Education Bill

HL Deb 17 March 1997 vol 579 cc724-56

8.11 p.m.

Consideration of amendments on Report resumed.

Clause 9 [Duty of governing body to review selective admission policy]:

[Amendments Nos. 23 and 24 not moved.]

Clause 13 [Secretary of State's reserve power to limit appropriate threshold]:

Lord Ponsonby of Shulbrede moved Amendment No. 25: Page 13, line 28, leave out ("20 per cent.") and insert ("such a percentage, which shall be not less than 10 per cent. nor more than 20 per cent., as the Secretary of State may specify in relation to that area.").

The noble Lord said: My Lords, the purpose of this ungrouped amendment is to give the Secretary of State greater flexibility in imposing restrictions on selectivity when there is a threat to the supply of school places in a given area. The purpose of the amendment is to strengthen the Secretary of State's ability to deal with any potential adverse consequences of too many schools in an area seeking to exercise the power of selection. Different percentages could be applied between 10 and 20 per cent. depending on the Secretary of State's judgment of the needs of the area.

The existence of Clause 13 in the Bill is, in itself, an acknowledgement that the Government recognise the possibility that the indiscriminate increase of selective admissions policies could create difficulties. A laissez-faire approach to the control of admissions at school level could very easily produce an uncomfortable conflict with the Government's separate policy objective to secure optimal parental choice within an economical and efficient national service. This was fully documented in the recent report by the Audit Commission, Trading Places, in which the commission identified the danger of "policy grid lock" arising from the conflict of the different policy objectives that are simultaneously advocated by the Government.

When this question was discussed in Committee (Hansard, 25th February, cols. 1086, 1087) the Minister admitted that the figure of 20 per cent. as a lower level for free selection was arrived at without any specific rational. He said: 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".

It is accepted that, if the Secretary of State needs to invoke this power, it will be a matter of judgment as to the particular action that is necessary in order to meet the circumstances that gave rise to the need for the Government to intervene. Since we cannot predict what those circumstances will be, and the Government are not in a position to say clearly why they believe 20 per cent. will be an adequate limitation, it is surely much safer to give a future Secretary of State the flexibility to use a figure as low as 10 per cent. After all, this amendment would not preclude the Secretary of State deciding at the appropriate time that 20 per cent. was, in fact, the correct figure and to use that. I beg to move.

Baroness Thomas of Walliswood

My Lords, I should like briefly to indicate our support for the amendment. In the event of the Secretary of State feeling it necessary to intervene because there are too many selective places in an area, this amendment would give her greater flexibility with regard to that intervention. I should have thought that that would benefit the conduct of business in those circumstances. Therefore, I hope that this will be regarded as a helpful amendment.

Lord Henley

My Lords, the reserve power allows the Secretary of State to designate areas in which the threshold for introducing selection would be 20 per cent. for all schools, but it is a fall back power. It would only be used if it were evident that pupils were not getting places at local schools due to the number of selective places in an area.

We think it reasonable that all schools should have the flexibility to introduce at least 20 per cent. selection. This is more likely to permit a separate form of entry than the current 15 per cent. flexibility, but I do not accept that what would still be a modest element of selection will adversely affect the overall supply of places in an area. Indeed, we do not envisage having to use the power in the Bill to reduce the ceiling for all schools to 20 per cent. often, if at all. Experience suggests that admission authorities co-operate sensibly so that pupils are not left without school places.

It is also important to remember that we have put in the Bill a provision which would prevent schools which were partially selective from holding open places if they had applicants waiting who did not meet the selective criteria. It is wrong to say that a particular level of selective places necessarily disenfranchises local children. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Ponsonby of Shulbrede

My Lords, before withdrawing the amendment, I note only that the Minister did not address the issue of why he might not give his right honourable friend the flexibility which may assist her in her decision. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [Grants to promoters of grant-maintained schools]:

Baroness David moved Amendment No. 26: Page 14, line 43, at end insert ("on professional development fees").

The noble Baroness said: My Lords, the purpose of this amendment is to define more specifically the purposes for which the Funding Agency for Schools may make grants to promoters of grant-maintained schools.

Clause 16 would allow the Funding Agency for Schools to make grants to the promoters of grant-maintained schools in connection with expenditure incurred by them in formulating the proposals and preparing the particulars of the proposed premises. This amendment seeks to ensure that the promoter of a new school is not reimbursed for expenditure incurred in, for example, employing a public relations company to encourage support among the public, or lobbying in support of the proposal. This is not to suggest that such practice would be commonplace; but it is important to ensure that it would not be possible for public money to be used in this way, especially as local education authorities might also be spending money in preparing proposals at the same time.

Grants from the Funding Agency for Schools should be limited to expenditure on professional development fees related to the proposed site and buildings. This may include fees which have to be met in relation to the employment of architects and engineers, and any fees incurred in obtaining legal advice about the proposed development of the site. These are all costs which would have to be met if the local education authority was itself developing a similar proposal and as such it would be perfectly reasonable for the promoter of a grant-maintained school to have this expenditure reimbursed by a grant from the Funding Agency for Schools.

The Minister accepted when this matter was debated in Committee (Hansard, 25th February, col. 1099) that the wording of the then Clause 14 did not expressly prohibit the payment of grant for the purposes of propaganda, and that it is not a function of the Funding Agency for Schools to fund propaganda or to promote the grant-maintained sector. It is quite clear therefore that to provide money for this purpose would be outside the remit of the Funding Agency for Schools and on that basis it would be helpful if the amendment is accepted so that the funding agency is quite clear as to Parliament's intention. I beg to move.

Lord Henley

My Lords, this amendment bites upon Clause 16 which enables the funding authority to pay grant to prospective promoters of new GM schools to help them develop their proposals. A number of costs can be incurred by prospective promoters of new GM schools in developing their proposals. Typical examples might be architects' and surveyors' fees on premises-related aspects of the proposals and legal advice on land tenure and trust arrangements. Promoters 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.

Clause 16 simply refers to, expenditure incurred or to be incurred", by the promoter. There can be no justification for restricting the categories of grant to professional fees only. Therefore, I believe that the amendment is excessively restrictive. This reduces the flexibility that the funding authority may need if it is to respond helpfully to the promoter. The whole purpose of Clause 16 is to enable the funding authority to provide such help in the interests of enabling potentially sound proposals to go forward for publication which might not otherwise have done so without such grant. Therefore, I hope that the noble Baroness will withdraw her amendment.

Baroness David

My Lords, before the Minister sits down perhaps I may ask whether he agrees that the funding of propaganda is not really legitimate.

Lord Henley

My Lords, the funding of propaganda is not right, just as the funding of propaganda by the local education authority against a proposal by a school to go grant-maintained would not be legitimate. What we are saying is that the words "professional fees only" are excessively limiting.

Baroness David

My Lords, when I moved the amendment I believe I said that, for example, the employment of a public relations company to encourage support among the public would not be a legitimate use. It may be that the amendment is drawn too widely and that "professional fee" covers too many matters. Given the possibility that the Bill may have a Third Reading, I suppose that one can return with a more specific amendment. However, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris of Castle Morris moved Amendment No. 27: Page 15, line 21, at end insert ("and if the viability of neighbouring schools would not be significantly affected.").

The noble Lord said: My Lords, the purpose of this amendment is to ensure that the establishment of a new grant-maintained school does not lead to the education in other schools in the neighbourhood ceasing to be of a satisfactory standard by reason of the intake of those schools being significantly affected. The amendment is an attempt to prevent the spending of public money on the promotion of new grant-maintained schools in areas where the creation of such a school with, say, 750 places for 11 to 16 year-olds would be likely to impact on other schools in the area to the extent that those other schools might be unable to provide as good an education as now or even not provide a satisfactory standard of education.

As the clause currently stands, it appears to give carte blanche to the promoters of a grant-maintained school to spend public money to drum up support for a school in any area of the country, including presumably areas in which there are plenty of places in existing schools and no demand for a new one. While the Government have acknowledged in subsection (3) that the viability of any new school must be such as to ensure that it is able to provide a satisfactory education, what the clause fails to take cognisance of is the impact on other schools in an area.

This difference of view between the Government and this side of the Chamber goes to the heart of what separates the two approaches to the Bill. On the one hand, the Government operate in the belief that a free market in school places will ensure that eventually there is some semblance of equilibrium between supply and demand, in spite of the Trading Places report in which the Audit Commission exposed so cruelly the failure of the market approach. On the other hand, the view of the Opposition parties is that there needs to be a strategic management of school places for the good of all the pupils in an area. The idea of schools withering on the vine may appear attractive to certain elements of the party opposite, but they have less to say about what happens to the pupils while this often protracted process takes place.

