Lords Sitting of 7 July 1998

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

Addicts: Residential Care Facilities
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What plans they have for the replacement of Lorne House, the only institution in the country offering residential care to young drug addicts and alcoholics, which has been closed following the withdrawal of grants.
The Minister of State, Department of Health (Baroness Jay of Paddington): My Lords, the noble Lord will be aware that the Government do not directly provide local services for health or social care. Lorne House was funded in a complicated way by local authorities, health commissioners, the Probation Service and charities. None the less, in the last financial year the Department of Health gave crisis funding to Lorne House of £50,000 but did not feel that this action could be unilaterally repeated. My right honourable friend the Secretary of State for Health, together with my honourable friend the Minister for Public Health, recently met with the UK Anti-Drugs Co-ordinator, Mr. Hellawell, to discuss ways in which cross-Government action could be taken to improve the financial stability of residential drug treatment services such as this one. I am glad to say that the three remaining residents of Lorne House have been successfully resettled.
Lord Peyton of Yeovil: My Lords, is the noble Baroness aware that the Government should not take credit for the £50,000 to which she referred, as it was given by my noble friend Lady Cumberlege? Will the noble Baroness, whose courtesy in this matter I greatly appreciate, do her best to persuade the department, before they allow a valuable enterprise such as this to disappear, to take a careful look at the record of people saved and the possibility that there might perhaps be something to learn from those who run such places?
Baroness Jay of Paddington: My Lords, yes, indeed, we are very aware of the good work that has been done by Lorne House and its parent organising body, Turning Point, which, as the noble Lord will know, is a national organisation. I am glad to say that, in a letter to the Department of Health about this project, Turning Point said:
"we do intend to use the experience we have gained [at Lorne House] … to develop new and innovative options for young people's services".
1086
The Government are committed to working together with Turning Point on those new and innovative services. It is to that end that my right honourable friend has met the UK Anti-Drugs Co-ordinator to try to formulate a general policy.
Lord Cocks of Hartcliffe: My Lords, I apologise to the House for my excess of zeal, but I was so inspired by watching the launch of the homelessness initiative this morning that I felt that this could only be the other side of the coin. I ask the Minister to reconsider whether this and other such projects cannot be given continued funding.
Baroness Jay of Paddington: My Lords, as I hope I indicated in my reply to the original Question, the Government appreciate the good work done by these organisations and regret it when individual institutions cease to offer services which have probably been useful. I believe it is true to say that there are different ways of dealing with this issue, of which, as I described in my answer to the supplementary question by the noble Lord, Lord Peyton, the organisation sponsoring Lorne House is aware. We very much want to see those developed. I am advised that there are still over 100 centres in the United Kingdom which provide residential care in this area, although not all of them deal specifically with this young age group.
Lord Avebury: My Lords, bearing in mind the alarming increase in heavy drinking by teenagers, which was disclosed in an Answer given to me by the Government at the end of last week, and the fact that many homeless teenagers suffer from alcohol addiction, does the Minister think that additional funds should be directed at helping homeless young alcoholics? Does she think that enough is being done to prevent young people taking up drink and becoming homeless?
Baroness Jay of Paddington: My Lords, no, I do not think enough is being done. This is one of the programmes which is actively under consideration for development by my honourable friend the Minister for Public Health, who has, as I explained in my original Answer, recently met with those involved in the UK co-ordination of this policy. We very much want to see these services developed. We recognise that this is a serious problem.
Baroness Masham of Ilton: My Lords, does the Minister agree that, if magistrates do not have residential places to which to send these young people, they will have to send many of them to prison? Does she further agree that there are now far too many young people residing in prison and not receiving rehabilitation?
Baroness Jay of Paddington: My Lords, I think we are all very aware of the problems created when people who should be in specialist residential care for problems of this kind end up in the prison system. That is of concern right across the Government. As I said, I believe that there are a number of residential

1087
institutions that specifically cater for this area; but, as has been demonstrated again this afternoon, there is clearly not yet enough provision of this kind, although we should not think that residential care is the only answer.
The Lord Bishop of Manchester: My Lords, the Minister may be aware that the General Synod of the Church of England debated this subject last weekend in York. I was present at the debate. A unanimous resolution was passed to welcome the Government's attempt to improve the co-ordination of efforts to tackle drug abuse. However, we have two concerns which I wish to put before the Minister.
One concern is the lack of sufficient, speedy, effective treatment for drug addicts, which is mentioned in the Government's own report. What extra resources will the Government make available to increase access and make access more readily available for effective treatment for drug addicts, particularly those who encounter genuine opposition when they try to get into training and employment?
The second concern relates to support for local community careworkers and projects—not for rehabilitation centres but for local community care on the streets. Could resources be diverted from the assets seized from drug barons who have helped these people get into the dilemmas in which they find themselves?
Baroness Jay of Paddington: My Lords, I am grateful to the right reverend Prelate for drawing attention to the suggestions made last weekend. Overall, funding is an area of policy which will be considered in the light of the outcome of the comprehensive spending review. We hope to achieve significant changes in the allocation of special resources to help authorities. On the more general point, that again is a question for co-ordinated government action and not something I can answer on behalf of the Department of Health. It needs discussion with, for example, my right honourable friends in the Home Office.
Baroness Trumpington: My Lords, following what the noble Baroness, Lady Masham, said, has the Minister ever visited Lorne House? I did so when I had her job and was deeply impressed by everything that it was doing. Is it not a great pity that something which is working extremely well should be destroyed by a lack of what is relatively little money?
Baroness Jay of Paddington: My Lords, I did not visit Lorne House, but for many years I worked with Turning Point—the parent organisation which was specifically involved with its activities—when I was working for the National AIDS Trust 10 years ago. I am therefore familiar with the good work done by that specific organisation across the whole area of addiction. As I explained, this was an institution which we felt was providing a useful service. However, it was considered
1088
to be somewhat expensive. As I said in my original Answer, there were only three residents in Lorne House when it was finally closed.
Lord Peyton of Yeovil: My Lords, the fact that there were only three residents—
The Lord Privy Seal (Lord Richard): My Lords, I am sorry to interrupt the noble Lord, but we are now eight minutes into Question Time. We should move on.

Housing Benefit Review
2.45 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
What principles will underlie their review of housing benefit.
Lord Haskel: My Lords, the Government remain committed to ensuring that people can afford reasonable accommodation. Therefore any changes in the principles underlying the Government's review of housing benefit will be designed to make it more user friendly by making it easier to understand and simpler to administer. The Government will also seek to minimise work disincentives and the risk of fraud.
Earl Russell: My Lords, I thank the Minister for that commitment to ensuring that people can afford accommodation. In the light of recent attempts to cap levels of housing benefit, does the department believe that there is any evidence to suggest that caps on housing benefit may lead landlords to reduce the level of rent?
Lord Haskel: My Lords, the Government remain committed to a private sector which is uncontrolled and private landlords will not be affected by rent controls. The question of capping does not arise.
Baroness Gardner of Parkes: My Lords, is it a fact that the rents set for accommodation for which housing benefit is payable are determined by a valuation officer? Is it also correct that in central London the rent for a one-bedroomed flat is £185 a week, £250 for a two-bedroomed flat and £350 for a three-bedroomed flat? People who are in such accommodation in central London have a tremendous disincentive ever to take employment. How could they afford, in anything but the highest paid job, to pay those sort of amounts per week out of a net income? Would it not be wise for the Government to consider setting a ceiling upon housing benefit? I understand that some central London rents are being paid from housing benefit at £900 a week.
Lord Haskel: My Lords, the noble Baroness has a point. Rental variations occur throughout the country. The housing benefit system at the moment does not differentiate between those tenants who need to look for more economic premises and those who do not.

1089
However, systems are in place to evaluate what is an economic rent in different areas. There is a big variety of rentals in different areas of the country.
Baroness Williams of Crosby: My Lords, can the Minister say whether it is still the case that the Government abide by the principles of the 1986 Act; namely, that income support is not normally intended to cover rent? Is it still seen as a separate issue from the rent which people have to pay?
Lord Haskel: My Lords, on the whole, income support is not intended to cover housing costs. We have a separate housing benefit scheme which pays up to 100 per cent. of rent. It is not our intention to leave claimants out of pocket. However, for home owners, income support, with the mortgage interest scheme, provides a contribution towards mortgage interest payments for the purchase of a home and for some repairs and improvements to it.
Lord Higgins: My Lords, the Government's document, A New Contract for Welfare, contains a large section on housing. However, when it comes to success measures, all it says is that there has been an improvement in the quality of housing and housing management. That is so vague as to be utterly meaningless. Will the review being carried out include quantitative measures as to whether or not the Government have been successful?
Lord Haskel: My Lords, the Government are intending to improve the quality of housing, and the review will include quantitative measures.

Diana, Princess of Wales: Memorial Gardens
2.49 p.m.
The Earl of Drogheda The Earl of Drogheda asked Her Majesty's Government:
Whether an alternative site for a garden dedicated to the memory of the late Diana, Princess of Wales, could be found, in view both of the effect on Kensington Gardens of the one currently under discussion and of the need for more parks and gardens in other parts of London.
Lord McIntosh of Haringey: My Lords, people will continue to visit Kensington Gardens to remember Diana, Princess of Wales and the Diana, Princess of Wales Memorial Committee has advised the Government that, subject to public consultation, the gardens should be enhanced in a simple, elegant, dignified and sympathetic way as a place of remembrance.
A preliminary consultation exercise will open to the public on Friday, 10th July with an exhibition at the Albert Memorial Visitors Centre. A summary of the
1090
proposals and a questionnaire will be distributed to local residents of Kensington and Chelsea and Westminster asking for their comments by 7th August.
The Earl of Drogheda: My Lords, I thank the Minister for his reply. But does he not agree that it is a shame to spend large amounts of money on a garden which is already very beautiful and which will certainly not be improved by that money? Does he not also agree that many areas of London are in great need of parks and gardens and would benefit not only from them but from the accompanying tourism, which would cause great detriment to the area around Kensington Gardens?
Lord McIntosh of Haringey: My Lords, the Diana, Princess of Wales Memorial Committee has been meeting since January of this year and has received more than 10,000 submissions with suggestions as to what projects should be undertaken in memory of the Princess. Overwhelmingly, the largest single response was in the form of requests for gardens and in particular for an enhancement of Kensington Gardens. Whether we like it or not, Kensington Gardens are already a place of memorial for the Princess. The numbers of people going there have increased from 2.8 million a year in 1995 to 5 million in the past year. This is simply a recognition of what people want. As to the point about other parks and gardens, of course they can be considered and the Government Office for London and the London Planning Advisory Committee are carrying out a major study of the adequacy of provision of parks and gardens in the London area.
Lord Strabolgi: My Lords, is my noble friend aware that a site to the north of Kensington Palace would be preferable and slightly less disruptive than one to the south, which I think is quite unacceptable? Has he considered the effect this will have on the embassies in Kensington Palace Gardens? Many of their gardens abut on Kensington Gardens and they will be considerably disturbed. I am thinking particularly of the residencies of the French Ambassador and the Russian Ambassador.
Lord McIntosh of Haringey: My Lords, I do not want to anticipate the consultation process which will start on Friday but I do not think it is unreasonable for me to say that the intention is that any changes in the southern part of the western end of Kensington Gardens should be as simple as possible and that in the northern end, which has better public transport and already has a coach park, it will be more possible to carry out imaginative changes such as more provision for children and the disabled. As to the embassies, the Paddock lies between Kensington Gardens and the back gardens of the embassies.
Lord Blaker: My Lords, is it possible to believe that the affection in which the memory of Princess Diana is held will be enhanced by the creation of a permanent traffic jam in Kensington?
Lord McIntosh of Haringey: My Lords, we have to recognise what people think, what they feel and what

1091
they want to do. They are already going to Kensington Gardens and will do so whether or not there is a memorial to the Princess in the gardens. The indication I have given that the emphasis will be on the north end rather than on the south end ought to reassure the noble Lord to some extent.
The Earl of Carnarvon: My Lords, has the Secretary of State called in this application as a change of use?
Lord McIntosh of Haringey: My Lords, we are a long way off that. After consultation there will be further proposals. My understanding is that when those further proposals are developed it will be treated as Crown development under the 1984 order.
Lord Montague of Oxford: My Lords, can consideration be given to the Mile End Park, which is to have some £20 million spent on it almost immediately, £10 million of which is coming from the Millennium Commission? As my noble friend will know, the park is only one mile away from the City. It is a fine park and is in an area where Princess Diana did a great deal of wonderful work for the people and where the thought of her presence would be greatly welcomed.
Lord McIntosh of Haringey: My Lords, that is a welcome and valuable suggestion which I am sure the memorial committee will consider. My noble friend is right about the Mile End Park, which has been a very long time in development but is now starting to show its true potential.
Lord Ewing of Kirkford: My Lords, when does my noble friend think we will get to the stage when Princess Diana will be allowed to sleep in peace and we will get rid of all this debate?
Lord McIntosh of Haringey: My Lords, I am only reflecting, on behalf of the Government, the representations which have been made to them by the Diana, Princess of Wales Memorial Committee, which includes a representative of the Royal Household, representatives of her family, and others who are concerned. The individual feelings of all of us must play a part in our response to that. But there can be no doubt that there is a public outpouring of feeling and that there are many people who believe that that should have a physical expression in the form of the projects which the committee is proposing.
Baroness O'Cathain: My Lords, would it be possible to extend the consultation period from four weeks? Whereas the memorial committee has had six or seven months to consider the matter, the residents of Kensington and other people who are interested will have only from 10th July to 7th August to do so. Bearing in mind that summer holidays and other things are going on at the moment, would it not be possible to extend the period by around four weeks?
Lord McIntosh of Haringey: My Lords, I take the noble Baroness's point. But the consultation exercise is
1092
being started before the main holiday period, at least as far as your Lordships are concerned. An extension of another four weeks would probably not be particularly effective. The consultation will be thorough. In addition to the exhibition at the Albert Memorial Visitors Centre, questionnaires will be distributed house to house to all of the local residents. I hope that within a four-week period they will have an opportunity to respond.

Teaching Profession: Public Appreciation
2.57 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What action they are taking to enhance public appreciation of the teaching profession and understanding of the contribution it makes to the wellbeing of the United Kingdom.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the support, enthusiasm and commitment of good teachers underpin all that we are trying to achieve in driving up standards in schools. We must, and do, take every opportunity to celebrate the achievements of the best of the profession.
Last month, the Government announced the National Teaching Awards. This month the Secretary of State will present certificates to the first cohort of successful candidates for the new national qualification for headteachers. The Teacher Training Agency's campaign, "No one forgets a good teacher", has also helped to raise the profile of teaching.
Lord Judd: My Lords, I thank my noble friend for that encouraging reply. Does she not agree that, in a society in which success is increasingly measured in material terms alone and in which the spirit of service can be too easily demeaned, it behoves us all to spend a good deal more time talking up the dedicated and devoted service of the majority of the teaching profession and also to ensure that, by the conditions of service which the profession enjoys, its significance to the future of Britain is recognised? Does my noble friend agree that this is an urgent issue if the worrying signs in the recruitment of teachers are to be put right?
Baroness Blackstone: Yes, my Lords, I very much agree with what my noble friend has just said. It is extremely important that we talk up the commitment of the many hundreds of thousands of excellent teachers who work in our schools. It is one of the most important professions that any young person can take up. To have charge of our children and to teach them is enormously important. It is also important that the right terms and conditions of service are provided for teachers. It is for the School Teachers' Review Body, the independent pay review body, to recommend changes to teachers' statutory pay and conditions of employment.
Lord Wallace of Saltaire: My Lords, is the Minister aware of the figures showing the decline in the number

1093
of those taking higher education courses which lead to primary school teaching? Does she believe that particular action needs to be taken, including higher initial pay, to encourage people to take up primary teaching as a potential career?
Baroness Blackstone: My Lords, there is concern about the number of recruits to training places for both primary and secondary teachers. I say to the noble Lord, Lord Wallace of Saltaire, that places for primary school teachers are over-subscribed. The Government are more concerned about recruitment to the secondary school teaching profession where shortages are greater. The Government are taking action to monitor what is happening and to encourage as far as possible many young people and also mature entrants to apply.
Baroness Blatch: My Lords, does the noble Baroness's reply to the question from the noble Lord, Lord Wallace of Saltaire, mean that the Government welcome the drop of 15 per cent. in applications for Bachelor of Education courses for primary teachers? Is it not regrettable that although the fees have been waived for students doing a PGCE in a fourth year for the Certificate of Education they have not been waived for young people taking four-year Bachelor of Education degree courses in our universities in higher education?
Baroness Blackstone: My Lords, of course the Government do not welcome the decline in the number of applications for teacher training places, wherever that may be. However, for next year those teachers who are taking four-year B.Ed. primary teaching courses will continue on the same basis as at present. Teachers who decide to take PGCEs will be starting a new course. The Government have decided to make a concession. However, we shall be monitoring the position as regards potential primary schoolteachers on four-year B.Ed. courses.
Lord Northbourne: My Lords, does the noble Baroness agree that it is important to attract male teachers into primary schools so that boys can have appropriate role models?
Baroness Blackstone: My Lords, yes. It is very desirable for more young or mature men to enter primary teaching. At the moment the proportion is approximately 20 per cent. I do not believe that it has changed much in recent years. But anything that can be done to enhance that proportion would be highly desirable.
Lord Renton: My Lords, is it not important above all that students should appreciate what their teachers do for them? Therefore, will the Government find a way of encouraging students who, at any rate, have obtained A-levels to write to thank the headmaster of the school for the help that they were given in doing so?
Baroness Blackstone: My Lords, I am not sure that that is for the Government. I certainly agree that
1094
showing appreciation is always very nice. As a former university teacher, when I received such letters it made my week. I certainly believe that parents might encourage their children to write and thank the teachers who have supported and helped their pupils. It would be a good thing for them to write and thank the teachers. It is not really a matter for the Government.
The Lord Bishop of Ripon: My Lords, will the Minister accept that the decline in the number of applications for B.Ed. courses has placed in some financial difficulty higher education institutions which have a major element of teacher training? Does she further accept that some of those colleges are now at some risk? They are colleges which, in the past, have had a fine record of producing committed and highly valued teachers. Does the Minister accept that their future should be as secure as possible?
Baroness Blackstone: My Lords, it is extremely important that the future of such institutions should be secure. The Government have absolutely no evidence that they are in fact insecure. As I said earlier in answer to a question from the noble Lord, Lord Wallace of Saltaire, there is substantial over-subscription for primary school B.Ed. courses. So although the total number of applications may be down, the Government do not expect places to remain unfilled.
Baroness Williams of Crosby: My Lords, in view of what the Minister said about the problem of recruiting secondary school teachers, can she say why there appears to be such difficulty in secondary teachers with considerable experience finding jobs? I believe that, primarily, it is because of the pressures on school budgets, which means that the schools are more inclined to employ newly qualified teachers rather than those who have some seniority in the profession.
Baroness Blackstone: My Lords, mature entrants to the profession should not be affected. If they are starting as teachers their salaries will not be any different from those of young people starting in teaching. There is no reason whatever why any school, even with pressures on its budget, should reject a newly qualified mature applicant compared with a newly qualified younger applicant.
Baroness Williams of Crosby: My Lords, the noble Baroness has not answered my question. It was about experienced teachers with several years seniority in the profession. It was not about mature teachers.
Baroness Blackstone: My Lords, I apologise if I did not fully understand the noble Baroness's question. The Government do not have evidence that well qualified senior teachers in secondary education are failing to find jobs. On the contrary, I believe that schools are very pleased to be able to recruit such people, particularly in shortage subjects.
Lord Judd: My Lords, does my noble friend accept that among those with responsibility in colleges of

1095
education there is growing anxiety about the problem of recruiting to the profession people in sufficient numbers and of the right calibre? Does she not agree that, on reflection, we have had a surfeit of headlines which seem to denigrate the profession? Does she further agree that it is important for someone like her, with her commitment to the profession and her understanding of it, to have a word with some of those who might change the form of their remarks to a more encouraging tone?
Baroness Blackstone: My Lords, I am not sure that I can change the approach of headline writers to these matters. However, I believe that it would be very helpful if newspapers were to report more favourably on the many successes of our schoolteachers throughout the country.

Teaching and Higher Education Bill [H.L.]
3.7 p.m.
Baroness Blackstone: My Lords, I beg to move that the Commons reasons be now considered.
Moved, That the Commons reasons be now considered.—(Baroness Blackstone.)
On Question, Motion agreed to.

MOTIONS TO BE MOVED ON CONSIDERATION OF COMMONS REASONS FOR DISAGREEING TO A LORDS AMENDMENT IN LIEU OF A COMMONS AMENDMENT AND INSISTING ON COMMONS AMENDMENTS TO WHICH THE LORDS HAVE DISAGREED
[The page and line refer to Bill (145) as first printed for the Commons.]
COMMONS AMENDMENT
64 Clause 19, page 14, leave out lines 31 to 49.

LORDS AMENDMENT IN LIEU
The Lords disagreed to the amendment but proposed the following amendment in lieu—
64D Clause 19, page 14, line 31, leave out subsections (6) and (7) and insert—
("( ) Regulations under this section shall ensure that any arrangements for the payment of grant in respect of tuition fees for the fourth or any subsequent year of study at a higher education institution in England or Wales apply equally to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in Scotland or Northern Ireland as they do to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in England or Wales.").
The Commons disagreed to the amendment proposed by the Lords in lieu of their amendment and insisted on their amendment for the following reason:
64E Because the said Lords amendment and the disagreement by the Lords to the Commons amendment involve charges on public funds, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish rose to move, That this House do not insist on their Amendment No. 64D in lieu of Commons Amendment No. 64, to which the Commons have disagreed for their reason numbered 64E, but do propose the following amendment in lieu of the words so left out of the Bill—

MOTION MOVED ON CONSIDERATION OF COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT IN LIEU OF A COMMONS AMENDMENT
64G Clause 19, page 14, line 30, at end insert—
("( ) Regulations under this section may make provision for the Secretary of State to secure that any arrangements for the payment of grant in respect of tuition fees for the fourth year of study at a higher education institution in England or Wales apply equally to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in Scotland or Northern Ireland as they do to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in England or Wales.").
The noble Lord said: My Lords, I beg to move Amendment No. 64F standing in my name. With it there are two other amendments, one standing in my name—namely, Amendment No. 123G—and one standing in the name of the noble Lord, Lord Steel of Aikwood, Amendment No. 123E.
Amendments Nos. 123E and 123G are at the centre of the disagreement your Lordships are having with the other place. Perhaps I may explore the issue for a few minutes. I believe it is a very simple one. I can persuade your Lordships that we ought to disagree with the other place again.
Honours degrees at Scottish universities take four years. That is a long and honourable tradition. I was very surprised to read in Hansard of the other place for 8th of June (col. 794) that the Scottish Education Minister, Mr. Brian Wilson, described it as a "bogus tradition". I can assure your Lordships that there is nothing bogus about it. The Scottish universities and their graduates feel it to be a serious slur on the high reputation of Scottish universities to describe the four-years honours degree as bogus.
When the Government decided to charge £1,000 a year in tuition fees—we are not arguing about that today—they realised quite quickly that charging £4,000 for an honours degree in Scotland and £3,000 for an honours degree at an English or Welsh university, was not right. The Scottish Office rapidly agreed to fund the fourth year at Scottish universities only for Scottish-based students. So full marks to the Scottish Office. It did the right thing when it saw this issue coming up. However, it is a pity that yet again the noble Lord, Lord Sewel, has been put into the firing line to defend decisions which are not his and when his department well realised what the problem was.
Having said something kind about the Scottish Office, I suspect that, unfortunately, lateral thinking is not its strong point. Many students from outside Scotland attend Scottish universities and they will all have to pay the extra £1,000, making a total of £4,000. That would at least have some logic about it, although it would have been unfair to students from elsewhere in the United Kingdom.
However, along came the killer punch for the Government, changing what I submit would be unfair into what I suggest is plain daft. Students from countries in the European Union have to be charged the same as Scottish students; in other words, the Scottish Office will have to fund the fourth-year tuition fees of anyone from Italy, France, the Republic of Ireland or any other member state of the European Union, except other parts of the United Kingdom. As I explained recently to your Lordships, when Mr. Brian Wilson, the Minister for Education and Industry, was asked on "The World at One" why a student from France should be asked to pay only £3,000 while a student from England will be asked to pay £4,000, he replied, "Because France is in the European Union", to which the interviewer replied, "Isn't England?". There is no answer to that.
We are now in a position where students from North Berwick in Scotland, from Bonn in Germany and even from Bosisio Parini in Italy, which some of your Lordships know is dear to my heart, will have to pay £3,000, yet students from Berwick-upon-Tweed in England will have to pay £4,000.
Perhaps I may look briefly at the Government's defences, if that is what they call them. The first defence is that the changes that your Lordships would like to make would cost £27 million and not the £2 million that everybody in the world, bar the Government, think that they would cost. I believe that the Government's assumptions are based on the proposition that they would have to pay for the fourth year of every student at an English or Welsh university. That has never been our intention. We have never asked for that. Your Lordships are not asking for that. What we have said—we do so again in Motion No. 64G—is that if the Government ever decided to introduce a special provision for Scottish students attending English and Welsh universities, that provision should not relate to only English and Welsh students but to all students from the United Kingdom. That is what Motion No. 64G seeks. Those provisions give the Government order-making powers. The ball is entirely in the Government's court. We are not forcing them to do anything.
If the Minister can say to me that the Government have no intention of introducing a grant for the fourth-year payment for any student attending an English university, I would be content to withdraw my first Motion. My intention is not to deal with England and Wales, but to ensure that there is no discrimination and that students from Scotland and Northern Ireland would not have to pay more if they went to an English university than would students from England and Wales. If I can be given the assurance that any future change made by the Government will treat students attending English and Welsh universities on the same basis, wherever they come from, there will be no great argument over my first Motion.
It is on my second Motion and on that in the name of the noble Lord, Lord Steel of Aikwood, that we have a problem. Perhaps I may therefore consider all the other defences to the amazing proposition that students from all parts of the UK who are attending Scottish universities should not be treated in the same way.
1098
I note that it has been argued that all students coming from elsewhere in the UK to study at Scottish universities are "little rich kids" who attended private schools such as Eton, Wellington, Charterhouse and Westminster. Those schools were mentioned by Brian Wilson in the House of Commons. The class war will never be over as long as one breath remains in Mr. Brian Wilson's body.
As the noble Lord, Lord Mackie, said in an intervention when we last debated this, "What about the little rich kids from Scotland?". I do not know why I pluck this out of the air, but what about those "little rich kids" from Scotland who went Fettes'? Why should they receive a subsidy of £1,000 from Scottish taxpayers? The private school argument is bogus and I hope that the noble Lord, Lord Sewel, will not use it.
What about Northern Ireland? Are students from Northern Ireland "little rich kids" who have attended private schools? Perhaps I may quote briefly from a letter that I have received from Richard Baker, the president of the National Union of Students in Scotland. It states:
"NUS Scotland has been inundated with telephone calls from anxious students from Northern Ireland who wished to know if they could escape the additional £1,000 fee by gaining Scottish residency. We arranged to meet with a large number of them in Belfast".
I understand that there is the ploy that if those students spend one night in Scotland just before they go to university, they might be able to claim Scottish residency and thus be absolved from the fee. I say "Good luck to them".
Mr. Baker continued:
"Of 40 or so students we met, not one was from a 'privileged elite'. None were well able to afford fees, none were confident of missing out the first year of the four year degree, and most did not have that option".
The Minister will tell us that if students do not come from the privileged élite, their parents will be means-tested and they will not have to pay, but there is a whole chunk of youngsters in the middle whose parents have reasonably well paid jobs but who are by no means rich or belong to the privileged élite, and they will have to pay. Those are the facts about Northern Ireland. Is it not ridiculous that when we are attempting to bring together people in the island of Ireland we have the proposition that if a youngster from Belfast attends Glasgow University he or she will have to pay £4,000, whereas a youngster from Dublin will have to pay only £3,000. That is unfair on any count.
Then there is the argument about what will happen to student numbers. The Scottish universities are particularly worried about this because a proportion of their students—in some universities, quite a high proportion—come from outside Scotland. To be honest, it is too early yet to say positively what will happen, but we do know that after years of seeing an increase in the number of applicants from England to Scottish universities, according to the Universities and Colleges Admissions Service, applications from England are showing a slight fall this year. That fall was initially denied by the Prime Minister, who said on 24th June that the numbers were up, not down. A week later, he had to put the record straight and admit that it was true

1099
that overall, for all Scottish education, there had been a fall in such applications. Perhaps the Prime Minister had been misinformed previously. However, he has now been properly informed. I know that it is his finger on the trigger, so I hope that he will look at this afresh, given that the facts that he seemed to be using are not correct.
There is also the point about second-year entry to Scottish universities. Only a tiny number of youngsters from outside Scotland enter in the second year. Your Lordships will be told in a little while that this year double the current number will be second-year entrants. Perhaps I should point out that "double the number" means an increase from 600 to 1,200. That is a lot, but when it is set against the background of 25,000 youngsters from England, I think that your Lordships will see that the vast majority of youngsters enter at the beginning of the first year. As I said when we last discussed this—I shall not go over it again because noble Lords who were present then will remember—the Association of University Teachers made it abundantly clear in a letter that it did not think that second-year entry was a sensible or wise option. Indeed, the association did not think that such a move was successful because within a few weeks of entry many second-year entrants—a very small proportion of all the youngsters attending Scottish universities—fall back from the second year to the first year. The fact is that the argument about second-year entry is bogus and the Government should not use it.
The last argument with which I want to deal is that youngsters in Scotland spend a year less in senior school than do youngsters in England. The proposition is that youngsters in Scotland go to university at the end of their fifth year. When we last discussed this, I reminded your Lordships that in a previous life I was the head of a mathematics department in a large comprehensive school which, I am pleased to say, sent many youngsters to Scottish universities. I must tell your Lordships that the vast majority of those youngsters stayed on for two years, taking more Highers or studying what was at that time the certificate of sixth-year studies, which in many ways was the equivalent of A-levels.
This bogus argument has been exposed not only by me but by Mr. Dennis Canavan, a Member of the other place, who was also the head of a mathematics department. (That is about the only thing that we have in common.) Mr. Canavan underlined the point that I have made to your Lordships when he said that in his experience the vast majority of youngsters went to university at the end of the sixth year.
All the arguments are bogus. I hope that I do not hear again the "fifth-year" argument. Nothing shows people's ignorance of the Scottish education system more than an argument such as this; it demonstrates that they are unaware of something upon which they are pontificating. I know that the noble Lord will not do that because he comes from the University of Aberdeen and knows what happens on the ground.
However one looks at this, the Government are in a hole and insist on continuing to dig. This afternoon noble Lords have before them an amendment that allows
1100
the Government to stop digging and throw away the spade. That appears to be the most sensible course to take.
I end where I began by referring to those who agree with me, or us if I may include the noble Lord, Lord Steel of Aikwood: the National Union of Students, which is not usually in the same camp as me; the Association of University Teachers; the Committee of Vice Chancellors and Principals; and all the Scottish media. That is certainly a novel experience. I have a letter from Mr. Baker, president of the National Union of Students Scotland, in which he writes:
"On behalf of the students of Scotland and in the interests of all UK students I ask you again to defend fairness. What was unjust and bad legislation last week has not been altered by the Commons this week. I recognise that we are asking Peers to vote against the Government for a third time on this issue and understand the possible consequences and sensitivities this will raise. I wish you to know that this is not a request that NUS Scotland would make lightly and is motivated by genuine indignation on the part of students at the inequity that the proposals seek to introduce".
I do not want to hear about the constitution or anything like that. Your Lordships will be in agreement with everyone else outside if you return this matter to the Commons today. You will be in agreement with the letter that appears in today's Times from the president of the NUS, the president of the NUS Scotland, the convenor of the NUS Northern Ireland and the president of the NUS Wales. Will the Government stop digging and start to listen?
Lord Barnett: My Lords, before the noble Lord sits down, he will be aware that I always enjoy the noble Lord's bit of fun, particularly in a case where I have a great deal of sympathy with the point that he makes. However, he did not deal with why the other place rejected the amendment; namely that it involved a charge on public funds. I do not argue about the £27 million, £1 million or £2 million. But there is a major problem here. This is the third time that this matter is being considered. I am aware that the noble Lord has changed the amendment slightly, but basically he is rejecting the amendment of the elected Chamber and seeking to send it back. Is the noble Lord telling noble Lords that he is prepared to do that three times, four times or five times?
Lord Mackay of Ardbrecknish: My Lords, perhaps I may rehearse what has happened. This Bill started off in this place. The first time on which noble Lords voted on the issue and inserted an amendment into the Bill they were not disagreeing with the Commons. They may have been disagreeing with the Government, but that is a different matter. The Bill then went to the Commons, who sent it back to us. We sent it back to the other place. This is only the second time that we have disagreed with the Commons. As I would expect from a former Chief Secretary, the noble Lord reminds me that the Commons believe this to be about money and that that reason may be deemed to be sufficient. I have read out the letter from the NUS. I do not believe that it is the view of the NUS that it is sufficient or that the public regard it as sufficient. I believe that we should ask the Commons to think again.

1101
Moved, That the House do not insist on their Amendment No. 64D in lieu of Commons amendment No. 64, to which the Commons have disagreed for their reason numbered 64E, but do propose Amendment No. 64G in lieu of the words so left out of the Bill.—
(Lord Mackay of Ardbrecknish.)
Lord Steel of Aikwood: My Lords, normally when I rise to speak following the noble Lord, Lord Mackay of Ardbrecknish, it is strongly to disagree with him. Therefore, this is a very pleasant change. It takes my mind back to the time when he and I debated together as students at Scottish universities, no doubt paid for by the state. I see the noble Lord nodding in agreement. Certainly, it was paid for in my case. We had the good fortune to be students in the days when we were financed by the State, in my case for five and not four years. I was not a dilatory student but took two co-ordinated degrees. It is a pleasure to follow the comments of the noble Lord, Lord Mackay of Ardbrecknish. The fact that he has covered the ground so fully means that I can speak briefly.
I begin by dealing with the question raised by the noble Lord, Lord Barnett. My Amendment No. 123E is much more tightly drawn than the proposal previously rejected by the Commons, costing some £27 million. If the noble Lord looks at the Marshalled List he will see that my amendment is even more tightly drawn than his second amendment. My amendment refers specifically to the fourth year of study for first degree courses at Scottish universities. The estimated cost to public funds is £2 million, not £27 million, and does not come into effect until the year 2001. We are considering here a very modest amount of public expenditure to remove a glaring anomaly in the Bill which would arise if we rejected the proposal of the Commons without putting anything in its place.
Lord Barnett: My Lords, I thank the noble Lord for giving way. The amount of money involved in this case is irrelevant. The reason that has been given is that it involves a charge to public funds. That is the reason given by the other place, not that the cost is £27 million or £500,000.
Lord Steel of Aikwood: My Lords, I accept what the noble Lord has said, but surely the amount involved is relevant. It will be for the Commons to consider the matter if we send back a new proposal which is more limited. In considering that matter, the Commons will take into account the cost of the proposal contained in the Bill. That is my plea to the House this afternoon.
As the noble Lord, Lord Mackay, has said, when the proposal to introduce tuition fees was put forward, this particular anomaly had not been spotted. When the Scottish Office quite properly reached its decision to extend the payment of fees through to the fourth year and this anomaly was spotted, the reaction of the Government was one of ministerial bluster in both Houses. That has been the situation throughout. We have heard bogus arguments about how Scottish students tend to leave school in the fifth and not the sixth year. That is untrue. Unfortunately, we do not have
1102
any statistics but anecdotal evidence based on our particular experience shows that, like myself, most students who enter Scottish universities stay on for a sixth year at Scottish schools, just as students in England do. All the schools in Scotland, not just Fettes, at which students take O and A-levels instead of Scottish Highers—there are many of them—presumably will be allowed to send on their pupils, who will have their fees paid, whereas students who take exactly the same examinations in England, Wales and Northern Ireland will not.
That is an indefensible proposition. We on these Benches have been advised that on legal grounds it is so indefensible that, ironically, just as the House proposes to introduce into our legislation the European Convention on Human Rights it is possible that the first challenge against the Government will be on this very issue. Rather than spend money on legal fees defending this issue in the courts, the Government would be wise to incur the modest amount of public expenditure that is required to put right this anomaly.
The noble Lord, Lord Mackay, kindly spared us yet more of his family history. We all begin to feel part of his extended family in Italy. But he is right that the anomalies are so gross that a student from Cumbria will have to pay the £1,000 but a student from Umbria will not; a student from Birmingham will have to pay the £1,000 but a student from Barcelona will not; a student from Colchester will pay the £1,000 but a student from Cologne will not; and a student from Doncaster will pay £1,000 but a student from Düsseldorf will not. I could go on. The comparison that I particularly like is between the student from Rotherham who pays £1,000 and the student from Rotterdam who does not. But the most glaring anomaly is the one raised by the noble Lord; namely, that relating to the island of Ireland. How can we, at this fraught moment, be passing a Bill which suggests that students from Northern Ireland pay £1,000 whereas students from the south do not? It is an absurd proposition.
Perhaps I may quote a little further from the letter from the president of the NUS of Scotland to which the noble Lord, Lord Mackay, referred. I do so because I welcome the presence on the Government Front Bench of the noble Baroness, Lady Ramsay of Cartvale, who, when I first knew her, was president of the Scottish Union of Students. We all bowed down to her and we bow down to her again today. I hope that she will listen to what her successor in office says on this matter. He, referring to the students from Northern Ireland, states:
"These students wish to study in Scotland for various and very genuine reasons. Most wish to study courses that are not offered by the few higher education institutions in Northern Ireland. Having to leave Northern Ireland to study, many students also stated that Scotland was nearer; that the Scottish education system was attractive; that they had family connections or other ties there; and were familiar with a wider Scottish culture over that of the rest of the UK. Their choice of study in Scotland, and not elsewhere in the UK, is now to have greater financial consequences for their parents, and is clouding a time for optimism with dilemma and doubt".

