with the LEA's scheme of local management of schools formula. This amendment simply aims to restrict the Secretary of State's powers in respect of recoupment to ensure that any recoupment from the relevant LEA would be in accordance with the agreed local funding formula. The amendment also provides for appropriate consultation with the LEA concerned (or the appropriate denominational body concerned in respect of VA schools)—something which (at cols. 343 and 344 of the Official Report, Commons, for 10th December 1996) the Parliamentary Under-Secretary of State for Education and Employment, Mrs. Cheryl Gillan, conceded should take place when the Opposition moved a similar amendment in Standing Committee D. The Minister also conceded that, The Secretary of State must use her powers to recoup start-up grants reasonably … [and that] she would consider each case on its merits, taking account of LEA representations, before making decisions". If this is the Government's stated position, can they now accept an entirely reasonable amendment which is apparently in accordance with the Government's own views? I hope so. I shall listen with great interest to the Government's response. I beg to move.

Lord Henley

Before reaching decisions on recoupment under Clause 15, as my honourable friend said in another place—and the noble Baroness quoted her—the Secretary of State will consider each case on its merits, in the light of representations from LEAs. The noble Baroness also made the point that my honourable friend made it quite clear that the Secretary of State would have to react reasonably. Indeed, the Secretary of State could be challenged in the courts if she did not take the views of the LEAs into account and did not act reasonably.

It is our intention to consult the LEAs in individual cases so that the LEA view can be taken fully into account. We already engage LEAs in consultation as necessary on recoupment questions which arise under existing provisions in the 1996 Act. In this way, the Secretary of State ensures that she is able to come to reasonable decisions on recoupment.

But the amendment would require the Secretary of State, in reaching her decision, to take into account what might be a corresponding sum for start-up costs if the grant-maintained school had been an LEA-maintained school. It would certainly be part of the process of consideration to look, where we can, at LEAs' own practices in relation to the support they provide to new schools before they open. But not all LEAs, I have to say, would necessarily have recent experience of setting up a new school; or if they did, it would not necessarily be a school of the same type or similar size. Ascertaining likely costs would be bound to be speculative in the extreme in such LEAs.

A further factor is the extent to which LEA support for a new school would be indirect expenditure in the form of overheads, such as advice and support from LEA officers, which is not available to a new grant-maintained school and might have to be bought in. Such support would not appear to be caught by the amendment. The Secretary of State would therefore need to come to a judgment on whether some or all of the indirect expenditure might be recouped in individual cases.

I think, therefore, that the noble Baroness will understand that my reservations about the content of her amendment point to the very good sense of consulting LEAs in individual cases, without any pre-set agenda imposed by legislation. But above all, I am unconvinced that such matters are in any case for the face of the Bill. I am unhappy about provisions which attempt to prescribe the sorts of considerations which the Secretary of State necessarily brings to bear on questions of recoupment, in order to reach a reasonable decision. I hope, therefore, after I have explained it in that manner, the noble Baroness will feel able to withdraw her amendment.

Baroness David

The Minister raised a great number of objections. I shall have to read them carefully before I decide whether or not he has a case. I think the LEA has a good case. It is possible, if it has not just built a new school itself, to find out easily what the costs might have been. I do not think I am totally convinced by the Minister's arguments, but I should like to read them carefully and decide whether it would be suitable to come back at a later stage with the same or a similar amendment. I am not altogether convinced by the Minister's arguments, but for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Baroness Thomas of Walliswood moved Amendment No. 84: After Clause 15, insert the following new clause—

CHANGE OF STATUS OF GRANT-MAINTAINED SCHOOL

(" .—(1) At the end of section 184(1) of the Education Act 1996 there shall be inserted "and any school with that status shall he eligible to become a county school (unless it was previously a voluntary school, in which case it shall be eligible to become a voluntary school)".

(2) At the end of section 185(1) of that Act, there shall be inserted "or which are grant-maintained".

(3) In section 185(2) of that Act, after the word "status" there shall be inserted "or, as the case may be, county or voluntary school status". ").

The noble Baroness said: This new clause is directed to the peculiar situation where a school which is currently a county or voluntary school can become a grant-maintained school but a grant-maintained school cannot decide to become a county or voluntary school. In other words, the current situation is a one-way track. The amendment was argued as long ago as the Education Reform Act 1988 when the late Lady Faithfull moved an amendment to similar effect.