Speaking subject to correction, I recall very well that the only contribution of the noble Earl, Lord Onslow, who I see is sadly not in his place at the moment, was on 25th February when he said: 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?".— [Official Report. 25/2/97; col. 1069.] That is entirely opposed to the way in which we on these Benches, and I believe many noble Lords on the Benches opposite, view schools. To close a school in such a situation is a big operation that has deleterious effects on all kinds of people, particularly the children. I was shocked at what I heard on that occasion.

While it is considered in many ways a vice to have a few too many places in an LEA school, it seems to be a virtue to have whole new grant-maintained schools where there is no shortage of places. The shift by the Government to the notion of a viable school in which a satisfactory standard of education can be provided is to be much welcomed. This amendment merely seeks for a similar approach to be applied to the other schools in an area in which a new grant-maintained school is proposed.

There will be a high level of interest in exactly how the concept of "viability" is applied. In his letter of 10th March to me, the Minister usefully detailed a number of ways in which potential viability could be demonstrated. It is the intention of the DfEE to offer detailed guidance to the FAS on this matter. There are many, however, who fear that, should this responsibility be delegated to the FAS, it may find too little difficulty in sorting out what both "viable" and "satisfactory" means if there is a possibility of setting up a grant-maintained school. The FAS will want to do so. We believe it is wrong that the FAS should be given the power to decide whether it shall do so. I beg to move.

Baroness David

My Lords, in relation to this amendment I should like to raise the question of sixth-form colleges. I believe that they could be made unviable if GM schools with sixth forms were created. That raises again the question whether sixth-form colleges, which have been so successful and have provided such a good service to students in the community, may have difficulty if certain plans are taken forward. I support the amendment.

Baroness Thomas of Walliswood

My Lords, I also support the amendment. I believe it is very important that the viability of one school, whoever establishes it, should not be bought, as it were, at the expense of loss of viability of other schools. It is extremely expensive for a local authority to run and fund such a school and not good for children to have to learn in a declining school. To create a situation in which surrounding schools may be rendered less viable is not desirable.

Lord Dormand of Easington

My Lords, I am sure that the House will agree that this is an exceedingly important amendment. It contains the words and spirit of a number of matters that have already been debated. In those circumstances, I should like to draw to the attention of the House the fact that there is not a single Conservative Member on the Back Benches opposite. The Minister may recall that not long ago there was a debate on education and, unwisely and uncharacteristically, he made reference to the fact that some of us who were interested in education were not in the Chamber. He included my name in that list. I think it is right to say that no one on the Tory Back Benches is interested in a part of a Bill which the Government have said time and again is so important to the future of this country.

When the Minister replies perhaps he will define "viability". That is the most important word in this debate. From what has been said in previous debates on the Bill it appears that the Government's definition of "viability" is somewhat different from ours. That may make a difference when he comes to reply.

Lord Henley

My Lords, the noble Lord, Lord Dormand, makes well the point about the absence of my noble friends behind me. I dare say it is unlikely that the noble Lord and his noble friends will want to divide the House, but I am sure that if he did so he would find that there were considerable numbers of my noble friends in the House—probably all glued to the television watching every moment of this debate and taking enormous interest in it.

Lord Dormand of Easington

My Lords, if that is the case, why does the noble Lord believe that we were not glued to the television when he was talking about our absence?

Lord Henley

My Lords, because I believed that the noble Lord was elsewhere and not in the House.

Lord Dormand of Easington

My Lords, how does the noble Lord know where his noble friends are?

8.30 p.m.

Lord Henley

My Lords, I say that because I have faith in those behind me.

The noble Baroness, Lady David, returned to the question of sixth-form colleges. It is interesting to discuss that again at this time of night. However, we discussed it earlier and divided upon Amendment No. 17 as a result of an intervention by her noble friend Lord Ponsonby of Shulbrede. I believe that that is a matter on which the House has come to, dare I say it, a fairly conclusive decision. On that occasion a considerable number of my noble friends were here and slightly fewer of the noble Lord's noble friends.

I was interested also in what the noble Lord, Lord Morris, had to say about the intervention of my noble friend Lord Onslow. It was a fine speech, although he went slightly beyond what is the accepted policy on these Benches. That is something to which the noble Lord will be well used with some of the interventions that he has noticed not necessarily on this Bill but on a number of other Bills and on a number of other occasions from those who sit behind him. One cannot always guarantee the total support of those who sit behind you, although one can always guarantee the total agreement.

The clause, as amended by a government amendment in another place, provides that grants should not be paid to help the promoters develop their proposals unless the funding authority is satisfied that it is likely that the school will be viable. At this point it may be worth referring the noble Lord, Lord Dormand, to Clause 16, where we insert new Section 213A. Subsection (3) of that new section provides a definition of "viable". It states: For the purposes of subsection (2) a proposed school would be a viable school if there would be a sufficient demand for places at the school to ensure that a satisfactory standard of education was provided there". That is a suitable definition which deals with the noble Lord's point.

There is the exception that the funding authority would be able to exercise its judgment under subsection (2)(b) where it believed it likely that it would be so satisfied once further work was done. The amendment adds a further test. The definition of viability in subsection (3) would include the test that the viability of neighbouring schools would not be significantly affected.

It is certainly the case that the funding authority would take account of the level of surplus places in the area of a proposed new school when it considered proposals during the consultation phase. The Secretary of State also of course takes that factor into account, among others, during her consideration of proposals which come to her. But it is one of a number of considerations which are weighed in the balance. One important factor would also be whether the proposed new school was likely to enhance the quality, choice and diversity of provision in the area.

The difficulty is one of making judgments about how far the viability of particular schools is dependent upon the existence of another. It could by no means be certain that the existence of a new GM school would by itself affect the viability of local schools. There can be a number of factors in the case. An existing school may not be popular with parents. It may not be a good school and may already have a number of unused places as a result. A new GM school might because of its character draw from a very wide area, perhaps drawing pupils from across the LEA boundary, so that the extent of its impact on any one individual school in the locality may be difficult to assess.

That is not to say that the level of surplus places in an area is not an important factor for the funding authority and the Secretary of State to take into account. But creating an absolute test of viability in relation to the position at neighbouring schools could well he unworkable. And in its very absoluteness it denies the opportunity for other factors to be taken into account as to the merits and soundness of proposals. I therefore hope that the noble Lord will withdraw the amendment.

Lord Morris of Castle Morris

My Lords, I am grateful to the Minister for that explanation which I found helpful. To paraphrase Evelyn Waugh: Up to a point, Lord Henley, up to a point. I take the Minister's point that impact is something which is difficult to assess. In this case there is a great deal of common ground between us. We need not pursue this amendment further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Recovery from local funds of sums in respect of start-up grants]:

Baroness David moved Amendment No. 28: Page 15, line 43, after ("may") insert (", after consultation with the local education authority or any appropriate body which appoints foundation governors to one or more schools in the area, reasonably").

The noble Baroness said: My Lords, the purpose of the amendment is to insert a simple requirement that, first, the Secretary of State should consult the LEA or appropriate voluntary authorities before exercising her powers under Clause 17 to recoup from the LEA the start-up costs of any new grant-maintained school; and, secondly, that she act reasonably in setting the level of recoupment in each case.

The amendment is essentially a probing amendment. It relates to statements made by Ministers during the Bill's passage in another place and by the Minister himself in Committee on 25th February, when he said: It is our intention to consult the LEAs in individual cases so that the LEA view can be taken fully into account". In rejecting previous amendments proposed by the Opposition, which would have put limits on the amount which could have been recouped from LEAs to the equivalent start-up costs of a new county or voluntary school, the Government attempted to offer assurances that the Secretary of State would always have to act reasonably when exercising the recoupment powers envisaged in the Bill. The Minister himself conceded: 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".—[Official Report, 25/2/97: col. 1102.] Since that is the Government's publicly and often stated position, will the Minister now confirm that he is prepared to accept this simple, straightforward amendment on the face of the Bill? I beg to move.

Lord Addington

My Lords, we support the amendment. I look forward to hearing the Minister's reply.

Lord Henley

My Lords, the amendment merely tells the Secretary of State to do what she will already in fact do. As I said in Committee, we are not convinced that such matters as this are for the face of the Bill. I remain of that view. I do not believe that we should be attempting through the Bill to tell the Secretary of State that she must act reasonably or prescribe the process through which she should reach a reasonable decision.