1103
I believe that he is right.
He concludes his letter by saying:
"Students in Scotland greatly value the diversity of the student body. We seek to defend the equal choice of all students to benefit from Scottish higher education, and their residence in the UK remains an arbitrary distinction void of educational or moral ground".
I believe that to be the case. I know that the Government may try to advance the constitutional argument, and so I address it finally.
We are a revising Chamber. It is not up to us to overturn finally the views of the other place. We are a revising Chamber. What does that mean? It does not mean that we have to do whatever the Government wish, and certainly not when the Government command an overwhelming majority in the other place, and when on this issue there have been at least 30 abstentions on the government side in the other place, because of the great concern, especially among Scottish Members.
This proposal appeared nowhere in a manifesto. No one would write such an absurd manifesto. Therefore, it is reasonable that we ask for a modest rethink by the Government. I hope that they will accept my Motion No. 123D. If they do not, I intend to press it to a Division, because it is no part of our function to legislate nonsense, and certainly not when it is nonsense on stilts.
3.30 p.m.
Lord Shore of Stepney: My Lords, it would be incomplete if this chorus of complaint was not joined by at least one Labour voice. I am certain that what I have to say reflects the strong majority opinion of my colleagues on these Benches. I must say that I think also that what I am going to say will reflect the opinion of most of my colleagues in the other place, who, if they were allowed a free vote on the issue, would make quite clear their own feeling of repugnance at what is being proposed. I use the word "repugnance" deliberately.
The noble Lord, Lord Mackay, went straight to the heart of the matter, and deployed the strongest argument of all, which is that this is a matter of principle; it is a matter of discrimination. It is discrimination against our fellow countrymen. It is discrimination in the sense that while Scottish students, very properly, are being exempted in their fourth year from payment of fees, English students who go to Scottish universities are having to pay for the fourth year. Welsh students are having to pay; Northern Ireland students are having to pay.
On top of that, which is discrimination that to me is wholly unacceptable, we learn that the whole of the student population of our 14 neighbour states in the EU is to be exempt as well, while our own people, our own students, are to have this imposition placed upon them. My Lords, this is incredible! It is folly beyond all belief. It is not just discrimination; it is reverse discrimination. It is positive discrimination in favour of the 14 countries of the EU—a new dimension of positive discrimination, and positive discrimination against the people of our
1104
own land. Never will we accept this. I tell my right honourable friends now that they have to take this back, and they have to think about it again.
Baroness Carnegy of Lour: My Lords, I should like to follow the noble Lord and make a further, even wider, point. During the debate in another place the responsible Scottish Office Minister, Mr. Brian Wilson, commented that this is a peripheral aspect of the Bill. Noble Lords will appreciate that it is not peripheral. There cannot now be many people in Scotland who think that it is peripheral: first, because of the points that the noble Lord, Lord Shore, has just made—it is unjust and it is discrimination—and, secondly, because of its crucial political implications from Scotland's viewpoint.
To charge UK students from outside Scotland for the same course in Scotland more than resident Scots are charged will undermine one of Scotland's greatest assets. Many students who choose to come to Scotland do so because they are attracted by our four-year honours degree. They find themselves enjoying life north of the Border, and stay on to work or live there, or return later in their lives as opportunity offers. That helps Scotland to be the cosmopolitan, outward-looking, talented place that it is.
At present, the SNP's anti-English thinking, and the threat that that thinking may be reflected as time goes on in the policy of the Scots parliament, is a great worry, I know, to many of your Lordships. It is certainly a worry across Scotland. Had the noble Earl, Lord Perth, been here he would have made that point.
This Labour Government are insisting on sending out the same SNP-type message: English, Welsh and Northern Ireland students must pay more just because they do not live in Scotland. The matter is no less frightening because it happened, as several noble Lords have said, as a result of a mistaken, snap decision by Scottish Office Ministers. Indeed, it is widely known—I say this to the noble Lord, Lord Barnett—that Mr. Brian Wilson wanted to put the matter right by producing the necessary £2 million from the Scottish Office budget. Presumably he had the money set aside to do so, but that was blocked, I understand, by the Secretary of State for Education and Employment himself. I am not sure what the Minister's part in this was, but the noble Baroness certainly knew the feelings in this House, and I am sure responded to them.
Second chambers have their uses. It may well be that this example indicates that the Scots parliament may need a second chamber. In the meantime, this is the second Chamber of the Parliament of the whole of the UK. The Government have made a damaging mistake. The other place should have the courage, even now, to recognise that, to stand up to the Government and to put it right. This House should give it that opportunity by voting for one or other of these Motions.
For the sake of many students of the Scots universities, of the universities themselves, and, above all, for the future of the Union, I hope that your Lordships will express a sensible opinion.
Lord Wilson of Tillyorn: My Lords, Perhaps I may reinforce some of the thinking behind what the noble

1105
Baroness, Lady Carnegy, has just said. First, I declare a non-financial interest as Chancellor of the University of Aberdeen. As the noble Lord, Lord Mackay of Ardbrecknish, pointed out, it will not be unknown to the Minister, who was a distinguished and effective member of staff.
This is not an issue of fees, as has already been said. Fees are tough on many students, but they are justifiable as a way of financing our universities. I do not believe that it is even a question of numbers. As regards the University of Aberdeen, up to now the effect on numbers of good students applying does not seem to be great.
I suggest that the real issue is different: it is more subtle; it is more important. It is the psychology of what we are in danger of putting in place if we are discriminatory. That is particularly important at this moment in the history of Scotland. It is surely a time when we should want our universities in Scotland to have the maximum number of young people from elsewhere in the United Kingdom enjoying a shared experience. It is surely not a time when people who come from outwith Scotland to Scottish universities should feel that they are being discriminated against. Whether or not they can afford it, the psychology of that discrimination is wrong, and in particular at this moment in the history of Scotland.
I imagine that at this stage it is impossible to guess what will happen at the end of this yo-yoing on amendments between your Lordships' House and another place. However, at the end of the day when the dust has settled and the guns are silent, perhaps I may appeal to the Government and Ministers to look for ways in which the universities in Scotland can be inclusive and including and not exclusive and excluding.
Lord Stoddart of Swindon: My Lords, my noble friend Lord Shore of Stepney is not alone. He beat me on to his feet. I am glad that he did so because he spoke with the enormous experience and authority of a long reign as Secretary of State and from holding many posts in the Labour Party. He was absolutely right. From my conversations, many people on this side of the House are most unhappy about this matter. Indeed, I can assure the House that many on this side of the Chamber are unhappy that we are charging tuition fees. Many people joined this party because they believed in equality of education. It is part of the classless society about which New Labour is talking; that there should be no discrimination in education; and it has brought us to this point. Had we not decided that we should charge tuition fees, we should not be arriving at this absurd point in time where the Government are insisting that people from England, Wales and Northern Ireland should be charged more for being educated in Scottish universities than people from almost anywhere in the world.
It is nonsense. The danger to the Labour Party is that this sort of nonsense will undermine its position. It will not be the great affairs of state but the little things that people cannot understand. Ordinary working folk, the people in factories and offices, will not understand why English, Welsh and Northern Ireland students have to pay £4,000 for a course in Scotland, while Italians,
1106
Southern Irish and Scots have to pay only £3,000. They will laugh their sides off. They will ask, "What sort of people can do this? Who is advising them? Why do they take the advice that they are receiving if that sort of nonsense is being handed out to them?" I appeal to my noble friend to understand what damage it will do to the new Government out in the country among the ordinary people, who are commonsensical and will not understand the discrimination being imposed on many of our countrymen by the Bill when it becomes an Act.
Finally, we in this House not only have the power, we have the duty, if we feel we are right, to insist on amendments. The Parliament Acts of 1911 and 1949 are specific. They give this House limited power; and that limited power is to delay legislation. It is perfectly right, proper and reasonable for this House—it is the only second Chamber and revising Chamber that we have—to use its powers to the full. If the House were restricted in any way because expenditure were involved—expenditure is involved in any Bill we discuss—the Speaker of the House of Commons would have certified it as a money Bill and that would have restricted us completely.
So we have the power. We have the desire. If my noble friend will not accept the amendment, let us hope we have the will to insist once again that we will not vote for nonsense and absurdity.
3.45 p.m.
The Lord Bishop of Ripon: My Lords, the case made by the noble Lord, Lord Mackay of Ardbrecknish, and the noble Lord, Lord Steel, is overwhelming. It is based on principle. The principle has been made entirely clear by the two noble Lords and others who have spoken: that those from England, Wales and Northern Ireland should not be discriminated against in relation to Scots for the fees that they pay at Scottish universities.
Against that, no decision of principle is placed as a counterweight. It is a matter of expediency. The noble Lord, Lord Steel, put a figure on that expediency. It is not a large figure: it is £2 million. When principle is opposed to expediency, there can be only one way forward. Some noble Lords will have noted the exhibition in Westminster Hall on the life of William Ewart Gladstone and will have seen at the heart of that exhibition the sentence that his parliamentary life was based upon the supremacy of principle over expediency. I believe that to be entirely right. That is the issue at stake in this matter. This House should say to the other House that it is a matter of principle and we believe that the principle should triumph.
Lord Addington: My Lords, I speak as someone who moved from the English system to the Scottish system. My parents were in the income bracket at which I would have been expected to pay fees. While not receiving full funding support under the new arrangement, there would not have been sufficient income to make the matter irrelevant. Under such circumstances, no English student will go into the Scottish system where he is required to pay more money. It would place an extra burden on parental support.

1107
One is not best prepared to enter such a system by A-levels. One needs the extra year. Four years' work are required for an honours degree. Therefore one effectively asks people to go into a new system for which they are not prepared through their current examinations. It is universally accepted that the A-level system is not the perfect way to encourage people into higher education. It is exclusive. Could anyone construct a system which is better designed to put off students from within the same sovereign state? I suggest that you would have to try pretty damned hard to come up with something as good.
Lord Sanderson of Bowden: My Lords, I declare an interest as a member of the court of Napier University in Edinburgh. The court of Napier is not impressed by the Government's arguments on this issue. It had hoped that the recent sizeable vote in your Lordships' House would have persuaded the Government to think again.
It is not a question of money, although that is certainly part of the issue we are debating today. As the noble Lord, Lord Shore, said, what is important is that it is positive discrimination and that cannot be tolerated. That is why, if the Government are not going to weaken on this issue, I advise your Lordships to resist.
Viscount Waverley: My Lords, is any Labour Back Bench Peer going to be supporting the Government on this point?
Lord Dearing: My Lords, while the Back Bench Labour Peers make up their minds, perhaps I may offer myself once again as the villain of the occasion. I have listened with respect and admiration to the speeches. I confess that when I left your Lordships' Chamber after the last debate I wondered whether the solution to the dilemma might be for the Secretary of State for Scotland to find the £2 million to enable the one year's charge to be forgone for students of Wales, Northern Ireland and England. I found that an attractive solution.
I then read the speech by the Secretary of State for Scotland in another place on 1st July when he explained that he was not persuaded that it was a good policy to do that. If I recall the essence of his argument, it was that there are 33,000 applicants for places at Scottish universities from England, Wales and Northern Ireland. If I remember rightly, there are about 4,000 to 5,000 places normally taken. The Secretary of State's conclusion was that out of the 33,000, there will surely be enough to fill 4,000 to 5,000 places. He did not think that Scottish universities would be short of entrants in consequence. Therefore, it seemed to him, as I read his argument, that Scotland would not gain from spending that £2 million which I had envisaged as being the answer.
I would describe what we are discussing as a bizarre anomaly. The second element in the equation is whether a concession of £2 million by the Secretary of State for Scotland, if he were so minded, could be offered without making a similar concession to all those students in England, Wales and Northern Ireland who also take a fourth year. On what grounds could that be done? If, as a
1108
matter of principle—and the principle is being debated—there should be equality for all our young people, that would mean an additional cost of £27 million.
Looking at the three political parties which gave evidence to my committee, I asked myself whether money is plentiful. The resounding answer is that it is very scarce. Is it therefore in the interests of the Secretaries of State responsible for England, Wales and Northern Ireland to allocate £27 million for that purpose rather than for other needs which exist?
In education, there is real devolution, and rightly so. Countries have their distinctive traditions. Scotland has a very great and proud one. In my reports I have often advocated adoption of Scottish practice. However, to turn to those other countries, what is Northern Ireland's greatest need? Do your Lordships know that, not through choice but through lack of places, 40 per cent. of students have to leave Northern Ireland to find a place in a university. The pressing need there is for the capital to greatly enlarge its university establishment. It also needs money for research.
I turn next to Wales. In that country, the level of funding per student is lower than in England and 10 per cent. lower than in Scotland. One is concerned about that. Is the level of funding adequate for the students we have? And then there is the need for research to support the Welsh economy.
In England there is a crisis over funding for research. World-class quality research is in peril because, over the years, the funding has not been provided. In addition, the participation rate, as in Wales, is now only just over 30 per cent. In my view, it is very much in the national interest to follow Scotland's example and push that figure up to 45 per cent. I agree again that the Secretary of State for Scotland has been very wise because I believe that 40 per cent. of those places are at sub-degree level to meet the need for high-level technicians in our economy.
Therefore, there is an issue of principle. Can one do this for Scotland without doing the same for England? Perhaps the Secretary of State for Scotland, had he been so minded, might have differentiated but he was not willing to do so. Therefore, there is an issue of principle for your Lordships to consider; namely, equity. Is what I would describe as a bizarre anomaly under which 354 students from other parts of the European Union have a free fourth year sufficient cause for spending £27 million? My position would be that if a Secretary of State for Scotland had been prepared to find the £2 million and the students' union had recognised that in equity that should not be offered to students going to institutions in England, Wales and Northern Ireland, I should vote for the amendment. But, as a matter of equity, were that not so, I should find it very difficult to do so.
Earl Russell: My Lords, I congratulate the noble Lord, Lord Dearing, on rising in place of Labour Back Benchers. But before I turn my attention to him, I should like first to take up the remarks made by the noble Lord, Lord Barnett, to whom I listened with great care, attention and, as always on Treasury matters, with respect.

1109
I understand that privilege is now being claimed by another place for the first time because it is the first time that it is sending the matter back to us. I agree with the noble Lord that where privilege is claimed, that is normally taken as sufficient. But it is worth continuing to the second half of the sentence in the Companion which states:
"But they",
that is, this House,
"may offer amendments in lieu of amendments which have been disagreed to by the Commons on the ground of privilege".
Those words are perfectly clear and unambiguous. It says that we are well within our rights in doing what we are doing now. Those words in the Companion echo exactly the words on page 803 of Erskine May. If another place wants once again to insist on privilege, it may do so. But it has not yet done so.
The noble Lord, Lord Dearing, addressed his argument very largely to an assumption of a cost of £27 million. As my noble friend Lord Steel of Aikwood said, that was not our intention and never was. It is not the effect of the present amendment. The noble Lord, Lord Dearing, asks how we should address that distinction. Between England and Scotland, there is a clear distinction on ground on nationality. If you are going to condemn discrimination at all, discrimination on the ground of nationality is one of the clearest ones to condemn.
I do not intend to defend discrimination between subjects, which is what we have with the English fourth year. But where there is a discrimination in terms of subject, it is at least a discrimination in terms of what people are actually doing. People doing different things are treated in different ways. While I do not like that, I do not see in it the clear iniquity which I see in discrimination on the ground of nationality.
The noble Lord, Lord Dearing, said also that the Scots would continue to be able to fill their places. That may well be true. But it is a vital principle of academic selection that you should select on academic merit. Why should we be discouraged from doing that?
For the third and, I hope, the last time, I wish to raise the question of whether what the Government are doing is contrary to European law. I accept fully that it is not contrary to European law to discriminate between your own subjects. Discrimination between English and Scots is not contrary to European law. But discrimination between the English on the one hand and people from Rotterdam, Cologne, Dusseldorf, Umbria, or wherever, bears an appearance of being contrary to Article 7 of the Treaty of Rome. The Minister told me in Committee that he was confident that that was not so. I still await an explanation of his confidence. If I do not receive it, I shall conclude that either the Government are not confident, as they allege, or they do not give a tinker's cuss whether or not what they do is contrary to European law.
I would regret either of those conclusions. It is not often in this House that amendments are carried by a majority of 123. It is not often that we move to send amendments back to another place a second time. However, the argument in this case is so clear and the
1110
content so small that this seems to me to be one issue on which this House may well press another place to think again. It is small enough for us to pass. As I was told when I arrived in this House, we are the Mrs. Mops of the legislative process. This is the dust behind the door which, in puckish mood, I wish to sweep away, and I see no reason why I should not.
If noble Lords were not allowed to change something as small as this, then I wonder whether the Government really want a revising chamber because it is no good having a revising chamber which only revises when you want it to.
I remember in 1990 my noble kinsman Lord Stanley of Alderley introduced an amendment to bring in dog registration. The then Prime Minister, the noble Baroness, Lady Thatcher, formed the opinion that dog registration is socialism. This House knows a good deal about dogs. It was not persuaded. My noble kinsman set out to ask the House to think again, and the noble Baroness, Lady Thatcher, was so disturbed by this that she made a Minister who had just got off an aeroplane in Tokyo for an important international meeting come straight back to London in order to vote my noble kinsman down. That, I am told, is one of the moments which led people to decide that the noble Baroness's time had come, as six weeks later it had. It took the noble Baroness, Lady Thatcher, 10 years to get to that point; the present Prime Minister has done it in one.
4 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, the amendments are being debated in one group so it will be helpful for me to indicate now that the Government assume that the noble Lord, Lord Mackay of Ardbrecknish, intends the amendments to be taken as a package and that, accordingly, if Amendment No. 64G is passed, the Government will take that as a decision also in favour of Amendment No. 123G.
The substance of today's debate is a product of the fact that the United Kingdom does not have a single, uniform education system, and long may that be the case.
There is diversity, and the Government rightly rejoice in that diversity. But diversity has the potential to create anomalies, and that is essentially what we are debating today.
The English school system articulates primarily with the English higher education system. The Scottish school system articulates with the Scottish higher education system. In England, transfer from school to university takes place after the two-year 'A' level course. I hope that the noble Lord, Lord Mackay of Ardbrecknish, listens carefully to my next words. In Scotland, transfer from school to university takes place after Highers, which are single year courses. Of course, many Scottish students, my own children included, stay on for a sixth year, but in doing so either add additional Highers to the batch they took in the fifth year or follow the single year Certificate of Sixth Year Studies. They do not follow an integrated two-year progressive course. That is a fundamental difference between the two systems.

1111
It is because of these differences that the two education systems produce two lengths of honours degrees: in England the traditional honours degree, following a two-year A-level course has been a three-year course, while the honours degree in Scotland, after Highers, has been obtained over four years. That was recognised by the Garrick Committee, the Scottish committee serving the committee of the noble Lord, Lord Dearing. Its report stated:
"The two frameworks are different, most notably at the level of, and articulation with, school-level qualifications. This has a concomitant effect upon the rest of the higher education system in Scotland".
Clearly a difficulty arises with the introduction of charging for tuition fees. Prior to that it was not, I accept, a great concern. If nothing had been done to recognise that disarticulation between the two systems, then the English student attending an English university would have been charged £3,000, while the Scottish student attending a Scottish university would have been charged £4,000 for the same final qualification, an undergraduate honours degree. That situation would have been iniquitous: there is total agreement across the House on that point. That was the anomaly that both Dearing and Garrick recognised.
The Garrick Report, in recommendation 29, stated:
"We recommend to the Secretary of State for Scotland that, if a graduate contribution is introduced, the Secretary of State should ensure that the contribution from Scottish graduates for qualifications gained in Scotland is equitable with the contribution for comparable qualifications gained elsewhere in the UK".
Dearing supported that position. Garrick and Dearing recognised the anomaly; they proposed an equitable solution, and that is precisely what the Government have sought to include in the Bill.
Our proposal, as we have heard this afternoon, has the support and endorsement of the noble Lord, Lord Dearing. I ask noble Lords to reflect upon the highly analytical and persuasive contribution that the noble Lord has made to the debate.
Lord Beloff: My Lords, I listened to the noble Lord, Lord Dearing, of whose pronouncements I have long experience, and I was totally unconvinced. He suggested that somehow or other the concession would spill over from Scottish four-year courses to English four-year courses and therefore that the amount could rise from £2 million to £27 million. He might as well have said that we can spend a lot more money on aircraft carriers. You can always drown any case for expenditure if you make the reference wide enough.
Lord Sewel: My Lords, I shall reply directly to the point made by the noble Lord, Lord Beloff, because it is actually bound up with the proposals that the House is being invited to support by the two Opposition parties. Indeed, rather than removing an anomaly, the proposal before us this afternoon would actually create a greater anomaly.
I ask the House quite simply to consider the example of a family living in England in, say, Berwick. On the basis of the amendment before us, let us say that the
1112
son decides to follow a four-year degree course at the University of Edinburgh reading engineering. He would pay £3,000. However, the daughter following a similar four-year degree in engineering at, say, the University of Durham, would pay £4,000. That would be the precise effect of the amendments that your Lordships' House is being asked to vote for today. I believe that that is a gross and intolerable anomaly.
The Opposition have actually sought to fight on the ground of equity, but they have actually sunk into the very ground upon which they have chosen to fight. However, let us look briefly at the other arguments which have been advanced. I give way to the noble Lord.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. Is not the defect in that argument the fact that one should look at the university and ask whether a particular student of English origins is being treated less favourably than a student of Scottish origins in relation to that university? If that is the right approach, how can the noble Lord square it with the European Convention on Human Rights, which expressly says that there should be no discrimination in relation to the right to education on grounds of anything, including nationality?
Lord Sewel: My Lords, I can reply to that and I shall, at the same time, reply to the point made by the noble Earl, Lord Russell, on the advice that the Government have received as regards whether this action, our proposals or our policy are compatible with European law. Members of your Lordships' House know well that the detail of legal advice that the Government receive is not revealed to this House.
However, the noble Earl laid down a challenge. He said that I responded in Committee that I was confident we could stand a challenge and asked whether I could go one better than that today. The answer is yes: on the basis of the advice that we have received, I am very confident that we can withstand the challenge.
Earl Russell: My Lords, can the Minister tell the House why he is "very confident"?
Lord Sewel: My Lords, it is because I know what the advice is.
Let us move on and look briefly at some of the other arguments which have been advanced—
Lord Davies of Oldham: My Lords, will my noble friend the Minister clear up the question of whether this issue is about nationality? Am I not right in thinking that if I were born in Scotland, but educated in the English system and wished to apply to a Scottish higher education system, I would be treated as an English student because I am in an English educational institution and that it is nothing to do with my nationality?
4.15 p.m.
Lord Sewel: Absolutely, my Lords. I thank my noble friend for that point. It has nothing at all to do with

1113
nationality, but it has everything to do with domicile. Indeed, domicile goes together with the school system that one passes through. My noble friend is absolutely right.
There has been scaremongering. I pay tribute to the noble Lord, Lord Mackay, because he did not indulge in that this afternoon, although he got very close to it on an earlier occasion. There has been scaremongering about a disproportionate drop in the number of other UK applications to Scottish universities. I have used these figures before. I hope that that is why the noble Lord has modified his argument. The drop in English applicants is less than the overall drop in applications to Scottish universities—a figure of 4.1 per cent. compared to one of 4.5 per cent.
I should like to deal with the argument about the European Union. I realise that this excites a great deal of interest on the part of my noble friend Lord Shore and other noble Lords. Having been a university teacher for some 30 years, I have been sitting here on the Front Bench trying to think how many students from European countries I taught who went through the full four years of a Scottish honours degree. Over the course of the debate, which lasted for about 45 minutes, I have managed to think of four. Indeed, as the noble Lord, Lord Dearing, mentioned, the total number of European Union students in Scotland who would benefit from this anomaly—if one terms it as such—would be 354.
Baroness Park of Monmouth: My Lords, can the Minister tell the House how long ago he did his teaching? Indeed, in the past 10 years I think he might have found that the figures would be rather different.
Lord Sewel: My Lords, the answer to the noble Baroness's question is that I stopped teaching on, I believe, 30th April of last year.
It is also right to ask the question: who would actually benefit most from the proposals standing in the name of Opposition Peers? The answer is simple; namely, those in least need of assistance. The reason being—and, again, I put it simply—that it was calculated that one-third of students going from England to Scotland would pay no fee at all. Indeed, one-third would pay part of the fee and one-third would pay the full fee. That would be the impact on the students. That is a message that I hope the noble Lord, Lord Mackay, will take back to his friends in the National Union of Students in Scotland, who also happen to be my former students.
We should also remember that the full £1,000 fee would represent only about 5 per cent. of the additional cost that an English domiciled student would choose to accept in deciding to take a four-year Scottish honours degree. The additional maintenance costs and the income forgone during that extra year are much more significant than any additional fee. If we are looking for some kind of cost deterrence, it is much greater in terms of income forgone than any additional fee of £1,000. As I pointed out, the full fee of £1,000 would be paid by only one-third of the students coming across the Border from England.
It is necessary to take up the point that the noble Lord, Lord Mackay, did not want us to discuss but which the noble Lord, Lord Steel, did in fact raise: namely, the role
1114
and function of this House. We must recognise that this is the third time that we have debated the issue. The history of this disagreement is that the House put its proposition to the House of Commons. The Commons replied and this House asked it to think again. The House of Commons has now done so. In sending back their reasons to us today, those in the other place have asserted their absolute right to authorise the expenditure of public funds. I trust that no one in this House would question that right of the elected Chamber. Again, I believe that noble Lords should consider carefully the points made by my noble friend Lord Barnett in an earlier intervention.
I accept—and no one is arguing against this—that it is quite proper, although I might not always like it or find it comfortable, for this House as an unelected Second Chamber to give the opportunity to the elected House to think again. But that has been achieved; indeed, it has already been done. The other place has thought again and has decided, clearly decided, to support the Government's view. I simply ask the question: what in these circumstances is the proper response of your Lordships' House? Is it to stand in the way of the clear and deliberate will of the other place?
On a radio programme broadcast yesterday morning the noble Viscount, Lord Cranborne, made some interesting but incomplete statements. In that interview he said:
"We're perfectly within our rights to ask the other House to think again".
There is nothing between us on that. The other House has thought again. The noble Viscount continued, referring to my noble friend Lord Richard:
"He knows as well as I do that in the end the elected chamber will win. I mean quite right too".
I invite the noble Viscount, if he wishes, to clarify not just the meaning of those words but the actions that flow from them. What should your Lordships' House take from those words today? As I said, the Government rejoice in the diversity—
Viscount Cranborne: My Lords, I am grateful to the noble Lord for giving my poor choice of words additional réclame. I can answer his challenge by saying that I hope my words mean exactly what I thought they meant, and the meaning that he intended to convey when he issued his challenge just now.
Lord Sewel: My Lords, I take it from what the noble Viscount has said that he has no intention of revisiting this issue at a later date.
Noble Lords: Oh!
Lord Sewel: My Lords, that tells us everything! I quote the noble Viscount's words again:
"He knows as well as I do that in the end the elected chamber will win, I mean quite right too".
We are getting some weasel words about wait and see now. We shall wait to see what happens, and noble Lords opposite can wait to see what happens too. This is democracy. It is the House at the other end of the building that is democratically elected and that has

1115
considered this issue, has thought again and has sent it back to your Lordships' House. That House will most likely think again, but how many times is it right and proper for an unelected Chamber to reach the stage of defying the will of the elected Chamber?
Lord Mackie of Benshie: My Lords, would it not be more proper—
Earl Russell: My Lords—
Lord Sewel: My Lords, I shall answer the two, but I prefer them one at a time.
Earl Russell: My Lords, it is perfectly clear that Members of another place the first time misunderstood the question we intended to ask. They believed that we were asking a question involving £27 million; we were asking a question involving £2 million. We now wish to ask another place to think about the question we really wish to ask.
Lord Sewel: My Lords, is that the end of it?
Lord Mackie of Benshie: My Lords, I merely wish the Minister to use the proper words about the other place. They do not think about it; they respond.
Lord Sewel: My Lords, I shall make sure that my colleagues in another place are aware of that comment. As I said, the Government rejoice in the diversity of education provision in the United Kingdom. We recognise that in some circumstances diversity of itself can, and does, produce anomalies. We have tackled those anomalies. We have followed the advice of Garrick and Dearing and dealt with the anomaly of the fourth year for Scottish students. Far from removing an anomaly the proposition we are faced with today would create an even greater anomaly. On grounds of policy and on grounds of the proper role and function of your Lordships' House, I invite noble Lords to reject these amendments.
Baroness Ludford: My Lords, before the Minister sits down, I hope I may ask him a question on a matter which he did not deal with in the debate. There has been reference to the unfortunate political timing of the discrimination as regards fees between Northern Irish and Irish students and between English and other European students. The Minister did not cover that. If the House does not feel there is time to do so, I accept that, but I should have liked the Minister to cover that point.
Lord Sewel: My Lords, it is important that on any matter relating to Northern Ireland at this time we weigh our words carefully. I shall try to do that. It is clear that there is a major difference as regards the way students coming from the Irish Republic will be treated. There is not a great number of those students. As I said, the total number in Scottish universities from the whole of the European Union is 354. There are clearly many more
1116
students from Northern Ireland. They will be covered in the same way as students from England and Wales. I think that is fair and equitable.
Lord Mackay of Ardbrecknish: My Lords, I must start by saying that I have some sympathy with the predicament that the noble Lord, Lord Sewel, finds himself in as I can recall a number of occasions when I spoke from that Dispatch Box in the teeth of opposition from the main Opposition party, the Liberal Democrats, the Cross Benches, the Bishops' Bench and from my own Back Benches. My only advice to the noble Lord, Lord Sewel—which I have to say I did not always take myself—is to give in gracefully because otherwise he will have to give in slowly and probably before the courts.
However, I was not in the least convinced by the argument despite the noble Lord's best endeavours. I noticed that he had changed the argument about the one year and two years in secondary education. He had changed it from the position in the report of the noble Lord, Lord Dearing, who at least came to his defence, which stated that Scottish students have had only one year's education after statutory schooling. Clearly, as we have not heard that this afternoon I have knocked that particular little untruth on the head. However, there is the subtle change that the Highers are only a single year course. Many students take a little longer than a year to obtain their Higher. Therefore, that is not entirely a good argument.
The noble Lord, Lord Sewel, thought he had delivered the killer punch, as it were, when he discussed the family in Berwick with a son who goes to Edinburgh University and pays £3,000 and a daughter who goes to Durham University and pays £4,000. However, the son who goes to Edinburgh and who, under our amendments, would pay £3,000 would be in the same queue, paying the same £3,000, as students from everywhere else in the UK and everywhere else in the European Union. The daughter going to Durham and paying £4,000 would pay the same £4,000 as students coming from every part of the UK and every part of the European Union. The noble Lord destroyed his own argument by that example.
This is the third time we have debated this matter but it is only the second time we have asked the Commons to think again. As the noble Lord, Lord Stoddart, pointed out, the Speaker has not certified this as a money Bill. We have changed the amendments quite considerably. I thought I had laid aside the argument about the £27 million. I was sorry that the noble Lord, Lord Dearing, decided to home in on that again. I have laid it aside and I shall indicate in a second or two that I am prepared to lay it even further aside.
Your Lordships have spoken. I have invited the Government, when in a hole, to stop digging. Frankly, when I am winning I think I should stop and just let the Division occur. But before I do I wish to help the noble Lord, Lord Barnett, and the noble Lord, Lord Dearing. I am content to rely on the position in England and Wales that there will be no discrimination between Scottish and Northern Irish students at English and Welsh universities as regards fees. Therefore I shall

1117
withdraw my Motion to enable us to concentrate entirely on the other two amendments, in particular that in the name of the noble Lord, Lord Steel. If, as I fully expect, the noble Lord, Lord Steel, calls a Division, I shall invite my noble friends and other noble Lords, who have listened to this argument and realise the strength of all the speeches they have heard, to join the noble Lord, Lord Steel, and myself in the Lobby to ask the Commons to think again. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 64D, to which the Commons have disagreed for their reason numbered 64E, and do agree with the Commons in their Amendment No. 64.
On Question, Motion agreed to.

COMMONS AMENDMENT
123 Clause 25, page 22, leave out lines 31 to 39.
The Lords disagreed to the amendment for the following reason—
123B Because arrangements for the payment of grants in respect of tuition fees at Scottish higher education institutions should be the same for students from other parts of the United Kingdom as they are for Scottish students.
The Commons insisted on their amendment for the following reason—
123C Because the disagreement by the Lords to the Commons amendment involves charges on public funds, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.

MOTION MOVED ON CONSIDERATION OF COMMONS REASON
Lord Steel of Aikwood Lord Steel of Aikwood rose to move, That this House do not insist on their disagreement to Commons Amendment No. 123, on which the Commons have insisted for their reason numbered 123C, but do propose the following amendment in lieu of the words so left out of the Bill—

LORDS AMENDMENT IN LIEU
123E Clause 25, page 22, line 30, at end insert—
("( ) In exercising his powers under this section, the Secretary of State shall ensure that any arrangements for the payment of grant in respect of tuition fees for the fourth year of study for a first degree course at a higher education institution in Scotland apply equally to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in England, Wales or Northern Ireland as they do to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in Scotland.'"').
The noble Lord said: My Lords, I do not think that any further words from me would be appreciated. I beg to move the Motion standing in my name.
Moved, That this House do not insist on their disagreement to Commons Amendment No. 123, on which the Commons have insisted for their reason numbered 123C, but do propose Amendment No. 123E in lieu of the words so left out of the Bill.—(Lord Steel of Aikwood.)
4.30 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 319; Not-Contents, 108.

Division No. 1

CONTENTS

Aberdare, L.

Cox, B.

Ackner, L.

Craig of Radley, L.

Addington, L.

Cranborne, V.

Ailsa, M.

Crathorne, L.

Aldington, L.

Crickhowell, L.

Alexander of Tunis, E.

Cross, V.

Alexander of Weedon, L.

Cuckney, L.

Allenby of Megiddo, V.

Cullen of Ashbourne, L.

Ampthill, L.

Dahrendorf, L.

Anelay of St. Johns, B.

Darcy de Knayth, B.

Annaly, L.

Dartmouth, E.

Ashbourne, L.

Davidson, V.

Astor, V.

De Freyne, L.

Astor of Hever, L.

Dean of Harptree, L.

Baker of Dorking, L.

Denbigh, E.

Balfour, E.

Denham, L.

Beaumont of Whitley, L.

Denton of Wakefield, B.

Belhaven and Stenton, L.

Dholakia, L.

Beloff, L.

Digby, L.

Belstead, L.

Dilhorne, V.

Biffen, L.

Dixon-Smith, L.

Blake, L.

Donaldson of Lymington, L.

Blaker, L.

Downshire, M.

Blatch, B.

Dundee, E.

Blyth, L.

Dunleath, L.

Bowness, L.

Eccles of Moulton, B.

Brabazon of Tara, L.

Eden of Winton, L.

Braine of Wheatley, L.

Effingham, E.

Brentford, V.

Elles, B.

Bridges, L.

Elliott of Morpeth, L.

Brightman, L.

Elton, L.

Brigstocke, B.

Erne, E.

Broadbridge, L.

Exmouth, V.

Brougham and Vaux, L.

Falkland, V.

Bruntisfield, L.

Feldman, L.

Buckinghamshire, E.

Fitt, L.

Burnham, L.

Flather, B.

Butterfield, L.

Fookes, B.

Butterworth, L.

Fraser of Carmyllie, L.

Byford, B.

Gainford, L.

Cadman, L.

Gainsborough, E.

Calverley, L.

Gardner of Parkes, B.

Campbell of Alloway, L.

Garel-Jones, L.

Campbell of Croy, L.

Geddes, L.

Carew, L.

Geraint, L.

Carlisle, E.

Gilmour of Craigmillar, L.

Carnarvon, E.

Glenarthur, L.

Carnegy of Lour, B.

Goodhart, L.

Carnock, L.

Gormanston, V.

Chalfont, L.

Gray of Contin, L.

Charteris of Amisfield, L.

Greenway, L.

Chesham, L.

Grey, E.

Chorley, L.

Haig, E.

Clancarty, E.

Halsbury, E.

Clanwilliam, E.

Hampden, V.

Clark of Kempston, L.

Hampton, L.

Cockfield, L.

Hamwee, B.

Coleridge, L.

Harding of Petherton, L.

Colwyn, L.

Harmar-Nicholls, L.

Cope of Berkeley, L.

Harmsworth, L.

Courtown, E.

Harris of Greenwich, L.

Cowdrey of Tonbridge, L.

Harris of High Cross, L.

1119

Harris of Peckham, L.

Montrose, D.

Haslam, L.

Moore of Wolvercote, L.

Hayhoe, L.

Moran, L.

Hayter, L.

Mottistone, L.

Henderson of Brompton, L.

Mountevans, L.

Henley, L.

Mountgarret, V.

Hereford, Bp.

Mowbray and Stourton, L.

Higgins, L.

Moyne, L.

Hogg, B.

Moynihan, L.

Holderness, L.

Munster, E.

Holme of Cheltenham, L.

Murton of Lindisfarne, L.

HolmPatrick, L

Napier and Ettrick, L.

Home, E.

Napier of Magdãla, L.

Hood, V.

Nathan, L.

Hooper, B.

Nelson, E.

Hooson, L.

Newall, L.

Howe, E.

Newby, L.

Hunt of Wirral, L.

Newton of Braintree, L.

Hussey of North Bradley, L.

Nicholson of Winterbourne, B.

Hylton-Foster, B.

Noel-Buxton, L.

Ilchester, E.

Norrie, L.

Inchcape, E.

Northesk, E.

Inglewood, L.

Norton, L.

Ironside, L.

O'Cathain, B.

Jakobovits, L.

Oliver of Aylmerton, L.

James of Holland Park, B.

Onslow of Woking, L.

Jenkin of Roding, L.

Orr-Ewing, L.