In terms of the competition model of schools which the Government appear to be pursuing, it is paradoxical that schools may exchange one status for another, but only in one direction. That appears to cut against the notion that schools should be able to choose the structure which best suits them. Equally, the creation of a once-and-for-all decision over grant-maintained status has always meant that a particular group of parents was in the position of binding the hands of its successors. if the principle behind grant-maintained status is that the wishes of parents at the time should be followed, then a logical conclusion would be that future groups of parents should similarly have the right to determine the direction of the school, if they so chose. An opt-back provision would be needed to enable that principle to be effective. In the most serious cases, grant-maintained schools may find the experience uncongenial, or the practical difficulties that they faced might be such that they might wish to move under the umbrella of the local education authority for the purposes of ensuring their survival.

Given that the primary concern must be the educational well-being of pupils at any school, it follows that the maximum range of choice should be available to a school and its staff and to the parents who have been called upon to approve such a move. I beg to move.

Baroness David

My name is also to the amendment and I support it wholeheartedly. I was here in 1988 when the Education Reform Bill was going through the House. I well remember the efforts we made to get the proposal accepted at that time. It seems a totally reasonable amendment. If parents, who apparently are now all-important on this side of the House, can choose that they shall have a grant-maintained school, surely the parents can then decide that they have had enough of it and they would like the embrace of the local education authority, for the greater comfort of having its advice, help and its wide knowledge available to them. This is a very important amendment and I hope that it will have support from all round the Committee. I am very keen that we should push this matter.

The Lord Bishop of Ripon

I do not wish to oppose the amendment but I should like to raise a particular difficulty in relation to voluntary schools, which are mentioned in the amendment.

As the Minister will know, voluntary aided schools are required to contribute 15 per cent. toward capital costs. But when such voluntary aided schools become grant maintained, that requirement is removed and the capital cost is provided by the funding agency. Were such a former voluntary aided school to wish to return to its voluntary status, what would it be required to do by way of refunding funds that had been spent in capital expenditure?

The Minister may say that that is an entirely hypothetical situation. But I should be grateful if he would give the matter a little thought. Would it be the case that, after so many years, a contribution to capital funding might be written off? Might there be some kind of sliding scale? Would voluntary aided schools wishing to revert in status be required to pay the full amount of their 15 per cent. contribution? I wonder whether the Minister can give any indication of what the position would be.

7 p.m.

Baroness Farrington of Ribbleton

For once I should like to spring in advance to the defence of the Government and express concern that the right reverend Prelate the Bishop of Ripon could think that the Government would be so churlish as even to consider that a period of absence followed by the return of a prodigal to the voluntary aided fold would lead to some kind of penalty for that period of time when the voluntary aided school had ceased to be a voluntary aided school. I beg the right reverend Prelate's pardon but I am quite sure that the Government would never take that view.

If the Government were to take that view, presumably they would take the same view about former county schools which had benefited from the greater percentage—that seems to be the least pejorative term—of capital availability for grant- maintained schools than for county schools. I well remember at the North of England Education Conference in Nottingham the present Chancellor of the Exchequer, when he was Secretary of State, saying that if there was a belief among voluntary aided schools and county maintained schools that capital preference was given to grant-maintained schools, they knew the answer, which was to opt out.

Should a voluntary aided school's governing body or a county maintained school's governing body have been tempted, lured by Mammon, for a short period of time to avail itself of the need to repair a leaking roof, I am quite sure that this Government could not possibly ask successive children and parents to repay that particular deliberate piece of government overfunding, generous funding or, as the Government would perhaps have said, just realistic funding to meet its needs. Similarly, I cannot see that the concern expressed by my noble friend Lady David and the noble Baroness, Lady Thomas of Walliswood, about the Government having any doubts about parental choice could possibly be founded in fact.

The Government's whole policy is about parental choice; the Government's whole view is that there should be diversity and freedom; and the Government's whole theme is that every governing body in a county or voluntary aided school should have the opportunity at governing body level once a year to decide that the school wishes to avail itself of grant-maintained status. If, misguidedly, that group of parents, governors and teachers should decide that it is in their interests, or if it is their view at a particular time, that they would like to go in the opposite direction, I believe that this Government would welcome it because they have stated so often that parental choice is the most important issue. Here we make the Government a present of an extension of parental choice.