In Committee I made it clear that the Secretary of State would consider each recoupment case on its merit, in the light of representation from LEAs. We shall actively consult LEAs. Representations will therefore be invited. That is perfectly normal practice. We already engage LEAs in consultation, as necessary, on recoupment questions which arise under existing provisions in the 1996 Act, which, as the noble Baroness knows, is a consolidation of various other Acts. Again, as I said in Committee, my right honourable friend has to act reasonably in making her decisions. She could obviously be challenged in the courts if she failed to do so—whether or not the Bill says so—by, for example, failing to take account of relevant factors and therefore not taking account of representations from LEAs. I hope therefore that the noble Baroness will feel able to withdraw the amendment.

Baroness David

My Lords, I suppose that one has to take a good deal on trust: that the Secretary of State is expected to act reasonably. One hopes that he or she would. Of course I am not entirely satisfied with the answer, but I shall have to make do with it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Ballot observers]:

Lord Morris of Castle Morris moved Amendment No. 29: Page 16, line 25, leave out ("may") and insert ("shall, except in the circumstances specified in subsection (2A) below").

The noble Lord said: My Lords, I shall speak also to Amendment No. 30. The purpose of Amendment No. 29 is to require that ballot observers be appointed in all cases except where the parties to an individual grant-maintained ballot regard it as unnecessary. The Government have consistently rejected Opposition amendments that would have ensured that ballot observers would be appointed in every case. Ministers, both here and in another place, have repeatedly stated that they do not accept that there will be a need for a ballot observer to be appointed in every case. The Government have argued that the Secretary of State ought to have discretion to decide whether to make an appointment of a ballot observer, and that it would be a waste of public resources for an observer to be appointed on every occasion. Very well, so be it. The time has perhaps now come to attempt some kind of compromise.

The amendment goes with the grain of that thinking, but it seeks to introduce a necessary check on the unfettered discretion of the Secretary of State—the unfettered discretion which he or she would otherwise have under the provisions of Clause 18—by, in effect, requiring the Secretary of State to take steps to establish whether the actual parties to a grant-maintained ballot themselves consider that the ballot could safely be conducted without the need for a ballot observer to be appointed. Where they agree, we would be quite happy to take that result.

One of the central deficiencies in leaving the decision to appoint a ballot observer entirely in the hands of the Secretary of State is that she and her department officials are, by definition, remote from the local situation of the individual school. Let us consider the principle of subsidiarity: let the decision be made by those as close as possible to the problem. She and they cannot predict the likely turn of events. Indeed, no one can. If the whole purpose of appointing observers is to seek, to help avoid or deal with problems arising in the course of a ballot"—[Official Report. 25/2/97: col. 1110]— the Minister may remember those as his own words—surely it is necessary and sensible for the Secretary of State to take steps to inquire of the locally interested parties to the ballot their views on the likelihood of any difficulties. That is what the amendment would specifically require the Secretary of State to do.

A further point needs to be made. No great expense would be incurred in that tiny consultation. I am sure that the Minister will agree that resources will be readily available from the £224 saved every four to five years by the Deregulation (Provision of Schools Action Plans) Order we discussed last week. I beg to move.

Baroness Thomas of Walliswood

My Lords, I support the amendment. I have a good deal of experience of ballots since, internally, my political party is absolutely obsessed with them. I notice that that obsession is spreading to other parties as an interest is being taken in what every member thinks about a given subject.

Experience teaches one that not every person approaches a ballot pure in heart—I put it no higher than that. Therefore, it is a good idea to have a ballot observer in order to ensure that the ballot is properly conducted and does not result in a falsified outcome. The idea of encouraging the Minister to sound out the opinions of those involved is excellent. That would reveal whether there was any doubt in the minds of any members of the parties that the ballot was to be conducted sensibly. If that were the case it would be a good reason for appointing a ballot observer.

In Committee, the Minister was unable to give the outcome of his department's consultation on how the ballot arrangements might work in practice. The period of consultation closed at the end of January and I wonder whether the Minister is now in a position to reveal at least his preliminary thinking on the numerous issues raised in that detailed consultation paper. It is important that this House is given some form of feedback as to the Minister's current thinking on these issues, which are important.

Lord Henley

My Lords, back in the dim and distant past I was a member of the former party of the noble Baroness—I was a Liberal—but then I saw the light. Fortunately, in those days the party did not have too many ballots and therefore I was spared.

Perhaps I may deal first with the noble Baroness's principal point. We have received responses to the consultation paper on ballot observers from 14 organisations, including a joint response from the Local Authority Associations, some teacher unions, some grant-maintained school organisations and a range of others. In general, the principle of ballot observers has been welcomed. However, a wide range of detailed comments and questions were raised, including who should be able to request an observer, the identification of suitable people to serve as observers and the functions to be carried out by those observers. Obviously, we shall study all of those comments very carefully and will bring forward revised proposals as soon as possible, as we always do after consultation. However we have not yet had the opportunity to study the comments in the necessary detail. It would be premature to give any commitments at this stage on the detailed arrangements.

I turn to the amendments, which are similar if not identical to those moved in Committee. I then explained the reasons why the Government do not accept them and I repeat them today because I have not changed in my view. I accept that some ballots in grant-maintained schools become fraught and controversial and lead to formal complaints requiring investigation. But they are only a small minority. The Government do not accept that a grant-maintained ballot needs to be controversial. Quite the opposite. The assumption should surely be that people of common sense and goodwill can discuss these issues reasonably and reach a decision between themselves.

I accept that the implication behind the amendment is that noble Lords opposite believe that that is not the case. Their presumption seems to be that ballots will be so fraught that the involvement of an external, independent observer is likely to be necessary in most cases. I regret that presumption. The facts show that it is unwarranted. During 1996, 125 schools held ballots. Only 14 of those ballots resulted in complaints requiring an investigation by the department. I accept, of course, that there may have been others where problems arose even though no formal complaint was made. Nonetheless, I believe that these figures can safely be taken as an order of magnitude; that is, that more than three-quarters of the ballots pass off without any major incident or difficulty.

That being so, it would be wasteful to work on the presumption that ballot observers should be the norm. More importantly, it would send the wrong signal. None of us wants to encourage a confrontational stance in ballots. That is the signal that these amendments would send.

I conclude by saying that the noble Lord, Lord Morris of Castle Morris, put forward the figure of £224 saved over five years by the deregulation order. That was his estimate and it is not one that the Government recognise or accept. I recognise that there are many other savings to the schools—duplicating, copying and staff time—in terms of producing the document about which we spoke last week.

8.45 p.m.

Lord Morris of Castle Morris

My Lords, the question of the £224 must remain an issue between the Minister and me. I am sure that I am right. In fact, in an attempt to produce a conservative figure which he could in no way dispute, I seriously underestimated the amount of saving which could be made. However, perhaps we can agree that wherever savings can be made within the budget of individual schools they should be made.

I am grateful to the Minister for what I regard as a most unsatisfactory answer. Whatever I may have said, the noble Baroness, Lady Thomas of Walliswood, from her great experience of such ballots, made unanswerable points. Had I been on the Minister's side I should have collapsed immediately and agreed to take away what she said.

We on this side believe that the world is not quite so sensible, or nice or reasonable as the Minister believes it to be. However, this is not an issue which we can resolve at this time of night and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved]

Lord Morris of Castle Morris moved Amendment No. 31: Page 16, line 31, at end insert— ("() Any person appointed as a ballot observer under this section shall be a person who has experience appropriate to the activities which he will be expected to undertake.").

The noble Lord said: My Lords, the object of the amendment is to ensure that any person who is appointed as a ballot observer has appropriate experience and can therefore command the confidence of all parties to act properly as an impartial observer. It also raises the issue of what the role of an observer is expected to be.

I suppose that even at this late stage in the game it is essentially a probing amendment. It seeks to prompt from the Government a clear indication of the kind of people, the arrangement of identification and any appointment they consider to be appropriate to undertake the role of ballot observer.

Previous Opposition amendments which sought to require that ballot observers should be, an independent person who has appropriate experience of either the conduct of ballots or the provision of education".—[Official Report, 25/2/97; col. 1128.]— a phrase that we used—was summarily rejected by the Government. Although the Minister did not say so in words nor reveal in detail the Government's thinking, in his reply to such an Opposition amendment tabled on 25th February he said that the Government believe that it is too restrictive to limit the Secretary of State's discretion in a way that such a previous amendment would have done.