Jenkins of Hillhead, L.

Oxfuird, V.

Johnston of Rockport, L.

Palmer, L.

Kimball, L.

Park of Monmouth, B.

Kingsland, L.

Peel, E.

Kinloss, Ly.

Pender, L.

Kinnoull, E.

Peyton of Yeovil, L.

Kirkwood, L.

Pilkington of Oxenford, L.

Knight of Collingtree, B.

Platt of Writtle, B.

Laing of Dunphail, L.

Plummer of St. Marylebone, L.

Lane of Horsell, L.

Prentice, L.

Lang of Monkton, L.

Pym, L.

Lauderdale, E.

Quirk, L.

Lawrence, L.

Rankeillour, L.

Lester of Herne Hill, L.

Rawlings, B.

Lewis of Newnham, L.

Reay, L.

Limerick, E.

Redesdale, L.

Lindsey and Abingdon, E.

Rees, L.

Linklater of Butterstone, B.

Rees-Mogg, L.

Long, V.

Renfrew of Kaimsthorn, L.

Lowry, L.

Renton, L.

Lucas of Chilworth, L.

Renwick, L.

Ludford, B.

Ripon, Bp.

Lyell, L.

Ritchie of Dundee, L.

McColl of Dulwich, L.

Rix, L.

McConnell, L.

Roberts of Conwy, L.

Mackay of Ardbrecknish, L.

Rochester, L.

Mackay of Drumadoon, L.

Rodgers of Quarry Bank, L.

Mackie of Benshie, L.

Romney, E.

Macleod of Borve, B.

Rotherwick, L.

McNair, L.

Rowallan, L.

McNally, L. [Teller.]

Russell, E.

Maddock, B.

Ryder of Wensum, L.

Malmesbury, E.

Saatchi, L.

Manchester, Bp.

St. Davids, V.

Mar and Kellie, E.

St. John of Fawsley, L.

Marlesford, L.

Saltoun of Abernethy, Ly.

Masham of Ilton, B.

Sandberg, L.

Mayhew of Twysden, L.

Sanderson of Bowden, L.

Mersey, V.

Sandford, L.

Meston, L.

Sandwich, E.

Methuen, L.

Seccombe, B.

Middleton, L.

Selkirk of Douglas, L.

Miller of Hendon, B.

Shannon, E.

Milverton, L.

Sharples, B.

Molyneaux of Killead, L.

Shaughnessy, L.

Monro of Langholm, L.

Shore of Stepney, L.

Monson, L.

Skelmersdale, L.

1120

Slim, V.

Wade of Chorlton, L.

Soulsby of Swaffham Prior, L.

Wakeham, L.

Stair, E.

Walker of Worcester, L.

Steel of Aikwood, L.

Wallace of Saltaire, L.

Stewartby, L.

Walpole, L.

Stockton, E.

Walton of Detchant, L.

Stodart of Leaston, L.

Warnock, B.

Stoddart of Swindon, L.

Waterford, M.

Strathclyde, L.

Waverley, V.

Strathcona and Mount Royal, L.

Weatherill, L.

Sudeley, L.

Wedgwood, L.

Swinfen, L.

Weir, V.

Thomas of Gresford, L.

Westbury, L.

Thomas of Gwydir, L.

Wharton, B.

Whitelaw, V.

Thomas of Swynnerton, L.

Wigoder, L

Thomas of Walliswood, B.

Wilberforce, L.

Thurso, V.

Williams of Crosby, B.

Tope, L. [Teller.]

Willoughby de Broke, L.

Tordoff, L.

Wilson of Tillyorn, L.

Trefgarne, L.

Winchilsea and Nottingham, E.

Trumpington, B.

Wise, L.

Vivian, L.

Wynford, L.

Waddington, L.

Young, B.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ailesbury, M.

Hughes, L.

Alport, L.

Hughes of Woodside, L.

Annan, L.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L. [Lord Chancellor.]

Barnett, L.

Bassam of Brighton, L.

Islwyn, L.

Berkeley, L.

Janner of Braunstone, L.

Blackstone, B.

Jenkins of Putney, L.

Borrie, L.

Judd, L.

Brooks of Tremorfa, L.

Kilbracken, L.

Bruce of Donington, L.

Kirkhill, L.

Burlison, L.

Levy, L.

Carter, L. [Teller.]

Lockwood, B.

Castle of Blackburn, B.

Lofthouse of Pontefract, L.

Cledwyn of Penrhos, L.

Longford, E.

Clinton-Davis, L.

McCarthy, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L. [Teller.]

David, B.

Davies of Coity, L.

Mallalieu, B.

Davies of Oldham, L.

Mason of Barnsley, L.

Dean of Thornton-le-Fylde, B.

Merlyn-Rees, L.

Dearing, L.

Milner of Leeds, L.

Desai, L.

Mishcon, L.

Dixon, L.

Molloy, L.

Donoughue, L.

Monkswell, L.

Dormand of Easington, L.

Montague of Oxford, L.

Dubs, L.

Morris of Manchester, L.

Eatwell, L.

Northbourne, L.

Evans of Parkside, L.

Orme, L.

Ewing of Kirkford, L.

Paul, L.

Falconer of Thoroton, L.

Peston, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Gallacher, L.

Plant of Highfield, L.

Gilbert, L.

Ponsonby of Shulbrede, L.

Gladwin of Clee, L.

Prys-Davies, L.

Gordon of Strathblane, L.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Graham of Edmonton, L.

Rea, L.

Gregson, L.

Rendell of Babergh, B.

Grenfell, L.

Richard, L. [Lord Privy Seal.]

Hacking, L.

Rogers of Riverside, L.

Hardie, L.

Scanlon, L.

Hardy of Wath, L.

Scotland of Asthal, B.

Haskel, L.

Serota, B.

Hayman, B.

Sewel, L.

Hogg of Cumbernauld, L.

Shepherd, L.

Hollis of Heigham, B.

Simon, V.

Howie of Troon, L.

Simon of Highbury, L.

1121

Stone of Blackheath, L.

Varley, L.

Strabolgi, L.

Walker of Doncaster, L.

Symons of Vernham Dean, B.

Watson of Invergowrie, L.

Taylor of Blackburn, L.

Whitty, L.

Thomas of Macclesfield, L.

Williams of Elvel, L.

Turner of Camden, B.

Williams of Mostyn, L.

Resolved in the affirmative, and Motion agreed to accordingly.

School Standards and Framework Bill
4.46 p.m.
Baroness Blackstone: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Blackstone.)
On Question, Motion agreed to.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 176AA:
After Clause 96, insert the following new clause—
REPORT ON TRANSPORT IMPLICATIONS OF SCHOOL ADMISSIONS ARRANGEMENTS
(" .—The Secretary of State shall lay a report before Parliament one year after the commencement of this section which examines the operation of this Part with a view to assessing the implications for the school transport service, the distance which pupils travel to school, and the environmental impact of the new arrangements for school admissions.").
The noble Baroness said: My Lords, I rise to move Amendment No. 176AA standing in the name of my noble friends. The amendment places an obligation on the Secretary of State to report to Parliament on the implications of this part of the Bill for the school transport service, the distance which pupils travel to school and the environmental impact of the new arrangements for school admissions.
There are several areas within the Bill which have the potential to increase the cost of school transport. The amendment draws attention to some of those and asks the Secretary of State to report to Parliament not only on the cost to local authorities of providing school transport arising out of changes made in the Bill but also on the environmental impact of those changes.
There is increasing concern about the damage to children and to the environment as a result of the school run. Thirty years ago it was said that 90 per cent. of children walked to school. The figure is now much smaller, perhaps 20 per cent., with most children of primary-school age being accompanied by an adult. The long-term physical development of youngsters who are driven rather than walk to school is of concern. Noble Lords may remember that a recent study showed that in children who carried heart monitors for a week the heart-beat hardly raised during the course of the week. They were not taking the exercise which is the essential foundation for health in later life, unlike those who, like myself, were forced to play games every day of the school week, whether we liked it or not. It is also a
1122
matter of concern that children lose the opportunity to develop as independent individuals if they are always accompanied to school.
The amendment focuses on the cost and the environmental impact—the damage done to the environment if more cars are on the streets. We have frequently debated in this House the impact of the school run on congestion on our roads in the morning rush hour, when it has the most impact. We have also debated the effect of that congestion upon the environment and on peoples' health.
Several areas of the Bill have an impact on transport costs, including reducing parental choice via class size limits so that children have to travel further to school; school organisation, if the new school planning system does not work; but, in particular, the admissions policy. We feel strongly that admissions policies ought to ensure that there is a local place for every child and that there should be an end to the great distances that some children travel in the name of parental choice.
Finally, I should like to make a different point. This Government, I am happy to admit, are convinced of the importance of an integrated transport system and of integrating government policy across different departments. At a local level, county councillors and others who have responsibility for education have grappled with the problem of school transport and how to provide it in a period of increasing school choice. They also have the responsibility, in most cases, for highways and transport in general. They have therefore had to face up to the need to combine thinking on education with thinking on transport and the environment. Many councils have environmental policies which stretch right across their various departments.
The amendment seeks to ask whether it is time that, at a government level, a similarly integrated approach on matters of the environment and its major concomitant—transport—should be undertaken. I beg to move.
Baroness Blackstone: My Lords, this amendment would require the Secretary of State to present a one-off report to Parliament on the operation of the new school admission arrangements. The report would assess the transport, distance and environmental impact of those arrangements.
I understand the noble Baroness's intentions in tabling this amendment. But we do not believe it to be sensible for the Bill to require such a report. Protecting our environment is a high priority for this Government. In the election manifesto we made a commitment to put the environment at the heart of government, and that is exactly what we are doing.
I note also that the noble Baroness referred to our integrated transport policies which again we are now pursuing. In general, we are working to reduce car dependency. The noble Baroness will be pleased to know that that includes targeting the "school run". However, there is a danger of falling into the trap of assuming that the more distant the school, the worse are

1123
the consequential environmental effects. I am sorry to say that many parents still drive their children to school even when the journey is less than one mile.
Again, I accept what the noble Baroness says about the need for young people to take exercise and no doubt she is right in drawing our attention to the study which showed that the heartbeat of young people was not raised during a whole week. However, it could well be less harmful to the environment for those children to use public transport or to cycle to a more distant school. The interaction between a school's admissions policy and the use of public transport, walking or cycling is a little more complex than one might immediately anticipate.
My officials are working closely with the Department of the Environment, Transport and the Regions on drawing up measures to encourage admissions authorities, parents and children to consider more environmentally friendly means of getting to school, where that is feasible. It is also important that parents have their preferences met where possible. We recognise that that must be balanced by a number of considerations, including ensuring that children do not have to travel unduly long distances to find a suitable school place. There are other disadvantages to that, as well as environmental ones.
Where schools are oversubscribed, many admission authorities give priority to children who live nearest the school—sometimes measured by the safest walking route. Others give priority to children resident within a defined catchment area and others take account of transport routes. Admission authorities will continue to be able to use those oversubscription criteria.
We must of course consider how we monitor the success of our policies within this Bill. But schools' admissions arrangements and the operation of the school transport policy are local matters. Environmental considerations are essential. But the Government are tackling them in a comprehensive and coherent manner, and not piecemeal. We do not see that a report for Parliament, which this amendment would require, adds to the Government's overarching environmental policies. Therefore I invite the noble Baroness, Lady Thomas of Walliswood, to withdraw her amendment.
Baroness Thomas of Walliswood: My Lords, I thank the Minister for her reply, though in some ways I found it disappointing. She mentioned again the commitment of the Government to the green linkage between policies pursued by various departments. But it is difficult to find in this legislation any evidence of that approach. It seems to be entirely based on the organisation of schools and not take into account the environmental impact of those policies, which is what one would expect the Bill to do if it had been subjected, for example, to some kind of environmental audit.
It was for that reason that we sought the possibility of an annual report; that is, to show how one aspect of the Bill may affect environmental considerations. On the other hand, I am glad to hear that her department is getting together with the Department of the Environment, Transport and the Regions. School
1124
transport is an extremely important subject. It is extremely costly, however we provide it. There are those who believe that it would be better to do it all by free school buses and others who have totally different points of view.
I do not believe that we will get any further today and therefore, despite my disappointment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Clause 98 [General restriction on selection by ability or aptitude]:
Lord Pilkington of Oxenford Lord Pilkington of Oxenford moved Amendment No. 176B:
Page 75, line 10, at end insert—
("( )any selection by ability consequent upon section (Admission arrangements: selection procedure);").
The noble Lord said: My Lords, in moving Amendment No. 176B, I shall speak also to Amendments Nos. 176C to 176E and 177A to 177D.
Clauses 98, 100 and 101 deal with selection, both generally and for the so-called specialist schools. The arguments of medieval scholastics as to how many angels could dance on the head of a pin were models of clarity compared to the tortured thinking that lies behind the clauses that we are now to consider.
We all know that the Government and the noble Lord opposite hate selection by ability. The noble Lord, Lord McIntosh, reminded us in trenchant tones the other night of his dislike of selection by ability. It was beautiful 1960s stuff and I like to hear it. But the problem is that Her Majesty's Government face the need to increase and improve standards in education. Therefore, in spite of the purity of their view in relation to selection, they see the need to have some sort of selection for their specialist schools, presumably designed, since they were introduced by the previous government, to improve standards. To a degree therefore they are impaled on the horns of their own dilemma; that is, a dislike of selection, yet having to introduce some selection and pretending that it is not selection at all. Our amendments are designed to help them away from that confusion of thought and to introduce rationality and reality into what is at present confusion and uncertainty.
Amendments Nos. 176B and 176C are direct and clear. We nail our flag clearly to the masthead. They would allow schools, subject to the approval of governors and a ballot of parents, to introduce selection by ability—straight and absolute.
Why do we do this? The Government have talked often of the right of parents to decide, and shortly we are to consider a whole raft of clauses relating to the votes on grammar schools. The Government's attitude to selection is that it is not wholly bad; otherwise they would presumably have abolished grammar schools by an Act of Parliament. But they have not done that. They have said that they will allow parents to decide either on a whole county ballot or on a ballot related in a different way to schools. In other words, they have acknowledged parental choice over the question of

1125
selection. However, it surprises me that they do it only one way. Surely logic and decency would require what my amendment suggests—the same right for other schools and parents apart from grammar schools.
I have to mention again that there is a myth unique to England—it is a myth—that selection destroys society and disadvantages the less able. As I said in an earlier debate on the Bill, that is disproved by the experience of Holland, Germany, Austria, Switzerland, Belgium and many other countries. If one says that selection is so evil that one cannot allow people to decide on it, one has also to say that we are in such a distinct society that what can occur a hundred or so miles across the Channel or the North Sea cannot occur in England. That is a myth, and socialist governments in Holland, Germany and Austria seem happy to live with selection. Strangely, if one compares the results, up to university level those countries actually do better than we do. So my noble friends and I put it straight on the face of the Bill. If you can have it one way, why not the other? I expect that I will get the old dogma thrown back at me. But remember Austria, Germany, Holland and Belgium. I put it the other way round so that one can see it one way or the other.
We then move on to Clause 100. It sets out in subsection (1) what is known in the trade as banding: each school should contain representative groups of all levels of ability. Here again one sees the problem that Ministers face as they try to adapt an ever-ageing ideology to a changing world and as they let their sociological ideals, belonging to those passé days of the 1960s, govern their educational thinking. Perhaps I may remind them—I hope not in too painful a way—that they have had to introduce these elaborate systems of banding because it has proved impossible for them—nor do they want to at the moment—to maintain the pure position of the area comprehensive.
I remind noble Lords opposite that the arrangement back in the 1960s, which was supposed to be the great argument for comprehensive education, was that banding would occur automatically because children of one area would go to one school and, as a result, one would get a variety of abilities. Why did that break down? It broke down because the parents did not like to be told to go to the school in their area; it broke down because the Government were not prepared to bus children from school to school; and it broke down because the area comprehensive was often too reflective of the sociology of the area and the children of certain disadvantaged areas also had disadvantaged schools. Therefore, the old pure gospel of comprehensive education—go to your area school and you will be with the people of your area—broke down. Furthermore, even noble Lords opposite do not like selection by house agent, which became a feature of the area comprehensive system.
So what do they do? They evolve this complex system of banding. What it means in reality is that in a school of 1,000 to 1,500 children one has to work out various ranges of ability. If one has a certain percentage at the top, one has to have a certain percentage at the bottom—all put on the surface of the Bill. I suggest to noble Lords that this will be a complex process. At least
1126
the area comprehensive was simple and understandable, although it was a dreadful system. First, IQ tests are a fallible instrument. Noble Lords who have dealt with them will know that some reflect different skills. For example, in schools of which I have been in charge, I have used IQ tests which put too much emphasis on mathematical ability. Someone else might put too much emphasis on literary ability. Therefore, precision in regard to who are the best pupils and who are the worst becomes difficult.
There will be arguments about this—considerable arguments—because on the basis of this system parents will be refused and schools will say to the parents, "Sorry, we have filled up our 10 per cent. higher ability range. Your child is too clever for us"; or, "Sorry, we have filled up our lower range. Your child is too dim for us". Then there will be arguments. I can assure the Committee that there will be arguments because parents have smelt parental choice, they have had it, and they want their children to go to what are often over-subscribed schools. Then the adjudicator and the admissions forum is brought in. It will be a nightmare. In fact, you might even side with the area comprehensive by the time you have finished.
So our Amendments Nos. 176D and 176E allow schools to decide their admission arrangements without being subject to ideology and remove the artificial rules requiring over-elaborate prescription. In other words, we open the thing out. The suggestion, and what I am putting on the record, is that the Government are still too attached to old dogmas and that they are not prepared to look across the Channel at selective systems which have produced better education for the less able. In the end they will suffer for it, as we have suffered for it over the past 30 or so years. Remember, the Bill has been put forward because of many failures in English education which have resulted from the failure of the comprehensive system to satisfy the less able. My government failed to tackle the comprehensive system because it had been too strongly entrenched. This Government will not do it because, on the whole, they are attached to it and prefer the elaborate and prescriptive method of banding.
Then we move on to the specialist schools. Although the noble Lord said late the other day that selection by ability is always hopeless, we are to have some selection. But the Government are carried screaming to the altar. The Government know as well as I do that if you say that a school specialises in languages and admits a certain percentage of its pupils on that basis, pure logic demands some test in that subject. Are they good at languages and science? Will they benefit from a specialist school in languages and science?
I say that the Government are dragged screaming to this position because they are trying to avoid reality. In this clause they never use the phrase "selection by ability". They talk of "aptitude". In the dictionary, "aptitude" is a synonym for "ability". But what do they mean if they say that "aptitude" is not "ability"? Are they saying it is just "interest"? Are they so terrified by the word "ability" that they almost approach it with garlic in their hand? If they mean that "aptitude" is "interest", will they judge that a child should go to a

1127
school specialising in languages because he smiled when he saw a French book or that he should go to a school specialising in science because he gave a little laugh when he saw a Bunsen burner? If they really mean that children should benefit, surely they need some kind of test to show that the child has some ability in French, or science, or mathematics, or whatever it be.
Our Amendments Nos. 177A to 177D face the reality. They remove the tortuous thinking of subsection (2). They allow a wider range of subjects. Prescribed subjects are mentioned on the face of the Bill. If people are going to do science it will not be enough just to do one science subject. One needs to look at an amalgam. Science subjects tend to go together with other subjects. If people wish to take science and there is a specialist school, then ability in mathematics is very important. One of the reasons why I was very bad at physics was because I could not do maths. If I were put in a specialist science school, it would have made a nonsense of the word "specialisation".
Our amendments also remove the 10 per cent. limit. How can a school be called a specialist science school—one assumes that the average entry to a school is sixth-form, with six classes of 30, making 180 pupils—if only 18 are chosen for their specialism in science? That is a tiny number. What do these specialist schools involve? It would be far better to follow the logic of the speech made by the noble Lord, Lord McIntosh, the other night. He said that he did not like selection by ability, so why have specialist schools? They seem to me to fall between two stools. They will neither fulfil the dogma of comprehensivism nor be truly specialist.
Therefore, we are trying to deliver the Government from the horns of their dilemma. In the 1920s the late dictator, Stalin, faced the same problem. In the aftermath of the revolution in Russia an egalitarian philosophy prevailed over standards of education. The late dictator, Stalin, introduced school uniforms and selection by ability, which had been a feature of the Russian system. That is why, as the noble Lord, Lord Tope, knows, the Russian schools do a lot better than the schools in his local area.
Lord Tope: My Lords, I wonder whether the noble Lord, Lord Pilkington, is aware that we still have four grammar schools in my area? I accept that they are excellent schools, but I would not know whether they are better than Stalin's schools in the Soviet Union.
Lord Pilkington of Oxenford: My Lords, I am delighted. During the time I spent near the noble Lord's area, his party was making great efforts to get rid of one or two of those schools. But I know that it will not want to do so now.
The fact is that the Government want to have their cake and eat it. They have accepted the partial failure of the local comprehensive school, but they have tried to maintain it in another and more elaborate form, demanding greater bureaucracy and making it a recipe for conflict. Parents will not understand banding and there will be disputes. The adjudicator will have more work and it will cost more money. The Government see
1128
the need for specialist schools, but cannot accept that in full. It is another sorry chapter in a sorry Bill. It is framework rather than standards. I am sorry I have to say this, but at least the noble Lord knows my ideology as I know his. I beg to move.
5.15 p.m.
Baroness Blackstone: My Lords, these amendments were originally brought forward at the Committee stage and withdrawn. Noble Lords on the Conservative Benches have a very strong attachment to selection by ability. We are very aware of that attachment and the ideological difference between us. I do not believe that we should dispute that there is such a difference. The Government do not share their attachment.
These amendments are a direct attack on the Government's policy on selection. They are intended to completely reverse the present effect of Clauses 98 to 101, which implement the widely-welcomed commitment—which I emphasise—that we gave in the White Paper, Excellence in Schools, to rule out for the future any new selection by ability. The amendments would allow schools to propose just that. Indeed, I believe that they are pretty close to being wrecking amendments.
The new clause set out in Amendment No. 176C puts in place an entirely new mechanism for the introduction of selection—and not just partial selection by ability, but total selection by ability—running completely counter to Clauses 103 to 107 on grammar schools. It would allow a grammar school, which had been required to discontinue its selective arrangements following a parental ballot or approved statutory proposals, to seek to reintroduce full selection. Amendment No. 176B presses home the attack by making these newly-created selective arrangements a permitted form of selection by ability.
Amendments Nos. 176D and 176E seek to widen the Bill's definition of banding so as to permit even more selection by ability. There is no question but that admission by banding is admission on the basis of ability. But we believe that banding is compatible with the principle of comprehensive education, provided it is done in the way presently envisaged in the Bill. Clause 100(1)(b) of the Bill says, in effect, that if banding is to be lawful, it must not lead to substantial over or under-representation of any particular level of ability in the school's intake.
Amendment No. 176E would remove the safeguard of subsection (1)(b) and so would sanction banding which is inconsistent with the comprehensive principle. What is more, Amendment No. 176D would allow schools to admit only high ability pupils if they so wish. That is simply unacceptable to us.
Like the noble Lord's other amendments, Amendments Nos. 177A to 177D are intended completely to reverse the effect of the existing clause and so to overturn the Government's policy, this time on admission by aptitude.
The amendments remove the 10 per cent. limit on admission by aptitude and so would allow unlimited selection by this device. They remove the stipulation

1129
that schools may admit by aptitude only in subjects prescribed by the Secretary of State and so would enable schools to select by aptitude in any subject. But more than that, by removing the safeguard that any testing for aptitude must be designed to assess an aptitude for one of the prescribed subjects in which the school specialises, they would make it possible to test for other aptitudes of any kind, however remote from any specialisation, or indeed to test for general ability.
The noble Lord, Lord Pilkington, has raised again the issue of aptitude against ability and the distinction. It is perhaps worth reminding ourselves that the distinction has been drawn by successive governments, including those of the party opposite. That distinction has been enshrined in legislation since 1944. The last Education Act enacted by the previous government, the 1997 Act, refers in Section 10 to admission arrangements,
"admitting only pupils with high ability or with aptitude".
But even more telling, the previous government commissioned research on the strength of their belief that ability and aptitude are different. Launching the research in May 1996, the then Secretary of State said,
"To help specialist schools which want to identify pupils' aptitude for a specialist subject as opposed to ability, I am announcing today a government-funded research project. The National Foundation for Educational Research will be developing tests to identify technological aptitude as opposed to ability at the age of 11".
Perhaps I may return to the amendments. The effect of Amendments Nos. 177A to 177D would be to introduce a selection free-for-all in which any school could select and test for any percentage of its admissions on any basis it liked, under a nominal cover of selecting by aptitude. This is yet another attempt by the Opposition to bring back unfettered selection by ability.
I am somewhat reluctant to enter into the debate that the noble Lord, Lord Pilkington, had with my noble friend Lord McIntosh of Haringey on the previous occasion. But I wish to say a few words about the impact that selection by ability had in the past. All too often, failure at the 11 plus meant that the vast majority of pupils were condemned to an educational environment where expectations and, consequently, opportunities, were low. Add to this the sense of failure for the majority of pupils. That cannot be right in today's competitive global environment which calls for a highly skilled workforce. It cannot be fair on pupils themselves.
The Earl of Dartmouth: My Lords, does the Minister consider that British schools as presently constituted provide a skilled workforce able to compete in the global economy?
Baroness Blackstone: No, my Lords. After 18 years of Conservative government, this new Government are committed to raising standards in our schools and to repairing some of the damage done by our predecessors. That is what we shall do. That is what the Bill is designed to bring about.
The noble Lord, Lord Pilkington, also referred to systems abroad and implied that every system in Europe is selective. Perhaps I may remind him that Sweden and other Scandinavian countries in particular have had
1130
non-selective comprehensive systems for many years. Their systems are extraordinarily successful in educating not the few, but the many. That is what this Government are absolutely determined to do.
This package of amendments is, as I have pointed out, no less—
Lord Baker of Dorking: My Lords, before the Minister concludes, can she seek to justify why she has put on the face of the Bill that schools can continue to select according to aptitude or ability up to 10 per cent. of their total intake? What is the magic of that figure? Why not 15 per cent. or 20 per cent.? Is the Minister arguing that if 20 per cent. of a school's intake were selected for aptitude or ability, that would distort the whole balance of the school? Does she not appreciate that the trend in education is towards more specialist schools? That will be the way of the future. If the Minister restricts selection to just 10 per cent. of an intake, she is setting herself and the Government against a trend which most parents and children want.
Baroness Blackstone: No, my Lords. I do not accept what the noble Lord has just said. We believe that selection by aptitude for specialist schools should be restricted to a relatively small proportion of children. We want to maintain the comprehensive principle by which we can ensure that children are given the maximum possible opportunities and not labelled too early as failures.
The amendments are a blatant attempt to reintroduce the previous government's "grammar-school-in-every-town" policy which failed miserably. No one wanted that system. When the previous government produced their White Paper proposing it, it was universally condemned. The House will appreciate that there is no way in which the Government can accept these amendments which, as I said, would bring back the divisiveness and the neglect of majority interests associated with the Conservatives' pro-selection stance. For those reasons, I ask the noble Lord, Lord Pilkington, to withdraw his amendment.
Lord Peston: My Lords, before my noble friend sits down and before the noble Lord, Lord Pilkington, tells your Lordships how he intends to proceed, was not my noble friend puzzled by the noble Lord's failure to address the question of parental choice in the context of selection by ability? Is it not a logical point that selection by ability is selection by the schools and that that is completely contradictory to the possibility of parental choice which—I must point this out since the noble Lord was disparaging about the 1960s—has been a commonplace among those of us who have taken an interest in education since at least the 1960s? As the noble Lord also made disparaging remarks about the earlier comprehensives, was not my noble friend puzzled that the noble Lord did not reflect on what schools would be like in areas where a selective school was introduced? Would not those other schools be area non-selective schools or what used to be known as area

1131
secondary moderns? It seems to me that the noble Lord did not address any of the logical consequences of his remarks. Was not my noble friend surprised by that?
Baroness Blackstone: Yes, my Lords, and I am grateful to my noble friend. I was surprised on both counts.
Lord Pilkington of Oxenford: My Lords, perhaps I may begin with some details. The noble Baroness has still failed to address two points. I raised the complex issue of banding and of how the tests would work. The Government have forbidden parental interviews, but if a school is to admit so many pupils of high ability and so many pupils of low ability tests will have to be carried out before children enter the school. I suggest that the Government are facing a certain contradiction in that they seem to be against interviews or testing before entry to a school, which would limit parental choice. Banding limits parental choice. What tests would they use? I am sorry that the noble Baroness did not face this problem although I can understand why because it is very complex. However, I hope that at some point we shall know how the Government intend to do this.
I am not worried about a conflict between aptitude and ability. That is a problem more for the Government than for me. There will have to be pre-entry tests in schools specialising in academic subjects, such as science or languages. Aptitude and ability are inextricably linked in that case. I did not think that the comments made about technology covered my point although I accept that that is a different case because technology is a vocational type of subject. The problem facing the Government is that they are against testing before entry. The noble Lord, Lord Peston, wants total freedom of choice, but banding will prohibit that. There is an appeals procedure—
Lord Peston: My Lords, I am grateful to the noble Lord for giving way so that I can point out that I do not want total freedom of choice; I want comprehensive schools. I am completely consistent on that point. Freedom of choice leads to complications which we need to think through. What matters is the fundamental commitment to comprehensive schools.
Lord Pilkington of Oxenford: My Lords, we know where we stand. My noble friend will refer later to certain of the points mentioned by the noble Lord, Lord Peston. My noble friend has some examples that will interest him.
The Minister referred to a skilled workforce. I must underline the comments made by my noble friend Lord Dartmouth who is no longer in his place. We cannot be complacent about a skilled workforce. I remind the Minister that when the West German state was faced with the problems that also faced our state in the early 1960s—namely, that the Gymnasium enjoyed greater prestige than the other schools—money was spent on those other schools. The British state could have done that instead of going comprehensive, except in limited areas. In Germany, people are now happy for their child to attend either a Gymnasium or a Realschule or whatever. We must accept that as a fact. It is insular of the noble
1132
Baroness to assume that a country which is generally acknowledged to have a more skilled workforce than ourselves has a selective system of education. I am sorry that the noble Baroness is so dogmatic that she can dismiss the point so easily.
I am very interested in the 18 "misspent" Tory years—
Lord Annan: My Lords, I do not pretend to be an expert on Germany, but is it not true that there is no national system in Germany? Education is run by the Länder and some Länder such as Land Rhein-Hesse have always based their whole education systems on the Gesamtschule, the comprehensive schools. I should have thought that that was also true of Brandenburg and of the Länder in what used to be the Deutsche Demokratische Republik.
Lord Pilkington of Oxenford: My Lords, I cannot speak with authority on the former East Germany, but I believe that only one state in West Germany, with perhaps a little bit of another, had a comprehensive system. Of the states of the former West Germany, all but Hamburg and, I think, one other used selective education. Indeed, when a comprehensive system was suggested, it was voted down in one or two states. However, as I said, I cannot speak with authority on eastern Germany.
The Minister referred to the "misspent" Tory years. I shall be interested to see this year's GCSE and A-level results because all of those children were educated under Tory control. I hope that the noble Baroness will not show total hypocrisy and say that this Government are doing well in office if the results are good. I would say that given the Minister's view of those "misspent" 18 Tory years, the results should be terrible. I hope that the noble Baroness will pay attention to that point in the middle of August when the results are published. However, the Government are in power and I am not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. I76C not moved.]
5.30 p.m.
Clause 100 [Permitted selection: pupil banding]:
[Amendments Nos. 176D and 176E not moved.]
Lord Whitty Lord Whitty moved Amendment No. 177:
Page 76, line 31, leave out ("approved or otherwise determined") and insert ("have fallen to be implemented").
On Question, amendment agreed to.
Clause 101 [Permitted selection: aptitude for particular subjects]:
[Amendments Nos. 177A to 177D not moved.]
Clause 103 [Designation of grammar schools]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 178:
Page 78, line 2, leave out (", 106 and") and insert ("to").
The noble Lord said: My Lords, in moving Amendment No. 178 I should like to speak also to Amendments Nos. 179 and 182 to 185. Perhaps what I say is a hostage to fortune but I hope not to take up

1133
too much of your Lordships' time with this group of amendments. The amendments are entirely technical and are designed to clarify one or two issues and correct two cross-references. My noble friend Lady Blackstone has written to the noble Baroness, Lady Blatch, and the noble Lord, Lord Tope, to explain their purpose.
Amendment No. 178 amends the reference in Clause 103(4)(a) to the procedures for altering the selective admission arrangements of grammar schools so that it includes a reference to the new Clause 105 which the Government introduced at Committee stage in response to recommendations of the Delegated Powers and Deregulation Committee. Amendments Nos. 179, 182 and 183 make it clear that some parents who are eligible to sign a petition, and would be eligible to vote in a ballot if it were held at that same time, may riot be eligible by the time the ballot is actually held. This is particularly likely in the first year of operation when petitions could be raised during the school year 1998–99. We propose that no ballots should be held before September 1999. It follows that some children will have changed schools in that time or reached the end of their last year of compulsory schooling and their parents will no longer be eligible to vote in the ballot. These three amendments remove any misunderstandings about eligibility. Amendment No. 184 simply clarifies that a parent must appear on the school's list as a registered parent of a registered pupil.
Finally, Amendment No. 185 corrects a cross-reference in the Bill. Clause 105(5) concerns sections of the regulations which will determine whether a parent is resident for the purposes of subsections (1)(a) and (1)(b). However, subsection (1)(a) does not mention residency but subsection (1)(c) does. The cross-reference therefore needs to be adjusted to remove the reference to subsection (1)(a) and include a reference to subsection (1)(c). I commend the amendments to the House.
On Question, amendment agreed to.
Clause 104 [Procedure for deciding whether grammar schools should retain selective admission arrangements]:
Baroness Blatch Baroness Blatch moved Amendment No. 178A:
Page 78, line 37, at end insert—
("( ) Before any ballot under this section takes place, the local education authority or authorities within whose areas the relevant grammar schools referred to in subsection (2)(a), (b) or (c) are situated shall—

(a) prepare and publish outline proposals for the reorganisation of schools consequent upon a successful ballot including an estimate of capital expenditure, setting up costs and predicted annual revenue costs, and

(b) send a summary of such proposals to all eligible parents.").

The noble Baroness said: My Lords, in moving Amendment No. 178A I speak also to Amendments Nos. 178B, 179A to 179H and 186A.
"Put simply, excellent schools should not be treated in the same way as others. One of our priorities over the next few months is to identify ways in which excellent schools can simply be allowed to get on with what they do well without undue distraction. So why not give them greater freedom to continue to achieve high levels of attainment and active encouragement to share the secrets of their success with other schools?"
1134
Those are not my words but the words of the Minister for School Standards, Mr. Byers, in a speech made only in the past week.
What is the reality? We go back to the politics of envy. Out goes the assisted places scheme. We are now considering a Bill that ends existing grant-maintained schools, engineers the demise of grammar schools, ends selection and increases bureaucracy and central control. Government actions do not match government rhetoric, but that is not a new phenomenon, as we have discovered over the past year.
Despite the warm words of Mr. Blair and Mr. Byers, Mr. Blunkett and unreconstructed Old Labour are in the driving seat on education and this Bill is their vehicle. This is very mean-spirited politics. Even Mr. Andrew Adonis, special adviser to Tony Blair on education at No. 10, comments on page 40 of his book A Class Act: The Myth of Britain's Classless Society that,
"The direct grant scheme succeeded, without any fanfare, in opening up many of the best independent schools to ability rather than wealth. It is a sad irony that in destroying the direct grant schools on the altar of equal opportunities the 1974–79 Labour Government succeeded only in denying opportunities to many poor children and increasing the number of fee-paying parents".
History is about to repeat itself. One has only to listen to the Ministers' responses to hear the egalitarian message, in particular the unequivocal message from the noble Lord, Lord McIntosh, last Thursday evening. But Mr. Adonis went on to say at page 55 of his book:
"The comprehensive revolution, tragically, destroyed much of the excellent without improving the rest. Comprehensive schools have largely replaced selection by ability with selection by class and house price. Middle class children now go to middle class comprehensive schools, whose catchment areas comprise middle class neighbourhoods, while working class children are mostly left to fester in the inner city comprehensives their parents cannot afford to move away from";
that is, unless one's name happens to be Blair, Harman or Boateng, to name but a few of the members of the Government.
What hypocrisy! First, they enjoy the privilege and then close the door of opportunity to all others.
Only today the Government announced awards to 75 schools of excellence, designating them beacon schools. Torquay Boys' Grammar School was among the list. I am not surprised. What a good school it is. What must the parents of the children of that school think to be given such a boost one day by the Government who on the same day mount a war of attrition to end the life of that great school?
It is also a supreme irony that one argument used by the Government is that where selective education takes place children not selected are deemed to be failures. We heard the argument trotted out a moment ago by the noble Baroness, Lady Blackstone. But also featured in the list of 75 excellent schools are two secondary modern schools, the grant-maintained Aylesbury High School and Ashton on Mersey grant-maintained school; deservedly so because they are outstanding schools. I understand that they are not the only secondary modern schools in the list. Those schools have earned such a reputation in an area where selective education

1135
takes place, quashing yet another myth that is perpetuated by those who are prejudiced against selection.
There are many bright young pupils for whom a fast-track academic education is educationally appropriate. Bright young children from low income homes whose parents cannot afford independent education have been helped by two important rungs on the ladder of opportunity: the assisted places scheme and grammar schools. We know that the assisted places scheme has been abolished and that the demise of the grammar schools is more or less assured by the rigged balloting system proposed in the Bill.
At Committee stage noble Lords on the Liberal Benches accused the Government of duplicitous behaviour in that the Government lacked the courage to do what the Liberal Party would have done; that is, to seek to insert clauses into the Bill to abolish grammar schools. Instead, they resort to a balloting system in the guise of "Let the people decide" which will prove equally threatening to the existence of these fine schools. As for letting the people decide, the franchise for schools in what will be a whole LEA ballot area will allow all parents of children aged nought to 16 to petition and vote, whereas with any smaller group of schools the franchise is restricted to parents of children attending schools where five or more children have been selected for a grammar school place over the past three years.
It is scandalous that the parents of children who attend the very grammar schools under threat are denied a vote in the ballot. How, for example, can the Government defend a situation where the parents of children attending the outstanding King Edward schools in Birmingham or the excellent schools on the Wirral are disfranchised from voting when the very existence of their schools is at stake?
Amendment No. 178A is fundamental to those arrangements. It requires LEAs to prepare and publish outline proposals and costings for the reorganisation that will have to follow any successful ballot before a ballot takes place. In some parts of the country, reorganisation resulting from the closure of all grammar schools in an area will be substantial. We know already from preliminary work done in Kent that the costs will be considerable.
The issues already identified include the size and location of grammar school buildings and their unsuitability for translation from selective to completely non-selective schools in a short timescale. Who owns the buildings? Will the Government give the money to purchase them or lease them back, or will they forgo that cost? There is the spectre of substantial split-site arrangements; the costs and turbulence caused to LEAs in relation to the grammar and many other schools in the area; the pre-emption of capital and revenue spending; home/school transport arrangements; single-sex grammar schools; and the resistance of parents to mixed arrangements.
There is a knock-on effect for non-selective church schools which have not been consulted. I understand that in Kent 12 such schools have been completely cut
1136
out of the consultation procedures. There is the effect on parental preference; the retraining of teachers. There are many other issues of concern about these proposals. My amendment describes the information which must be made available to parents who are being asked a simple question. The consequences of signing such a petition should be made known.
Amendment No. 178B requires that 40 per cent. of eligible parents should sign a petition to trigger a balance. The consequences of a single ballot are serious. Therefore the hurdle to be overcome should be such as to rule out a purely vexatious attempt to trigger a ballot.
Amendment No. 179A provides for parents being asked to sign a petition to know that when they sign they are agreeing to close a specific number of named schools. Amendment No. 179B requires a register of eligible parents to be published.
Amendment No. 179C is important. It requires that a ballot to close all grammar schools in an area should be deemed successful only if there is a majority for the proposition, and when at least 40 per cent. of eligible parents vote for such a proposition. If that formula is acceptable for trade union recognition in the workplace, it is surely good enough for a ballot which signals the end of a whole category of outstandingly successful schools.
Amendment No. 179D requires that the terms of the question on the ballot paper should make it clear that a number of named schools will close if the ballot is successful.
Amendment No. 179E calls for a moratorium of five years between the failure to secure the requisite number of signatures on a petition in any year and the next opportunity to collect signatures. That would go some way towards minimising what can only be described as a relentless war of attrition on grammar schools which would serve only to destabilise parents, teachers and non-teaching staff, and, most significantly, would disrupt the lives and the education of the children at those schools.
Amendments Nos. 179F and 179G extend the franchise to feeder schools where any parent has applied for a place at a grammar school in the area in any of the three previous years. It should enfranchise at least those people who aspire to their children attending a grammar school.
Amendment No. 179H suggests a 15-year interregnum between ballots, which would allow for only two generations of a school's intake, and, again, would minimise the relentless war of attrition.
Amendment No. 186A extends the period following a ballot within which an LEA must have fully comprehensive, non-selection in place. Practical difficulties and disruption will be caused to the education of children going through the school. To refuse the amendment will display, on the part of the Government, a real contempt and disregard for thousands of pupils, their teachers, and their parents.
Before the election, Mr. Blair and other members of his now government claimed that grammar schools were secure and that there were no plans to affect their future.