Lord Henley

I fear the Greeks even bearing gifts and I fear the noble Baroness's support equally. I ought to make our position clear. We have always made it clear that becoming grant maintained is a permanent change in a school's status. That means that governors and parents need to think very carefully about the issue before making that change. It would be wrong to have a situation where a minority of parents who remain discontented with the status of the school could continue to campaign for the school to return to LEA control. That could create a permanently unstable situation and distract the school from the main task of improving the quality of the education that it has to provide for its children.

Baroness Farrington of Ribbleton

Would the Minister care to comment on the following situation? If there is a parental ballot and parents vote against grant-maintained status and are in a majority, would a small minority of parents be allowed to continue to campaign to have that ballot decision reversed in subsequent years?

Lord Henley

I think it is unlikely that they would do so, there having been a ballot. We have always made clear that moving to grant-maintained status is a permanent change and that is it. That is the reason why I shall resist the amendment most strongly. We do not believe that there should be to-ing and fro-ing through the system. Once a school has become grant maintained it should stay grant maintained.

That leads me to the question put by the right reverend Prelate, which in fact is a question that should not be put to me but to the promoters of this particular amendment. It is for them to answer. It is a hypothetical question and is not one that I am prepared to answer, on the basis that we are not prepared to accept this amendment.

Baroness David

Parents change and the parents of one set of school children will not be the parents of the next set. There will possibly be very different views between the generations, half generations, quarter generations or whatever. In another five years there may be some sisters and brothers but the children may be quite different and the parents may be quite different people.

Lord Henley

It is perfectly true that parents change. That is why we believe that this change should be permanent, to allow the school to have stability—that very stability that noble Lords ask us to bring to the education system.

Baroness Farrington of Ribbleton

Does the Minister care to answer not whether in his opinion parents who have lost a ballot in favour of going to grant-maintained status would or would not hypothetically be likely to continue in subsequent years to raise the issue, but whether legally the Government, having given them that right to continue to raise the issue each year, if that is what they wish, in turning down this amendment deny exactly that right to parents who have lost the battle in the other direction?

Lord Henley

We believe that the advantages of being grant maintained are so self-evident that it is right that a school should consider it every year. That is why the existing legislation proposes it. We do not believe that there is a case once a school has gone grant maintained for reversing that decision.

Baroness Thomas of Walliswood

I listened with great interest to the responses of the Minister and also to his suggestion that I should respond to the point made by the right reverend Prelate. I simply say that when schools go grant maintained, they take with them schools which have been created by the taxpayers' investment. I do not see why it should be any different when they come back again. That would be my response to that particular point. Nevertheless, we have heard some very obdurate responses from the Minister. I should like to test the opinion of the Committee.

7.9 p.m.

On Question, Whether the said amendment (No. 84) shall be agreed to?

Their Lordships divided: Contents, 49; Not-Contents, 102.

Division No. 3
CONTENTS
Blackburn, Bp.	Kilbracken, L.
Blackstone, B.	Mackie of Benshie, L.
Carlisle, E.	McNally, L.
Carmichael of Kelvingrove, L.	Monkswell, L.
David, B.	Morris of Castle Morris, L.
Dean of Beswick, L.	Nicol, B.
Dean of Thornton-le-Fylde, B.	Perry of Walton, L.
Dormand of Easington, L.	Peston, L.
Durham, Bp.	Ponsonby of Shulbrede, L.
Farrington of Ribbleton. B.	Ramsay of Cartvale, B.
Gallacher, L.	Ripon, Bp.
Geraint, L.	Rodgers of Quarry Bank, L.
Gladwin of Clee, L.	Russell, E.
Gould of Potternewton, B. [Teller.]	Sewel, L.
	Stoddart of Swindon, L.
Graham of Edmonton, L.	Symons of Vernham Dean, B
	Taylor of Gryfe, L.
Gregson, L.	Thomas of Walliswood, B. [Teller.]
Grey, E.
Hampton, L.	Tope, L.
Hayman, B.	Tordoff, L.
Hereford, Bp.	Whaddon, L.
Hollis of Heigham, B.	White, B.
Hooson, L.	Williams of Elvel, L.
Jay of Paddington, B.	Winston, L.
Jenkins of Putney, L.	Young of Dartington, L.

NOT-CONTENTS
Aberdare, L.	Balfour, E.
Addison, V.	Belhaven and Stenton, L.
Anelay of St. Johns, B.	Belstead, L.
Annan, L.	Biddulph, L.
Ashbourne, L.	Birdwood, L.