However, the Minister revealed that the Government believe that it is important that observers should be "of the right calibre" and that officials in his department have been, talking to neutral and well respected organisations, especially the Electoral Reform Society".—[Official Report, 25/2/97; col. 1130.] Will the Minister tell us now which organisations—other than the ERS—officials in his department have been talking to? Also, if he would be so kind to make us privy to any of the things which were said, it would be extremely helpful to have that on the record.

Will the Minister now clarify precisely what he considers to be appropriate experience for a ballot observer? Does a phrase like "of the right calibre" mean anything at all? If so, what does it mean? If calibre is a criterion, how is it established? How do you avoid the accusation that someone of the right calibre is also "one of us"?

This is an important issue. The House will be aware that the Opposition take the view that the law and procedures governing the conduct of grant-maintained ballots are complex and that it is necessary in our view for ballot observers to have the appropriate experience of the education service or the conduct of ballots to undertake properly the role envisaged for ballot observers. I beg to move.

Baroness Thomas of Walliswood

My Lords, I support the amendment moved by the noble Lord, Lord Morris of Castle Morris. It seems as though the ballot observers will have quite a complicated job to do—in effect, leading the process of the ballot. It is quite important to know how the Minister's thinking is going in respect of the sort of person who would be suitable to do that job; for example, the kind of knowledge of the grant-maintained or education system which this person may be expected to display and what is meant by the word "calibre". Are we looking for people who are respected locally or people who are part of some reserve corps who can be brought in to do the job because that is what they do as their bit of voluntary effort?

Without telling us rather more about what is his thinking on this issue, I do not understand how the Minister can convince us that the right kind of people are going to be conducting these ballots.

Lord Henley

My Lords, as the noble Lord said, we discussed a slightly different amendment in Committee. That amendment referred to: any person … who has appropriate experience of either the conduct of ballots or the provision of education".—[Official Report, 25/2/97; col. 1128.] I gave the reasons why I was unable to accept that amendment.

The new amendment appears to accept that argument, for which I thank the noble Lord. The new amendment requires only that observers have appropriate experience. That would undoubtedly provide all the flexibility that one could possibly desire. The problem is that it is now such a statement of the obvious as to be hardly worth saying at all. It cannot be seriously suggested that this Government or any government would appoint people as ballot observers if they did not consider that they had experience which was appropriate in some way to the activities which they would undertake, whichever form that experience might take.

The noble Lord asked who we had spoken to and asked for their views. I have quite a long list of those organisations invited to comment, including the Association of County Councils, the Association of Grant-Maintained and Aided Schools, the National Association of Head Teachers, and going on through the Catholic Association of Grant-Maintained Heads down to the Standing Conference on Chief Education Officers. No doubt I could offer that to the noble Lord in due course if he would like to see all of those who were invited to comment. I could also give a long list of those who responded, including a number of individual LEAs, the Association of Teachers and Lecturers, the Association of County Councils, the Electoral Reform Society, which has been mentioned, Local Schools Information, the National Governors Council, the Professional Association of Teachers and the Secondary Heads Association. The point behind that is to say that we have invited comments from a number of people and we have in reply received a number of comments.

The noble Baroness, Lady Thomas, asked how we should select the right people. She is right to identify the importance of getting the right people for the job. The criteria for eligibility would need to be set and we should have to identify the useful or necessary skills appropriate for that capacity. A large pool of observers would be needed. For that reason, there are a number of different options that one could pursue; for example, by drawing on the pool of observers of elections abroad, maintained by the international side of the ERS. But there are a number of options that we should wish to consider.

As I said earlier, the important point is that this Government or any government would always wish to make sure that the appropriate people with the appropriate skills were, the right organisations having been consulted, appointed with the appropriate expertise.

Lord Morris of Castle Morris

My Lords, the consultation ended on 31st January, some six weeks ago. Is it possible at this stage to give us at least a hint, a direction or a general flavour as to what the consultees advised? I realise that we are speaking on Report, and I should of course give way as the Minister wished to intervene.

The key point is that the role of the observer is growing from being simply a ballot monitor to being a leader or the chair of the process which goes beyond the function in the Bill. The job is so important that it is worrying to consider that that expansion or swelling of the role seems to be taking place as a result of a consultation which is still shrouded in the secrecy of the bowels of the DfEE.

Lord Henley

My Lords, with the leave of the House, as I made quite clear, we do not believe that ballot observers will be necessary on that many occasions but, obviously, on the occasions when they are necessary, it is important to make sure that the right people are appointed. That is why we have discussed this issue with a number of people. I cannot give the noble Lord a flavour of the responses from those who have been consulted but I shall consider that further and, if necessary, write to the noble Lord.

Lord Morris of Castle Morris

My Lords, I am most grateful to the noble Lord for that additional piece of information. He still has not explained the role and the thinking about the matter or really what area of experience would be agreed as being appropriate. But I look forward to hearing from the noble Lord in correspondence or even at some later stage on discussions of the Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 [Provision of advice or assistance by funding authority]:

Baroness Farrington of Ribbleton moved Amendment No. 32: Page 17, line 43, leave out ("free of charge or").

The noble Baroness said: My Lords, the proposal in the Bill would allow the FAS to provide or arrange for the provision of advice and assistance, not including financial assistance, and it would give the FAS power to provide not only that almost unlimited range of services but also to do so with the discretion of not charging anything at all.

That plainly seeks to put the GM sector on a totally different funding footing from that of LEA-maintained schools. The circumstances in which an LEA can provide similar support without charge to a school in difficulties—and the Bill does not restrict such largesse solely to GM schools in difficulties—are very limited by the regulations governing LMS. Even where that is permissible, the cost of such support would count against the strictly limited percentage of the potential schools budget which an LEA is permitted to retain for centrally-provided services.

The Minister previously responded to the amendment on 25th February by saying that the FAS already provides support without charge to GM schools experiencing financial difficulties and those operating under special measures and that Clause 17 proposed only a modest extension of the circumstances in which non-financial support can be provided. But that is simply not what the Bill describes or would permit.

Whether or not the Government expect many GM schools to be caught by the new provisions, they potentially create a totally different basis for support between the GM and LEA sectors. There cannot be any justification for such a difference. It is merely a further example of the privileged treatment habitually accorded to GM schools. The fact that such a difference already exists by virtue of the current practice of the FAS is no reason to extend it. It is rather like saying that if adultery exists, then it is better to have lots of occasions of adultery. Rather the current practice of the agency ought to be brought within the terms of the amendment. I beg to move.

9 p.m.

Baroness Thomas of Walliswood

My Lords, I should like briefly to express my support for the amendment. It is difficult for the Government to argue that this is only a small extension of the current powers of the FAS when one reads in the Bill that the agency will be able to provide for free, advice and assistance in connection with the discharge by the governing body of any of their functions". The governing body is responsible for ensuring that a curriculum is adopted for the school; it is responsible for the discipline policies of the school; and it is responsible for the financial policies of a school, together with a whole host of other things. If it can get free advice from the FAS on all those matters, it is indeed obtaining something that it is quite impossible for a LEA funded school or a directly funded school to obtain. Earlier today the Minister suggested that GM schools did not obtain any advantages over and above those already enjoyed by LEA schools. I am afraid that the provision is an example of precisely the sort of advantage against which we were complaining.

Lord Henley

My Lords, I reject that; I do not accept that there is a hidden premium for grant-maintained schools in the provision. The circumstances in which the funding agency would offer support will be akin to the targeted additional support from which LEAs experiencing serious difficulties already benefit—from responsible LEAs—when they need it. These are difficult cases which fully justify the input of targeted public resources at an early stage to avert more serious or costly later problems. For that reason, I believe that they are a quite proper and appropriate use of public funds. I do not accept that there is a hidden advantage for GM schools. For that reason, I am not able to accept the amendment.

Baroness Farrington of Ribbleton

My Lords, before the Minister sits down, can he tell the House exactly which advice, support or services are available to GM schools without payment from the FAS, or are provided by another body through the FAS, which are similarly able to be provided by the local education authority?

Lord Henley

My Lords, as a member of an LEA, although I understand that she will shortly he standing down from that position, the noble Baroness knows exactly what services the LEAs can provide to their schools. Similarly, it will be open, as the amendment sets out, for the FAS to provide support to the schools. However, as subsection (4) makes clear, "assistance", does not include financial assistance".