1137
We now know differently. The thrust of the Government's education policy, manifested in the previous debate on selection, is a levelling down.
This group of amendments seeks to address the unsatisfactory procedures which the Government are planning to put in place which will give rise to a relentless war of attrition until all our grammar schools are no longer part of the education scene. They are schools which have served our country so well over the centuries. I beg to move.
5.45 p.m.
Baroness Platt of Writtle: My Lords, the whole purpose of the Bill, as stated by the Government, is to raise standards of education in schools, as confirmed by my noble friend's quotation from Mr. Byers. The standard of education in grammar schools in Essex is first class, as proved by any league table published. In those circumstances, why single them out among all schools for the questioning of their very existence, as in the clauses we are considering? All that can achieve is to divert the attention of staff, parents and pupils from the overriding aim of providing a good education for the pupils. It is a return to old Labour with a vengeance. I should prefer the wholesale removal of the clauses questioning the existence of the grammar schools, but, in lieu, I wholeheartedly support my noble friend's amendment.
Baroness Knight of Collingtree: My Lords, I shall touch briefly on something said by my noble friend Lady Blatch about cost—something I do not believe the Government have borne sufficiently in mind should they proceed with abolishing some of the grammar schools. The Government may not know that the King Edward Foundation schools in Birmingham—there are five of them—own not merely the land upon which their schools stand but all the playing fields. They are expensive tracts of land in valuable parts of our city. In addition, they own a large number of private dwellings. In the previous debate we heard about cost being a deterrent to doing even what was right. I wonder whether the Government recognise that the cost of this move will be far greater than they thought.
Having read the Bill and listened to the Minister, I cannot avoid the suspicion that the Government do not know what they want or are anxious to hide at what they are aiming. The situation reminds me of the old game of "shame" and "hooray". About a month before people were deciding how to vote in the general election, many of the fears of parents interested in a grammar school education for their children were lulled by the statement of none other than Mr. David Blunkett who said,
"Existing grammar schools will face no threat to their continuance, or to their ethos or to their quality".
So new Labour now supports grammar schools—hooray; but the Bill clearly threatens the existence of grammar schools—shame; there will be a vote on the continuance of grammar schools—hooray; but the ballot will be rigged—shame; selection will still be allowed—hooray; but not by ability—shame; grammar schools may exist—hooray; but grant-maintained schools will go—shame.
1138
Let us be clear about the importance of grammar schools to our country. Britain needs its bright children, from whatever homes they come. That factor seems to have escaped the Government altogether. Since at least the 16th century, and in the case of the Birmingham foundation since the time of Richard II, grammar schools have been the bridge over which clever children from poor homes have received an academic education.
One would have thought that that would be a worthy aim. Do not let us bother about the kind of homes from which children come; if they are clever and have ability, let us take them to the limit of that ability by giving them an academic education. But, dear me, no: the old dogma of socialism is alive and well and must be adhered to. Equality must be imposed on everything from wealth to intelligence quotient.
Yet we should aim at equality of opportunity, not simply equality. A far higher authority than Blair, Blunkett or Blackstone decreed centuries ago that human beings are different and are unequal. Some are brainy; others are not. Some work hard; others slack. Some are good with their hands and absolute duffers at everything else. Of course they all have value to society, but not all are equal. It is ludicrous to suppose that the bright and brainy will not be held back if we lump everyone together. It may lead to equality but it will be equality of mediocrity.
The Bill proves that Labour has not changed its spots, read Blunkett pre-election as one will—although there is a glaring illogicality about the belief that if all children go to the same kind of school a happy state of equality will prevail. Unless all children with high and low intelligence ratings are taught in the same class, there will be a new elite because there will be streaming. Some would be taught in A classes; others in B classes. Goodness me, how awful and unequal that would be! It would be wrong. We cannot have that. So then what?
I must say a few words about the ballot system imposed by the Bill. Unless it is radically changed, it will be the most unfair and unjust system ever devised. As my noble friend reminded the House, in Birmingham it is proposed that only the parents of primary school children will be allowed to vote. No parents of grammar school children—they surely know far more about the benefits, the pluses or minuses, of grammar school education first-hand—will be allowed a say. What about those of us who have benefited from a grammar school education? My parents could never have afforded to send me to a private school; they could not have afforded to pay for my education. But I went to a grammar school; and I should be failing that grammar school if I did not use this opportunity to say how much I benefited from that, and how much I wish to see similar benefits given to other children in the future.
I am not allowed to vote on this issue. That seems to me wrong. We should be able to vote from our knowledge and experience of grammar school education. Why cannot commerce, business or the universities have a vote? They are extremely interested in bright children receiving the education they need. But those bodies are not allowed to vote.

1139
The question of whether or not grammar schools should continue will vitally affect our whole country. It should certainly not be decided on rigged ballots. Experience, not dogma, should guide voters. Since the noble Baroness, Lady Williams, when an education Minister in another place, destroyed her first grammar school in the 1960s or early 1970s, I have watched with interest and some dismay those schools as they ceased being grammar schools and became comprehensive schools. I have looked in vain for one single grammar school transmogrified into a comprehensive which is better than the old grammar school, producing better results and giving children a better chance. Why get rid of excellence because of dogma?
Baroness Thomas of Walliswood: My Lords, perhaps I may interrupt the noble Baroness to give an example. In my own town of Dorking, Ashcombe School, part of which was a grammar school and part a secondary modern, now gives a grammar school type of education to anyone who wishes to come to the school. It has excellent results, in the top tier of the ratings.
Baroness Knight of Collingtree: My Lords, the noble Baroness destroys her own argument. She said that the school now gives a grammar school education. That is what I seek to defend. My belief springs from my knowledge of grammar schools not only as a former pupil but as a member of a local educational authority. I have had much to do with grammar schools. I repeat: I have yet to see one which has been improved by its change to a comprehensive school. I give strong support to the amendment moved by my noble friend Lady Blatch.
Lord Monson: My Lords, there are many amendments in this grouping which I saw for the first time only just over three-quarters of an hour ago. Although not an expert in the field, I agree with everything that has been said. I am particularly attracted to Amendments Nos. 179A and 179D which require the names of schools facing abolition to be published. If accepted, the amendments would at minimal cost allow parents thinking of voting for the abolition of grammar schools in their area to contemplate the consequences of casting their vote in this way. Faced with the idea of closing down named schools with a great reputation and possibly a proud and ancient tradition, some may be inclined to think again.
If the Government resist these two modest amendments, it will tend to indicate that they are anxious to discourage parents from reflecting upon the admirable aspects of our grammar schools and their proud and possibly long traditions.
Lord Dormand of Easington: My Lords, my brief point is addressed to the noble Baroness, Lady Blatch. In moving the amendment, she placed great emphasis on the disruption and chaos—I am not sure that she used the word "disruption", but it is what she meant—which will be caused by a democratic and rational system for change. I think that we would all admit that there are
1140
two views on selection. Those views have been argued eloquently. We may not have agreement on that. However, what would the noble Baroness say about the hundreds of grammar schools which were abolished by the noble Baroness, Lady Thatcher? There seems to be somewhat of a contradiction. The noble Baroness puts it both ways. When the noble Baroness replies, perhaps she will deal with that important point.
Lord Baker of Dorking: My Lords, earlier today the Government were clearly defeated on a point of principle. As the right reverend prelate the Bishop of Ripon said, the vote was on a principle, and the Government were behaving in an unprincipled way. The House decided that by a clear majority.
I believe that in these clauses the Government are behaving in an unprincipled, and I think rather shameful, way. Unlike some of my colleagues, I shall not particularly argue the case for or against grammar schools. Some people are for them; some people are against them. I am very strongly for them. But that is not the issue. The issue is that before the election, the Government certainly gave the impression that grammar schools would be safe in their hands.
A few years ago, they were much more absolute. When I was Education Secretary, the party opposite was going to abolish grammar schools. That was the view of old Labour. It was the view of the noble Lord, Lord Peston, and his colleagues. It was not so much old Labour as antediluvian Labour. They were against selection and against grammar schools. I do not agree with that view but I do respect it. I know where they are coming from. Previous Labour Education Secretaries were explicit about the matter. They brought in legislation to do away with grammar schools. They were quite principled about it. I did not agree with it but at least one knew what they were saying and in what they believed.
This Government are devising a system which will allow other people to decide whether or not grammar schools survive, under the pretence of democracy. That is shameful. It would have been better to have had a provision on the face of the Bill which abolished all grammar schools. We could have had a vote on that and the Government have such a large majority in the other place that it would have been carried. Why did they not do that, because that will be the effect of the legislation they are proposing?
It will be extremely difficult for grammar schools to survive because the electoral system which is to be devised will be rigged against grammar schools. First, there will be two electorates. In an area as large as Kent, people who live as far as 40 miles away may be asked to vote about the fate of a school of which they have never heard and which they do not even know exists. Is that reasonable and fair? I do not believe that anyone would think so.
Of course, by its very nature, the children who go to grammar schools and the parents who want their children to go to such schools are likely to be in a minority in almost any area because of the system of selection. As I said in a previous debate, the Liberal

1141
Democrats still believe in the teaching of John Stuart Mill. At least I think they do. I see some of them nodding. Not all the Liberal Democrats believe in his teaching and I do not expect members of the party opposite to believe in his teaching. But in his great essay on liberty, the one thing he argued against was the tyranny of the majority. That is exactly what is being invoked by the Government in order to abolish grammar schools. They are rigging fancy franchises to achieve a majority in order to destroy a school instead of doing it themselves. They want grammar schools to be found dead in the library with no fingerprints on the dagger, no trace of footsteps leading and no hint of any possible guilt. It is all being done by mother democracy.
That is shameful. Some of the amendments moved by my noble friend Lady Blatch seek to install safeguards. Surely in our democracy we are used to electoral lists, are we not? Even trade unions have electoral lists of members so that they know who is going to vote. Who is going to prepare the electoral lists of all the eligible people? Who will check that the people who have signed the petition are residents and that that is their proper signature? Who will do all the things which we are well practised in doing in running our democratic process? The answer is that very little will be done as regards any of those matters.
Therefore, I believe that this is a shameful process. The position of the Liberal Democrats is much more frank and honest. They have always been against grammar schools. The noble Lord, Lord Tope, is no doubt no longer a Member of the House of Commons because he resisted the four very successful grammar schools in his area and they have survived him.
6 p.m.
Lord Tope: My Lords, I wonder whether the noble Lord, Lord Baker, is aware that I am leader of the LEA with a majority of 36 over all the other parties. His party, the staunch defender of grammar schools, which fights every election on the issue of grammar schools, now has only five of the 56 councils in the London boroughs.
Lord Baker of Dorking: My Lords, I am extremely glad that the noble Lord has managed to reconcile the conflict within his own breast of the Liberal Democrat Party being against grammar schools and having an LEA which still runs four excellent grammar schools. I am delighted to know that. He must have struggled with his conscience and won.
I conclude my remarks by saying that this is a shameful process. If the Government want to abolish grammar schools—and that is the purpose of these clauses at the end of the day—they should come out of their corner and say so. They should be honest about it. They are abusing democracy by these processes.
Lord Dormand of Easington: My Lords, before the noble Lord sits down, perhaps I may ask him to deal with the point which is similar to that which I raised with the noble Baroness, Lady Blatch. We would all agree that the noble Baroness, Lady Thatcher, was very much opposed to grammar schools. There is no doubt
1142
about that at all. The noble Lord has used the word "shameful" several times on the basis that this Government are doing things which are against their principles. Would he comment on what the noble Baroness, Lady Thatcher, did, because she literally abolished hundreds of grammar schools? Grammar schools were very much against her beliefs and principles.
Lord Baker of Dorking: My Lords, I dealt with that on the last debate but perhaps I may remind the noble Lord of what I said on that occasion. That was not the most glorious episode in the life of my former colleague and Prime Minister, the noble Baroness, Lady Thatcher. As I said on the last occasion, when I was Education Secretary, I mentioned to her on two occasions that she had abolished more grammar schools than anyone else. When I did that I ducked, because she did not like to be reminded of it. However, that does not justify the process which the noble Lord is being asked to support this evening. If the noble Lord is against grammar schools, he should table amendments to the face of the Bill which will abolish them. It should not be done in an underhand, devious, tricky little way in the name of democracy.
Lord Hunt of Kings Heath: My Lords, the point which the noble Lord, Lord Baker, makes about the validity of the ballot is interesting. He casts doubts upon it because he says that the parents of children at grammar schools will be in a minority in the electoral school.
However, it seems to me that the real point is that the impact which grammar schools make on the whole system makes it important that there should be a wide electoral school from parents of children throughout the school system. That is very much my own experience as a parent in Birmingham or children in the Birmingham school system.
The noble Baroness, Lady Knight, has referred to the five King Edward grant-maintained schools in the city. There we see children selected at 11. Many have already been to primary schools which are well known for coaching children towards the 11-plus exam. It is hardly surprising that the children who do best in those exams at 11 also do well in their examinations at 16. Those who do not do well in those schools are weeded out and are certainly not encouraged to take A-levels. Therefore, it is hardly surprising that the A-level grades of those schools are better than those of the comprehensive schools in the city.
Baroness Blatch: My Lords, the noble Lord is particularly close to the King Edward schools. Does he rejoice in the possible demise of some of the finest schools in the country which are in Birmingham?
Lord Hunt of Kings Heath: My Lords, the King Edward schools in Birmingham has had a negative effect on the school system as a whole in the city. I have no doubt about that whatever. In effect, children have been creamed off from the comprehensive system in the city. That has meant a denial of choice for thousands

1143
of children who are not attending true comprehensive schools. That is a tragedy at a time when the city, through its chief education officer and the resources made available by the city council, as was confirmed by the recent Ofsted report, is really beginning to see improvements.
I welcome the opportunity for parents in the city to be balloted on this matter. The amendments proposed would put many hurdles in the way of a clear, straightforward and easily recognisable ballot by parents in the city. I very much hope that your Lordships will reject them.
Lord Peston: My Lords, although the amendments are specific, we have got up to our usual antics of having a broad general debate on the subject of comprehensives, selection and related matters. Therefore, I could not resist the temptation to join in. I think that the noble Baroness, Lady Blatch, slightly misunderstands her own amendment, Amendment No. 179H, on the 15-year point. It is not that only two cohorts would be protected; if there cannot be a ballot for 15 years then as a matter of elementary arithmetic, 15 cohorts will be affected. It is a mistake to divide 15 by eight. The point is that 15 entry classes will be affected. That is my only contribution to the technical point.
The noble Lord, Lord Baker, is correct in thinking that some noble Lords, myself included, would have liked to see on the face of the Bill a straight end to selection. He is wrong to use the word "Neanderthal". The expression that I have had to point out to noble Lords before is "Labour Gold". I am the main representative for Labour Gold in this House, but I do not resile from the views I hold. I believe that the comprehensive principle is right. I agree with the noble Baroness, Lady Thomas. I thought that the riposte made to her was a complete misinterpretation. The noble Baroness said that within comprehensive schools we have academic education across the whole group of people, and that is what we want. My eldest child, who has not, to say the least, been entirely unsuccessful in his life, went to a school that was an amalgamation of two secondary modern schools. All the children in that school, who would have been told under the earlier regime that they were failures because they were at a secondary modern school, were told that they could be a success. Other schools in Haringey were a combination of secondary modern and grammar schools. The grammar schools were not destroyed, but the other schools were enhanced.
Noble Lords opposite, and the noble Baroness, Lady Knight, in particular, demonstrated in their speeches the tremendous advantage of having a grammar school education. We want good education for all and we do not see any schools being destroyed. I know nothing about the situation in Birmingham, but I believe that those schools in Birmingham will change and will not be destroyed. What will be destroyed is the selective system. This is not a matter of destruction, it is a matter of change.
1144
The Government cannot win. I would like to see a straight end to selection, but the Government decided, and said to people such as me, that we have to be more modern. Old Neanderthals such as us have to look specifically to the people and take ballots. The moment the Government decide to have ballots they are accused of being underhand, devious, tricky, hypocritical, shameful, and so on, by the noble Lord, Lord Baker, et al. The Government cannot win.
As I have said before, I am doubtful about this because I am not convinced that the ballots will abolish any schools, and I do not like that. The notion that the ballots are rigged is quite ridiculous. It will be incredibly difficult to win a ballot for those who wish to see the end of selection, which is why I have doubts. As the noble Baroness, Lady Blatch, gets involved in the detail, she may be able to explain how the rigging would work, but I cannot see it at all. I see a democratic process. The noble Lord, Lord Baker, is right, I do not like it; but my noble friends do and they are the up-to-date people. Therefore I live with what they have to say.
The relative decline of the British economy occurred long before the first comprehensive school was introduced; it occurred during the heyday of the view that if you could pay you could get an academic education. But the rest got what was coming and what was available. The notion that the decline of our country is connected with the rise in comprehensive education has no connection with reality, but it does highlight the problem which noble Lords opposite have. The noble Lord, Lord Pilkington, said that we are about to see some very good GCSE and A-level results. I hope that we are, but where will those results come from? They will come from an overwhelming majority of comprehensive schools. I cannot understand the antipathy to the 1960s, but these schools were started in the 1960s, operated in the 1970s and were continued by noble Lords opposite in the 1980s and 1990s. In so far as there is achievement, it is due to all of our people.
I went to a grammar school. I view them rather like the so-called problem of the fastest gun in the West. The golden rule is never to say that you are the fastest gun in the West because someone faster than you will appear. I went to a selective grammar school. On the first day, all the boys who went there thought that they were very clever. By the second day, three-quarters of them were in forms B, C and D. As an A form boy myself, I knew they were inferior because that was the name of the game. No one told me that those boys might be as good as I was at least as human beings.
6.15 p.m.
Lord Baker of Dorking: My Lords, when the noble Lord was extolling the virtues of all schools contributing to the A-level and GCSE results which we will be soon seeing, and also the published school test results which are likely to be the best in our recorded history, I hope that he will pay tribute to the 18 years of Conservative

1145
government and all the reforms that we introduced to achieve those results. I look forward to the noble Lord's speech on that occasion.
Lord Peston: My Lords, the noble Lord is unfair; he has never heard me say a word against the government to which he refers. I am not saying that all that they did contributed to those achievements; I think the achievements were overwhelmingly those of the teachers and pupils.
Lord Joseph and I thought that the National Curriculum introduced by the noble Lord, Lord Baker, was too complicated and we rejected it at the time. The noble Lord will recall a vote in this House. Then his own government changed in our direction. I am not a uniform critic of his government—not everything they did was wrong; they did one or two things right.
I accept that some of the GCSE and A-level results will be from girls and boys at grammar schools, so I will not make that kind of stupid distinction either. I am simply saying that our education system, although not good enough, is largely a comprehensive system and it succeeds. If the system were 100 per cent. comprehensive we would achieve even more.
To finish my story about the fastest gun in the West, I then went to Princeton and, having thought how clever I was, I met people who were really clever; and that was when I started to learn the lesson that no matter how good you think you are and how keen you are to separate yourself from everybody else, there are cleverer people than you around. The sooner you learn that lesson, by going to the same kind of school as everybody else, and learning that there are lots of decent people around even if they are judged by some criteria to be inferior to you, the better. I hope that one day some noble Lords opposite will learn that lesson.
Baroness Maddock: My Lords, I am always happy to take part in debates about grammar schools and comprehensive schools. I agree totally with the last comment of the noble Lord, Lord Peston. I have previously talked at some length about the fact that I went to a grammar school and that my children went to a secondary modern school which became a comprehensive school. Education is not just about academic attainment. Educating somebody for life is about educating them to understand the environment and the society in which they grow up. I know that I did not gain that at grammar school and I know that my children did. That is a very important point.
I was just reflecting that I achieved much worse A-level results than my children did and I received appalling advice about careers. They have gone to university and I did not. My post-graduate education came when I was very much older.
We have heard very emotive arguments this afternoon. I should like to mention some points that people are forgetting. The Minister talked about education in Sweden. I lived there for three years and that is where I became absolutely convinced that everybody can have a high standard of education if the resources are made available and if it is done through a
1146
comprehensive system. They have a highly skilled workforce from the man who comes to your flat or house to repair something to a young lady who can talk to anybody in a variety of languages in the equivalent of a Woolworth's store. That made a tremendous impression on me, as did the experience that I had in schools.
This is all about resources. Equality of opportunity was another argument advanced this afternoon. It is not equality of opportunity if you put all the resources into grammar schools so that the children who attend other schools do not get the benefit of the same amount of resources. If everyone got the benefit of all the resources that go to individual children in grammar schools, I am sure that all children would be doing very much better. That is what I want to see in education in this country. Indeed, I have been castigated by both sides of the House for wanting more money to be put into education. Adequate resources are the answer.
One argument that I found it very difficult to be comfortable with was that concerning rigged ballots. I am not absolutely certain that the Government have got it right. I believe that they are a bit muddled about where they propose to go on grammar schools. As someone who was a member of a local authority when the previous government said that if people did not take part in a ballot for the houses that they were living in to be transferred to another landlord they were voting "yes", I find the argument about ballots a little difficult to take.
I resisted the temptation to stand up and speak earlier because I knew that the noble Lord, Lord Baker, would quote John Stuart Mill at me. Indeed, he managed to do so even before I stood up to speak. I hope for everyone's sake that no one provokes him to stand up and do so again. However, I wanted to make those important points, which I believe may have got lost in the arguments. Comprehensive schools do work if they have the same resources that we have seen put into some of the best schools—namely, grammar schools, grant-maintained schools and a variety of others.
Lord McIntosh of Haringey: My Lords, as on the previous occasion when we discussed this issue, we have had a fair degree of rhetoric about what are rather mundane amendments. I do not object to that. I am as willing as anyone else to join in the arguments about comprehensive schools against grammar schools. I am as willing as anyone else to talk about selection by ability and to go back over the history of education in this country since the 1944 Act; or, indeed, earlier if anyone wishes to do so. However, I have an obligation to respond to the amendments, despite the tone of the debate, which I shall not be able to neglect.
However, I hope that I shall be forgiven for responding to the debate first. The gap between rhetoric and reality has seldom been so blatantly exposed as it has been during the course of the past 49 minutes. The noble Baroness, Lady Blatch, started by talking as if what we were doing here was somehow to undermine what Stephen Byers calls, "encouraging excellent schools". Nothing could be further from the truth.

1147
The truth of the matter is that we have done exactly what we said we would do before the election and have said, unceasingly, we will do since the election. I know that my noble friend, Lord Peston is unhappy about this, but we have not said that we would abolish all grammar schools; what we have said is that we will let local parents decide whether grammar schools should be abolished. If we are criticised for that and told by the noble Lord, Lord Baker, that that is shameful, then I would ask him to contrast his stance and that of the noble Baronesses Lady Knight, Lady Platt and others—namely, that they want to keep grammar schools at all costs—
Baroness Knight of Collingtree: My Lords, I am much obliged to the Minister for giving way. Will the Minister consider that he has perhaps misread what we have been trying to say? We do not for one moment object to parents deciding such matters; we object to the very limited and rather unfair choice of a narrow group which will be allowed to vote.
Lord McIntosh of Haringey: My Lords, I should not have allowed the noble Baroness to interrupt me in the middle of my sentence. I shall try not to do so again. However, when I read the Hansard report of her speech, I think I shall find that I am right to say that she was fundamentally delivering a most moving and clearly sincere defence of keeping grammar schools at all costs.
If the Government are told by the noble Lord, Lord Baker, that it is shameful to consult local parents on the subject—indeed, he said so in so many words more than twice—and that it would have been honourable just to say that we are going to abolish grammar schools, I must put it to him that the argument on the other side would only be honourable in the same sense if the Opposition were to move to take out these clauses altogether rather than tinker with the franchise. I find tinkering with the franchise, with the obvious and quite clear object of ensuring that ballots will fail—I do not like to use the word "shameful" as freely as the noble Lord, Lord Baker, does—less than open and not up to the standards which I would have expected of the noble Lord and his colleagues.
There are so many mis-statements and illusions about what is being done here. Indeed, the words: "closed, abolished or demise" were used by so many noble Lords. None of these schools is going to be closed and none of them will be abolished. None of them will have its property taken away. Perhaps I may use the example of the King Edward schools in Birmingham, which was used by a number of speakers. We are talking as if the foundations of those schools will somehow be valued, taken away, expropriated, paid for, or something of that nature. It is no such thing. If the parents in Birmingham vote in a ballot—I get trapped into the jargon myself by the continuous mis-statements—for the change in the status of the King Edward schools so that selection is no longer possible, those schools will not close and their foundations will not change. All that will happen is that, in the first year, there will no longer be selection for entry to those schools. That is not abolition.
1148
I am not just talking about the future. It happened to me. I was a member of Haringey council during the years 1966 to 1968 when it went 100 per cent. comprehensive in a period of 18 months. We had a foundation school exactly like the King Edward schools—the Stationers Company School. It was a voluntary aided school; we did not control it. However, it agreed to come in with our abolition of selection and our creation of comprehensive schools. It had one reservation; namely, that it wanted to stay a boys only school, which we agreed to. So that can be done without any disruption. Indeed, there was no disruption at that time, as my noble friend Lord Peston well remembers because both he and I sent our children to the same comprehensive school.
However, all this rhetoric about closing, abolishing and killing excellent schools is far from the reality of what we propose, although I hesitate to call it that. I should perhaps say that it is far from the subtleties of the amendments tabled by the noble Baroness, Lady Blatch. Perhaps I may deal with them as quickly as I can.
I should begin with Amendment No. 178A. A comparable amendment, with very little difference, was moved in Committee. We do not consider it sensible to require any party to a ballot to publish assessments of the likely organisation which might be put in its place. It does not matter whether they are called, as they were in Committee, "fully-costed proposals" or "outline proposals" as is the case with the current amendment. There is a perfectly good case to be made against this sort of information being provided by one participant in the process.
If there is a vote for change, there will have to be consultation on any changes to admission arrangements or any consequential proposals. Although the LEA—which is named in the amendment as having to publish these proposals—takes the lead, the governing bodies of individual schools have a crucial role. They are the admission authorities for foundation and voluntary schools. They will be able to publish proposals to alter such schools.
The noble Baroness asked whether the LEA would determine the plans in the event of a ballot for change to a whole LEA area's schools. The LEA is not the determiner of matters like this. The LEA is responsible for drafting the school organisation plan but it is for the school organisation committee to agree both the plan and any specific statutory proposals.
If local education authorities want to publish some kind of preliminary assessment of what might happen, they can do so in publications to their electors. Amendment No. 186, which we shall discuss in the next group of amendments, makes it quite clear that they can prepare and publish fair and reasonable assessments of the consequences of a ballot. But I suggest that it would be wrong to require them to do so.
We have had the revival of the cost of implementation argument. As I have made it clear that schools will not be closed or abolished, but that the change will affect their admission arrangements in the first year, I think your Lordships can put that into context and realise that

1149
compared with the changes which took place in the 1960s and 1970s, these changes to up to 166 schools in this country will hardly merit the alarmist fears that have been expressed.
Amendment No. 178B is another attempt by the noble Baroness to make the task of raising a petition and moving to a ballot ever more difficult. We have already proposed that the threshold for a petition should be 20 per cent. of eligible parents, or in the case of a selective LEA, 20 per cent. of the number of parents of children at schools in the authority. It is proposed that the figure should now be 40 per cent. I said in Committee that this can only be intended to prevent any change whatsoever. The noble Baroness is now proposing a figure of 40 per cent. rather than 50 per cent. as she proposed in Committee. In Kent, that would mean 200,000 validated signatures. The noble Lord, Lord Baker, said that little will be done as regards checking eligible signatories. However, the Bill provides for a ballot administration company to do that. That is more than was provided for under the noble Lord's grant-maintained school ballots.
Lord Baker of Dorking: My Lords, the noble Lord knows that that is not fair. He chided me on this in Committee. He got the position wrong. He was kind enough to say he had it wrong. He said that he would apologise to me shortly. I waited for the apology. In the case of the grant-maintained schools everyone knew exactly who was on the electoral list—the local authority, which often opposed the measure, and all the parents. Is there to be a full electoral list of all those people? Will the ballot company do that? We would like an answer to that. Will everyone be known who is eligible to vote for the petition and then is eligible to vote in the ballot? That is how we conduct elections in this country. Will we have all that information?
Lord McIntosh of Haringey: Yes, my Lords. I was responding to the noble Lord's specific claim—which I repudiate—that little will be done as regards checking eligible signatories. Of course there will be a list. I shall discuss later the separate issue of publication of the list when I deal with the relevant amendment.
Amendments Nos 179A and 179D are rather different, as the noble Lord, Lord Monson, recognised. They seem to me perfectly reasonable amendments. Indeed, the draft regulations which were issued for consultation on 3rd June include the measures which the amendments would provide. Our only difference with the principal Opposition, the Conservative Party, is that we do not consider it is appropriate for this detail to be on the face of the Bill. The form of words to be used in the regulations is subject to responses to the consultation and will take into account any suggestions received—including the comments of the Opposition Front Bench—on this matter.
Amendment No. 179B is similar to one we discussed during Committee stage. This is where I shall discuss the list of all parents eligible to sign a petition. There are practical difficulties with the amendment and difficulties of principle. First, I shall discuss the practical difficulties. If a list of all eligible parents was
1150
published during the autumn term, that list might well be out of date by the next term, given that parents may in the interim have moved out of the area, or indeed moved into the area. After all, primary schools have reception classes where pupils are admitted at the beginning of each term.
At Committee stage the noble Lord, Lord Baker, said it would be possible to bring lists up to date. Of course it would but that could result in enormous expense or, rather, a burden on the schools involved. Under our proposals, schools would have to provide updated electoral lists to the ballot company only when a petition has been received and the ballot company does not have the list for that term. As far as I understand the amendment it would result in schools having to tell the ballot company every time there was a change in the details.
The amendment also raises difficulties of principle. First, there is the principle of confidentiality. The amendment raises issues about parents' right to confidentiality. The noble Baroness, Lady Blatch, recognised in Committee that parents must have the right to remove their names from a list before it is made public. However, she has not provided for that in the amendment which is before the House.
Secondly, there is the issue of fairness. If the list were made available, it would give an advantage to campaigners with sufficient money to circulate material to parents. It could result in parents receiving very one-sided information. In relation to whole LEA ballots where there will be a register for local parents whose children do not attend schools in the area, the register will not be completed until four weeks after the petition has been validated. Therefore there are great difficulties both of principle and of practice with the amendment, although we shall seek by regulation to achieve what is possible in this regard. I draw the attention of the House to draft regulation 21, paragraphs (1) and (2). I draw the attention of noble Lords opposite to the fact that the provisions for the electoral list parallel what happened under grant-maintained school ballots.
Amendment No. 179C attempts to introduce a minimum requirement that any vote in favour of ending selective admission arrangements would require the backing of 40 per cent. of eligible parents. This is where I owe the noble Lord, Lord Baker, an apology because I said that in the grant-maintained ballots all abstentions counted as votes in favour of change. That was not the case. I apologise to the noble Lord for that mis-statement. However, under the amendment, 40 per cent. of eligible parents, as well as a majority of those voting, would be required to end selective admission arrangements. It will be noted that the amendment seeks to introduce no such turnout requirement for ballots in favour of the status quo.
As regards rigged ballots, that is certainly what is proposed in Amendment No. 179C. The ballot arrangements that we propose will be a two-stage process. There will be a petition where a threshold will apply, and following that—in other words, when the threshold has been crossed—a simple majority of those voting will be required.