Blatch, B.	Howe, E.
Bowness, L.	James of Holland Park, B.
Brabazon of Tara, L.	Lindsay, E.
Brentford, V.	Lindsey and Abingdon, E.
Brigstocke, B.	Long, V.
Brougham and Vaux, L.	Lucas, L. [Teller.]
Bruntisfield, L.	Lucas of Chilworth, L.
Burnham, L.	Luke, L.
Butterfield, L.	McColl of Dulwich, L.
Byford, B.	Mackay of Ardbrecknish, L.
Carlisle of Bucklow, L.	Mackay of Drumadoon, L.
Carnegy of Lour, B.	Mackintosh of Halifax, V.
Carnock, L.	MacLehose of Beoch, L.
Chalker of Wallasey, B.	Massereene and Ferrard, V.
Chesham, L.	Miller of Hendon, B.
Clanwilliam, E.	Montgomery of Alamein, V.
Clark of Kempston, L.	Mottistone, L.
Coleraine, L.	Mountevans, L.
Coleridge, L.	Munster, E.
Courtown, E.	Murton of Lindisfarne, L.
Cowley, E.	Newall, L.
Cranborne, V. [Lord Privy Seal.]	Northesk, E.
Crickhowell, L.	O'Cathain, B.
Cross, V.	Oxfuird, V.
Cumberlege, B.	Peel, E.
Dacre of Glanton, L.	Prentice, L.
Dean of Harptree, L.	Pym, L.
Denbigh, E.	Rennell, L.
Denham, L.	Rowallan, L.
Denton of Wakefield, B.	St.John of Bletso, L.
Dixon-Smith, L.	Seccombe, B.
Elles, B.	Shaw of Northstead, L.
Elliott of Morpeth, L.	Skelmersdale, L.
Elton, L.	Stodart of Leaston, L.
Flather, B.	Strathclyde, L. [Teller.]
Gage, V.	Strathcona and Mount Royal, L
Geddes, L.	Thomas of Gwydir, L.
Gisborough, L.	Torphichen, L.
Glenarthur, L.	Trumpington, B.
Goschen, V.	Ullswater, V.
Gray, L.	Walton of Detchant, L.
Gray of Contin, L.	Weatherill, L.
Harris of Peckham, L.	Whitelaw, V.
Haslam, L.	Wise, L.
Henley, L.	Wynford, L.
Holderness, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

7.17 p.m.

Clause 16 [Ballot observers]:

Lord Ponsonby of Shulbrede moved Amendment No. 85: Page 14, line 35, leave out ("may") and insert ("shall").

The noble Lord said: The purpose of Amendment No. 85 is to ensure that ballot observers are appointed for every ballot, removing the need for case by case consideration by the Secretary of State and making the appointment of an independent ballot observer an integral part of the GM ballot process. That would enhance public confidence in the fairness of GM ballots which are sometimes very sensitive and highly charged matters of central importance to local parents and communities.

In the Government's White Paper, Self-Government for Schools, paragraphs 56 to 57, it was acknowledged that the case for the appointment of ballot observers to oversee GM ballots was sound. However, in Standing Committee D, on 10th December last, Ministers chose to reject an amendment which sought to ensure that ballot observers be appointed in every case. The Government argued that that was unnecessary. They took the view that sensible, reasonable people would generally conduct ballots "sensibly and reasonably". The Minister of State, the right honourable Eric Forth, conceded that there were regrettable exceptions to that which would undoubtedly occur on both sides of the argument and the observer mechanism in the Bill is intended to deal with such occurrences.

The central issue underlying the amendment is the extent to which the introduction of ballot observers under the Bill will serve to enhance the credibility of the GM ballot process in practice if the decision to appoint ballot observers is not left entirely to the discretion of the Secretary of State but is made automatic, as the amendment would provide.

In December, the DfEE published a consultation paper which set out the Government's developing policy on how they would envisage the GM ballot observer arrangements working. That consultation period closed at the end of January and Ministers have hitherto made no further announcements regarding the comments received in response to the consultation nor indicated the Government's current position and future intentions. This may well be the first available opportunity to probe the Government's position in the light of the consultation which Ministers were, perhaps understandably, reluctant to pre-empt.

The Local Authorities Association made a number of points when it responded to the government document. It said that there were significant weaknesses in the Government's approach in that the Secretary of State would not be under a duty to appoint a ballot observer upon receipt of a request from any interested party. A second point it made concerned the Government's apparent predisposition to consider favourably requests from schools and parental petitioners while simultaneously proposing criteria of very dubious validity which appeared to suggest that LEAs would automatically request the appointment of ballot observers in every case, regardless of the circumstances and real need for such appointments. The LEAs would support a more pragmatic solution which provided for an exception to be made so that ballot observers would not automatically be appointed if all parties could agree following consultation.