Baroness Farrington of Ribbleton

My Lords, I listened carefully to the Minister's reply. I noticed that he did not answer the question I posed; namely, which service could be provided free without being removed from the budgets available for the schools. I am disappointed in his response. It is further evidence that the Government are embarking this evening upon what might be called a rather vain "last ditch attempt" to lure people into GM-nationalised status with carrots that are thinly disguised, denied when they are shown in public and which, at the end of the day, have no effect on the overwhelming majority of schools. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Extension of assisted places scheme to schools providing only primary education]:

Lord Morris of Castle Morris moved Amendment No. 33: Page 18. line 7, leave out from ("education)") to end of line 8 and insert ("after the words "providing secondary education" there shall be inserted— in respect of which—

1. (a) inspections are undertaken in accordance with the School Inspections Act 1996 and reports are published by the school; and
2. (b) measures as to the protection of the physical and moral well-being of pupils are undertaken in accordance with regulations made by the Secretary of State,

and."").

The noble Lord said: My Lords, this amendment would require schools participating in the assisted places scheme to go through inspections in which their reports are published and to undertake satisfactory child protection safeguards. These issues arise from the debate which took place in Committee on what was then Amendment No. 90 and, in the first instance, from a question raised by me. In reply to my question the Minister kindly wrote to me on 6th March. In that letter he made clear that, certain reports known as Full Inspection Reports (FIRs) are published at the discretion of the Secretary of State and as such are freely available to members of the public". The Minister went on to list 14 schools in respect of which reports had been published out of a total of 294 APS schools which were visited by Ofsted over the past five years.

The issue behind the amendment is quite simple and straightforward: if schools are receiving public money for the education of children, they should be accountable to parents and the wider community through the publication of inspection reports in the same way as any other maintained school. The figures in the Minister's letter are quite damning. Less than 5 per cent. of the "visits" undertaken by Ofsted inspectors resulted in a full published report. This means that parents participating in the APS scheme are receiving a less satisfactory standard of inspection and accountability than those whose children are in maintained schools. They do not know this. However, it is the truth.

The full picture may be even worse than the figures suggest because the list of schools quoted by the Minister includes some of the greatest names; indeed, some of the top public schools in this country. The inspection reports which would be of the greatest interest would be those from the small schools, the schools which rely on the assisted places scheme to keep them solvent and afloat.

With the publication of the primary league tables last week, another reason for the amendment is not far to seek. Parents may now refer to standards reached in key areas in all primary schools except those schools in the independent sector, and including those preparatory schools which, under the Bill, will be brought into the APS scheme.

The second part of the amendment requires measures to be put in place to protect the physical and moral well being of pupils. We believe that independent schools should co-operate with the measures which the DfEE put in place for protecting children from teachers who may constitute a danger to them. The Minister should accept that, if public money is to be spent in the independent sector, the standards of provision routinely to be found in the public sector, and insisted upon for the public sector, should be extended to the independent sector as well. I beg to move.

Lord Addington

My Lords, I support the amendment. We are dealing with an important point. We are extending safeguards to pupils whose education is taken on by the state through a private provider, giving those pupils the same protection as is provided in a state school.

As the noble Lord, Lord Morris, suggested, in dealing with small public schools one goes from the comic Decline and Fall style of bad educational practice and the snobbery of going to a public school because it sounds so much better to have been educated there to the straightforward fact that public schools are places where physical and sexual abuse have occurred. Ultimately that is a danger that we cannot overlook. The amendment, or some provision like it, will give that extra guarantee. It is an issue that we must address. I hope that the Minister will give a favourable response.

Lord Henley

My Lords, the points made by the noble Lord, Lord Addington, are—dare I say it?—as usual pretty ridiculous. Those are matters which can be dealt with by the Children Act, or whatever.

I turn to the points made by the noble Lord, Lord Morris. As regards my right honourable friend's role, she has responsibilities in relation to all independent schools. They require her to be satisfied that they meet certain standards in terms of premises, accommodations, curriculum and instruction, and the welfare of pupils in boarding establishments. Ofsted's regime of inspections in the independent sector is concerned mainly with the monitoring of educational provision. Ofsted undertakes monitoring inspections to ensure that minimum standards are being maintained. Those inspections do not themselves lead to published reports, but the findings are passed to the department so that any necessary action can be taken. Ofsted also undertakes reporting inspections which, as for maintained schools, lead to a published report.

As I explained to the noble Lord in my letter of 6th March from which he quoted, of the 355 schools currently participating in the scheme, some 294 have had monitoring inspection visits by Ofsted in the past five years. Fourteen had reporting inspections which led to published reports. In addition, monitoring of assisted places scheme schools' performance is also carried out on an annual basis through examination results and audit surveys and through analysis of their statistical returns.

I believe that these amount to a monitoring regime that is appropriate to the nature of the assisted places scheme and the status of these schools as independent institutions. They are independent even though some of their pupils come from the assisted places scheme. Therefore I believe that the regime, as we have set out, is appropriate. I would not wish to go down the line proposed by the noble Lord.

Lord Addington

My Lords, before the Minister sits down, does he not agree that, as regards a pupil in a boarding school, the danger of someone in a position of power abusing that power exists? Would some provision such as proposed in the amendment be a safeguard against that danger?

Lord Henley

My Lords, the same applies precisely in those boarding schools in the maintained sector, of which there are some 40 in this country, as the noble Lord will know.

Lord Morris of Castle Morris

My Lords, I was mildly surprised at the Minister's reply. He began by saying rather uncharacteristically that he found things said by the noble Lord, Lord Addington, "ridiculous". I did not find them ridiculous. I found them sensible, helpful, germane and very much to the point, and requiring an answer, which they did not receive.

However, what has emerged from his reply is that this constituency of APS schools is without doubt and beyond question very lightly and gently inspected in so far as they are inspected at all. That kind of inspection, plus the inspection of examination results, which anybody can do, are in our view simply not sufficiently rigorous, and far more rigour is required in the type of inspection that they should be given in the light of the fact that they receive considerable amounts of public money and, if the Government had their way, would be receiving very much more in the future were the Government so fortunate as to be returned to office. However, at this stage of the evening there is no point in our pursuing a matter on which we are simply not going to agree and on which the Minister is not going to move. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Baroness Farrington of Ribbleton moved Amendment No. 34: Page 18, line 8, at end insert— ("(2) In subsection (4) of that section, at the end there shall he added the words "and to the availability of places in grant-maintained schools and schools maintained by local education authorities."").

The noble Baroness said: My Lords, the purpose of the amendment is to require the Secretary of State in determining whether to make a participation agreement with an assisted places scheme school to have regard to the availability of places in the maintained and grant-maintained schools in general.

I hope that the Minister will note that in the amendment we seek not to distinguish between the maintained and grant-maintained sectors of educational provision. The amendment seeks to ensure a general and genuine regard to the availability of places within a wider area, a region or even the national picture before agreement is reached with a school on participating to increase the number of publicly funded places.

There are many areas in which it is possible to illustrate the issues raised by the government proposal in the Bill, which includes the proposal to extend the number of places in the assisted places scheme by including preparatory schools. At this time I shall concentrate merely on one.

In many parts of the country local authorities already spend up to double the average expenditure on the education of pupils in small rural communities. Inevitably the unit cost has to be very high. Such schools may be in very isolated areas with very small populations; they may be very small schools. In those authorities which seek to ensure that a child has access not only to one teacher during the whole of his or her primary school years, the unit costs may be very high indeed.

The additional cost of placing a child in such schools when the number of children on the roll is low is absolutely minimal. Some of the children in those schools are in classes as small as 10, 11 or 12 because of the particular age span and because of the very isolated location. How can it make sense in such circumstances to sign an agreement to extend the assisted places scheme and sign a contract with an adjacent school that may take two or three children away from that locality and may also in the end be instrumental in the closure of small rural schools. Were they to lose only a quarter of their pupils, the unit costs could become prohibitive. I beg to move.

Baroness Thomas of Walliswood

My Lords, I support the amendment. I wish in particular to draw attention to the mounting costs that are involved. Roughly speaking, it costs twice as much or even more to give a child an assisted place. If this amendment or some similar proposal is not taken on board, if guidance is not given and no other provision is made to make sure that that happens in practice in spite of not being on the face of the Bill, then sending an increased number of children into private schools under an increased assisted places scheme—which is what is envisaged—and particularly sending children who would otherwise be in primary schools to the private sector, could result in additional costs to the local authority. The whole burden on the public purse will increase more than I should have thought even the promoters of the Bill would be satisfied to see.

Lord Henley

My Lords, as always, we address this matter from rather different perspectives. We believe in choice, and we believe that the assisted places scheme supports that choice. I do not think it would be right to deny children who happen to live in local authority areas where there happen to be surplus places the chance to benefit from the scheme. I do not accept that the availability of assisted places by itself is likely to threaten the existence of village schools. We are talking about relatively small numbers. Further, I think that, if they want it, parents in rural areas should have exactly the same access to the scheme and the same opportunities to make an informed choice of the best education for their child as do parents in other areas. For that reason, I cannot accept the amendment.