1151
Amendment No. 179E is the amendment on a moratorium which I thought we had killed last time. I am astonished that it has been raised again. Under the amendment, which introduces a moratorium on petitions, it would be possible for a group of parents to raise, at the end of the school year, a phoney petition with only half a dozen signatures, or a petition that would have to be declared invalid because it had not been properly prepared. That in itself would prevent a further petition for the next five years. I am not good at sporting metaphors, but that seems to be kicking the whole matter into touch.
Amendments. Nos. 179F and 179G are relatively minor. They relate to the definition of a feeder school which in our proposed definition is one that has sent five or more pupils in total to one or more of the grammar schools over the previous three years. The amendment proposes that qualification even if just one person had applied to a relevant grammar school. Grammar schools do not keep records for that time in relation to who has applied. The amendments are entirely impracticable.
Amendment No. 179H provides for no further ballot for 15 years. The noble Baroness mentioned several times the idea of a war of attrition. The 15-year gap for which the amendment provides would mean that significant numbers of parents never have an opportunity to vote on whether the grammar schools in their area should change their admission arrangements.
I apologise for the length of my reply; however, these amendments all relate to different matters and have to be dealt with individually. Amendment No. 186A attempts to delay the implementation of any change by specifying in the Bill that the implementation of non-selective admissions policies may not be required by a date less than 30 months after the ballot. That is a very long time. The amendment is simply a delaying tactic. There is no necessity for it, and no necessity was argued by the noble Baroness.
If I have bored the House by responding to individual amendments, I apologise. However, I wanted to make it clear that the amendments do not do what noble Lords opposite want them to do—that is, maintain grammar schools at all cost. I hope I have not tempted them to try to do that at Third Reading. In the meantime, I hope that they will not insist on pressing these amendments.
6.45 p.m.
Baroness Blatch: My Lords, I am totally vindicated in my view that old Labour is in the driving seat, and the train is travelling very fast indeed. All the prejudices against selection, against grammar schools, have emerged today in fulsome tribute from the noble Lord.
The noble Lord, Lord Dormand of Easington, who has left the Chamber, referred to reorganisation and the possibility of disruption for children, and to the number of grammar schools that were closed under the administration of my noble friend Lady Thatcher. I, like my noble friend, do not believe that it was the most glorious period of Conservative history. However, it pales into insignificance given the number of previous
1152
policies that have been denounced by the Labour Party during this year. The Labour Party has produced U-turns almost in art form. The noble Lord, Lord Peston, regrets some of those.
The difference between then and now in regard to the reorganisation proposals is that, previously, each proposal brought forward to the department was presented on the basis of having already consulted, the plans having already been produced and fully costed. The proposals had been fully planned in terms of time as well as money, and in terms of where the children would go to school. Those were all aspects of the application to the Department of Education and Science. That is rather different from what is on the table today. The Labour Government's policy was wholly and soundly denounced by Andrew Adonis, the present adviser on education to the Prime Minister. He obviously belongs to the new wing of Labour. He denounced the introduction of compulsory comprehensive education. It was a Conservative government who ended the compulsory nature of comprehensive education, which enabled today's grammar schools to exist.
The noble Lord, Lord Peston, referred to the interregnum. He said that he could not understand the points I was making nor what the fuss was about. It is possible, given the timescale on which the Government are insisting, having not agreed to my amendment, that when the first cohort of children go into a school next year, which is the earliest a ballot could take place—I have tabled a Written Question on this matter, but one waits interminably for answers—many grammar schools could close, depending on where the ballot takes place. Children among the first year secondary intake—I am using old terminology now, not seven, eight and nine year-olds—would be followed by a new first-year when they became the second-years of a comprehensive intake, and then a further comprehensive intake. That would provide for a partly selective, partly comprehensive school. Teachers would not be trained in dealing with the full range of abilities. All would be attending the school at the same time. That would happen only if a school remained in its own buildings.
Taking Kent as an example, 108 schools would be involved in a reorganisation to close 33 grammar schools. Those 108 would include three middle schools, 17 comprehensive schools and 33 grammar schools. The 17 comprehensive schools would include about 12 schools with a religious character. That would be a very dramatic upheaval. Children would be involved in split sites, mergers or full closures. We got into arguments on semantics with the noble Lord, Lord McIntosh, in regard to schools not closing. Those schools will cease to exist as grammar schools. Almost all of them are too small in themselves to be all-through comprehensive schools. So they would have to change dramatically. There would be a difficult interregnum.
Under the Government's proposals, an unsuccessful ballot could be held when a pupil was in the first year. A second ballot could be held when that same pupil was still in the school, possibly in the first-year sixth, and that could go on ad infinitum. One child should at least be able to see his or her period of schooling through in

1153
a grammar school having had his or her life disrupted only once. Under the present arrangements it would happen more than once.
If the Government really believed in pursuing excellence, as Mr. Byers reminds us almost on a daily basis, they would not be proposing to engineer the demise of these schools. The Government say that they will allow changes to the Bill in line with the wishes of the best grant-maintained schools in the land. But they have resisted all recommendations and all amendments that we have proposed to that end. They have also spoken warmly of the future of grammar schools—only to set up class warfare in areas where grammar schools exist.
I have discovered another example of an excellent grant-maintained secondary modern school, Waddesdon Church of England School. Together with Aylesbury High School and Ashton-on-Mersey grant-maintained secondary modern school, it is recognised as an outstanding centre of excellence. Only today those schools received their status as beacon schools. They are in areas where selective education is taking place. What we know, and can prove statistically, is that where there is selective education, the level of education in all schools rises. Northern Ireland offers one of the best examples. The Government are making a fallacious argument. As for the school cited by the noble Baroness, Lady Thomas of Walliswood, all I can say is that there are excellent comprehensive schools all over the country, just as there are excellent grammar schools, grant-maintained schools, church schools and bilateral schools. We are the party of diversity and choice. As noble Lords opposite have said, it is not choice that they support. It is choice that we support.
The noble Lord, Lord McIntosh, said that we merely wish to see the ballots fail. That is not the import of these amendments. The ballots will have serious consequences. Just one ballot in Kent will cause the closure—it will cause the end—of 33 grammar schools. That is very serious. Because it is serious, we believe that there should be hurdles to bringing it about. Why is the formula good enough for recognition of trade unions in the workplace and yet it is not good enough for these ballots? The seriousness of the issues is very similar. The idea that these schools will not close is pure semantics on the part of the noble Lord, Lord McIntosh.
I was not sure what the noble Lord said about my amendment. He sounded warm about it, as indeed Labour Ministers sound warm about all kinds of things, but the practice will be important. If the noble Lord is saying that the names of the schools will appear on the petition and on the ballot paper, then we shall at least have gone some way. When parents sign the petition, they will know that the consequence is that they are signing away the existence of the grammar schools in their area.
As for confidentiality, I believe that it should be secured. It was secured with the grant-maintained school ballots, and there is no reason why the same system should not be used again. The Government are saying that parents will not have the information about reorganisation, about the costings and about the level of
1154
disruption; and, before the petition is signed, they will not see the list of eligible parents. The final touch, and even rougher justice, is that the decisions will be made by a school organisation committee and the adjudicator—unelected placemen—side-stepping the democratic process. I find that wholly unacceptable.
The noble Lord, Lord McIntosh of Haringey, referred to his own glorious past in closing down an excellent school. But he did say something very interesting: there was the agreement of the school in that case. We are not arguing about that. Where schools agree to go along with these proposals, wonderful, we accept that. We believe in freedom of choice. But this is not agreeing; it is imposition. My noble friend Lady Knight referred to the unbelievable, undemocratic proposition that parents of children in the very schools that will be subject to going out of existence will not be allowed to vote in the ballot. How can the Government, who profess to be democratic and open, defend that?
I have to say, on a note of real cynicism, that I cannot admit to being moved by those who themselves enjoyed a grammar school education spending most of their adult political life condemning and criticising grammar schools. Why is it that Harriet Harman went to such lengths to get her child into a grammar school? I hazard a guess that she did it because she believed that the school provided an education that suited the educational needs of her own child. Good for her. But what hypocrisy when people take advantage of the system and then close the door to that opportunity for all other children.
The noble Lord, Lord McIntosh, said that my amendments undermined Mr. Byers's pursuit of excellence. Let us examine what this great man is doing and what his methods are. He first destroys excellence; he then levels down; he produces a few gimmicky schemes; and he talks up standards. Yet he introduces a Bill obsessed with structures and not with standards. It is open knowledge that there is a tension between New and Old Labour on education. In this Bill, Old Labour is winning. I commend the amendment to the House.
6.53 p.m.
On Question, Whether the said amendment (No. 178A) shall be agreed to?
Their Lordships divided: Contents, 72; Not-Contents, 121.

Division No. 2

CONTENTS

Aldington, L.

Clark of Kempston, L.

Annaly, L.

Cox, B.

Astor of Hever, L.

Cranborne, V.

Baker of Dorking, L.

Crickhowell, L.

Beaverbrook, L.

Cross, V.

Blaker, L.

Denton of Wakefield, B.

Blatch, B.

Fookes, B.

Brentford, V.

Gardner of Parkes, B.

Byford, B. [Teller.]

Harrowby, E.

Caithness, E.

Haslam, L.

Carnock, L.

Hooper, B.

Carr of Hadley, L.

Inglewood, L.

Chorley, L.

Jenkin of Roding, L.

1155

Kinnoull, E.

Roberts of Conwy, L.

Knight of Collingtree, B.

Rotherwick, L.

Lauderdale, E.

Rowallan, L.

McConnell, L.

Saltoun of Abernethy, Ly.

Mackay of Drumadoon, L.

Sandwich, E.

Mackintosh of Halifax, V.

Seccombe, B.

Macleod of Borve, B.

Selkirk of Douglas, L.

Massereene and Ferrard, V.

Sempill, L.

Mayhew of Twysden, L.

Sharples, B.

Monro of Langholm, L.

Simon of Glaisdale, L.

Monson, L.

Skelmersdale, L.

Mountevans, L.

Stodart of Leaston, L.

Norrie, L.

Strathclyde, L. [Teller.]

Northesk, E.

Swinfen, L.

O'Cathain, B.

Teynham, L.

Onslow, E.

Thomas of Gwydir, L.

Park of Monmouth, B.

Thurlow, L.

Pilkington of Oxenford, L.

Trefgarne, L.

Plummer of St. Marylebone, L.

Walpole, L.

Rankeillour, L.

Wilcox, B.

Rees, L.

Willoughby de Broke, L.

Rennell, L.

Wynford, L.

Renton, L.

Young, B.

NOT-CONTENTS

Acton, L.

Hollis of Heigham, B.

Addington, L.

Hooson, L.

Amos, B.

Hoyle, L.

Archer of Sandwell, L.

Hughes, L.

Beaumont of Whitley, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Kings Heath, L.

Blackstone, B.

Irvine of Lairg, L. [Lord Chancellor.]

Blease, L.

Brooks of Tremorfa, L.

Islwyn, L.

Bruce of Donington, L.

Janner of Braunstone, L.

Burlison, L.

Jay of Paddington, B.

Calverley, L.

Jenkins of Putney, L.

Carmichael of Kelvingrove, L.

Judd, L.

Carter, L. [Teller.]

Kennedy of The Shaws, B.

Castle of Blackburn, B.

Kennet, L.

Chandos, V.

Kilbracken, L.

Cledwyn of Penrhos, L.

Kirkhill, L.

Clinton-Davis, L.

Lester of Herne Hill, L.

Cocks of Hartcliffe, L.

Lockwood, B.

Currie of Marylebone, L.

Lofthouse of Pontefract, L.

David, B.

McIntosh of Haringey, L. [Teller.]

Davies of Coity, L.

Dean of Thornton-le-Fylde, B.

Mackie of Benshie, L.

Desai, L.

McNally, L.

Dholakia, L.

Maddock, B.

Dixon, L.

Mallalieu, B.

Donoughue, L.

Mar and Kellie, E.

Dormand of Easington, L.

Masham of Ilton, B.

Dubs, L.

Merlyn-Rees, L.

Evans of Parkside, L.

Milner of Leeds, L.

Ewing of Kirkford, L.

Mishcon, L.

Falconer of Thoroton, L.

Molloy, L.

Farrington of Ribbleton, B.

Monkswell, L.

Gallacher, L.

Morris of Manchester, L.

Geraint, L.

Orme, L.

Gilbert, L.

Peston, L.

Gladwin of Clee, L.

Pitkeathley, B.

Goodhart, L.

Ponsonby of Shulbrede, L.

Gordon of Strathblane, L.

Prys-Davies, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Gregson, L.

Rea, L.

Grenfell, L.

Rendell of Babergh, B.

Hacking, L.

Renwick of Clifton, L.

Hampton, L.

Richard, L. [Lord Privy Seal.]

Hardie, L.

Rogers of Riverside, L.

Hardy of Wath, L.

Scotland of Asthal, B.

Haskel, L.

Sefton of Garston, L.

Hayman, B.

Serota, B.

Hogg of Cumbernauld, L.

Sewel, L.

1156

Shepherd, L.

Thomas of Macclesfield, L.

Shore of Stepney, L.

Thomas of Swynnerton, L.

Simon, V.

Thomas of Walliswood, B.

Simon of Highbury, L.

Thurso, V.

Smith of Gilmorehill, B.

Tope, L.

Tordoff, L.

Steel of Aikwood, L.

Turner of Camden, B.

Stoddart of Swindon, L.

Watson of Invergowrie, L.

Stone of Blackheath, L.

Whitty, L.

Symons of Vernham Dean, B.

Williams of Crosby, B.

Taylor of Blackburn, L.

Williams of Mostyn, L.

Thomas of Gresford, L.

Winchilsea and Nottingham, E.

Resolved in the negative, and amendment disagreed to accordingly.
7.3 p.m.
[Amendment No. 178B not moved.]
Lord Whitty Lord Whitty moved Amendment No. 179:
Page 78, line 40, leave out ("and vote in").
On Question, amendment agreed to.
[Amendments Nos. 179A to 179H not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 180:
Page 80, line 1, leave out subsections (9) and (10).
The noble Baroness said: My Lords, I said at Committee stage that I would be bringing forward amendments to address the concerns that had been expressed about the provisions of Clause 104(9) and (10). Despite the fact that I tabled Amendments Nos. 181, 182 and 186, I see that the noble Baroness, Lady Blatch, nevertheless decided to replay the amendment to those clauses that she tabled for Committee. Perhaps I can start by explaining what our new clause seeks to do.
The relevant subsections placed a complete ban on activities by maintained school governing bodies or local authorities designed to influence ballots. We received representations from many concerned governors and head teachers who were unclear as to the scope of the ban which appeared to them perhaps to cover normal school marketing activities, let alone any responses they might want to give to other people's campaigns. Some correspondents suggested that we might be conflicting with the right to receive and impart information which is enshrined in the European Convention on Human Rights.
I said in Committee that our core concern was to prevent public money being spent on campaigning, so we have decided to reduce the restriction. The new clause reduces the restriction to prevent public money being spent on activities designed to influence the outcome of a ballot or to influence people to sign a petition. In addition, it spells out for the avoidance of doubt that we do not include in that ban the provision of three categories of material, and it allows for guidance to be available to interpret those categories. The last subsection of the clause simply defines school expenditure in terms of its budget share or, for a grant maintained school, its maintenance grants.
The first of the three categories of material is factual information presented fairly—for example, the school prospectus. Guidance will be given as to what constitutes fair presentation of factual information and the amendment provides that regard must be had to that guidance. The second category is a fair and reasonable assessment by the authority or body of the likely consequences of the result of a ballot being in favour of change. Again, guidance will spell out the principles to be adopted in deciding whether an assessment is fair and reasonable—for example, that it is based on factual evidence and information and limited to what may be likely rather than speculating about unlikely or impossible outcomes. The third category is an accurate statement by the authority or governing body of their intentions or proposals in the event of a ballot for change.
We are thus recognising the arguments of noble Lords that it should be permissible for governing bodies and local authorities to make statements about their assessment of the position and their intentions should there be a ballot for change. We will not require such assessments to be published. It is unreasonable to require LEAs or governors to publish proposals for completely hypothetical scenarios. They need to know the ballot result first. It is also misleading to assume that ending selection will always result in significant reorganisation of schools. The implications will be different in different areas. LEAs, governing bodies and—where church schools are involved—diocesan authorities will need to consider them very carefully in consultation with one another. There will be time enough for that after the ballot result is known. No grammar school will become comprehensive overnight. It will take many years for all-ability intakes to work their way through the school.
The noble Lord, Lord Baker of Dorking, said in Committee that it was a duty of the governing body to put the case for the school to the electorate, provided that a list of the electorate is available, and the noble Baroness, Lady Blatch, sought to exclude school governing bodies completely from the original restrictions—an amendment which she repeated again for tonight's debate. We are now making it possible for a governing body to put out balanced and fair material using school budgets. If they wish to go further they will need to use private funds. They are no longer to be banned from trying to influence a ballot.
The effect of this amendment on schools and their staff is explicitly to allow expenditure out of school budgets on the three categories of permitted activities, and to allow influencing activity beyond those permitted types so long as school budgets are not being used. The noble Baroness, Lady Thomas of Walliswood, mentioned parent association funds at Committee stage. I can assure your Lordships that if a parent teacher
1158
association or other body chose to use its privately raised funds to back a campaign, they could now do so. I beg to move.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, I remind the House that if Amendment No. 180 is agreed to, I cannot call on Amendment No. 180A.
Baroness Blatch: My Lords, I do not agree with the Government on this proposal. As always, they look as though they are giving something away when in fact they are not.
First, they are not going to allow the parents in grant-maintained schools either to sign a petition or to have a vote about the future of their own school. I cannot understand how the Government can defend that. Secondly, they are going to tie their hands behind their back and not allow them to fight their corner.
How can the Minister stand there and advocate this policy? She is part of a Government who shout from the rooftops about open government, democracy and letting the people speak and then produce a policy like this. This amendment goes just slightly beyond factual information so that the schools can say something, so-called objectively, about what they believe the consequences are, but with the might of the local education authorities ranged, philosophically and politically, against the existence of grammar schools. They will be able to use their budgets and their might. And if they cannot use it officially, their councillors can use it unofficially outside the schools, with all the resources that can be raised through organisations such as TEN and CASE and many others, which are already beavering away in many of these areas to initiate the system that will collect signatures for a petition.
The Government talk the language of generosity. They are not generous. This again is a mean-spirited and pernicious attack on the ability of grammar schools to defend their corner.
Lord Hunt of Kings Heath: My Lords, perhaps I may speak to Amendment No. 186. Far from being a pernicious attack on grammar schools, it seems to me to be a sensible measure to ensure that LEAs and the governing bodies of LEA-maintained schools can publish factual material relating to information and the assessment of the consequences of a ballot in a statement about the proposals and intention in the event of such a result being achieved. Without such facts, parents will be voting in a vacuum.
Baroness Blatch: My Lords, I am grateful to the noble Lord for giving way. He said that they can talk about the proposals that would follow if the ballot were successful. They cannot do that. We have just debated a series of amendments which were all fended off by the Government, who will not even allow this information to be published by the local authority which would let the schools themselves know what their fate would be

1159
in reorganisational terms should a ballot be successful. The schools themselves will not even be in receipt of that information.
Lord Hunt of Kings Heath: Nevertheless, my Lords, it would still be open to the school or the LEA in the event of such a ballot to make statements relating to information given to the parents. It would be wrong if either the LEA or the governing body were able to propagandise or to try to influence the result. I welcome the new clause preventing any LEA or school governing body doing that. However, I think that two points need to be made.
There is a grey area between providing facts and publishing information designed to influence. One person's fact is another person's undue influence. The amendment requires that regard be had to guidance issued by the Secretary of State. I suggest that the guidance needs to be very clear-cut so that it is not capable of being misunderstood by the LEA or the governing body.
Secondly—and this is really the reason I rise to speak—I wish to respond to the noble Baroness's point about the so-called unfairness of this provision to grammar schools. If we take the Birmingham situation as an example, we have the foundation of the King Edward schools in total—the governing body—and the proprietors of the two fee-paying schools, which are also closely associated with the five King Edward grant-maintained grammar schools. The governing bodies of those individual schools will be covered by the legislation but the foundation itself, which is separate from that, has considerable resources, is an apologist for all the King Edward grammar schools within the city, engages in frequent public debate and no doubt will be using its considerable resource to propagandise and influence the outcome of the ballot. Those who argue the opposite case will have no such resources. Indeed, it could be a very one-sided process. Far from this being a pernicious act against the grammar schools, it shows the hurdles that are facing those who wish to argue against selection.
7.15 p.m.
Lord Tope: My Lords, I am grateful for that last contribution. When listening to the noble Baroness, Lady Blatch, I became more and more convinced that paranoia had got a grip on her. I listened to this language of destruction with these wicked LEAs being out again to destroy grammar schools. I then heard her accusing councillors in general of using public money—presumably LEA money—to support other campaigning and giving it CASE and so on. If councillors act in that way, all kinds of sanctions will come down heavily on them. That really was the language of paranoia.
I share the concerns of the previous speaker about this. What is a fact to some is, at best, an inconvenient fact to others; and an inconvenient fact comes very close to being propaganda or a fact sought to influence opinion. I look forward with considerable interest to reading the guidance. I am extremely glad that I do not have to draft it, because I believe we are entering a
1160
minefield here. It worries me. Perhaps because I am on the other side of the argument, I worry considerably about the inhibitions that are placed on governing bodies and LEAs in attempting to explain what this is about and attempting to answer factually questions which will come from parents and others in this position. That will be extremely difficult.
Having said that, I welcome this amendment. Needless to say, it does not go as far as I would wish it to but it is a considerable improvement on what we had before. I am pleased that the Government have recognised the clear difficulties that were identified at the Committee stage and have been prepared to take a step forward. The Minister clarified a point which my noble friend Lady Thomas of Walliswood made in a more heated debate than we are having now about parent associations being able to use their own money. I am grateful on her behalf for that clarification. My noble friend Lady Thomas is speaking during the Dinner Hour, which is why she is not present at the moment. But I will ensure that she gets the happy news as soon as possible.
Baroness Blackstone: My Lords, like the noble Lord, Lord Tope, I was amazed by the vehemence with which what the Government are doing was dismissed by the noble Baroness, Lady Blatch. I thought that this would be welcomed. I thought that we were trying to be helpful here. We had listened. We had indeed, and she is quite wrong to suggest that what we are doing is tying behind their backs the hands of those schools that might be affected and not allowing them to fight their corner. We have said that they can publish factual information with public funds, as can local education authorities. We have similarly said that if they wish to use private funds to go further, that is a matter for them.
Perhaps I may pick up the point made by my noble friend Lord Hunt and by the noble Lord, Lord Tope. It is important that guidance should be clear-cut and we shall use our best endeavours to make sure that it is, so that people know where they stand. It is open to LEAs to publish what they think is appropriate, particularly in the case of all-authority ballots. We think it is right for LEAs to decide what they ought to be publishing in the circumstances rather than enforcing something which at the moment can only be entirely hypothetical.
I repeat that I am very surprised that the noble Baroness, Lady Blatch, replayed her Amendment No. 180A. I hope that the House will agree that the government amendments not only reduce some of the uncertainties about what LEAs and school governing bodies can do but also significantly reduce the restrictions on governing bodies' attempts to influence petitions and ballots. I trust that the amendments will be accepted. I am sure that no one will be surprised if I urge the noble Baroness not to move her amendment.
Baroness Blatch: My Lords, before the noble Baroness sits down, and with the leave of the House, would she consider it reasonable and fair if the schools in Kent, for example, which has the largest concentration of grammar schools—all 33 of them—published a leaflet saying that the likely consequences—

1161
those are the words I use—of the result of the ballot would be massive disruption, very costly reorganisational proposals and serious disruption of the education of the children? Would that be a reasonable assessment for those schools to make? It might, in the event, be an accurate one.
Baroness Blackstone: My Lords, it would be a very unreasonable assessment to make, for the reasons that I spelt out in Committee.
On Question, amendment agreed to.
[Amendment No. 180A not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 181:
Page 80, line 34, leave out ("section 105") and insert ("sections 105 and (Restriction on publication of material etc. relating to ballots)").
On Question, amendment agreed to.
Clause 105 [Ballot regulations: eligibility of parents to request and vote in ballot]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 182 to 185:
Page 80, line 38, leave out ("and") and insert ("or").
Page 81, line 18, leave out ("and") and insert ("or").
Page 81, line 18, after ("are") insert ("registered").
Page 81, line 44, leave out ("(1)(a) or (b)") and insert ("(1)(b) or (c)").
The noble Lord said: My Lords, these amendments were spoken to with Amendment No. 178. I beg to move.
On Question, amendments agreed to.
Lord Whitty Lord Whitty moved Amendment No. 186:
After Clause 105, insert the following new clause—
(".—(1) An authority or body to whom this section applies shall not incur any expenditure for the purpose of—

(a) publishing any material which, in whole or in part, appears designed to influence—

(i) eligible parents in deciding whether or not to request a ballot under section 104, or

(ii) the outcome of such a ballot; or

(b) assisting any person to publish any such material; or

(c) influencing, or assisting any person to influence, by any other means—

(i) eligible parents in deciding whether or not to request such a ballot, or

(ii) the outcome of such a ballot.

(2) This section applies to—

(a) any local education authority, and

(b) the governing body of any school maintained by a local education authority.

(3) Nothing in subsection (1) shall be taken to prevent an authority or body to whom this section applies from incurring expenditure on publishing or otherwise providing to any person (whether or not in pursuance of any duty to do so)—

(a) any factual information so far as it is presented fairly; or

(b) a fair and reasonable assessment by the authority or body of the likely consequences of the result of a ballot under section 104 being in favour of the schools or school in
1162
question ceasing to have selective admission arrangements; or

(c) an accurate statement by the authority or body of their intentions or proposals in the event of such a result.

(4) In determining for the purposes of subsection (3) whether—

(a) any information is presented fairly, or

(b) an assessment is fair and reasonable,

regard shall be had to any guidance given from time to time by the Secretary of State.
(5) In this section any reference to expenditure—

(a) in relation to the governing body of a school which has a delegated budget within the meaning of Part II of this Act (or, in relation to any time before the appointed day, Part II of the Education Act 1996), is a reference to expenditure out of the school's budget share; or

(b) in relation to the governing body of a grant-maintained or grant-maintained special school within the meaning of that Act (where this section applies to such a school by virtue of section 104(12)), is a reference to expenditure out of maintenance grants paid under Chapter VI of Part III of that Act.").

On Question, amendment agreed to.
Clause 106 [Implementation of decision that school should cease to have selective admission arrangements]:
[Amendment No. 186A not moved.]
Clause 107 [Proposals by governing body of grammar school to end selective admission arrangements]:
Baroness Blatch Baroness Blatch moved Amendment No. 186B:
Page 82, line 23, at end insert—
("( ) Any revision of the admission arrangements of a school under this section shall be subject to a ballot of parents.").
The noble Baroness said: My Lords, the Government have inserted into the Bill—it was not in the Bill when it was first published—a measure which allows governing bodies of grammar schools, if they so wish, to propose that selective education should cease in those schools. The Government may argue that it is inconceivable that that would happen without parents knowing about it or approving it, but because it is such a formal activity, I think it only fair to make it beyond doubt that where the governing body of a grammar school proposes to cease selection and make a proposal, that proposal should be accompanied by a ballot of parents. In other words, a majority of parents of children in that particular school should endorse the school's proposals so that where such a proposal is put forward—to the Secretary of State or to the organisation committee—the parents have had their say. I beg to move.
Baroness Blackstone: My Lords, we return to this amendment on which the House divided during Committee stage. I am rather surprised that, since the Division was lost, an identical amendment has been tabled again. It will certainly be no surprise to the noble Baroness, Lady Blatch, to learn that in the intervening period the Government have not changed their mind that the amendment should be rejected.
The amendment is born out of concern that a grammar school might publish proposals to go comprehensive which do not have the backing of parents at the grammar school. The noble Baroness would require grammar school parents to be balloted before the

1163
school could go ahead and publish proposals. She might reflect on the fact that the majority of grammar schools already have the power to publish such proposals without having to ballot parents.
The procedures for statutory proposals—the consultation arrangements, the facility for submitting objections—are widely understood. These provisions will carry forward under the new arrangements provided elsewhere in the Bill for deciding statutory proposals. Given these safeguards and the ability of parents to submit objections, I cannot see why grammar schools which want to become comprehensive schools should be faced with the added hurdle of undergoing a ballot before they can publish proposals. I therefore ask that the amendment be withdrawn.
Baroness Blatch: My Lords, not only will parents with children at grammar schools be disenfranchised from voting on the future of their schools, but the parents of such children will not even be allowed to endorse formally the proposals of the governing body to cease selection at the school. I cannot think of a more mean-spirited proposition. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 109 [Supplementary provisions about home-school agreements]:
Baroness Maddock Baroness Maddock moved Amendment No. 187:
Page 84, line 20, after ("guidance") insert ("subject to section (Making and approval of general guidance on home-school agreements)").
The noble Baroness said: My Lords, this group of amendments is concerned with the scrutiny of statutory guidance. It is some time since we went through the first set of amendments. Perhaps I may give noble Lords a little of the flavour, indicate why we are trying to do that and see whether we can tease out one or two more answers from the Government as to how they see statutory guidance.
We have moved the amendments in relation to statutory guidance because there has been such an increase in such guidance in the Bill. Some of it is subject to parliamentary scrutiny and some is not. We are a little concerned as to what precisely the Government wish to achieve by making much of the guidance statutory.
The School Standards and Framework Bill introduces at least 10—there may be more—new powers for the Secretary of State to make guidance to which most education authorities, schools and other bodies must have regard. Of the amendments we are considering tonight, Amendments Nos. 187 and 188 deal with home-school agreements, Amendments Nos. 192, 193 and 194 are concerned with early years development plans and Amendments Nos. 220 and 221 refer to behaviour support plans. All the amendments relate to the status of guidance.
We on these Benches accept that the importance of these 10 areas of guidance varies. For example, there is some guidance on the sale of non-school premises, which is fairly minor. The importance of guidance in
1164
other areas is enormous, particularly as regards educational development plans and the exclusion of pupils.
Ministers have twice tried to explain how they see statutory guidance and what requires scrutiny and what does not. There are implications in making the guidance statutory. Until now Department for Education and Employment circulars have always contained the statement that the guidance does not contain authoritative legal interpretations of the provision of education Acts or other enactments or regulations. That is exclusively a matter for the courts.
Guidance is given by statute and that raises its status. Presumably, it can be used by the Secretary of State to direct an authority to take a particular course of action on grounds of unreasonableness when an authority or a school governing body has not taken the course of action that the Secretary of State might want in view of the guidance he is required to give by Parliament.
It seems to us on these Benches that there is some confusion as to how the Government see the status of statutory guidance. It changes some of the practices of the past although we have had explanations that the Government do not see it in quite the same way as we do. There is some concern, particularly in local education authorities. Each piece of new statutory guidance takes away from local government and the schools their ability to act independently in the joint task of raising standards. The local authority has to deal with any gaps. Because of the way these measures are being enacted, the local education authorities have to look at a large number of separate documents provided by central government. In many cases they are to enable them to understand what is the role of the local education authorities.
It is the view of some local education authorities that that contrasts strongly with the positive approach being developed by the Department of the Environment, Transport and the Regions on best value, which tends to take a more holistic view of local government. One of the problems is that once new arrangements are in force there may not be much local discretion left because so much will be controlled by secondary legislation or guidance. That is what very much concerns local education authorities. The implication for free-standing local education authorities and schools which have to work around this increasingly large number of codes of practice and guidance, all having statutory force, and to which regard has to be had, seems to us on these Benches and, I believe, to local education authorities, to be to reduce those bodies to mere cyphers. In many ways that will work against what the Government propose, which is creativity and innovation as part of the process of raising standards. In many areas, the Government seem keen to make guidance statutory, but we believe that there might be a better balance of power between the Government and the local education authorities if there were some parliamentary scrutiny.
I finish by repeating what my noble friend Lord Tope said when this was first discussed: we are seeking to find out from the Government what they are hoping to achieve by making so much guidance statutory. After

1165
the first answer from the Government, my noble friend felt that he was even less clear than when we started. We have had a second go and I hope that the Government can clarify the position a little further. We want an answer on the principle.
I am conscious that the Minister who is to reply is not really listening. I am trying to save noble Lords some time here, but the Minister is still not listening to me. I was hoping that whoever is to reply would listen to me because, although we do not need a detailed answer on this amendment, we are interested in the principle behind the provisions and in whether the Government appreciate that some people are concerned that too much statutory guidance will limit innovation in local authorities and schools. It would be helpful if the Government—the Minister—could expand on that point rather than give me a long, detailed answer, especially as we are now approaching the dinner hour. I beg to move.
7.30 p.m.
Lord McIntosh of Haringey: My Lords, I am disappointed. Here is my long, detailed answer but the noble Baroness does not want it. I am grateful to the noble Baroness for grouping these amendments. It seems that I have two tasks in responding to them. The first is to respond to the noble Baroness on the whole issue of statutory guidance although we have covered this subject on several earlier occasions on Report. My second task is to say something about home-school agreements, early years development plans and behaviour support plans.
The three critical amendments on statutory guidance are Amendments Nos. 188, 194 and 221. I should like to draw attention to three aspects of the amendments. The first is the requirement in all of them for consultation. I assure the noble Baroness that we shall consult as a matter of course—indeed, as a matter of principle—on all statutory guidance, including on the three statutory guidance procedures which are set out in this part of the Bill. Therefore, there is no need for a provision on consultation.
I refer secondly to the interpretation of the law. I am afraid that I disagree with the noble Baroness here. The amendments provide that the guidance can include interpretation of the law. It is, of course, important to establish a clear understanding of the intention behind legislation, particularly in new areas, to ensure that it is implemented in a way which achieves the Government's objectives. Setting out our intentions in a code of practice will help us to ensure that we achieve the right balance between effective support, challenge for schools, and protecting them from unnecessary interference. Naturally, the Secretary of State (often in circulars or by correspondence) gives his view of how the law should be interpreted, but it is only his view. A definitive view of the interpretation of the law can come only from the courts. The amendments would give the Secretary of State a power to include interpretation of the law. That would break new ground. We must resist the suggestion that there should be confusion between the role of the Secretary of State and the ultimate role of the courts.
1166
The third and most important element of the proposals put forward by the noble Baroness is the provision for parliamentary scrutiny by the negative procedure. The noble Baroness referred to having less statutory guidance and less interference from central government in schools and local education authorities. I sympathise with that, but the amendments would make the statutory guidance more rigid and more difficult to change. They would introduce a level of parliamentary scrutiny which the Select Committee on Delegated Powers and Deregulation did not suggest would be appropriate.
In response to the general question about the appropriateness of statutory guidance, I must advise the noble Baroness that the Government think that statutory guidance is more flexible, more appropriate and more in accordance with precedent than the method which she proposes. Indeed, if the amendments were carried, it could hardly seriously be said that those provisions were guidance. They would have to be given the authority of regulations.
I turn now briefly, as the noble Baroness wishes, to the three subjects of these amendments. On home-school agreements, I have assured the noble Baroness that we would not issue guidance without consulting on it first. We propose to cover in guidance such topics as the requirements of the law; how schools can set about drawing up home-school agreements, including good practice tips on involving parents and pupils; what agreements should cover and what they should not contain; and the factors which will help to ensure that home-school agreements promote partnerships between home and school. We are consulting on that at the moment and we propose to issue final guidance to schools in October.
Amendment No. 188 is fundamentally defective in that it refers to a duty on local education authorities. The guidance is for schools, not for LEAs.
On early years development plans, the guidance was issued last October. It is not prescriptive. There is no suggestion that governments will tell partnerships what should be in their plans. The duty to secure early education places in Clause 116(1), combined with our Requirements of Grant document, set out the framework for the operation of early years development plans. That is all entirely flexible. Again, the amendments are hopelessly defective, in that they refer to the governing bodies carrying out functions under Clause 118; governing bodies do not have any functions under that clause.
The amendments on local authority support plans are, again, perfectly well meaning, but hopelessly defective. The noble Baroness must now see why I could not resist this bit! Amendment No. 221 refers to Clause 109(1), which is about home-school agreements, not about behaviour support plans. The amendment would therefore fail to achieve its objectives. Of course, we accept that the intention behind all the amendments is thoroughly admirable. It is just that we do not want to accept them.
Baroness Maddock: My Lords, I thank the Minister for his full reply. I now understand why, when my noble

1167
friend Lord Tope and I were deciding who was to speak to each amendment, I landed up with this group of amendments! However, I remember that in moving our first amendment my noble friend said that we knew that some of our amendments were defective. I do not think that we would describe them as "hopelessly defective"; they are slightly wrong.
However, I thank the noble Lord for his answers. Time will tell on some of these points. It is a fact that an extraordinary amount of guidance and consultation is taking place as the Bill is passing through Parliament. Time will tell whether things turn out as the Government hope. That was the intention behind the amendment. Many people outside this House are a little concerned about how they will manage. Some of them, including myself, are not very happy to discover that a number of these matters will not be decided until quite late in the year. That is not terribly helpful to schools.
I am grateful to the Minister for his response, which I believe has teased out the intentions of the Bill and perhaps those areas on which we differ. In view of the comments of the Minister about the hopelessly defective nature of this amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey: My Lords, I beg to move that further consideration on Report be now adjourned. In doing so, I suggest that the Report stage be resumed not before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Welfare of Livestock (Amendment) Regulations 1998
7.41 p.m.
Lord Hoyle Lord Hoyle rose to move, That the draft regulations laid before the House on 21st May be approved [35th Report from the Joint Committee].
The noble Lord said: My Lords, the House is aware that this country led the way in Europe when in 1990 it banned the close confinement veal calf crate and its associated unsatisfactory dietary regime. We were disappointed that the European Community did not follow our lead when it made its own rules on calf welfare in 1991. The decision to advance the review of these rules at the request of the previous UK administration was therefore welcome. No less so was the outcome. Many of us might have wanted an earlier implementation date for the Europe-wide ban of the veal crate than 31st December 2006, but we can applaud the endorsement of our view that it is a totally unsatisfactory system in which to rear calves.
In many respects the new European legislation resulting from this review confirms the high standards already laid down in the Welfare of Livestock Regulations 1994 or voluntarily adopted by our industry. Our philosophy in drawing up these
1168
implementing regulations has been to follow the directive but also to retain where appropriate those standards that go beyond the new EU requirements.
I turn now to the draft regulations. They apply to all calves and not just those intended for veal production. Accommodation requirements are clearly set out for both single penned and group housed calves. In addition to retaining the minimum space allowances which in this country have prevented the use of the veal crate we have improved on the new EU minimum space allowances for group housed calves, reflecting what actually happens on the British farm.
Next, I move to paragraph 15 of the draft regulations. As I indicated, the dietary arrangements associated with the use of the veal crate and permitted by the original EU directive were unsatisfactory. We believe it is important to the welfare of calves that they have a diet with sufficient iron to maintain satisfactory haemoglobin and fibre to stimulate development of the rumen. The standards included in the draft regulations not only implement the provisions which we are pleased to see in the EU directive but also reflect the higher standards which British producers, to their great credit, have already chosen to adopt. The revised directive and therefore these regulations deal with a number of other aspects of calf husbandry such as the provision of bovine colostrum in the first six hours of life, inspection, feeding and the provision of bedding and drinking water. As to the last two, we have again chosen to reflect current industry practice and have included standards higher than the EU minima.
I have left until last the ban on the tethering of calves because I know that it has been of concern to the industry. It is a requirement of the directive that only group housed calves may be tethered and then for no more than one hour when being fed milk or milk substitute. Industry representations have focused on the implications of this requirement for the use of long tethers with outdoor hutches. We have therefore examined it very carefully and checked our interpretation with the EU Commission. This has confirmed beyond doubt that the ban applies to all tethers. Whatever the merits therefore of long tethers, the arguments in their favour are not universally accepted. There are other means of containment. For example, fencing will continue to be permitted. It does not mean that when tethers go, outdoor hutches must go. We recognise that this provision will not be without cost to the industry and a regulatory appraisal has been prepared and placed in the Library of the House.
We have carried out consultation exercises in developing these proposals and have adjusted our proposals where required in the light of these.
Noble Lords have no doubt noted that some parts of the regulations do not come fully into effect before 2004. However, we believe that they are a great step forward.
Moved, That the draft regulations laid before the House on 21st May be approved [35th Report from the Joint Committee].—(Lord Hoyle).
7.45 p.m.
Lord Hardy of Wath: My Lords, perhaps I may detain the House for a moment to welcome these regulations. They will not please everyone. Many people may prefer to see a more speedy implementation, but they represent a significant step forward. I hope that other member states will emulate the standards that will be applicable in the United Kingdom. The regulations represent a step forward because they confirm that the tethering of calves will end. Many people suspected that that practice would not come to an end in the whole of Europe. Certainly, the regulations make for greater humanity in the containment of calves. Far too many calves are kept in very small spaces. There will be those who say that the regulations do not go far enough. I have some sympathy with that view, but while milk is consumed calves will be produced.
I very much welcome the recognition that the cow is a gregarious creature and calves should not have to spend their lives in solitary confinement. That is an important step forward. My noble friend refers to diet. These regulations represent a very significant step forward in that regard. There are those who want to see the palest meat on their plates, but I do not believe that the deliberate malnutrition of livestock can be justified.
I believe that a word of appreciation should go to those who have been making efforts in Brussels to ensure that this step forward is taken in the EU. I believe that the responsible Ministers deserve a word of appreciation. I trust that the House, in approving these regulations, will bear in mind that commendation.
Lord Beaumont of Whitley: My Lords, from these Benches we very much welcome the regulations. They represent a massive step forward. It is a great pity that the EU-wide ban on the veal crate will come into operation only in the year 2007, which is quite a long way in the future, although this practice has been illegal in the United Kingdom since 1990. Once UK exports of beef animals are permitted, we will be sending to EU countries calves that will be able to be placed in veal crates up to 2007. That is a great shame, but this ban is a step forward.
With regard to the other matters dealt with in the regulations, there are grounds for considerable congratulations as well as regrets. The congratulations arise because as usual we in this country have gone further in the welfare of animals than the directive demands. I congratulate Ministers on that. We have done reasonably well in achieving that.
The matter for regret is that the dietary recommendations are weaker in several respects than those of the European Commission's own scientific veterinary committee in its 1995 report. It recommended considerably more roughage than the regulations require. It recommended more dietary iron than our regulations require. It produced evidence to show that the level of dietary iron required by our regulations can cause problems during exercise. It is a pity that we have not gone that much further. I hope that we will not have to wait until 2004 or 2007 before we improve on the
1170
regulations. But in so far as the Government have progressed, and have done better than they are forced to do by the EU, we congratulate them.
The Earl of Kinnoull: My Lords, I support the measure. Anyone who has seen the methods used in veal rearing will believe that it is long overdue. I believe that it is. I congratulate the Minister on the lucid way in which he introduced the order. It gives us the opportunity to raise one other issue on animal welfare. It concerns the welfare of the horse. I have given notice to the Minister, who I hope will graciously reply briefly to certain points I wish to make.
In the UK, the horse is not treated as livestock in law or by people. It is not used for human consumption. It holds a special place in people's hearts. It is a friend. It is an animal of great beauty. It has given countless pleasure and exciting leisure from the racing world, through the horse shows and trekking to even the little Shetland pony. I suspect that we lavish more money on our horses than on our people.
On the Continent the horse's lot is not so happy. In certain countries, especially the Netherlands and France, it is fashionable and popular to eat horse meat. Importing horse meat from America and the Argentine constitutes a large trade. For the sake of horse meat for human consumption, Brussels is shortly to apply regulations which will ban the use of certain painkilling drugs, commonly used by our vets to treat ailments such as colic and lameness. Such a move will be anathema to the UK, horse lovers and animal welfare in general, especially as we do not eat horse meat and there is no medical evidence to show that such meat has done any harm to humans.
I know that one aspect of this problem will be raised tomorrow, so I shall confine myself to the following short questions. Do the Government have reserve powers to reject a ban on non-MRL drugs in the UK should the EC regulation come into effect? Secondly, can manufacturers of those painkilling drugs rely on a future reduction being legal or will supplies just be cut off? Thirdly, is the EU including in its regulations a ban on foreign imports of horse meat for human consumption from countries which have no control on drugs?
Lord Kirkhill: My Lords, I have just one question for my noble friend the Minister. When these regulations are brought into force, what oversight will there be to ensure their implementation?
Baroness Byford: My Lords, from these Benches, I welcome the regulations introduced by the noble Lord, Lord Hoyle. I shall reinforce the point he made; that over the years British farmers have led the way in how we look after livestock. Being a former farmer, that comes right from the heart. It is in no one's interests to fail to look after one's animals. I am sure that the regulations will be welcomed by the farming community.
The noble Lord referred to the fact that the previous government initiated the moves in 1990. Like him, we were disappointed that the EU took another year before