A third point was the desirability that GM ballot observers should have prior knowledge and experience of the education service and of GM issues, which contrasts with the Government's position in paragraph 20 of the consultation paper. It states: Candidates would not he required to have prior knowledge of the education service and of GM issues in particular". In paragraph 18, the consultation paper conceded: Criteria for eligibility would need to be set identifying useful or necessary skills, capacity and experience". But it gave no indication as to what the government criteria might be. I hope the Minister will have something to say on that.

An additional point made by the LAA concerned the detailed procedural issues where further clarification was required in relation to the selection of ballot observers under a system which might be administered by the electoral reform ballot service. Lastly, it made the point that important issues of principle relating to the functions of the ballot observer required further consultation. Some of those go well beyond the monitoring or observer role envisaged in the Bill: for example, the screening or vetting of published written material for parents; and an interventionist role for the observer in correcting misinformation during the course of the ballot and even, maybe, chairing public meetings. I look forward with interest to the Minister's response. I beg to move.

Lord Tope

I support the amendment. It is undeniably the case that a number of ballots have been controversial. Accusations have been made, whether fairly or otherwise, of undue pressure, some have said from the LEA side. There have certainly been cases, albeit fewer, where Ministers have accepted that there has been undue pressure on the part of those promoting GM status. Experience shows that it has happened. Regrettably, it is quite probably going to happen again. Therefore, rather than leaving it in the hands of the Secretary of State to decide in each and every case whether it is necessary or appropriate to have a ballot observer, it would be much quicker, simpler and straightforward were that to be an inherent part of the ballot process. Where a GM ballot was to take place, simply by virtue of that, a properly qualified ballot observer would automatically be appointed. Perhaps there could be an exception where all parties agreed that it was not necessary. Nevertheless, that should be the exception rather than the norm.

The purpose of the amendment is to make it the norm that where there is to be a ballot, before any possibility of accusations arise from either side of improper practice, a ballot observer is appointed who can oversee it and can so judge. This is a fairly simple, straightforward and practical amendment which we hope will be accepted by the Minister.

Lord Henley

The noble Lord, Lord Ponsonby, asked whether I can respond to the consultation initiated in December. We are not yet in a position to do that, but in due course we shall. With regard to the amendment itself, I am grateful that noble Lords opposite now accept the general principle of ballot observers but I do not accept that there should be a ballot observer on every occasion. The purpose of observers is to help avoid or deal with problems arising in the course of a ballot.

Most ballots are perfectly orderly and peaceful events. It is only in a minority of cases that parents are misled or intimidated, or irregularities occur in the carrying out of procedures. It is in those cases that the ballot observer has a role. Therefore I think it is right that the Secretary of State should have as much discretion as possible in deciding whether or not to make the appointment. I do not think we should be wasting other people's time and, for that matter, money by appointing a ballot observer on every occasion. We will develop and use that resource where it is most needed. For that reason, I cannot accept the amendment.

Lord Tope

Does the Minister accept that appointing a ballot observer after irregularities have taken place or after there are allegations of irregularities is a little late? Would it not be preferable to have the ballot observer there in the first place so as to avoid the irregularities arising or at the very least so as to be able to say authoritatively and independently whether or not there have been irregularities? To come in after the event is surely too late.

Lord Henley

They would not necessarily always be coming in after the event. On certain occasions one would be fairly clear that parents had been misled or that there had been intimidation. In such cases a ballot observer could be applied. However, I do not accept the noble Lord's point. I do not accept it would be right to waste other people's time and money by having a ballot observer in every case, bearing in mind that the vast majority of ballots are orderly and peaceful events.

Lord Ponsonby of Shulbrede

I thank the noble Lord for his reply. I am sorry that he was not able to enlarge on his response to the consultation process. However, having said that, he enlarged to the extent that he was not considering any mandatory appointment of observers. He did not quite go far enough to say that he would have observers as a norm but said that in cases where all parties agreed there would not need to be observers. I am not quite sure how open the noble Lord's mind is on the issue. Nevertheless, this is a probing amendment, although it did not probe very far. I shall have to consider whether to return to the issue at a later stage of the Bill. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon

I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.