Baroness Farrington of Ribbleton

My Lords, it ill behoves the Government, who propose a measure in this Bill which will inevitably increase the number of surplus places, again to refer scathingly to the issue of surplus places in local authority areas. There are inevitably surplus places in some areas in order that they can be available for the exercise of parental choice. There are often buildings where it is impossible to remove from use part of the building in any sensible way and where it is essential that those surplus places are kept because the 80 per cent. capacity merits the first-choice aspirations of parents in that locality. The small rural primary school may well meet in full the parental choice in that locality, yet have a very high cost and surplus places.

The Government stand an approach to education through a policy of efficiency, effectiveness and economic viability on its head. We despair of them. But we seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.22 p.m.

Clause 23 [Power of members of staff to restrain pupils]:

Baroness David moved Amendment No. 35: Page 21, line 11, leave out from ("himself)") to end of line 16.

The noble Baroness said: My Lords, in moving Amendment No. 35, I shall speak also to Amendment No. 36. This clause concerns the powers of members of staff to restrain pupils. We accept the principle of the clause that members of staff should have powers to restrain pupils but we have a few questions as to the practical extent of the clause.

The first amendment would remove the third heading under which restraint can be exercised—namely, preventing a pupil from engaging in any behaviour prejudicial to the maintenance of good order or discipline at the school". The second amendment looks at which members of staff may exercise the power.

The clause is welcome because it authorises teachers to use force to prevent a pupil committing an offence or causing personal injury. It may, however, go too far in two separate areas. In relation to the first amendment, the clause authorises a staff member to use force to prevent a pupil engaging in any behaviour prejudicial to the maintenance of good order and discipline. There are two distinct problems in that formulation.

The first is that preventing behaviour prejudicial to the maintenance of good order is a much wider formulation than authorising a teacher to use force where a pupil is committing an offence or causing personal injury. How, for example, does a teacher physically restrain a group of pupils who are chanting slogans in the playground? How does, or should, a teacher deal with a pupil who by use of threatening language causes disruption in a class? Stopping such behaviour by the use of force is likely to be perceived as corporal punishment or indeed as physical assault. More thought needs to be given to the implications of the extension of the power physically to intervene.

The formulation is in any case a broad one, relating to "any" behaviour prejudicial to the maintenance of good order and discipline. As the examples just given illustrate, allowing members of staff to use force in an area where judgments will be highly selective may be counterproductive. Any behaviour prejudicial to the maintenance of good order", might include little more than making excessive noise or causing trouble at the back of the class. It is difficult to see why teachers should automatically expect to use physical restraint in those circumstances. Can the Minister tell us whether, in the various examples mentioned, he would consider physical restraint to be appropriate?

The Minister wrote to me on this issue on 10th March and I thank him for that letter. He cited an instance at the Ridings School. A pupil had been standing in a classroom shouting at the teacher and refusing to leave; a senior member of staff came in and led the pupil out. The Minister quoted this example as representing the kind of case which would fall within subsection (1)(c). The pupil was not committing a criminal offence or injuring another pupil but was making education impossible for all the other pupils in the class and the situation required firm handling.

The Minister made the point quite properly that, while the teacher who led the pupil away might have had a common law defence against assault, the purpose of the clause was to codify the common law and strengthen the position of the teachers. This is a fair example against which no reasonable objection could be made. The problem is that the clause goes wider than the example quoted. In any given case, the judgment need only be that the behaviour is "prejudicial" to the maintenance of good order, not that it is "preventing" the maintenance of good order.

In the specific case cited, the pupil might have been in the classroom raising his or her voice without the behaviour necessarily being repeated or the pupil refusing to leave. Yet the same action, which presumably—although the Minister did not make it clear in his letter—involved an element of physical force on the part of the teacher, would have been sanctioned under the clause. The upshot of the argument is that the clause (specifically subsection (1)(c)) could enable teachers to use force in minor and marginal situations which they judged to he prejudicial to good order but where in practice no serious actual situation has arisen. Would the Minister reflect on whether the word "prejudicial" is the right one in this circumstance and whether the formulation maintenance of good order and discipline at school", is not too wide, given the sensitivity of the issue.

The second amendment suggests that the clause may go too far because it also authorises any person, not just teachers, to use force so long as it is with the authority of the head. The worry here centres on the strong likelihood that parents, volunteers, classroom assistants or laboratory assistants may not have had the appropriate training either in the necessary skills to be employed in physically restraining children or in particular circumstances when the use of force might be appropriate. The amendment therefore proposes that the power to intervene and use force should rest only with teachers.

In his letter the Minister implicitly acknowledged part of the force of that argument. He contended that it would be right to include within the scope of the clause staff such as playground supervisors or classroom assistants whom the head teacher might authorise to have control or charge of pupils. However, having made that point, he went on to accept that it might not be appropriate for staff such as groundsmen or cleaners to take charge of pupils. The problem is that the clause would not prevent the head teacher from authorising such a person to exercise the power to restrain.

The Minister made the point in his letter that the department would wish to offer guidance to head teachers as to who should be authorised. But in the drafting as it stands, the head teacher could authorise every adult on the staff to exercise the power, in direct contradiction to what the Minister considers would be appropriate. In those circumstances, it is surely reasonable to ask the Government to consider amending the clause so that some of the teaching staff are expressly excluded. Whatever view the Minister takes of this issue, it is surely incumbent upon the Government to give a clear commitment that all staff to whom the clause may be applied will be given proper training in this area and the Government will recognise the resource implications of that.

The Minister's letter raised one other issue. He said that he considered that it would be appropriate that volunteers, including parents, might appropriately be brought by a head teacher within the protection of the clause. He cited the example of a parent accompanying a school trip. The precise instance that he cited, however, did not fully assist his argument. He cited the case of a parent who might have to step in during a school trip when a teacher was not nearby in order to stop a child from doing something dangerous. That would indeed fall within the formulation of subsection (1)(b), whereby the person being given protection may use force to stop a pupil causing personal injury to another person or to himself. But the clause is not limited to that obvious case, with which anyone would agree. As the previous amendment illustrated, it also covers behaviour which can be considered "prejudicial" to the maintenance of good order and discipline.

The danger is that the clause will give protection to a "have a go" parent who believes in direct action and who would take advantage of an opportunity in such a situation, when a teacher is absent, to take matters into his or her own hands. Teachers have many skills when dealing with disruptive pupils without causing damage to their relationship with the class as a whole. Parents used to dealing with their own children might not have the same consideration in mind.

Finally, in the instance cited by the Minister, would protection be extended if the parent on a school trip who exercised the power of restraint did so in respect of a child who was his or her own? Is there a risk that the clause could have an unintended effect on the law of assault as it stands between parents and their children?

The clause, which seemed straightforward to start with, seems to me to have a number of complications. I hope that the Minister will reflect on what has been said and, if need be, think about it and, if there is another stage of the Bill, perhaps come back. At any rate I hope that he will consider that these are points which need very careful consideration. I beg to move.

9.30 p.m.

Baroness Thomas of Walliswood

My Lords, I rise briefly to support the amendment so ably and fully proposed by the noble Baroness, Lady David. It is a welcome development of law but an extremely delicate area, as I am sure the Minister, with his experience, is well aware.

At the moment it is impossible for a teacher to lay a hand on a child under any circumstances. We move from that situation to a situation where, under certain circumstances—one or two of them a little doubtful, as the noble Baroness explained—teachers will be able to lay a hand on a pupil. That is a moment one must manage extremely well. I shall therefore be interested to hear the Minister's response on these sensitive, difficult and yet welcome issues.

Lord Henley

My Lords, the noble Baroness tells me that the clause is too wide. I am amazed by my moderation in respect of this clause.

The clause is intended to clarify the circumstances in which teachers and other staff authorised by the head teacher may use reasonable force—that is, force that is reasonable in all the circumstances and not just for trivial instances of misbehaviour—where necessary to stop pupils from harming themselves or others, committing a crime or causing serious disruption. It has been welcomed by most of those in the teaching profession and by all of the teacher unions. However, these amendments would significantly weaken the clause, by removing subsection (1)(c) which clarifies that reasonable force may be used to prevent pupils from disrupting good order and discipline at school, and by restricting the application of the clause to teachers only and not other staff authorised by the head. I shall come to that later.