1171
it agreed to follow our example. We are even more disappointed that the regulations will not be implemented until 2006. As the noble Lord, Lord Beaumont, said, calves will continue to suffer in the meantime.
The regulations cover accommodation, diet, tethering, group living, space allowance and cleanliness and good management. I have one or two questions for the Minister. I accept that we have laid down different standards from our European colleagues. For example, on room, the directive requires that beasts from 150 kg to 200 kg need 1.7 square metres, whereas the regulations suggest 2 square meters; and for heavier calves the directive requires 1.8 square meters compared to 3 square meters in the regulations. Is not the Minister concerned that we should all be working to the same standard? I accept that our farmers set high standards, but in the long-term welfare interest of animals, do not the Government consider that we should all be working to the higher standards that we have set?
The Minister referred also to diet. The noble Lord, Lord Hardy, referred to the sufficiency set down by the EU. The committee considered that the quantity set might not be sufficient.
The Minister spoke about tethering. The regulations have accepted that calves need to be tethered for a period of not more than one hour in order to feed them milk or milk substitute. It is important that tethering be allowed, because even calves bully one another. We do not want calves not to have the chance to feed so we are pleased that tethering will be allowed, but will be for feeding during a limited period only.
On longer-term tethering, there will be a cost implication for farmers. The Minister referred to that. Perhaps he will enlarge on the point when he responds, because he did not specify how those costs would be laid down. The Minister spoke also of trying to encourage the more rapid implementation of some of the regulations. We would obviously welcome that. We appreciate that in this country the regulations will come into force in 2004.
Finally, whatever we do, we want to ensure that our farmers are playing on a level playing field. We do not want them to have greater restrictions so that from a competitive point of view they will find their hands tied behind their backs in comparison to their European colleagues. I do not know whether that is something upon which the Minister would like to comment. In general, we welcome the regulations, as I am sure will our colleagues in the farming industry. Perhaps I may reiterate that British farmers have led the way, and we hope that others will follow more rapidly than they have shown an inclination to do so far.
8 p.m.
Lord Hoyle: My Lords, I am pleased with the welcome that has been given to the measure. Everyone who has spoken looks forward to the phasing out of crates. The only question raised is the length of time. We, too, would like to have seen them phased out earlier, but at least a start has been made and it is coming about.
1172
I welcome the words of appreciation to Ministers from my noble friend Lord Hardy. The regulation applies to all the states of the European Community. The noble Lord, Lord Beaumont, welcomed certain factors that had occurred. He also asked why we appeared to be lagging behind with regard to recommendations by the European Union Scientific Veterinary Committee. It recommended a minimum level of 100 grammes of roughage per day from two to 15 weeks of age, increasing to 250 grammes from 15 to 26 weeks. Our regulations are compatible with that recommendation. Our regulations additionally require the daily ration to increase in line with the growth of the calf. The Scientific Veterinary Committee commented that it would be better for double the minimum amount of roughage to be fed to calves. We wholeheartedly agree with that view. In practice, our industry provides at least twice that minimum figure.
The noble Lord also asked whether the Scientific Veterinary Committee recommended a higher minimum haemoglobin level. I have to say no. Many studies into provision of adequate iron and the avoidance of anaemia were considered by the Scientific Veterinary Committee. Many of those studies indicated impaired performance and an increased disease susceptibility in calves whose blood haemoglobin concentration was below 4.5 millimols per litre. The Scientific Veterinary Committee therefore recommended that calves be fed sufficient dietary iron to maintain the haemoglobin concentration at a minimum level of 4.5 millimols per litre until slaughter. We believe that we meet that level.
The noble Earl, Lord Kinnoull, was kind enough to inform me that he would depart from the regulations in speaking about horses. There is to be a Question on the issue tomorrow. In the meantime perhaps I may say this. The answer that we have received in relation to ourselves is that veterinary medicines for which no MRLs are set are not banned under the regulation. As he rightly said, they may not be used on any animal intended for human consumption. However, the Commission has also issued a statement confirming that they may be used on an animal not intended for human consumption. Perhaps I may quote from the statement:
"It is not the intent of regulatory authorities to deprive veterinarians of the possibility of treating animals. When guarantees can be given that horses will not be consumed, there is no obligation for any form of maximum residue levels".
I hope that that sets at rest the fears that noble Earl expressed tonight, and will give him some comfort. I know of his interest in horses.
I have also been asked how the regulations are to be implemented. In this country, the enforcement role will be carried out by the State Veterinary Service. Veterinary inspectors will enforce the regulations by making ad hoc inspections. They will also make additional inspections in response to complaints or allegations of poor welfare or breaches of the regulations. The basis of the SVS policy enforcement will be the same as for other welfare legislation. Advice will be given to rectify minor contraventions, but prosecutions will always be recommended where there is evidence of cruelty, pain or distress. I hope that that reassures the noble Earl.

1173
The noble Baroness on the Opposition Front Bench raised the subject of higher standards. We have always been ahead in relation to Europe, as she acknowledged. Consultations took place. With regard to consultations on the increased space allowance, we received no adverse comments.
The only question in relation to tethering was the cost to the industry. We estimate a cost of about £78,000. There was another increased cost for the maintenance and provision of fences. We do not believe that the cost will be too damaging to the industry. Perhaps I may say this to the noble Baroness: it is one ban that will come into effect immediately. As I am sure she is aware, it should have been implemented by 1st January 1998. Because of our consultations, we have been late in bringing the measures forward.
We are concerned about a level playing field. We do not believe that these regulations pose an undue burden. That was not indicated in the consultations.
I am pleased with the welcome the regulations have received. Perhaps I may say, finally, that, like all noble Lords in the House, I hope that eventually there will be an end to veal crates. In response to those who asked what will happen when exports are renewed, we cannot ban the export of calves but we hope that increasingly it will not be livestock that is exported but meat and meat processing products. I commend the Motion.
On Question, Motion agreed to.

Air Carrier Liability Order 1998
8.9 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman)The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman) rose to move, That the draft order laid before the House on 23rd June be approved [38th Report from the Joint Committee].
The noble Baroness said: My Lords, the proposed order in council has been drafted to fulfil our Community obligations in response to Council Regulation 2027/97, which enters into force later this year. The order was considered by the Committee for Delegated Legislation in another place on 24th June and approved by a majority.
Council Regulation 2027/97, on air carrier liability in the event of accidents, was adopted last year and enters into force on 17th October 1998. It was introduced as a reaction to the unrealistically low liability limits presently set by the Warsaw Convention and to harmonise the national regimes which various member states have installed as a consequence. It provides greater consumer protection by setting out a new liability regime applicable to Community air carriers.
The three main elements of the regulation are: the abolition of an upper limit for claims arising from the death, wounding or other bodily injury of a passenger—the carrier has absolute liability for the first 100,000 SDRs (approximately £82,000) of any claim and the burden of proof for higher amounts; secondly, a requirement for all Community air carriers to make prompt advance payments in the event of an accident,
1174
to make available to passengers adequate information on the new liability regime and to summarise these requirements on the ticket document or an equivalent; and, thirdly, in the case of non-Community carriers, which do not (voluntarily) apply the regulation, to inform passengers expressly and clearly thereof at the time of ticket purchase and to provide passengers with a form setting out their conditions. It does not replace the Warsaw Convention, which continues to apply in respect of matters not covered by the regulation and as between each member state and non-Community countries.
The regulation will be directly applicable to all carriers concerned when it comes into force and does not require implementing legislation as would be the case for a directive. However, member states are obliged to remove conflicts with national law and to impose appropriate, effective and dissuasive sanctions for non-compliance. Where possible, the sanctions should be analogous to similar provisions in national law. Failure to impose such sanctions would leave the United Kingdom open to infraction proceedings by the Commission and also possibly liable in damages if anyone suffers financial loss as a result of our failure to implement the regulation correctly.
An order in council has therefore been drafted to meet these obligations by amending the Carriage by Air Act 1961, the Carriage by Air Acts (Application of Provisions) Order 1967 and the Licensing of Air Carriers Regulations 1992 to remove conflict with legislation giving effect to the Warsaw Convention in the UK; and by imposing criminal sanctions for non-compliance in the form of a fine in a magistrates court, which currently cannot be more than £5,000, or an unlimited fine in a Crown Court.
I recognise that there has been both concern and controversy over those issues. However, I stress that the Council regulation will provide Community air travellers with more realistic protection in the event of an accident. The information requirements set out in the regulation will ensure that passengers are clearly informed of their rights. The order removes conflict with existing United Kingdom legislation and provides the necessary powers of enforcement. I therefore commend it to the House.
Moved, That the draft order laid before the House on 23rd June be approved [38th Report from the Joint Committee].—(Baroness Hayman.)
8.15 p.m.
Lord Brabazon of Tara: My Lords, first, I should declare an interest as a director of a company which owns a small airline in the Channel Islands, which I have no doubt will be affected in one way or another by the order.
This order was laid before the House on 21st June but that was not the first order that was laid. The original order was laid before that. It was then taken away and relaid on 23rd June. And yet two weeks later, today, we have the order which is full of manuscript amendments. How can it be that in the two weeks intervening between

1175
the laying of the second order—the one we are debating today—and today, we do not even have a proper printed copy of this order?
We are considering an example of bureaucracy at its worst. This is not a matter of policy but of red tape and worse still, gold plating. We all know about gold plating.
We have an EC regulation which enshrines in the national law of all Community states the principle of unlimited liability for airline passengers in the case of death or injury. That is a principle established by the airlines themselves in the 1997 inter-carrier agreement which the EC regulation serves to endorse. Therefore, there is absolutely no argument about the case for unlimited liability. That is not an issue of the order today. That is already in place and happening now.
We also have a draft order to require under United Kingdom law, and only under United Kingdom law, that a specific wording drawing that to passengers' attention must be included on the tickets of all EC airlines operating into this country or, in the case of non-EC airlines, drawing attention to the fact that they may not have waived their limited liability. I repeat that this EC regulation is not an issue of principle, which, by its very being, is in any event a part of UK national law, as the noble Baroness said in her opening remarks, but is concerned with the form of words drawing it to people's attention. Under this draft order, failure to comply means that an airline is held criminally responsible.
It may be useful to noble Lords to appreciate what we are talking about here. Already there are two notices on airline tickets relating to passengers' rights in case of death or injury. One is the standard IATA notice required by the Warsaw Convention; the other is the specific notice required for all flights to an from the United States. The EC regulation will require a third notice. Funnily enough, the industry recognises that that is not exactly consumer friendly.
Even as we debate this order, a meeting of the Passenger Services Conference, a forum within IATA, is under way in Geneva. It is trying to agree a wording for airline tickets which will meet the requirements both of IATA and the new EC regulation which, as the noble Baroness said, comes into force in October. It may also meet US requirements. That would mean one ticket notice, no confusion and simplicity for consumers. I do not know how those discussions are going, but it is not a straightforward matter. Once the IATA airlines have agreed a wording, that is then subject to approval by their governments. That means virtually the whole world. There are certain key authorities which must approve it and, ironically, one of those is the EC whose regulation the UK Government are now rushing headlong to gold-plate.
There is no guarantee that all the world's governments will approve it at first sight. They may ask for it to be changed in certain ways. They may disapprove it altogether. Such is the nature of international negotiations. But it is the best way to achieve a solution which will be both simple for consumers and practical for airlines.
1176
Surely our Government should put their effort and resources into supporting that process and encouraging key players on the world scene, particularly the United States and the EU, whose specific requirements for ticket notices are at the heart of the debate to find a common solution. Instead, the Government's blinkered paranoia appears to be directed towards ensuring that they cannot be accused of failing to interpret the EC regulation to the letter. The provision requires airlines operating in and out of the UK to have an appropriate ticket notice by October. No matter what the rest of the world may be doing, the UK must be 101 per cent. compliant by October. There is no stopping to consider what the international community is already doing to address that new situation; no consultation with the industry to consider the practical implications. UK airlines, for which it will be most burdensome, will inevitably find a solution to appease the UK authorities. However, foreign airlines will be unlikely to accept the UK wording or to formulate their own in time to secure UK government approval. What a mess it seems to be.
In justifying that in Standing Committee in another place, the Minister admitted that an EC regulation does not require implementation. It was argued that because of Article 5 of the EC treaty and a case which the Government called the Greek maize case, the UK is not only under a duty to implement the EC regulation but must also impose sanctions which are "effective, proportionate and dissuasive". It was alleged first that, if that were not done, the UK might be liable to damages if anyone suffers financial loss as a result of failure to implement the regulations correctly; and consumers' rights may be impaired. Neither of those allegations is realistic for the simple reason that the consumer benefits which take effect in October will be part of UK law automatically without any implementation measures.
As I said before, it is significant that so far no other member state is known to be considering either implementing the measures or, in particular, criminal sanctions. The possibility of the United Kingdom being liable to make good financial loss is usually only relevant in the context of a state which fails to implement an EC directive, which always requires implementation, and not an EC regulation, which does not.
It is also surprising that the Government rely on the so-called Greek maize case, which was a very extreme undefended case involving Greek officials fraudulently concealing the true origins of maize from Yugoslavia, failing to levy the correct duties, failing to pay what was due to the Community and Greece failing to prosecute the fraudulent officials. That is rather different from failing to print on the back of a ticket the new requirements; in fact it is a lot worse.
The United Kingdom apparently turns a blind eye to the more relevant decisions of the European Court of Justice, which expressly disapprove of efforts to implement regulations by reproducing the text word for word. Even the slightest difference in operative date is forbidden.
I am also well aware that the Government are under no obligation to consult on this matter, but sheer common sense suggests that it would have been prudent

1177
to do so in a matter of such practical complexity and international impact. The industry was consulted on the regulation but not on the Government's decision to introduce this draft order. I have seen many representations made by many sectors of the travel trade and I have read the report in Hansard of the Committee debate on this matter in another place. I find it staggering that so many genuine concerns and thoughtful objections were dealt with so dismissively by a Government which have staked their reputation on openness, transparency and participation.
Notwithstanding the fact that it would appear to make eminently good sense to await the outcome of the international negotiations—as all other EC member states appear to be doing—this order will create enormous practical problems for airlines and for the travel agents who issue 85 per cent. of airline tickets in this country. Can the Minister say whether any other member state is introducing such legislation, let alone making a criminal offence of it? Can the Minister say whether it will be possible to adjust ticketing systems worldwide, bearing in mind the complexity of that procedure in the time available, and can the Minister confirm that no compliance cost assessment was done on the impact of the order?
Above all the order is simply unnecessary. The United Kingdom does not need to introduce such legislation in order to comply with its obligations under EC law. I have a copy of an independent assessment, prepared for British Airways by a prominent firm of aviation lawyers, which states this quite clearly.
This order will only be relevant temporarily, from the implementation of the EC regulation in October until such time as an international ticket notice is agreed. At that point, because the agreed ticket notice will be included on the IATA common ticket stock used by all the world's airlines, it will be impossible to be non-compliant.
Even when airlines in Europe began to raise limits from 1966 onwards, no European government required airlines to give notice to passengers of increased limits. The United Kingdom went even further when applying simplified Warsaw rules to domestic carriage from 1952 onwards: all ticket and notice requirements were deleted. Thus it is a completely retrograde step for the EC regulation to require airlines to inform passengers that by law limits are no longer applicable. This will introduce a completely new requirement in domestic carriage—for example, London to Manchester or London to Edinburgh—and it will frustrate present experiments in ticketless travel. Forty-six years of legal freedom from documentary requirements and domestic carriage will come to an end. Can the Minister comment on that situation? Will it no longer be possible to have ticketless travel within the United Kingdom under these new regulations?
Let us not forget that many airlines have been voluntarily applying the spirit of this regulation since the signature of the Inter Carrier Agreement 1997. Indeed a number of airlines already declare in their contracting documents that their liability is unlimited, so
1178
it is hardly likely that for the sake of a few months until that international agreement is reached, they need to be kept in line by such draconian measures.
Even if the Government feel that they still need this big stick with which to threaten the airlines, they only have to look at Article 7 of the regulation, which states that in two years the whole regulation must be reviewed and may be revised in the light of the economic climate which will prevail at that time.
In the meantime, given all the difficulties, both local and international, that I have outlined, I would welcome the Minister's assurance that this order will be applied with circumspection and any enforcement undertaken in a reasonable and practical way; but, better still, I urge the Minister even at this late hour to withdraw the order, which is unnecessary because the regulation will come into force without the need for any order such as this. We should wait until the outcome of the international negotiations.
Lord Graham of Edmonton: My Lords, unlike the noble Lord, Lord Brabazon, I do not have a financial interest to declare: I have a non-financial interest to declare on behalf of consumers. I am very closely attached to ABTA, although I do not have a financial interest. I could not possibly match the mastery of the intricacies of the order that we have just witnessed nor could I challenge the basis upon which they were made. However, I am told by ABTA that there had been no consultation with the industry on the order. The Minister can no doubt explain why there should have been no consultation but I am puzzled about that because, whatever the Government decide to put into the order, after the consultation the matter would be wholly in the hands of the Government. Was it a matter of practice or was it a mistake that the industry per se was not consulted on this matter?
ABTA has pointed out to me that because of the time scale involved it will be very difficult to comply with the order. When the order becomes operative and liability then flows, people may be in jeopardy. They may be committing an offence, not because they do not wish to comply with the order but because of the bureaucracy that is involved.
A point that I should like to reinforce is the failure to provide a departmental compliance cost assessment. I speak in the presence of those who have close connections with much larger businesses than a small airline in the Channel Islands and who know all about the effects and the costs. Cost analysis and environmental assessment are modern methods that are used in making such decisions. Can the Minister confirm that such an assessment was not made in this case, bearing in mind that we are talking about small and medium-sized enterprises?
I have a note here from British Airways. They very helpfully outline the puzzle. The EC is currently in discussion with the US Department of Transportation and IATA to agree a co-ordinated global approach to the wording of a single ticket notice. This is due for further discussion next month.

1179
I have not sensed any resistance to the idea that those who suffer hurt as a result of accident where there is very limited liability should benefit from greater liability. Nor do I argue against the need for companies to make sure that the customer has any protection put in writing. However, I learnt a great deal from what the noble Lord, Lord Brabazon, said about the need to consult, and I am puzzled as to why in this country, when we are acting in advance of other countries and the liability will fall upon us, the Government have decided to move in this way. I should be most grateful if my noble friend the Minister could reply to my questions.
8.30 p.m.
Baroness Thomas of Walliswood: My Lords, in speaking towards the end of such a debate, much of the material has usually been gone over pretty thoroughly by those who have spoken before. However, I should like to ask the Minister a few questions. As I understand it—and the noble Lord, Lord Brabazon of Tara, made this very point—this waiving of carriers' rights of limited liability is not in dispute. Indeed, it has been determined by IATA, which is the most suitable mode of determination, that the process should be gone through. I believe that our airlines are probably all signatories to that procedure. So the question of unlimited liability is not in doubt.
Can the Minister confirm—I am sure that she can—that these EU regulations are in fact the implementation of that IATA agreement at a European Union level, and that it was the stimulus of the IATA agreement that brought these regulations to a conclusion? Again, previous speakers referred to the ongoing discussions as regards the European Union, the US Government and members of IATA as to the possibility of having not several but one form of words to explain to passengers their rights.
Perhaps I may say straight away that I have no objection—indeed, it is desirable—to passengers knowing their rights. But the question is how that should be implemented. If these negotiations are ongoing, would it be possible for Her Majesty's Government to delay enforcement of the regulations which, according to the Government, have to be completed by 17th October? Could we delay their enforcement until the negotiations are complete? I shall try to explain what I mean by that as I continue.
Alternatively, I believe that the industry would very much prefer it if the whole procedure were postponed until the IATA negotiations are completed. The noble Lord, Lord Brabazon of Tara, explained very clearly—and the Minister nodded her head in assent at the time—that, whatever is done with the order, the introduction of unlimited liability is already part of our national obligations. Therefore, there is no question of that part of it not going ahead. If work is continuing on the implementation of the order, especially on the wording of a single form of words to be introduced into the ticket, would it not be wiser on the part of the Government to delay the whole process and the introduction of the order?
1180
Perhaps we should look at the problems that providing this information on the ticket would bring, especially to the travel agency industry. I repeat that I have no objection in principle to the introduction into the ticket of information setting out passengers' rights, or for that information to be made available to passengers in some other way. However, in the interim, before an agreed form of words is achieved at an international level, would it not be sufficient to have a printed form of paper to accompany a ticket rather than interfere with the whole drafting process of the ticket itself?
At present—again, the noble Lord, Lord Brabazon, explained this very clearly—the information is set out in an IATA form and goes into every ticket. That is why it is so important to get a new IATA form of words which would go into every ticket. It is particularly important because, often, travel agencies, which issue about 85 per cent. of all tickets, issue tickets which have different carriers for different parts of the journey. As I understand it, the information going to passengers will have to be different according to whether the airline is or is not an EU airline, and/or whether it does or does not comply with the IATA agreement. Can the Minister confirm that that is the case? If it is, it will greatly increase the problems of the issuing travel agents.
I turn now to my final point, which was also raised by other speakers; namely, the matter of compliance cost assessment. In the 9th Standing Committee when the matter was discussed, I believe that the Minister for Transport in London, who appeared for the Government, gave a very cavalier answer to those worries. She said:
"It has never been without the wit of any commercial organisation … to list in meticulous detail those areas in which it is not liable. It is therefore odd that the industry is finding particular difficulty in evincing the area in which it is liable".
I would say that that statement certainly casts something of a slur on the various industries involved in this particular matter, all of which are quite important. There will be a cost to travel agencies in particular as regards complying with the regulations. Travel agents are not all big organisations; indeed, many of them, like those who supply the useful market competition for the large organisations, are in fact very small high street businesses. Those of us who use those travel agencies value the services that they provide.
Therefore, why was there no compliance cost assessment at the time that the 9th Standing Committee dealt with the matter? Has a compliance cost assessment now been made? Further, are the Government at all worried by the suggestion that local travel companies may face costs for replacing their ticket machines and their ticketing processes?
Baroness O'Cathain: My Lords, I must, first, declare an interest as a board member of British Airways. However, having said that, I am also aware of the considerable implications of this measure for other parts of the travel industry, which were so well explained by the noble Baroness, Lady Thomas. That also applies for the very many foreign airlines operating into this country.

1181
This is not a partisan issue; it is an issue of absolute bureaucratic nonsense prevailing in the face of sheer common sense. It is also an issue that I raised in the debate initiated by my noble friend Lord Mountevans on civil aviation on 20th May, which took place only a few hours before this order was laid before Parliament. Indeed, I believe that it took us all by surprise, including the Minister.
My noble friend Lord Brabazon of Tara pointed out that the legislation is unnecessary, as has every other speaker. He highlighted the likely pattern of events over the next few months which make its introduction, at best, premature and, at worst, entirely superfluous. It makes no sense to me to rush into legislation to enforce compliance that will be automatic once an internationally agreed ticket notice is added to the world's ticket stocks. That point was also made by other speakers, so I need not dwell upon it.
However, rather than rushing to gold plate—and I use the same terminology as my noble friend Lord Brabazon—EC legislation in this unnecessary manner, would not the Government be better advised to use their considerable talents and influence to support those international efforts now taking place in Geneva, as we have been told, to secure a single ticket notice and to urge the speedy approval of that single ticket notice by the world's governments; indeed, I emphasise the word "speedy"? I should very much welcome an assurance from the Minister that her Government are committed to this.
What concerns me, and indeed other noble Lords, is the practicality of implementing this legislation between October, when it comes into force alongside the EC regulation, and whenever we secure this international agreement. What is involved is the possibility of airlines being held criminally responsible if a sticker, or an insert, outlining passengers' rights under this new regulation is not added to each individual ticket. I am reliably informed that this is an area where it is really not appropriate for the criminal law to apply, as it is a civil matter. This is despite the fact that the issue of tickets is undertaken largely by travel agents who are not necessarily themselves deemed liable under the legislation but over whom airlines have no control.
The Minister in another place, during the extensive debate in the 9th Standing Committee on Delegated Legislation on 24th June, indicated that airlines would discharge their obligations by writing to travel agents reminding them of the requirement. If it could be proven they had done so, they would not be liable. Will the Minister confirm that that is the case, although, if so, it only heightens the silliness of the legislation in the first place. I give the House a hypothetical situation. An airline may send a fax to a travel agent which arrives at 7 o'clock in the evening. Most of us have fax machines and they spew out rolls of paper. A cleaner comes in at 9 o'clock at night, sees the rolls of paper on the floor and dumps them in the bin. It probably could be proven that the airline sent the fax, as it would have a record, but it could not necessarily be proven that the travel agent had received it. It is important to take into account that kind of practical objection to the order.
1182
This renders the legislation almost unenforceable, except that it raises the spectre of the ludicrous situation whereby an under-employed police constable—if there is such a person—could stand outside a travel agency, or in an airport lounge, inspecting people's air tickets at whim to see if they bear the necessary sticker or insert. If not, the hapless airline on whose behalf the ticket has been issued could find itself in the dock. Do we really need or want our police to become travel industry traffic wardens? Noble Lords will appreciate that whereas British airlines may well have taken steps to cover themselves, foreign airlines, unaware of our peculiar British ways, may well find themselves exposed. Do we really want to prosecute foreign airlines—I was about to say "persecute" and that would be appropriate too—with all the potential diplomatic misunderstanding that that may create?
Let us be clear. We are not talking about anything to do with the principle of waiving limited liability as set out under the Warsaw Convention. That was initiated by some airlines long before the cause was taken up by the EC and is now enshrined in the regulation and, as such, is part of UK law. What we are talking about is a requirement for a specific wording in the small print on a ticket which would probably take all of the air journey to Majorca to read.
According to Article 189 of the EC Treaty:
"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States".
Thus no ratification or implementation is required. It may, of course, be entirely reasonable to suggest that there should be sanctions to enforce the "notice" provisions of Article 6; namely, the criminal sanctions to which this order relates. However, the Council, of which the UK is a full member, unanimously decided otherwise. It was not mere inadvertence. There never has been any proposal published to impose sanctions, and this feature has frequently been noted in the growing literature.
I raise only one other point, on which I would welcome the Minister's comments. Article 7 of Regulation (EC) No. 2027/97, reads:
"No later than two years after the entry into force of this Regulation, the Commission shall draw up a report on the application of the Regulation which, inter alia, takes into account economic developments and developments in international fora. Such report may be accompanied by proposals for a revision of this Regulation".
If the Minister will confirm that her understanding is the same as mine; namely, that the EC itself recognises that in two years' time its regulation may be unnecessary in its present form, perhaps she will also be able to explain why secondary legislation is so necessary, why the Government are pushing it through with such indecent haste, and why they have not taken the time to discuss the complex issues of implementation with the industry that will have to live with it. Above all, I support the suggestion of the noble Baroness, Lady Thomas, that it should be abandoned until the wording is agreed.
8.45 p.m.
Baroness Gardner of Parkes: My Lords, while major concern is concentrated on countries within the

1183
EU, there is also provision in the UK draft order relating to the obligation of non-EU airlines. Article 6(3) of the draft order covers those non-EU airlines which fly into, out of, or within the UK and which do not conform with Articles 3 and 5 of the order—that is, those airlines covered by the Warsaw Convention, as amended, which still have limited liability.
Not only will these airlines have to ensure that the information should be available to all passengers but they will also have to issue a form setting out their conditions. Failure to do so will render them liable for a fine. I notice the clock registers eight minutes but I have only just started to speak. Perhaps the clock can be reset.
To avoid the commission of a criminal offence under the order, an airline would have to show that its failure to conform was without its consent and that to avoid this failure all due diligence was taken. I understand that the Association of Asia-Pacific Airlines has submitted strong objections to the British Government—so far without any positive result. The AAPA points out that the UK Government do not have the right to impose criminal sanctions in this regard.
The International Civil Aviation Organisation is reviewing the Warsaw Convention which remains the only international obligation on the non-EU air services. Article 6(3) of the order before this House tonight will force travel agents to keep in stock quantities of different airline tickets covering terms and conditions.
As far as I am aware—other speakers have mentioned this—no other EU member state has implemented this regulation to include criminal sanctions and I cannot understand why the UK seeks to do so since the EU regulation itself does not seek to impose such sanctions.
No additional legislation would be required as in October, EU Regulation 2027 takes effect throughout all EU member states. Why are we proposing to criminalise the breach of these regulations? So often in the past when in this House I have even suggested criminalising any action I have been told that would be unduly oppressive and quite unnecessary. Again, I ask: why are we proposing this new criminal offence? Can the Minister assure the House that if IATA, the EU and the US can find a common solution to produce satisfactory wording for a worldwide ticket, the Government will withdraw this legislation?
Lord Berkeley: My Lords, I listened with great interest to all noble Lords who have spoken. I have read the debate in another place on 24th June. I believe that there has been a sad lack of consultation on the order. However, having said that, I certainly believe that the House should welcome the unlimited liability that will now be enforced. In my view that is long overdue.
The noble Baroness Lady O'Cathain, said that some airlines have taken steps to cover themselves. I do not know which ones; I should be pleased to know. In my opinion all we are talking about is how the passenger is told this good news if it is good news. The order does not appear to give the relevant wording. That is wise. It
1184
seems to me that it is a matter of coming up with a form of wording to put on a sticky label on the back of a ticket.
Several noble Lords have said that IATA is presently discussing the wording which will reduce three separate documents into one. International organisations have a habit of taking many years to do these things. It has taken many years to bring about unlimited liabilities and a Warsaw convention. I do not see that it is beyond the wit of man to put a sticky label on the back of a ticket as an interim measure until either the wording is sorted out or new tickets are printed with one extra page. There are already two in some cases, and it would need a third.
I am sorry to say that the industry is complaining rather too much. It has taken a long time to get this far. I believe that passengers really would like to know, in big red letters, that if they fly by a certain airline they have unlimited liability protection if something goes wrong. Everybody should welcome a requirement to be told which carriers have that and which ones do not.
Lord Mountevans: My Lords, gold plating has already been discussed, which the House will be pleased to hear takes out 20 per cent. of my remarks; and consultation likewise. I wish to echo a sentiment expressed by the noble Lord, Lord Graham of Edmonton, who put the ABTA view. He could have extended it by saying that there are much wider-ranging travel agency bodies, ones that go further in global terms. It could be argued that Europe is doing so. But we are not discussing what Europe is doing; we are discussing the measure before the House.
Such consultation, be it with IATA, or any other bodies that were mentioned, is essential if the whole concept of inter-line air travel is to continue to work. The provision of information to the industry, and indeed to the passengers, the consumers, must be in a straightforward manner and, equally importantly, in a universally acceptable one. It seems clear from what we have heard tonight that universal acceptability is a long way away.
Surely those two criteria should be subject to much wider consultation—not merely for a once-off, loose cannon action, which seems to be the policy on which Her Majesty's Government are determined to embark. That is an approach which, as several speakers have remarked, can lead only to confusion. Confusion among travel agents has been discussed by many speakers. After all, they issue most of the tickets. There could be confusion among the carriers, particularly those who will be beyond the jurisdiction on the order. Are they to be desperately concerned about British law? Do they even understand English law? The same applies to the travel agents.
Finally, and most seriously, taking up the point made by the noble Lord, Lord Berkeley, the consumer wants easily accessible information. Sadly, I do not believe that this once-off attempt is the way to go about it. Rather, we must look for a globally acceptable form of small print. It is not easy—but then desirable things never are. I urge the Government to work in that

1185
direction. So far as this draft instrument is concerned, the Government should think again. There is time to do so before commencement.
Baroness Hayman: My Lords, we have had an extremely interesting and useful debate. As I anticipated in my opening remarks, the controversies and concerns which I knew existed have been eloquently expressed around the Chamber. I hope that I shall be able to address the many points that were raised. They fall mainly into broad sections with which we can deal. If there are specific questions that I do not manage to answer, I will write to noble Lords.
First, I apologise to the noble Lord, Lord Brabazon, if he has been working from a manuscript-amended copy of the order. It was reprinted on 26th June. I offer my apologies to the House if that copy was not available in the Printed Paper Office. It certainly should have been.
Lord Brabazon of Tara: My Lords, I have in front of me the copy that I obtained from the Printed Paper Office after lunch today. It is the manuscript edition.
Baroness Hayman: My Lords, all I can do is apologise to the House. It is a matter for my department to see what went wrong in communications. I will ensure that that happens.
Most, if not all of the matters raised this evening concern the effect of the regulation on airlines and, in particular, the effect of the information requirement as set out in Article 6. However, some of the concerns raised relate not so much to the implementing order but to the substance of the regulations themselves. For example, the noble Lord, Lord Brabazon, raised the question of the effect on non-UK airlines. All carriers selling tickets in the UK will be obliged to comply with the regulations. If they do not, they are liable to be prosecuted. That comes from the regulations; as indeed do the other issues that the noble Lord raised about ticketless travel, which will become difficult under the regulations. But that relates back to the regulation rather than the implementing order that we are discussing.
It is, however, the implementation upon which most Lords have focused their contributions, and the basic contention put by several contributors is that legislative action is not needed to give effect to the regulation in the United Kingdom. That is common ground between all of us. There is a recognition that the regulation becomes a legal requirement without the need for additional secondary legislation in this country.
Where the difference lies is in our understanding that it is necessary for us to remove any conflicts between existing national legislation and since the regulation contains no penalties, to impose appropriate sanctions to deal with non-compliance.
The European Court of Justice has consistently held that member states are under an obligation to impose penalties in their jurisdictions even if the regulation has no such provision. Any failure to do so would put them in breach of treaty obligations. If we fail to put in place
1186
appropriate sanctions, leaving aside the possibility of infraction proceedings by the European Commission, the intention of the regulation, which is to ensure that airlines provide air passengers with clear information, would be unenforceable.
Under European law, it is open to member states to impose whatever penalties they choose so long as such penalties are "effective, proportionate and dissuasive". Therefore, the department considered whether it would be more appropriate to impose administrative sanctions rather than criminal sanctions. That was the point suggested by the noble Baroness, Lady O'Cathain. But those administrative sanctions would be in the form of suspension or revocation of an operating licence or permit. They were thought to be out of proportion to the offence as they would effectively stop the carrier operating at all. There are similar measures in the Package Travel Regulations 1992 relating to the provision of certain information in holiday brochures. The imposition of criminal sanctions was therefore considered entirely appropriate. Indeed, the criminal sentences created and the scale of penalties proposed are fully in line with UK practice in other areas. The way in which the penalties are drafted gives the court a wide discretion to impose a fine which it considers commensurate with the seriousness of the offence.
I understand the concern expressed that it might appear that the creation of a criminal offence for not providing an air passenger with certain information is excessive. We appreciate that generally the passenger purchases his ticket from the travel agent—that was the point made by the noble Baroness, Lady Thomas of Walliswood—rather than the airline itself. It was on that basis that we provided a defence for the airline if it can show that it has exercised all due diligence to ensure that its agents complied with the regulations requirements. The interpretation of any particular case, like the example that was given, would depend on the interpretation of whether all due diligence had been complied with. Airlines that comply with the regulation will have nothing to fear. However, where it is clear that passengers are not being given the necessary information powers will be used to enforce the law.
The issue of gold plating, or whether we have acted out of line with other countries, was raised by several contributors to the debate. The regulation does not come into force until October. Other member states have different procedures for implementing Community law, which means that they may not be required to go through the same affirmative resolution process which we, on account of the parliamentary summer Recess, are obliged to follow if the order is to be in place in time. In any event, whether or not other member states are implementing the regulation does not affect our obligations under the Treaty of Rome to remove any conflicts with national legislation and impose appropriate sanctions, without which the intention of the regulation would be frustrated.
On the specific point raised by the noble Baroness, Lady O'Cathain, about Article 7 and the power given to the Commission to suggest amendments to the

1187
regulation, the Commission may propose amendments and the Council may adopt them but until that time the regulation stands.
I turn now to the issue raised by several noble Lords, including my noble friend Lord Graham of Edmonton, about the consultation that did or did not take place on this issue. It has obviously been a matter of concern, as I know from the correspondence that I have seen, as well as from contributions tonight. Since the draft order merely facilitates a Community regulation, no formal consultation is necessary, or indeed appropriate. But I should make clear to the House that, as far as the regulation itself was concerned, there was indeed formal consultation. A cost compliance assessment was carried out and was scrutinised by the scrutiny committees of both Houses and approved by them. There is no question that the procedures were not followed properly as far as the regulation is concerned.
I think that the reason that the House is getting into difficulty here is that we are dealing with the implementation of the regulation, for which the same consultation does not exist. That was why, as a matter of courtesy, officials in the department spoke with aviation legal experts and airline representatives on a number of occasions before drafting the order to outline our obligations as Community members and to indicate the proposed approach. I should point out that the department consulted the airlines on the substance of the regulation before it was finally adopted by the Council.
As I am on the issue of consultation and sharing information, I should like to repeat the apology that I made in a letter to the noble Baroness, Lady O'Cathain. It would have been much better if I had been in a position to mention the timing of the laying of the directive when we debated these issues in your Lordships' House a few weeks ago. I regret that I was not able to do so.
Perhaps the most substantive issue, and the one raised most often, is the context in which we are operating and whether it would not be sensible to postpone the order until new ticket wording is agreed globally. I entirely agree with noble Lords who made the point that the best solution in the medium and longer term is for a worldwide agreement on the form of words to appear on tickets. We welcome the efforts being made by IATA to this end. However, I must stress that, whether or not the UK implements the regulation, the requirement for certain information to appear on tickets will apply from October this year. As I understand it, IATA's passenger services conference will not be in a position to agree a new form of words until at least October, and, assuming agreement is reached, new tickets will not be issued until the approval of certain governments has been obtained, stocks of current ticket blanks have been largely used up and new tickets have been printed.
Since it will be upwards of a year, and possibly longer, before the new tickets appear, I believe that the point made by my noble friend Lord Berkeley is a real one and that airlines should consider what measures might be put in place from October in order to comply with the regulation. Even if a new form of words were universally agreed and adopted, we should still need to
1188
put in place the powers to enforce the other information requirements of the regulation. It does not obviate the need for enforcement.
The noble Lord, Lord Brabazon, asked me two questions about whether we could delay and what the attitude to that would be. We believe that it is not within our power to postpone the coming into force of the regulation; but, in relation to enforcement, we would obviously consider the merits of each case to determine whether prosecution would be in the public interest.
I am conscious of pressures in opposite directions. One is time and the other is the number of questions that were asked. I hope that I have dealt with the substantive issues that were raised in the debate and that the House will now agree that it is important for the United Kingdom to adopt appropriate measures to implement the Council regulation, which will provide much greater financial protection for air travellers. I commend the order to the House.
On Question, Motion agreed to.