On the question of the disruption of good order and discipline, my letter to the noble Baroness referred to an incident at the Ridings School in Calderdale. So far as I know, there was no complaint against that teacher. But we hear from time to time of other cases of defiant misbehaviour where the teacher's career is threatened by his or her actions. For example, a teacher tried to stop a girl from repeatedly switching a radio on during a drama class. That teacher ended up with a police caution for assault. That could have had a serious effect on that teacher's career. Another teacher was prosecuted for common assault after removing a defiant pupil from the classroom. I do not know how he did that, but he received a conditional discharge after pleading guilty on the advice of his lawyer. Subsection (1)(c) covers just those kinds of case.

The common law may provide a defence to teachers who are prosecuted, or sued for damages, for assaulting a pupil in the circumstances I have just described. However, the purpose of the clause is to codify the common law, by setting out the circumstances in which a teacher and other members of staff at a school may use reasonable force in situations such as this. The amendment to remove subsection (1)(c), if passed, would seriously weaken the clause, and could make it much more difficult for teachers to prevent pupils from causing serious disruption at a school, at least where that disruption did not involve a criminal offence, or injury to persons or damage to property.

If the clause were enacted without subsection (1)(c), and a teacher intervened in the circumstances I have described, he or she might arguably be guilty of assaulting the pupil. In practice, the likely effect of this amendment could be that teachers would continue to be advised by their unions that they should not attempt to restrain pupils for fear of being prosecuted for assault.

Disruptive behaviour in our schools is unacceptable and we should provide schools with the support they need for securing the good order which is essential for providing good education. We have to face the fact that some pupils will deliberately cause unacceptable disruption to lessons that prevents other children from learning, and that sometimes, as a last resort, that has to be dealt with by use of some moderate physical intervention such as leading the pupil away.

Amendment No. 36 seeks to restrict the application of the clause to teachers only. If the clause applied only to teachers, other members of staff such as playground supervisors or classroom assistants authorised by the head teacher to have control or charge of pupils would not be protected. That could make it more difficult for head teachers to use non-teaching staff to supervise children.

As the noble Baroness said, I pointed out in my letter to her of 10th March that it might not be appropriate for that to be extended to such staff as groundsmen or cleaners because they would not be likely to have the appropriate training that others would have acquired over their years in school. That is a matter to be considered in due course and one that we could come to later. However, we believe that properly authorised non-teaching staff—in some cases that might even be volunteers—should have the protection of the clause if they are to do their jobs properly. An example of the circumstances in which a volunteer might properly be put in charge of pupils by their teacher might be where a parent was accompanying a school excursion and the parent might well have to step in when a teacher was not nearby in order to stop a child doing something dangerous. I am sure that even the noble Baroness would accept that.

I trust that my explanation is sufficient to persuade the noble Baroness that Clause 23 is a very necessary clause. It is one that is needed and it is one that will be welcomed throughout the teaching profession. I hope the noble Baroness will realise that her amendments would fatally weaken the clause in such a manner that it would have relatively little effect, would probably be meaningless and would not provide the protection which I believe our teachers and others appropriately authorised deserve to have.

Baroness David

My Lords, I think I made it clear that I recognise that the clause is necessary and that it has been welcomed by teachers and the unions. I totally agree that disruptive behaviour is not acceptable. However, there may be some complications which perhaps have not been thought of. I should like to think that the Minister might ponder those before, if we do have it, another stage of the Bill. In his reply he admitted that the problem of which staff should have the right to use restraint is one which should be gone into a little further. He said that both in his letter and in his reply just now. He said that this would be gone into further and that the position is not totally satisfactory as it stands. With, I hope, his willingness to look into this matter a little further and with such assurances as he has given that some matters concerning the staff will be looked at, I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Clause 24 [Detention outside school hours lawful despite absence of parental consent]:

Baroness Farrington of Ribbleton moved Amendment No. 37: Page 22, line 27, at end insert ("and the head teacher must have been satisfied that the pupil's parent or guardian was aware both that the detention was due to take place and of the time of day of the detention at which the pupil would be leaving the school").

The noble Baroness said: My Lords, with this amendment we are back to the issue of the trouser pocket and the schoolboy or schoolgirl who does not always do what he or she is supposed to do. The note to say that the child will be in detention, the responsibility for collecting a sibling from either lower down the same school or from an adjacent school, the responsibility for doing something at home and the fact that parents surely have a right to know at what time their children will leave school are all important features of this amendment. It does not seek to prescribe the means but allows schools to use their judgment. It places on the head teacher a responsibility to be satisfied that the parent or guardian is aware of the detention and of the time at which the pupil is due to leave school. There are occasions when children would rather not tell parents that they have been kept in detention. The parents may not view the detention with total equanimity. Therefore, losing the note might be preferable to getting into trouble twice. That is perhaps a more mild version of the problems.

There is a serious issue behind the proposed amendment. In the event of something going tragically wrong, it is important for the school to be able to demonstrate that the parent was aware of the fact that the child would be leaving school later. Accidents do happen. A younger child may not be collected from school and may be injured in a road accident. It is a serious issue and a responsibility which we believe the head teacher ought to be required to meet in order that the child can be safely in the place where the parent expects him to be. It may be slightly different if the child has no responsibility for siblings and who is coming up to the age of, say, 15 years. It could be a younger child aged 11 or 12 who is also responsible for taking a younger child home from an adjacent primary school. I beg to move.

Lord Henley

My Lords, I appreciate the intention behind the noble Baroness's amendment. I believe that it is unnecessary and would probably make the clause unworkable. We obviously cannot legislate for what we might describe as the non-co-operative or awkward parent or the non-co-operative child. For instance, some parents might not respond to a request to let the school know that they had received notification of detention. Regrettably, there will also be a number of awkward parents or children who, no matter what efforts the head teacher makes to satisfy himself that parents have received written notice, will do everything to thwart the head's good intentions.

As the noble Baroness is aware, as the clause stands the head teacher must take effective steps to give 24 hours' written notice to the parent whom he believes has custody of the child at the relevant time. If he has taken those effective steps, he can then assume that notification of detention has been received even if there has been no response from the parent. In those circumstances it occurs to us unlikely that a court would be sympathetic towards any claim of false imprisonment.

Baroness Farrington of Ribbleton

My Lords, perhaps I may make plain to the Minister that I was not at any stage suggesting false imprisonment or a claim of that sort. The concern is for the safety of that child or siblings, not whether or not the parent can claim that it was illegal for the child to have been kept in detention. That is totally outside the terms of this amendment.

Lord Henley

My Lords, I was coming to that, but what I said is the effect of the noble Baroness's amendment in terms of what it would have done. The head teacher would not be able to impose that detention unless he had had acknowledgement from the parent. If he had been unable to achieve that, that would have been false imprisonment. Therefore, I believe that the point I make is valid. I was going to go on to say that I recognise the noble Baroness's concerns about safety of pupils, particularly when returning home late after detention. I believe that those are very real fears and they have to be addressed.

We shall address those matters in guidance which we intend to produce once the Bill is enacted. There will be very detailed advice about the content of the written notice, and guidance as to the methods of delivery will also be included. I do not believe that they would necessarily be appropriate for legislation. Guidance to the schools on what is appropriate and how to manage those things is the appropriate way forward.

Baroness Farrington of Ribbleton

My Lords, I am more satisfied by the Minister's answer than I thought at first. I am pleased that the Government propose that, should further stages of this Bill be completed, these matters will be addressed in guidance. As I said before, I sensed understanding from all parts of your Lordships' House. I do not believe that I am the only one who has come across people who deliberately hide things in trouser pockets so that they are washed out in washing machines. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Clause 25 [Variation of limit on fixed-period exclusions: all maintained schools]:

Baroness Ramsay of Cartvale moved Amendment No. 38: Page 23, line 10, at end insert— ("(3) The Secretary of State may make regulations requiring the head teacher to take steps to secure that a pupil who has been excluded for a fixed period returns to school as quickly as possible.").

The noble Baroness said: My Lords, Clause 25 permits schools to exclude pupils temporarily now for up to nine weeks at any one time during the school year. That allows disruptive pupils to be out of school for nearly a whole term. We also know about the problems of providing any education for these children while they are excluded. Figures from the recent Audit Commission report, Misspent Youth, are striking: 42 per cent. of offenders of school age who are sentenced in the youth courts have been excluded from schools and 78 per cent. of the permanently excluded and 31 per cent. of the temporarily excluded pupils commit offences.

The Home Office research unit has also identified school exclusions (including temporary exclusions) as one of the four main characteristic factors of young offenders in its report, Young people and Crime. It seems obvious that the longer the exclusion, the more likely the child is to offend and also the longer out of school, the harder it will be for the child to re-enter the school system.

The Ofsted report Exclusions from Secondary Schools makes for fascinating, depressing and frustrating reading. It notes that: some schools used fixed term exclusion so often it lost all effectiveness", and that: schools' practice with regard to exclusions varied to an unacceptable degree—some were far too ready to exclude: others did so with extreme reluctance often at some cost to staff and other pupils".

This was not, however, an overall black picture. The report contained some words of hope worth repeating: Overall there are aspects in which low excluding schools do measurably better than high excluding schools. In other respects however the majority of schools could do more to prevent exclusion without extensive additional resources or changes to the current legislative framework. There is, in other words, all to play for. The number of exclusions is rising but that pattern is not irreversible".

The report makes clear that a number of high excluding schools have not followed DfEE guidance. I hope that the Minister will recognise that all we are trying to do in this amendment is to ensure that head teachers are told in regulation what they should be doing during the period of a fixed-term exclusion; guidance is clearly not enough—although I suspect that "guidance" will be the answer that I shall be given.

The amendment means that even if a child is told he is suspended for the full 45 days, he can and should be readmitted at an earlier date if the school is satisfied his behaviour has improved, or will improve. The importance of this amendment is that it gives the Secretary of State regulating powers which the Secretary of State will not otherwise have. It will be up to the Secretary of State whether and how to use powers. But surely it is important to have them. I should be interested to know the Minister's view on that. The Ofsted report shows how vital it is that schools treat fixed-term exclusions as serious emergencies needing immediate action rather than just breathing spaces from difficult children. It is surely wise to give the Secretary of State powers to require schools to take more active steps to try to identify what is wrong and to put it right. I beg to move.

Lord Northbourne

My Lords, I shall detain the House only briefly to support the amendment. Generally speaking, I think that exclusions are a disastrously bad form of discipline; that the Government's policy of extending exclusions to 45 days in any one year is a ghastly mistake; and that anything that can be done to ensure that proper provision is made for children during that period or that they are got back to school as quickly as possible must, subject to other considerations, be highly desirable.

Lord Henley

My Lords, we debated a similar amendment in Committee when I expressed agreement with the general principle behind it: that no pupil should be out of school longer than is necessary. However, there may be circumstances, albeit exceptionally, where a pupil who has been excluded for a fixed term is ready to return before the period is completed. Unlike the noble Baroness, Lady Ramsay, I do not believe that those are circumstances that can be prescribed in advance in regulations; nor that there should be a general presumption that the sanction of a fixed-period exclusion will normally be commuted. The point of a fixed period exclusion is that it is for just that period. But it can be a matter for the judgment of head teachers on a case-by-case basis. That is a matter for them. More generally, the actions to be taken by the head teacher during a fixed period of exclusion will, as I believe the noble Baroness recognises, be a matter for new guidance on exclusions to be issued by the department. I hope that that will offer the appropriate guidance and instruction to head teachers as to when it is appropriate in their opinion to commute the sentence that has been imposed.

Baroness Ramsay of Cartvale

My Lords, I had entertained the faint hope that what I said about guidance not being sufficient would have persuaded the Minister. As I was not hopeful I am not very surprised, although I am disappointed. However, at this time in the evening and at this stage of the Bill I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 and 40 not moved.]

Lord Morris of Castle Morris moved Amendment No. 41: After Clause 27, insert the following new clause—

DISCIPLINARY PROCEEDINGS: RIGHT OF CHILD TO ANONYMITY

(" . Where any child is the subject of disciplinary proceedings within a school, or related appeals procedures, there shall be no publication which reveals the name, address or school of the child concerned in the proceedings, except as may be required by the school's disciplinary procedure or any statutory procedure.").

The noble Lord said: My Lords, the purpose of this amendment, which was first discussed on 3rd March at cols. 1538 to 1542, was to prevent publication in the press of the name of any child subject to disciplinary proceedings or associated appeals. It is understood that, following consultation with the department and the National Governors Council, the Government had given a private undertaking to bring forward their own proposals. I had hoped that the Government might be prepared to give a firm undertaking to take forward this matter.

It is a tricky situation. An amendment was tabled earlier in another place which sought to place the onus on the school or school governors to secure the anonymity of children who were subject to proceedings. That was tried by Mr. John Gunnell, MP, at the Committee stage in another place. However, it was pointed out there that that was not an effective solution to the problem. School governors, head teachers and others involved in professional education are universally sensitive to the importance of preserving anonymity. In any event, very few of them would wish to encourage media attention to disciplinary issues in their own schools. But it was invariably the parents or the children who revealed this information to a press avid for that kind of information. Any control would therefore have to bear directly on the press and have sufficient sanction to enforce compliance.

In that connection we felt that the parallel with the regulations applying to the youth justice system would be the model to follow. It would however be a model that would take a certain amount of following and that would not necessarily be easily or quickly done.

That was where the issue rested until this morning. This morning as I approached my desk and saw the very unwelcome pile of letters upon it, most of which required instant answers, I was pleased to find among them a particular envelope. I have had a great deal of experience of such envelopes in the past six days. I believe that I have received about 16 different letters from the DfEE in the past week. But this one was probably the most welcome. I looked at it and said, Light breaks where no sun shines". I leave it to the Minister to attribute that quotation to its author. The letter stated that the Minister looked carefully at my proposal but unfortunately it was concluded that there was insufficient time to produce a properly considered and effective clause on this subject for this particular Bill. However, he said: I share your view that these difficulties are not insuperable … What I therefore propose is that the Department should prepare a consultation paper, for issue later this year"— I was delighted that he did not say anything further about timing— on the issues involved and possible legislative solutions. In the light of responses to that consultation, a decision could then be made"— by whoever was then in a position to make decisions— on what would he the best way to achieve the desired results". That was a very welcome letter. I thank the Minister for it. If he can assure me that that is still his firm intention, I would be grateful. I beg to move.

Baroness Thomas of Walliswood

My Lords, I am delighted to have heard about the letter, and look forward to hearing the Minister's response.

Lord Henley

My Lords, before I respond to the detailed points made by the noble Lord, since he devoted some of his time to teasing me, I wonder whether I may ask him whether he drafted Amendment No. 41. I was looking at the side heading on the Marshalled List which states: Disciplinary proceedings: right of child to anonimity". I wonder whether he has any comments about the spelling of "anonymity", and, if so, whether he would like to pass them to the appropriate authorities. I am sure that that was a mere slip: even Homer nods, and even the noble Lord on occasions.

The noble Lord mentioned the letter. I am sorry that he received it only this morning. I cannot remember when I signed it but, as he said I have signed a number of letters. I wrote indicating my conclusion that we lack time to produce a properly considered and effective clause within the Bill on what is a difficult subject. As I think I pointed out in Committee, it would be one involving discussion with a vast array of different departments. It would involve European Convention on Human Rights issues. That is why I said that we propose that the department prepares a consultation paper for issue later this year on what are tricky issues and possible legislative solutions.

One possible way forward, for example, would be to focus solely on protecting those pupils involved in exclusion procedures, as those pupils form an easily identifiable group for the purposes of legal definition, and the media are unlikely to be much interested in other pupils whose behaviour has warranted lesser sanctions. That approach might be a way around the problem, but I raised the matter in Committee in relation to the scope of the amendment. The term "disciplinary proceedings" is too wide, and I think the noble Lord accepts that.

As regards enforcing the prohibition, that is another problem that was raised in Committee. One possible option would be to create a new criminal offence, but given the sensitivities involved in restricting press freedom in such a way, that is something that would not be appropriate for us to discuss at this hour, at this stage of a Parliament, on this Bill.

Perhaps I may say again to the noble Lord that I am grateful to him, even with the failures in his spelling, for raising this issue again. I hope with the assurance of further action by the Government following the election, he will be prepared to withdraw the amendment.

Baroness Farrington of Ribbleton

My Lords, before the Minister sits down, I wonder whether he could promise by the morning those of us who have had fewer letters a note on the subject of the quotation.

Lord Henley

My Lords, I shall consider that point in due course and respond to the noble Baroness if I think it appropriate.

Lord Morris of Castle Morris

My Lords, if I could offer the Minister just the slightest hint as to the author of that quotation, it might not be too difficult for him to find an official who could look it up and give him the correct answer.

I hear what the Minister says about the way ahead. I am convinced. I am grateful. I am satisfied. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House adjourned at one minute before ten o'clock.