Deregulation (Taxis and Private Hire Vehicles) Order 1998
9.5 p.m.
Baroness Hayman Baroness Hayman rose to move, That the draft order laid before the House on 8th June be approved [23rd Report from the Deregulation Committee].
The noble Baroness said: My Lords, I beg to move the second of the Motions standing in my name on the Order Paper and, in doing so, trust that this will be less contentious a measure than the one we have just dealt with. The purpose of this order is to allow people holding driving licences issued under the Northern Ireland legislation to become taxi or private hire vehicle drivers in England and Wales without having a one-year wait, provided they meet all the other criteria of the licensing authorities.
Taxis have a long history of being licensed in this country, and private hire vehicle licensing outside London was introduced in 1976. When the Local Government (Miscellaneous Provisions) Act of that year received Royal Assent, it contained provisions relating to the requirements for licensing both taxi drivers and private hire drivers. These were, first, that the licensing authority—the local district council—had to be satisfied that the applicant was a fit and proper person to hold such a licence and, secondly, that the applicant had held a full driving licence for at least twelve months.
This latter requirement about holding a full driving licence was expressed in terms of a
"licence granted under Part III of the Act of 1972 (not being a provisional licence) authorising him to drive a motor car".
This wording meant that the applicant had to have held a full driving licence issued under the Road Traffic Act 1972, which related only to Great Britain. A driving licence issued in Northern Ireland did not count, therefore. The Road Traffic Act 1972 has since been replaced, but the principle remains.
Whether this exclusion of Northern Ireland was the deliberate intention of the original drafters I am unable to say—I somehow doubt it—but the result is that, if people with Northern Ireland driving licences want to become taxi or private hire drivers in England or Wales, they have first to exchange their Northern Ireland driving licence for one issued in Great Britain and then wait for twelve months before their application may be considered.
In 1996, regulations were made under the European Communities Act 1972 recognising from 1st January 1997 driving licences issued by other member states of the EC as being equivalent to those issued in Great Britain. So anyone holding a driving licence issued elsewhere in the EC can apply for a taxi driver's or private hire driver's licence in England or Wales. Unfortunately, it was not possible to deal with the Northern Ireland licence problem in those regulations because to do so would be outside the scope of the European Communities Act.
So, we are now in the situation where people holding valid, full Northern Ireland car driving licences are the only ones within the whole of the EC who are unable to apply to become taxi or private hire drivers in England and Wales. This is a situation which we consider should be put right, and we believe that this order is an appropriate way of doing so.
The House's Select Committee on Delegated Powers and Deregulation has reported that the draft order is now in a satisfactory form to be submitted to the House for affirmative resolution, and there is nothing in the draft order which the Joint Committee on Statutory Instruments would have needed to draw to the attention of either House. I therefore commend the draft order to the House.
Moved, That the draft order laid before the House on 8th June be approved [23rd Report from the Deregulation Committee].—(Baroness Hayman.)
On Question, Motion agreed to.

School Standards and Framework Bill
9.9 p.m.
Consideration of amendments on Report resumed on Clause 109.
Lord Pilkington of Oxenford Lord Pilkington of Oxenford moved Amendment No. 187A:
Leave out Clause 109.
The noble Lord said: My Lords, it is a drastic thing to leave out a clause from such a long Bill. I am neither saving paper, nor trees.
This clause deals with home-school agreements. I agree with the Government that one of the most potent forces for improving a child's education is the close co-operation between school and parent. There may be problems between the school and the parents but, if they can achieve accord, much can be overcome. It is essential that the parents share the aims of the school. If
1190
the noble Lord is not interested in my comments, I can deal with this matter as a formality and I am happy to do that.
The point I was making which the noble Lord did not hear—I realise that when there are only around eight of us sitting here one can get involved in personal discussions; I understand that—
Lord McIntosh of Haringey: My Lords, it was business, not personal.
Lord Pilkington of Oxenford: My Lords, I am delighted to hear that. My point is that we all agree with home-school agreements. Their basis is that parents share the aims of the school and the school shares the concerns of the parents and tries to relate to the parents' wishes. Actually, in the past few years, home-school agreements have proved effective and have given force and substance to this important element, which is possibly the most important element in education; that is, that the parents and the school work together.
We on this side of the House therefore were delighted with Clause 108, which has, in effect, all schools adopting home-school agreements. But the reason I am standing here at this late stage and disturbing personal and political discussions is that these agreements have real value only if they are taken seriously; that is, if people do not talk to each other but listen when others are speaking. A mark of the seriousness of the home-school agreement is that it is not just a bit of hopeful aspiration but is seen as something that has to be kept to.
The previous history of these agreements—I have talked to a number of head teachers about them—has been that they have been treated seriously; treated as something that had to be kept and which was entered into seriously as an agreement; in fact, treated as a concord between the parent and the child. We on this side of the House are therefore surprised that, after all the encouragement that is given to the home-school agreement in Clause 108, it is then devalued in Clause 109. It is not allowed to be a condition of entry; it does not impose any obligation; there will be no consequences from failure to comply.
This is a down-grading of the seriousness of an agreement. I used the analogy once before; it is like going to the altar, making one's vows and then saying that there is no obligation, no consequences for the future, but on the whole we are hoping to do our best. I have to say even to some of my secular colleagues that this is a sinful world. All parents are not angels. In some areas of our community the placing of real obligations on parents has proved to be very difficult. But it has also proved to be the most effective way of giving a good education to their children.
We want to remove Clause 109 because it devalues Clause 108. Perhaps I may express an element of surprise. We are dealing with a Government who have stressed the need for parental responsibility. I remember what is most likely an apocryphal story that the Chancellor of the Exchequer said to some people in his house, "We are calling in Jack Straw to tell the Prime

1191
Minister's children that they have to do their homework." As the House will know, the Home Secretary has stressed on various occasions that parents should take responsibility for their children's homework. The Minister's right honourable friend the Prime Minister has stressed the value of laying real responsibility on parents with regard to truancy and has even talked about legal sanctions. I am therefore surprised that, in view of his Government's stress on moral responsibility with sanctions attached, the noble Lord should introduce a clause which reduces all the very good ideas in Clause 108 to mere moral hopes in Clause 109. There is merely a list of hopes rather than of obligations. Even the most inadequate people can quite understand that when you sign an agreement you have to keep it. I just wonder why the Government do not want people to keep it. I shall be interested in their comments. I beg to move.
9.15 p.m.
Lord McIntosh of Haringey: My Lords, I should start by apologising to the noble Lord, Lord Pilkington, for my momentary inattention. It is, of course, only an old head teacher who would have picked it up that sharply. Perhaps I should say "a former head teacher" rather than "an old head teacher". He is younger than me.
The noble Lord has misinterpreted Clause 109. Clause 109 is not a weakening of the provisions in Clause 108. It simply secures in a number of specific and important respects that a home-school agreement provides safeguards not just in the form of sanctions on parents but safeguards for the school, for parents and for pupils as well. The two clauses should be read together as ways of strengthening the partnership to raise standards in our schools. Noble Lords opposite have said on so many occasions that the School Standards and Framework Bill is too much about framework and not enough about standards that I am sorry they should seek to take out a significant and important part of the Bill which is clearly about standards.
Clause 109 requires governing bodies to have regard to any guidance on home-school agreements from the Secretary of State. Of course we shall consult widely on the draft guidance. The guidance will make clear, as I said in response to the noble Baroness, Lady Maddock, when speaking to Amendments Nos. 187 and 188, that we expect all agreements to include expectations.
Lord Pilkington of Oxenford: My Lords, with the leave of the House, I thank the noble Lord for giving way. Clause 109(4) states:
"Neither the governing body … shall … make it a condition of a child being admitted to the school that the parental declaration is signed in respect of the child; or … make any decision as to whether or not to admit a child to the school by reference to whether any such declaration is or is not likely to be signed in respect of the child".
Clause 109(5) states:
"No person shall be excluded from such a school or suffer any other adverse consequences on account of any failure to comply".
1192
Clause 109(6) states:
"A home-school agreement shall not be capable of creating any obligation in respect of whose breach any liability arises in contract or in tort".
That is quite a reduction. I can see what the noble Lord means, but I should be grateful if he could say why the Government have reduced home-school agreements so decisively when at the moment schools can enforce them in a stronger way.
Lord McIntosh of Haringey: My Lords, I was proposing to go through Clause 109 subsection by subsection and respond to each of the elements. I can well see—I have sidelined it in my brief—the elements of subsection (4) which most exercise the noble Lord, although he was delicate enough not to emphasise it too strongly in his opening speech.
Perhaps I may finish the sentence that I had started when I was so politely interrupted. We expect agreements to include expectations about the standard of education, the ethos of the school, regular and punctual attendance, discipline, homework and the information schools and parents will give to one another. The guidance will also make clear that agreements must be fair and balanced if they are to foster a spirit of partnership. We want schools and parents to use home-school agreements to demonstrate to children the importance of education by declaring their commitment to work in partnership.
The clause empowers the Secretary of State to forbid the use of certain forms of words, or words which have a particular effect, from inclusion in home-school agreements or parental declarations. For example, it might be necessary to make clear that a school could not request or put pressure on parents to contribute regularly to the school PTA fund. Although it is a restriction, it is not a diminution of the effectiveness of the agreement; it simply ensures that the agreement does not include unreasonable elements.
As the noble Lord rightly said, the clause prevents the use of home-school agreements in the admission process. We do not believe that it is right to allow admission authorities to base their decisions on whether a parent has signed, or is willing to sign. We uphold the principle that an admission authority should not be able to attach conditions when making the offer of a place. It cannot be right to deny a child a place because his or her parents are unwilling to sign the home-school agreement. That refers to what I said at the beginning that in this agreement we are looking to protect the interests not only of the school and the parents, but of the pupils themselves. We strongly take the view that the attitude of parents to a home-school agreement should not be an element in the choice of pupils for a school—in other words, in the admission process.
However, once a child has been admitted to a school it is right to expect parents to sign a declaration that they acknowledge and accept both their responsibilities and the school's expectation of their child. I have to go on. The noble Lord is otherwise engaged at the moment. Perhaps I may reciprocate his criticism. I have to describe the whole clause. I know perfectly well that the

1193
noble Lord is really interested only in the London Oratory School. His amendment covers the whole of Clause 109. It also forbids a pupil's exclusion from school and the pupil or his parents suffering any adverse consequences if they do not sign the parental declaration. It cannot be right that a pupil should be punished if his parents did not sign the declaration. Failure to comply with the terms of a home-school agreement will not be treated as giving rise to any liability for which damages or other remedies could be obtained through the courts in action for breach of contract or in tort. The noble Lord cited that as being a diminution of the effectiveness of home-school agreements. I suggest to him that they would be very much more diminished if they were to be seen as legal documents for which legal remedies were appropriate.
In the light of this description of Clause 109 and the defence that I have given of its contents, I hope that the noble Lord will not seek to press this wide-ranging and damaging amendment.
Lord Pilkington of Oxenford: My Lords, I was not talking about the London Oratory School, I was thinking about another school. The issue as to whether the noble Lord's right honourable friend the Prime Minister prefers that school or not is nothing to do with me. I am concerned about people like my daughter, who teaches in Bethnal Green, and who face a very difficult community where parents are reluctant to enter into agreements with schools; teachers find it difficult to impose sanctions and where co-operation with parents is very difficult to achieve.
I accept that the noble Lord has been presented with briefing by his civil servants, but the fact is that it is difficult enough to require parents to sign on the dotted line and yet the Government have given them many escape clauses. This will not be a problem at the London Oratory, which deals with the more sophisticated children from Islington and other such areas. I am sorry to dwell on the Oratory, but the noble Lord raised it. I did not; I was thinking about schools in different areas of this city to which the noble Lord's right honourable and honourable friends do not send their children.
Teachers in such schools face considerable difficulties and they would be helped by tighter requirements. Once the Government include on the face of the Bill provisions that the home-school agreements may be broken or ignored, the teachers' job is made harder. However elegant may be the noble Lord's defence, the teacher at the front line in the difficult area will depend on such requirements.
Often in this House, noble Lords speak more about the civil rights of pupils than they do about the needs of the teachers who have to enforce discipline and standards in difficult areas. That is why I should like Clause 109 to be removed from the Bill. I have heard so often in this House emphasis being laid on the civil rights of pupils. I understand that and I value it, but I must think of the teachers in the difficult areas who need home-school agreements that will have a bit of bottle behind them so that the teachers can enforce them.
1194
On the advice of his civil servants, the noble Lord is removing much value from those home-school agreements and I am not convinced by his arguments.
Let us consider the purpose of home-school agreements. In the most difficult areas of our cities we need parents to commit themselves, on the dotted line, to ensuring that their children will not truant. After years of serving on the Parole Board, I know how often such children truant. By reducing the power of home-school agreements, the Government are reducing the power of the teacher.
I can understand the legal gyrations, but the fact is that Clause 109 defies the Government's rhetoric. Both Mr. Straw and the Prime Minister constantly stress the need for parental responsibility, but Clause 109 removes it. Irresponsible parents are not foolish; they are just as capable as anyone else of reading these provisions and they will know that Clause 109 does not mean anything. They will argue with the teachers.
I am not satisfied with the Government's attitude. I am putting this on the record: I shall come back to the Government again and again on this matter, especially when I see the rhetoric of the noble Lord's right honourable friends the Prime Minister and the Home Secretary defying what is stated on the face of the Bill. An analysis of debates in this House would show that many noble Lords have stressed again and again the importance of pupils' civil rights rather than the enormous difficulties faced by the school teachers in the deprived areas of our cities who find it difficult to get children to go to school and to enforce discipline when they are there. Some head teachers have found ways of doing that through home-school agreements, but the Government are reducing the power of such agreements under Clause 109.
I am not happy. I shall withdraw my amendment, but I want these words to be on the record. I assure the noble Lord that I shall return to him on this point but, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 188 not moved.]
Clause 112 [Nutritional standards for school lunches]:
Lord Whitty Lord Whitty moved Amendment No. 189:
Page 86, leave out line 12 and insert ("schools maintained by local education authorities.").
The noble Lord said: My Lords, in moving Amendment No. 189, I should like to speak also to the subsequent amendments, Amendments Nos. 190 and 191, which deal with school lunches and nutritional standards in nursery schools. As it stands, Clause 112 gives the Secretary of State the power to introduce compulsory nutritional standards for school lunches, but that does not extend to lunches provided either in pupil referral units or in maintained nursery schools, except for maintained special nursery schools. The first two amendments will remove that anomaly. This is a straightforward technical correction.
As it stands, Clause 113 places a duty on local education authorities to offer lunches for sale to pupils who want them in all the schools that LEAs maintain unless it is unreasonable for them to do so. The effect

1195
of Amendment No. 191 is to place a duty on LEAs to provide paid lunches for those pupils under compulsory school age only where those pupils are full time. LEAs would continue to have the power to provide paid lunches to part-time pupils under compulsory school age and to provide paid lunches to all pupils of compulsory school age.
I believe that these are sensible arrangements. Most nursery schools or units offer only part-time provision—children attend in the morning or afternoon—and in practice many parents provide lunch. If there were a duty on LEAs to offer a paid meals service to these pupils, it would in effect extend the school day and require extra staff and additional supervision with attendant extra cost. However, LEAs will still be able to provide this service if they so wish. I can assure noble Lords that this does not affect the position of pupils under compulsory school age who are entitled to free school meals. I beg to move.
On Question, amendment agreed to.
9.30 p.m.
Lord Whitty Lord Whitty moved Amendment No. 190:
Page 86, line 14, leave out ("a maintained") and insert ("such a").
On Question, amendment agreed to.
Clause 113 [Extension of LEA functions concerning school lunches, etc.]:
Lord Whitty Lord Whitty moved Amendment No. 191:
Page 86, line 37, at end insert (", or
(b) where the pupil in question has not attained compulsory school age and is being provided with part-time education.").
On Question, amendment agreed to.
Clause 116 [Duty of local education authority as respects availability of nursery education]:
[Amendment No. 192 not moved.]
Baroness Byford Baroness Byford moved Amendment No. 192A:
After Clause 116, insert the following new clause—
MAINTAINED AND VOLUNTARY AIDED SCHOOLS: ADMISSIONS POLICY
(" . A local education authority shall—

(a) ensure that no maintained school or voluntary aided school within its area requires children to enter school under compulsory school age as a condition, or implied condition, of admission to the said school at the age of five; and

(b) ensure that, with respect to the admissions policy of any maintained school or voluntary aided school in its area, entry into the said school's reception class or classes in the term following a child's fourth birthday shall not confer any preference or advantage over other children in the same or neighbouring local authority area who may seek entry into that school at the age of five.").

The noble Baroness said: My Lords, I beg to move Amendment No. 192A, which is concerned with the admission to school of children aged four and five. This matter was debated in Committee. Perhaps the Minister hoped that I would not return to it. However, great concern has been expressed about the provision for
1196
under school age children of three to five years of age and the necessity to provide a varied tapestry of such provision. I refer to the reply given by the Minister:
"The guidance and evaluation criteria for this year's early years development plans made it clear that information provided to parents must be without bias to any one sector and should also make it clear that children are not legally required to attend primary school until they are of compulsory school age".—[Official Report; 10/6/98; col. 1135.]
Later on, in response to my noble friend Lady Blatch, who moved the amendments in Committee, the Minister said (at col. 1136):
"The right approach is to have guidance on good practice. That is much more likely to be effective and we shall consider providing guidance on good practice in the admissions code of practice".
I shall return to that in a moment.
One of the matters of great concern to those on these Benches was the implication that to get a child into the school of choice at five meant that there was greater pressure on children going to reception classes at the age of four because they would then have preference over other children. Out in the community, we still enjoy, and I hope will continue to enjoy, a tremendous range of private nursery school and playschool provision. That gives parents the right to choose the kinds of schools that they believe suit their children. Those of us who have children or grandchildren of that age know very well that the ability of three or four year-olds varies very much. We on these Benches believe that there must be a means of protecting such schools; otherwise, they will be continually squeezed and will cease to be providers of such facilities.
We would all agree that the Bill is all about raising standards. It includes diversity and choice. It goes from playgroups for small numbers of children, involving families, to the more formal reception classes which cater for larger numbers and are styled more along the lines of school classes. The ethos is surely to provide choice so that parents can find a school to suit their needs. Parents might choose a playgroup for their three year-old child and then discover—as the Bill suggests—that they need to move the child into a reception class at the age of four. The child is then being moved twice before reaching the age of five. In some cases it may be when the child is aged just four and is vulnerable.
We are concerned to retain wide choice so that parents can choose a smaller school—it may be a playgroup—rather than feel that they are forced to put their child into a reception class. We shall try to ensure that that is a possibility for them.
Private schools and the more informal playgroups have an important role to play. If their expertise is to be ensured and encouraged, we must make sure that parents do not feel that they are under any obligation to forgo a place at such a school in order to secure a place at their chosen primary school. It has a knock-on effect on other schools providing nursery care. I am sure that all noble Lords will agree that we want a flexible approach to provision.
The amendment is designed to ensure that no maintained school or voluntary-aided school within an LEA's area shall require a child to enter the school

1197
under compulsory age as a condition. Paragraph (b) of the new clause provides that,
"a child's fourth birthday shall not confer any preference or advantage over other children in the same or neighbouring local authority area who may keep entry into that school at the age of five".
We debated this issue in Committee but there is still great concern in the community, which is why I have brought the matter back. I hope the Minister will reassure me about the guidance on good practice that will be put into effect.
Baroness Thomas of Walliswood: My Lords, we have a certain amount of sympathy with the mover of the amendment because there is concern that parents might be "blackmailed" into putting their child early into school when a more appropriate placement for that child would be a nursery class. On the other hand, we have no particular wish to defend private nursery schools, or any wish to attack them for that matter. We are concerned that there should be appropriate placements for children under school age, in whose education we have a great interest. At no point should parents be obliged to put their children at an early age into a crowded class for under school age children to secure their position at that primary school.
Baroness Blackstone: My Lords, I do not know whether I shall be able to be sufficiently reassuring, but I shall try, because I have some sympathy with what I think underlies the concerns behind the amendment. As I explained when we discussed this issue in Committee, no admission authority for a maintained school can require a parent to send his or her child to a school before the child has become of compulsory school age. Even where a school admits before compulsory school age, parents may apply for a place starting from when their child reaches compulsory school age. But it is true that where a school is popular and oversubscribed a place may no longer be available.
I can assure the noble Baroness that we take this issue most seriously. The fundamental aim of our policy on early years education is to ensure that parents have a diverse range of good quality early years provision from which to choose. Like the noble Baroness, we do not want to see parents pressurised into making a choice which they do not believe is right for their child. Nor do we want to see private and voluntary providers become unviable because parents feel compelled to move children out of those settings.
Early years development partnerships include representatives of both parents and private providers. We have made it clear that we shall expect future changes to admissions arrangements to be discussed with early years development partnerships. We shall also expect LEAs to listen to advice from early years development partnerships about how well existing policies are working and whether individual schools are following policy set by the LEA where it is the admission authority. A number of partnerships said in this year's plan that they would be reviewing current admissions arrangements. We expect partnerships to consult widely when preparing early years development plans, and in particular to consult parents.
1198
The noble Baroness quoted from Hansard what I said in Committee on the guidance and evaluation criteria for this year's early years development plans. I can only say again that the criteria make it clear that information provided to parents must be without bias to any one sector and should also make it clear that children are not legally required to attend primary school until they are of compulsory school age. I wish to provide the reassurance that we are making that clear.
Admissions arrangements should not be used to stifle parental choice. The message will be strengthened in next year's guidance which will have statutory force. We shall look particularly closely at admissions issues such as these when evaluating next year's plans.
It is open to authorities to adopt a practice of agreeing parental requests to defer entry to a primary reception class until a child reaches compulsory school age later in the school year. A number of authorities already follow that practice. The Secretary of State has referred to it in the draft interim guidance on school admissions which he issued for consultation last month. Where this policy is adopted, parents apply for a place at the normal time of admission but in effect the place would be held for the child until he or she is older, up to compulsory school age.
We shall look carefully at how advice on this policy and the general issue of parental choice prior to compulsory school age can be addressed in the admissions code of practice.
When we debated the issue in Committee, the noble Baroness, Lady Blatch, expressed concern that parents felt they were being "blackmailed" into transferring their child earlier to a maintained school. It was referred to by the noble Baroness, Lady Thomas. She felt that they were being pushed to transfer their child earlier than they wished. She believed that they should be able to make a complaint and should have something to back them up when making that complaint. I can assure noble Lords that the early years development partnership arrangements and the strong messages we shall be giving in this year's guidance will achieve that.
I hope that I have reassured the noble Baroness that we take these concerns seriously. We shall be working proactively to resolve them. But I do not believe that this amendment is the best way forward.
The admissions issues we have been discussing today are part of the whole package of partnership working and should not be addressed in isolation. We have already made crucial steps towards moving from the competitive ethos of the voucher scheme to a more partnership-based approach. We deferred approval of one authority's plan partly because of concerns about admissions. The partnership worked together extremely effectively to resolve those concerns and is now consulting on introducing a deferred entry policy along the lines that I have outlined. The plan has been approved. Therefore, those arrangements are already having some effect.
We must allow such decisions on admissions to be made at local level and with appropriate guidance at national level. I have said already that we shall encourage admissions authorities to consider deferred

1199
entry but we do not propose to require them to adopt such a practice. In some cases, if more than a certain number of children want to defer entry, the financial implications might lead to the loss of an additional member of staff to the detriment of all the children who remain in that class. It is right that the decision to adopt that policy should be made at local level where an assessment can be made of the financial implications.
It is clear that there may be benefits in severing the link between pre-compulsory education and compulsory education if parents want their children to attend different institutions, although if I were a parent with a young child, I should prefer continuity. Therefore, those different sets of needs need to be balanced. I do not believe that that is best achieved at national level and through a rather inflexible amendment of this kind. However, as I have said, I sympathise with the noble Baroness's aim, if not with the amendment as an attempt to achieve it. In the light of what I just said, I hope that the noble Baroness will agree to withdraw her amendment.
9.45 p.m.
Baroness Byford: My Lords, I am extremely grateful to the Minister for her response, which I shall read with great care tomorrow. There is one point on which I seek clarification from the noble Baroness. I understand that as from next year, some statutory force will be brought into being as opposed to guidance which we have this year. The noble Baroness nods her head. Under those circumstances, I am more relieved although we do not know the form of that statutory force.
However, I am grateful to the Minister for her comments. As I said, there has been great concern among the other providers out there in the community. I shall read again what the Minister said and at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 [Early years development plans]:
[Amendment No. 193 not moved.]
[Amendment No. 194 not moved.]
[Amendment No. 195 not moved.]
Clause 125 [Code of practice for securing effective relationships between LEAs and maintained schools]:
[Amendment No. 196 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 196A:
Page 95, line 40, at end insert—
("( ) The code shall require that local education authorities, in performing their functions under subsection (1)(a) and section 5, shall not have access to a school without the permission of its governing body if the school is performing within the top third of schools or is consistently improving its performance in national performance tables for National Curriculum tests or GCSE examination results.").
The noble Baroness said: My Lords, in speaking to this amendment, I shall speak also to Amendment No. 197B.
Lord McIntosh of Haringey: My Lords, before the noble Baroness proceeds, and since she has said that she
1200
is going to speak to Amendment No. 197B, she will know that this amendment, as well as Amendment No. 186B, were debated in exactly the same terms in Committee and were rejected on a Division.
I very well understand that the noble Baroness is acting properly on advice from the Public Bill Office that it is proper for these amendments to be tabled and debated. I acknowledge also that in my very junior capacity representing the hierarchy of this House, I should have said what I am saying on Amendment No. 186B rather than now.
However, I, too, have taken advice from the Clerk of the Parliaments and he has drawn my attention to the paragraph in the Companion on page 89 under the heading of "Motions" which states:
"It is contrary to the practice of the House for a Question once decided to be put again in the same Session".
The Clerk of the Parliaments has advised me that if he had been consulted on this matter he would have advised that this amendment should not have been tabled and should not be debated.
I have no power to instruct the noble Baroness as to what she should do. However, I ask her to exercise restraint in her actions on the amendment and I should advise the House that in view of the conflict of advice which has been received, it would be appropriate for this matter to be referred to the Procedure Committee.
Baroness Blatch: My Lords, I always act on advice, but I am speaking to Amendment No. 196A. The code of practice will require that local education authorities, in performing their functions under subsection 1(a) and Clause 5, shall not have access to a school without the permission of its governing body if the school is performing within the top third of schools or is consistently improving its performance in national performance tables for national curriculum tests or GCSE examination results.
Mr. Byers said this week that he is looking for ways to leave excellent schools to get on with the job they do well without undue intervention. He also said that excellent schools should be treated differently from other schools and that they should have more flexibility and freedom. My amendment will give the honourable gentleman in another place precisely that which he seeks and it is for that reason that I ask noble Lords to support it.
If a school is operating in the top third of schools, and if it is consistently improving its performance year on year, what can be the reason for anybody wishing to intervene in that school against the wishes of the governors? It is absurd and not conducive to good relationships with that community.
The Government will almost certainly argue that it is better to have partnership and agreement. That is not the point of my amendment. The amendment concerns an over-zealous inspectorate at local authority level or local authority officials themselves wishing to intervene where it is not necessary. If the governing body does not agree that there are good grounds for intervention then the amendment would allow intervention only in the best schools, those that are performing well and

1201
consistently improving their performance, when the school and governors agree that there should be intervention and co-operation on any matter concerning the operational running of the school. I beg to move.
Baroness Thomas of Walliswood: My Lords, we on these Benches find this a very peculiar amendment because the code of practice governing the relationship between LEAs and schools covers a wide range of different topics, and when we speak about standards in schools we are not just talking about levels of achievement at O-level or A-level or at the key stages. Moreover, it is unnecessary. I have been a member of an education authority, and it is customary now for everybody who wants to go into a school to have to ask permission or at least to notify the head teacher that this is about to happen. In my experience schools and head teachers are extremely jealous of their space, for very good reason indeed, namely the security of pupils. If a teacher should observe LEA employees measuring up classrooms so that they can be improved, without having first informed the head teacher that they were about to do that, they would be given short shrift and asked who they were.
The amendment is illogical and unnecessary. It interferes in the relationship between governors and head teachers, since it is normally the head teacher who is in control of the day-to-day operation of the schooll, and this is very much a matter of day-to-day operation.
Lord Whitty: My Lords, we also find this to be a very peculiar amendment. It appears to restrict the access of LEAs when they are performing their duty to ensure high standards, which seems a peculiar thing to have to explain to the parents, teachers, or anybody else. It probably reflects a very important difference of philosophy between the Conservative Party and ourselves on this matter.
Although we absolutely endorse the principle of school self-management, we also believe that schools should not pull up a drawbridge between themselves and the outside world, and especially not between themselves and LEAs. The local education authority has a responsibility for all schools; indeed, the new framework represents that. The amendment, at least in part, seems to be trying to pull out the best one-third of schools from the new structure. Under the Bill, we are giving LEAs new duties to promote high standards and to prepare education development plans in consultation with schools. However, those activities cannot be carried out if a school remains outside the process. The LEAs provide leadership and the dissemination of best practice.
It seems to me that the amendment assumes that a school's performance in national curriculum tests or in GCSEs tells us absolutely everything that we need to know about how successful it is. However, that is not always the sole criterion. The LEA should have the right to intervene in a school in a number of other areas. Because schools and their pupils appear to be doing well, we should not assume that they are not capable of doing even better.
1202
I understand that the noble Baroness is anxious to protect schools from undue interference from LEAs; so are we. That is precisely why we have a code of practice to ensure that all those with responsibilities for the education and safekeeping of pupils carry out those responsibilities reasonably. The code is designed to prevent disagreements from arising and to ensure that LEAs do intervene, broadly speaking, in inverse proportion to success and do not use their powers unreasonably; in other words, we are looking for a light touch of management from LEAs and, in most cases, a lighter touch for the more successful schools.
As noble Lords will know, that draft code of practice has been out for consultation for over three months. We have received a large number of replies. We are looking for partnership between LEAs and schools in an endeavour to improve standards. The amendment gives the impression of conflict, which, as the noble Baroness, Lady Thomas, said, is in most instances simply not there. If there is conflict, or if there is a legal basis for a school to close its doors to an LEA, then certainly there is a problem which needs to be addressed by the local education authority in concert with the school and not by building up barriers between them. We believe that this amendment is particularly misplaced. Therefore, I ask the noble Baroness to withdraw it.
Baroness Blatch: My Lords, one really must be suspicious of the Government's motives on this issue. As I understand it from the Minister's reply, in the best schools in our land the Government are now condoning intervention by a local education authority against the wishes of the governing body. Perhaps I may take the example given by the noble Baroness, Lady Thomas. Where a head teacher believes that an LEA is being over-interventionist and over-zealous in its anxiety to come into a school, he would inevitably, if he wished to take the matter further, go to the governing body and seek some authority and endorsement from it that that intervention should be challenged. The governing body would then make representations to the LEA. In the interests of good relations, I cannot believe that there should not be at least some protection for such a situation.
The Minister referred to LEAs being there and to the fact that they offer leadership and support. Of course that is true; indeed, no one is arguing about that. My amendment would do nothing in that respect. However, from the actual language that the schools Minister has used in presenting the LEA draft code of practice, we know that the Government are very concerned. In fact, they become very threatening at times in that document in saying what they would do should an LEA intervene disproportionately rather than proportionately.
The Minister also said that the code of practice was designed to prevent disagreements. My amendment would deal with a situation where a disagreement has arisen. Rather than wait for the Government to find another legislative slot to do something about the matter, my amendment would allow fairly instant opportunity for a school to say that the intervention is just a touch too much. I cannot believe that there is no such protection to cover the relationship between an LEA and

1203
a school where the head teacher and/or the staff, together with the governing body, believe that the intervention is disproportionate.
My amendment addresses those occasions when there are disagreements. I am sorry that the Government do not agree with that. That shows a little more of their thinking. I am seriously suspicious of what is behind not only this part of the Bill but the Bill itself. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 197:
Page 96, line 28, at end insert ("and
(m) Part IV of the Education Act 1996.").
The noble Baroness said: My Lords, this is a simple amendment which stands in my name and that of a number of other noble Lords, of whom I think the only one present is the noble Baroness, Lady Darcy de Knayth. I apologise because I had not noticed that the noble Lord, Lord Swinfen, had entered the Chamber. The amendment simply states that the provisions of Part IV of the Education Act 1996—namely, the policies on SEN—should be included in the Bill. I have a note here from the noble Lord, Lord Rix, who is unable to attend today.
Noble Lords: It is because of the semi-finals!
Baroness Thomas of Walliswood: My Lords, it is not because of the semi-finals. I think I am right in saying that the noble Lord has to attend a Mencap event. That suggestion about the semi-finals was quite malicious. The noble Lord is—as we all are—encouraged by the support of Members of your Lordships' House in seeking to raise the concerns of children with special educational needs. We received considerable encouragement from the Minister in her responses on the previous occasion we discussed this matter. The noble Lord and I hope that the Minister will be able to accept this amendment, or at any rate the spirit of it. As regards the code of practice for securing effective relationships between LEAs and maintained schools, the amendment would include the functions of an LEA with respect to children with special needs. I beg to move.
Baroness Blackstone: My Lords—
Lord Swinfen: My Lords, I apologise to the Minister. I know that the noble Baroness, Lady Darcy de Knayth, wants to speak. I thought she might wish to speak before I did. This amendment is extremely important. As we have heard during discussion on this Bill, 20 per cent. of pupils have special educational needs. That represents six pupils out of a class of 30. It is just as important that their needs are properly catered for as it is for those who do not have special educational needs. I refer even to those without statutory assessment.
1204
On the previous occasion we discussed this matter, the noble Lord, Lord McIntosh of Haringey, suggested that this matter was covered by the SEN code of practice. As I understand it, that is a different matter altogether. It does not cover co-operation between schools and local education authorities, but the working of the special educational needs assessment. I could speak for a long time on this matter but I shall not do so because of the lateness of the hour. As I said, this amendment, which has been moved by the noble Baroness, Lady Thomas, is extremely important. If the Government will not accept it, I hope that they will bring forward their own amendment in exactly the same vein at a later stage.
Baroness Darcy de Knayth: My Lords, I am sorry for the hiccup as regards the order of speaking, but I know that the noble Lord, Lord Swinfen, knows a great deal more about the measure than I do as he spoke to it on the previous occasion. I give my warm and extremely brief support to the amendment. It is important that schools should be clear from the start about how they will work with LEAs on SEN matters, rather than for that to be incorporated at a later stage.
On 16th June in Committee, the noble Lord, Lord McIntosh acknowledged (col. 1456) the important part that SEN played in the role of LEAs and said he recognised the need to get the arrangements absolutely right. Furthermore, he said that the list in subsection (6) is not intended to be exhaustive. It is therefore already open to us to include SEN issues in the code of practice in whatever ways are considered most appropriate. I hope that on reflection the Minister may be persuaded, like the Special Education Consortium, that the most appropriate way is to list the special educational needs code of practice in subsection (6).
Baroness Blackstone: My Lords, the House will recall that when the noble Baroness, Lady Thomas, tabled this amendment at Committee stage we made clear our intention that the code of practice should take account of the relationship between LEAs and special schools and the provision that mainstream schools make for children with special needs. That is still the case. However, we are still not convinced that the amendment is necessary or helpful.
The duty we are giving local education authorities to promote high standards applies to all children. We have made a number of changes, in response to concerns raised in this House, to make that explicit on the face of the Bill. In particular, we have amended Clause 6 to ensure that the requirements for educational development plans include an express reference to special educational needs. That means, in practice, that all LEAs will be required to have regard to SEN issues when planning action with a view to supporting the raising of standards in their schools.
I am advised that all the other provisions referred to in the list of relevant functions in Clause 125 implicitly cover special schools and pupils with special needs being educated in mainstream schools. Amendment No. 197 would not therefore add anything to the existing requirement for the Secretary of State to include appropriate guidance in the code on these issues.

1205
There are also a number of difficulties with the proposed amendment, which could possibly result in the opposite of what the noble Lords are hoping to achieve. Much of Part IV of the 1996 Education Act relates to the responsibilities of LEAs in relation to pupils with special needs. These are either irrelevant—for example, some deal with the establishment of the SEN tribunal—or they deal with processes relating to individual pupils that are already covered by the SEN code of practice. We think that it is important to avoid confusion between the two codes. But there is a real risk of that happening if they cover the same ground.
I know that the noble Lords are seeking an assurance that special educational needs issues will not be overlooked. I repeat that assurance now. The code of practice will include appropriate references to SEN issues. Our present intention is to include some practical examples of SEN issues in the revised version of the code. But I should also emphasise that the main purpose of the code is to provide guidance on the relationship between LEAs and schools generally. Given the largely warm reception for the first draft of the code, we would want to avoid making any revisions which would change the overall balance or tone of the document.
We shall, however, be having further consultation with the relevant parties—including special educational needs organisations—on the detail to ensure that we get this important element of the code right. I should welcome any further input that noble Lords would like to make when we are revising the text of the code.
In the circumstances, I hope that the noble Baroness will be able to withdraw her amendment.
Baroness Thomas of Walliswood: My Lords, I thank the Minister for that reply. We discussed this matter at some length at an earlier stage of the Bill. I should have been more reassured if the Minister had said that the code would do more than merely take account of the special educational needs policies of local education authorities and if it had gone further to include those policies. There is a special relationship which needs to be developed between LEAs and schools on this subject owing to the new balance of responsibilities that the Bill brings into the relationship between LEAs and schools and the difference that makes with the downloading of budgets in their entirety to local schools. However, I know that the noble Baroness and her fellow Ministers have to a large extent taken on board the things which I and many other people have said with regard to special educational needs. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 197A:
After Clause 125, insert the following new clause—
CONSIDERATION TO BE GIVEN TO VIEWS OF PUPILS
(" . The governing bodies of schools and local education authorities shall use their best endeavours to secure that—

(a) due consideration is given to the views of pupils on any matter relating to the school or their education which
1206
affects them, having regard to the pupils' age and understanding, and

(b) where reasonable, steps are taken to ascertain these views.").

The noble Baroness said: I come back to a theme I have tried to push on various occasions in the course of the Bill; it is that the views of pupils should be considered. The amendment places schools and LEAs under a duty to consider the views of pupils. The new clause seeks to bring the education system in line with the UN Convention on the Rights of the Child, with other European countries' education legislation, and with the other professional sectors dealing with children—social services, health and judicial.
The new clause does not require schools or LEAs to act on the child's wishes, even when a child has a fully mature understanding of the issue in hand. It does not require teachers to ask every pupil what his or her views are on every matter. It is not a dirigiste provision; quite the reverse. It is extremely mild and discretionary in its formulation. It is therefore extremely unlikely to be the subject of litigation, despite the Angst of the noble Lord, Lord Pilkington. The noble Lord is not in his place, but he had criticisms earlier. As the noble Lord, Lord McIntosh, admitted in Committee, it represents current good practice. It already happens in good schools, but not, unfortunately, in poor schools.
When the Committee on the UN Convention on the Rights of the Child considered the UK's progress in 1995, it regretted that the child's rights under Article 12 were not recognised within the education system. Article 12(1) provides:
"States Parties shall assure to the child who is capable of forming his or her own views the right to express those views in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child".
During the passage of the 1993 Education Act, Allan Levy, QC, gave an Opinion which advised that UK education law was in breach of Article 12. The Committee's recommendation to the UK was that,
"procedures be introduced to ensure that children are provided with the opportunity to express their views on the running of the schools in matters of concern to them".
The Government are due to provide the Committee with their second report at the end of this year. The Bill therefore represents the last chance for the Government to remedy the failure of the previous government to implement Article 12 in the education system. I hope that, in replying, the Minister—I believe it will be my noble friend Lord McIntosh—will give me some thoughts about what the Government intend to do with regard to the UN convention.
Those who work in social services have since 1975 been obliged by law to ascertain, and give due consideration to, the views of children in their care. The 1989 Children Act places the civil courts under equivalent duties. Health practice and health law, such as the landmark Gillick case in 1984, ensure that health professionals take account of children's views. The education system is the only professional service for children which does not recognise that children, as well as parents, are the consumers.
Many European countries have mandatory pupil councils in schools. Some—for example, Spain—have legislation requiring teachers to take pupils' views into account. Some—for example, France—have pupil participation built into every stage of education administration, including the Ministry of Education in Paris. Some—for example, Poland—have education ombudsmen to protect pupils. The UK is lagging a long way behind but, on the other hand, has the reassurance that the sky does not fall if pupils are recognised as partners, not subjects, in the education system.
Those are powerful arguments. I hope that the Minister is impressed by them and will give a sympathetic response. I beg to move.
10.15 p.m.
Baroness Maddock: My Lords, perhaps I may say how much I support the words of the noble Baroness, Lady David. As she pointed out, we must recognise the importance of taking children's views into account.
We often complain when children and young people are obstructive in society. This is one of the ways of enabling them to understand what it is to take part in a community, the discipline of that community and the way in which the community lives and runs. It is ridiculous for people to be frightened of this, as the noble Baroness stated. My experience of involving young people is that it always brings out the best in them. That is true not only of young people, but of all people in society. As a nation, we are far too frightened of involving the public and young people in our decisions.
I give the amendment my wholehearted support and, if the Government will not accept it, I hope that they will at least come forward with a recognition of the valid case the noble Baroness made to us tonight.
Baroness Darcy de Knayth: My Lords, perhaps I may briefly support the noble Baroness, Lady David, who gave a powerful and clear explanation of her amendment, and the noble Baroness, Lady Maddock. I hope that this Bill will be brought into line with other legislation; after all, it is very much to do with children and their future.
Lord McIntosh of Haringey: My Lords, let me say at once that I agree with the sentiments expressed by all those who have spoken on this amendment. The Government strongly agree that children ought to be involved and their views taken into account in planning for their education.
The noble Baroness, Lady Maddock, is right that if all people, not just children, are consulted, they feel a sense of worth and ownership and that encourages participation. The Government therefore agree that we should be taking as many reasonable steps as possible to encourage young children to feel a sense of ownership of their education and to reach their full potential.
1208
We have no difficulty about the objectives of the amendment; but we need to discuss how to achieve them. We have a responsibility not to overburden our schools and the Government are looking particularly to reduce the level of bureaucracy in schools. My noble friend Lady David said at the beginning that this is a—she did not use the words "watered down"—neatly worded amendment. Indeed, that is true. But if it were a provision on the face of the Bill, it would still be legally prescriptive and intervene with the need of schools, in their own time, to set in place the structures that are necessary to foster a spirit of consultation.
I am not able to say therefore that we can accept the amendment on the face of the Bill. However, it may be helpful for me to say something about the good practice that has been brought to the attention of the department and how the views of pupils are being taken on board in the planning processes of schools.
Many schools have set up schools' councils, which work remarkably well. I do not know why I should present that as new; my own children took part in schools' councils 20 years ago. Nevertheless, it is a fact that schools' councils are increasing in number and in effectiveness. Where they are set up, they often act as a focus for pupils to improve the ethos of their school and act as a conduit for pupils to be heard. But that does not mean that we should place schools' councils or many other good things into the framework of a school Bill. However, we will certainly continue to encourage schools to set them up.
Education is as much about the personal and social development of pupils as academic achievement. That is often taken forward in a schools' programme of personal, social and health education. That is an area where we recently took positive action and set up a PSHE advisory group to examine the whole issue so that we can be better informed and better prepared to take forward the personal and social development of pupils. We can then feed its conclusions into the forthcoming debate on the review of the national curriculum. The group, which will be chaired by Estelle Moms and Tessa Jowell, will look to the aims and objectives of a PSHE and what can be done to help schools in this important area of education. I see no reason why I should not ask them to take into account how the views of pupils can be best taken forward in the group's deliberations on the personal and social development of pupils.
My noble friend quoted the United Nations Convention on the Rights of the Child and she referred to the opinion of Mr. Allan Levy QC, who referred to procedures to be introduced. We are in favour of procedures being introduced; we are in favour of all encouragement for pupil involvement; what we are not in favour of is placing an amendment of this kind on the face of the Bill.
Baroness David: My Lords, I thank the noble Baronesses, Lady Maddock and Lady Darcy de Knayth, for their support, which was very welcome, and I thank the Minister for a quite sympathetic and understanding

1209
response, although he would not go the whole way of accepting the amendment. I am disappointed about that, though not altogether surprised.
I do not think that this would overburden the schools. Schools should consult the pupils. I do not think it would overburden them. In fact they might be rather more successful in having a good disciplinary code and good procedures if they did consult the pupils than if they do not. I do not see that it would be legally prescriptive. In some ways, if we are to be in line with the UN convention, it ought to be provided in legislation that pupils' views should be considered. We shall be interested to see what the committee says at the end of the year when it will have to report on what the UK has done in relation to this.
I cannot do other than withdraw the amendment. However, I am disappointed, particularly as the Labour Party in Opposition—perhaps not the noble Lord, Lord McIntosh, who was not speaking from the Opposition Front Bench on education but certainly the noble Baroness, Lady Blackstone—would have supported the amendment.
Noble Lords: Oh!
Baroness David: Was I interrupted? I know that the noble Lord, Lord Pilkington, would not be in sympathy, because he does not seem to have any understanding about this. As I say, I am disappointed in my own Front Bench because they were in sympathy with this proposal when in Opposition. It is rather sad that when in Government they change their mind. However, I am glad of what I have heard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 197B not moved.]
Lord Whitty Lord Whitty moved Amendment No. 197C:
After Clause 127, insert the following new clause—
TRANSFER OF ASSISTED PLACES
(".—(1) In section 3(2) of the Education (Schools) Act 1997 (regulations for purposes of transitional arrangements), after paragraph (f) there shall be added—
"(g) provide for the Secretary of State, in a case where he is satisfied that it is reasonable to do so in view of any particular circumstances relating to a pupil who holds (or has at any time held) an assisted place provided by a school under section 2(1), to authorise another school which is either—

(i) a former participating school, or

(ii) a new school authorised to provide assisted places by virtue of paragraph (f) above,

to provide for the pupil under section 2(1) the assisted Place which the first-mentioned school was authorised to provide."
(2) In section 75A(9A) of the Education (Scotland) Act 1980 (regulations in connection with assisted places)—

(a) the word "and" immediately preceding paragraph (b) shall be omitted; and

(b) after that paragraph there shall be inserted "; and

(c) provide for the Secretary of State, in a case where he is satisfied that it is reasonable to do so in view of
1210
any particular circumstances relating to a pupil who holds (or has, at any time since the beginning of the first term of the 1997–98 school year, held) an assisted place at a school under a scheme operated by virtue of subsection (1) above, to authorise another school which is, or is treated as, a participating school to provide for the pupil under such a scheme the assisted place which the first-mentioned school was authorised to provide."").

The noble Lord said: My Lords, in moving this amendment, I wish to speak also to government Amendments Nos. 207A, 208A, 209A to 209E, 228A and 228B, and to refer to Amendment No. 197D, which stands in the name of the noble Baroness, Lady Blatch. Although this is about the assisted places scheme, it is not intended at this time of night to raise the whole issue of the assisted places scheme but to speak about how we can more sensitively deal with children who are still in the system.
We have received representations, including from the noble Baroness herself at the Committee stage, about children who currently hold assisted places scheme places who, due to particular family or educational circumstances, need to move schools. It appears that last year's legislation is drawn too tightly to allow a pupil with an assisted place to transfer to another independent school participating in the scheme otherwise than in the most exceptional circumstances. We share some of those concerns.
We are aware of 10 or so cases where parents need to move their children between schools and want to retain the assisted places scheme place. Noble Lords may have seen press reports of one case where a child at a boarding school wished to move to a school closer to home to spend more time with his disabled father. Through this amendment, the Secretaries of State for Education and Employment, and for Wales and Scotland, will have the power to help in such cases.
Amendment No. 197C is the substantive provision which will provide for a new discretionary power under regulations to allow assisted pupils to move between participating schools and retain support under the scheme. Amendments Nos. 207A, 208D, 209C, 209D and 209E are technical amendments relating to commencement, extent and repeals. Amendments Nos. 209A and 209B, and 228B relate to the slightly different Scottish provisions but they will have the same effect. Amendment No. 228A is a consequential amendment.
As regards the amendment in the name of the noble Baroness, I shall obviously respond to what she says at a later stage. At this stage I must mention that there appears to us to be a difficult technical issue concerning her proposal. The framework for the phasing out of the assisted places scheme is set out in Section 2(2) of the Education (Schools) Act 1997. The proposal of the noble Baroness involves providing, through regulations, a right for children of primary school age to continue to have support under the scheme throughout their secondary schooling. That is inconsistent with the provisions of the Act itself. I shall deal with any other points at a later stage, but I thought that I should deal with that technical problem.
The purpose of these amendments is to allow us to help families with genuine difficulties. We would use the discretionary power sensitively. It is our intention that that kind of sensitive response should allow a transfer to take place where there is a genuine need. I beg to move.
Baroness Blatch Baroness Blatch moved, as an amendment to Amendment No. 197C, Amendment No. 197D:
Line 16, at end insert—
("(1A) After section 3(2) of that Act there shall be inserted—
"(2A) Regulations under this section shall in particular secure that a pupil receiving primary education and provided with an assisted place shall continue to hold that place to the end of the period during which he receives secondary education at the same school."."
The noble Baroness said: My Lords, the rather thin reason given for my amendment being technically flawed in fact applies to the government amendments. They were inconsistent with the Act as it was. That is why the amendment is tabled: in order to open the Act and to amend it. That is precisely what my amendment seeks to do.
The issue that precipitated this U-turn was a case where the DfEE, in its wisdom—it was wise to do so—dropped its opposition to a court case because it knew it was heading for defeat. The claim is that fresh evidence came to light. My understanding of the case is that all that was known about the young man was known by the department. It would be helpful to know precisely what the fresh evidence was and the criteria that the Secretary for State will now apply in respect of the amendments as set out in the Marshalled List, and which will eventually find their place into the assisted places Bill.
The boy was told that he could keep his assisted place and stay in the system. Depending on the Secretary of State's largesse, that would allow children to move from one school to another. My amendment is more modest than that; namely, that young people are given an understanding that they could receive an assisted place in one school and go right the way through that school. The meanness of the Government in applying their policy knows no depth. I also believe that they will find themselves in court again because there are some very interesting cases. It is interesting to go back through all the correspondence.
There is one letter on file which has to be placed on the record of this House because it encapsulates the bones of my case. The letter is from Mrs. Karen Cutler to Ms. Flashman. It contained within it a letter which Ms. Flashman was asked to convey to Mr. Blunkett. It reads as follows:
"I was extremely annoyed by a statement you made in the House of Commons during Education and Employment Questions (26th February) as it was untrue.
Graham Brady MP raised the issue of an article in 'The Times' that day concerning Junior level Assisted Places, bringing attention to a promise made to a Harriet Tillson from Mr. Blair. The letter of 1 Nov. 1996 was in response to a query concerning her daughters' assisted places. They were at the time aged 7 and 11. In the letter Mr Blair states 'We do not wish to disrupt the education of individual children and any children already on the scheme will continue to receive support until the end of their education.'
Your reply was as follows and I quote, 'Not only will I ensure that people understand the importance of being able to follow promises but that they can read as well so that they can actually get the promises right. The promise we made we are fulfilling and I should remind the Hon Gentleman that, of course, at the point he is referring to the previous Government's scheme to extend assisted places to primary education had not actually taken place.'
I found this statement almost unbelievable. Either you knew that this was not true and were avoiding giving a proper reply or you were genuinely unaware of the two different types of junior level places and that integral junior departments of senior schools were allocated places early in 1996 to be taken up in September 1996. This would show a level of incompetence which I personally would not expect from such a Senior Minister. I was also rather surprised that you were not corrected immediately on this point by any other Member of the House.
As I have already said, junior assisted places were allocated early in 1996 to integral junior departments of senior schools which offered assisted places at 11+ also. They were taken up in September 1996 and therefore not only were the places available but Mrs Tillson's daughters were already at the Maynard school at the point of Mr Blair replying to her.
Ben Bradshaw was quoted in The Times as saying that it would not have been known that the Maynard school ran through to 18. This is clearly nonsense since at that point (Nov. 1996) only schools which 'ran through' had junior places.
Free standing Preparatory Schools were only allocated places in 1997 to be taken up in September by virtue of an Amendment to the Education Act. This is extremely important as the Labour Party Office prior to the election were promising those in integral junior departments that their places would be honoured through to the age of 18, the basis on which they were offered in the first place, whilst those in the free standing preparatory schools would have their place honoured to the end of that school, either 11 or 13. They would not have been able to transfer the place to a separate senior school.
I telephoned Labour Party HQ on 27th February as I was due to take my 8 year old daughter for an examination the following day for entry to a 3–18 girls school. I was told that where a child held or had an offer of a place for September 1997 in an integral junior department of a senior school then that place would be honoured through to the age of 18 if a Labour Government was elected. I was told that this was a clear policy commitment. Laura was successful in gaining the assisted place at the school and I accepted it on the basis of the assurances received.
You will see that the promises made concerning the two types of places i.e. free standing prep schools and schools which essentially 'run through' were in some ways different although in both cases no child would have been forced cruelly to leave the school concerned until that school's natural ending.
Not only do I hope that you will be able to follow these promises but that you will fulfil them. I fully understand and appreciate your party's policy of raising standards in state schools and I hope that you will indeed in time provide each and every child in this country with a level of education now only achieved by the very best. However, I do not see that it is necessary to finance this and the much needed reduction in class sizes for infants at the expense of these, what must be few children who are now devastated at having to be forced out of schools which they, their parents and their schools believed they would be allowed to remain in until the end of their education, 18.
Stephen Byers said earlier in the House to a Conservative MP that he hoped that he would not allow prejudice to get in the way of fact. I hope, Mr Blunkett, that I can ask the same of you particularly as you have said previously that you would put children before political dogma.
I do hope that if the statement you made was a genuine mistake and that you were unaware of the promises made to these children and of the basis on which these places were offered then you will meet with Mr Blair and your junior Ministers and reconsider this matter and allow all children to remain in their current school until the age of 18.
That is a poignant letter. It sets out the understanding of these parents and also quotes Mr. Blair personally. Mr. Kilfoyle made a similar promise. Mr. Blair personally wrote in The Times on 12th February 1998 that no child currently at private school under the scheme, or who had already got a place, had lost out. They would be able to continue their education. It is not surprising that these parents feel let down and misled. I believe that based on those cases there will be further appeals in the courts. There are also letters from Mr. Blunkett, who refers to the provision of all-through schools and raises the expectation that young children who were promised in good faith that they could have a place at an integral prep department at an all-through school would receive education through to the age of 18.
In introducing his amendment, the noble Lord made an interesting U-turn as a result of one court case. How can we deal more sensitively with children already in the system? There is a good deal of insensitivity being shown to these children. The technicality of my amendment to which the noble Lord has referred applies equally to the amendment in the name of the noble Lord. They are both inconsistent with the Act as it is now. The reason why there is an amendment to revisit the assisted school places Act is precisely to allow the Secretary of State to be responsive to the needs of these children. It is necessary to amend the Act. All I seek to do is to honour the real expectation on the part of young people who were offered places in good faith that they would see their education through to the end of secondary education in an all-through school with an integral prep department. I beg to move.
Lord Whitty: My Lords, we have heard a lot from the noble Baroness about a particular case. I deal first with the case on the basis of which she alleges that we have made a U-turn. This is not a U-turn. We have always had a discretionary power in this respect. The initial application in the case of Alistair Sanderson, in respect of which the noble Baroness seeks further information—
Baroness Blatch: My Lords, if the noble Lord says that the Government already had discretion why did they not use it?
Lord Whitty: My Lords, I was about to explain that the initial application for the use of that discretion had not been determined at the point when Alistair's parents or solicitor informed us that they would apply for leave for judicial review. They informed us in February that they intended to submit further evidence in support of that application. That information was provided on the day before the hearing of the application for judicial review, so not only had the Government not made a decision on that case prior to imminent judicial review but the full information had not been provided to the Government. Having considered that further information, it was clear that there were four specific factors which taken together made out a case for extended support. That was a case where existing discretion under the Act operated and it was premature for people to bring an action on that basis. By these
1214
amendments we intend to extend that discretion to a case where apparently it does not work in relation to children and to make it clear that there is a possibility of transfer through the exercise of discretionary powers.
The amendment of the noble Baroness does not seek to extend or clarify the discretionary powers but to change the provisions of the Bill which at the moment do not guarantee—it is not the intention of the Government that they should—that there is a place for every pupil who is granted a place at junior level throughout the whole of secondary education. Almost every child in the land changes school at age 11. We do not believe that there should be a general rule to make provision for those children who benefited from the assisted places scheme for a short time when it was well known that we were about to introduce legislation to phase out the scheme. However, we have discretionary powers in that area as well, which we are prepared to exercise. The noble Baroness's amendment goes deliberately further to guarantee it to every such child. That was never the intention of the legislation. We have exercised discretion sensibly on all of those fronts. Out of the 170odd applications we have so far received, in 100 cases we have used our discretion positively in favour of providing what the parents and the school require. That indicates that we are prepared to use discretion. However, we are not prepared to change one of the bases of the Act.
Baroness Blatch: My Lords, the Minister has responded to the amendment. I must come back to him. He said that is why the amendment is needed. I still do not understand why the amendment is needed. If the amendment is needed for Alistair, then what situation different from Alistair's requires these amendments? The Minister has not given a proper explanation of that.
The Minister went on to say that not every child who is at a school could have the guarantee. My amendment does not seek that. Where a primary school child receives an assisted place, where the assisted place ends at 11 or 13, depending upon the age range of the school, that is outwith my amendment. I do not include that. I include only those young people who received an assisted place to a school where education terminates at the age of 16, 18 or whatever age it may be, so that it goes all the way through.
The Minister said that the Government were prepared to exercise their discretion. Will he tell me the number of children who have been offered assisted places who are now allowed to go through to the end of secondary education?
Lord McIntosh of Haringey: My Lords, the noble Baroness is making another speech. I would remind her that the Companion to the Standing Orders states:
"On Report no Lord may speak more than once to an amendment, except the mover of the amendment in reply or the Lord who has obtained leave of the House, which may only be granted to a Lord to explain himself in some material point of his speech".
I do not think that the noble Baroness can claim that she is doing that.
Baroness Blatch: My Lords, I think my guilt extends to the fact that I did not say, "with the leave of the

1215
House". I was asking for an explanation of what the Minister said. I asked him why the amendment was needed.
Lord McIntosh of Haringey: My Lords, the noble Baroness's guilt, since she used the word, does not extend to not obtaining the leave of the House. The leave of the House may be granted only:
"to a Lord to explain himself in some material point of his speech".
The noble Baroness was not doing that.
Baroness Blatch: My Lords, that is precisely what I was doing. I was relating every point I made to the explanation the Minister gave to the amendment. I was seeking clarification from him.
The Chairman of Committees (Lord Boston of Faversham): My Lords, does the noble Baroness seek leave to withdraw her amendment to the amendment?
Baroness Blatch: My Lords, yes.
Amendment No. 197D, as an amendment to Amendment No. 197C, by leave, withdrawn.
On Question, Amendment No. 197C agreed to.
Clause 129 [Dissolution of Funding Agency for Schools]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 198:
Page 99, line 32, after ("Agency") insert ("to which subsection (5) applies").
On Question, amendment agreed to.
Clause 131 [Publication of inspection reports]:
Baroness Maddock Baroness Maddock moved Amendment No. 199:
Page 100, leave out lines 23 to 28.
The noble Baroness said: My Lords, the amendment leaves out two subsections in Clause 131 which we believe it is important to remove. The two subsections give protection under privilege to any report published by the chief inspector. The amendment would remove such protection. There is some evidence that a number of Ofsted reports have been attacked by those who have received them as factually inaccurate or in some cases they may have been defamatory of those whom they described.
It is thought by some, especially head teachers, that it is unreasonable that professionals can, in a sense, be libelled in that way by Ofsted without a right to redress through the legal system. It is for that reason that we put forward the amendment. If the possibility of a legal challenge were open to the complainant perhaps people would take more care at least to ensure that the factual statements were accurate. There is evidence that people have been concerned about reports. I hope that the Government will look favourably on the amendment.
It can be difficult if people who have been through this experience have no redress when they think that they have been unreasonably represented, or some fact in the report is not correct.
I shall not labour the point at this hour of the night. Nor do I intend to press the amendment. I hope that the Government recognise that it is a problem. Even if they
1216
do not accept the amendment, I hope that they will give some indication as to how they can make the system a little fairer. I beg to move.
10.45 p.m.
Baroness Blackstone: My Lords, I am grateful to the noble Baroness for explaining what underlies the amendment. I hope that I can give her the reassurance that she seeks by explaining why the provision is necessary.
As the noble Baroness will know, the defence of qualified privilege exists to protect those who make statements in the discharge of duties imposed on them. Such a defence has existed at common law for at least 150 years without the need for statutory provisions, as the courts have recognised that those who owe a duty to the public to speak out should be able to do so frankly and fully, without fear of actions for defamation.
The rule applies only to such statements when they are made honestly and without malice. In this context, a person making a statement acts with malice when he is not using the occasion on which he made the statement honestly and for the purpose for which the law gives protection, but is actuated by some other motive. So a person who uses the opportunity afforded by a statutory duty to make a report for the purposes of launching a personal attack on another may well be held by the courts to have acted with malice and to have forfeited the defence of qualified privilege.
As Ofsted will be acting in pursuance of a statutory power when it publishes its reports, the defence of qualified privilege will attach to the great majority of those reports. However, there is one exception. The new Section 42A inserted into the School Inspections Act 1996 by Clause 131 expressly allows the publication of these reports "by electronic means"—in other words, on the Internet. It is right that such publication should be allowed in the interests of the widest availability of the reports. But, for technical legal reasons which I hope I need not go into now, such publication may not be covered at common law by the defence of qualified privilege. All that subsection (3) does is to ensure that this does not happen, and that Ofsted is in exactly the same position if it publishes on the Internet as it would be if it published in print: no more and no less than that.
I hope that, with that reassurance, the noble Baroness will feel able to withdraw the amendment.
Baroness Maddock: My Lords, I thank the Minister for that reply. I am not certain that some of the people concerned about these issues will feel totally reassured. Inaccurate information in reports has created difficult situations. It has been reported to us that some people believe that there has been financial loss in schools. I do not have specific examples.
Perhaps the Minister will look more closely at the issue. I understand why the matter is dealt with in this way. However, there have been problems. Although the Minister has described one way in which we can overcome them, there is a problem if there are factual inaccuracies in reports and people do not have the right of redress.

1217
However, in the spirit of the answer, and considering the lateness of the hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 135 [Orders and regulations]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 200 and 201:
Page 102, line 7, after (" 11 (5),") insert (" 20(4A),").
Page 102, line 19, at end insert—
("( ) section 1(3A),").
On Question, amendments agreed to.
Clause 139 [General interpretation]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 202:
Page 105, line 30, after ("16(6)") insert ("or (8)").
On Question, amendment agreed to.
Clause 140 [Index]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 203 to 206:
Page 106, line 28, column 1, leave out ("aggregated") and insert ("individual").
Page 106, line 32, column 1, at end insert ("(except in Part I of Schedule 32)").
Page 107, line 19, column 1, leave out ("general") and insert ("local").
Page 107, line 27, at end insert—

("land or other property held on trust, or by trustees, for the purposes of a school

section 21(3)(c)")

On Question, amendments agreed to.
Clause 142 [Short title, commencement and extent]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 207 to 209E:
Page 110, line 43, leave out ("(other than subsections (9) and (10))").
Page 111, line 2, at end insert—
("section (Transfer of assisted places);").
Page 111, line 3, leave out ("139") and insert (" 138").
Page 111, line 5, after ("11;") insert—
("paragraph 201A of Schedule 30 (and section 137(1) so far as relating thereto);").
Page 111, line 7, leave out subsection (5).
Page 111, line 19, leave out ("subsection (8)") and insert ("subsections (7A) and (8)").
Page 111, line 19, at end insert—
("(7A) Section (Transfer of assisted places)(2) extends to Scotland only; and this section extends also to Scotland.").
Page 111, line 20, after ("or") insert ("(subject to subsection (9))").
Page 111, line 22, at end insert (", and section 137 extends accordingly.").
Page 111, line 22, at end insert—
("(9) The entry in Schedule 31 relating to the Education (Scotland) Act 1980 extends to Scotland only.").
On Question, amendments agreed to.
Schedule 30 [Minor and consequential amendments]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 210 to 219:
Page 240, line 22, at end insert—
("Further and Higher Education Act 1992 (c.13)
. The Further and Higher Education Act 1992 shall be amended as follows.
. In section 5(4) (administration of funds by councils), for "grant-maintained school" substitute "maintained school".
. In section 21 (initial instruments and articles)—

(a) in subsection (1), omit—

(i) paragraph (a), and

(ii) "(b) in any other case,";

(b) in subsection (2), omit—

(i) "orders and",

(ii) in paragraph (a), "grant-maintained school or other", and

(iii) in paragraph (b), "grant-maintained schools or other"; and

(c) in subsection (3), for the words from "a grant-maintained" to "earlier enactment)" substitute "a maintained school, the governing body incorporated under Chapter III of Part II of the School Standards and Framework Act 1998".

. For section 25 substitute—
"Transfer of property, etc from foundation bodies.
25.—(1) This section applies where a further education corporation is established to conduct an institution which, on the date the corporation is established, is a foundation or voluntary school belonging to the group of schools for which a foundation body acts under section 21 of the School Standards and Framework Act 1998.
(2) Regulations may make such provision as the Secretary of State considers necessary or expedient in connection with the transfer, in any such case, of property, rights and liabilities from the foundation body to the further education corporation.
(3) Regulations under subsection (2) may, in relation to any such transfer of property, rights or liabilities—

(a) modify any provision made by or under any of sections 23, 24, 36 and 38 of this Act and Schedule 5 to this Act;

(b) apply any such provision with or without modifications;

(c) make provision corresponding or similar to any such provision.

(4) In this section "foundation body" and "group of schools" have the same meaning as in the School Standards and Framework Act 1998."
. In section 26 (transfer of staff to further education corporation)—

(a) in subsection (1), omit "or was a grant-maintained school"; and

(b) in subsection (6)—

(i) for "that authority" substitute "references to that authority, and", and

(ii) for paragraphs (b) and substitute—

"(b) in relation to a corporation established to conduct an institution which, on that date, was a foundation or voluntary aided school, references to the governing body of that school."
. In section 28(2)(a) (designation of institutions as eligible for funds) after "school" insert "(other than one belonging to a group of schools for which a foundation body acts under section 21 of the School Standards and Framework Act 1998)".
. In section 32 (transfer of property, etc., to designated institutions), after subsection (2) insert—
"(2A) In the case of an institution which when designated was a voluntary aided school, on the designation date—

(a) all land and other property which, immediately before that date, was property of the governing body of the school incorporated under Chapter III of Part II of the School Standards and Framework Act 1998, and

(b) all rights and liabilities of that body subsisting immediately before that date,

shall be transferred to and, by virtue of this Act, vest in the governing body of the designated institution; and the governing body of the school shall be dissolved on that date."
. In section 37 (attribution of surpluses and deficits)—

(a) in subsection (1), for "section 103 of the Education Act 1996 (schemes for financing schools)" substitute "section 48 of the School Standards and Framework Act 1998 (LEAs' financial schemes)"; and

(b) in subsection (7), in the definition of "budget share", for "Part II of the Education Act 1996" substitute "Part II of the School Standards and Framework Act 1998".

. In section 44(1) (collective worship)—
(a) for the words from "was a" to the end substitute "was—

(a) (within the meaning of the Education Act 1996) a voluntary school, or

(b) (within the meaning of the School Standards and Framework Act 1998) a foundation or voluntary school having a foundation established otherwise than under that Act."

. In section 45(1) (religious education) for the words from "means" to the end substitute "has the same meaning as in section 44."
. In section 47(2) (transfer of higher education institutions to further education sector) for the words from "any provision" to the end substitute "provision as to the initial name of the corporation as a further education corporation."
. In section 48 (statutory conditions of employment)—

(a) in subsection (1)(a) for "voluntary or grant-maintained" substitute "foundation or voluntary aided", and

(b) in subsection (2)(a) for "voluntary or grant-maintained" substitute "foundation or voluntary aided".

. In section 58(3) (reorganisations of schools involving establishment of further education corporation), for paragraph (b) substitute—
"(b) a prescribed alteration within the meaning of section 27 of the School Standards and Framework Act 1998 has been made to the school,".
. In section 90 (interpretation)—
(a) after subsection (3) insert—
"(3A) In this Act references to a voluntary aided school are—

(a) in relation to any time before the appointed day within the meaning of the School Standards and Framework Act 1998, references to a voluntary aided school within the meaning of the Education Act 1996; or

(b) in relation to any time on or after that day, references to a voluntary aided school within the meaning of the 1998 Act."; and.

(b) in subsection (5), at end insert "and section 137(2) of the School Standards and Framework Act 1998 has effect for defining the expressions there mentioned." ").

Page 240, line 36, leave out from ("subsection") to ("subsection") in line 37 and insert ("(5A) (inserted by Schedule 3 to the Teaching and Higher Education Act 1998) insert—
"(5B) In addition, in").
Page 240, line 39, leave out ("any school to which section 21(9)(a) or (b)") and insert ("any body to which section (Charitable status of maintained schools, etc.)(1)(a) or (b)").
Page 240, line 44, leave out (" 21(11)") and insert ("(Charitable status of maintained schools, etc.)(3)").
Page 240, line 46, leave out (" 21(11)") and insert ("(Charitable status of maintained schools, etc.)(3)").
Page 243, line 5, after ("for") insert (""maintained or").
Page 243, line 6, leave out (""community or foundation special") and insert (""maintained").
Page 251, line 21, at end insert—
(" . Omit sections 500 to 505 (rationalisation of school places)."). Page 251, line 33, at end insert—
(" . In section 510 (provision of clothing)—

(a) in subsection (1)(a) and (c), omit "or at a grant-maintained school" wherever occurring;

(b) in subsection (3)(a), omit "or a grant-maintained school";

(c) in subsection (4)(a), omit ", at a grant-maintained school"; and

(d) in subsection (5)(a), omit "grant-maintained school or".").

Page 252, line 16, at end insert—
(" . In section 525 (offence of neglecting the cleanliness of a pupil), in subsection (3), omit "or a grant-maintained school".").
On Question, amendments agreed to.
[Amendments Nos. 220 and 221 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 222 to 228A:
Page 252, line 27, leave out ("and submitted").
Page 252, line 49, at end insert—
(" . Omit section 536 (medical inspection and treatment of pupils at grant-maintained schools).").
Page 257, line 21, leave out from ("(2),") to end of line 22 and insert ("omit the words from "and "alterations" onwards,").
Page 258, line 39, at end insert—
(" . Schedule 28 (government and conduct of grant-maintained special schools) shall be omitted.").
Page 262, line 19, at end insert—
(" In Schedule 6 (consequential amendments), omit paragraph 7.").
Page 263, line 20, at end insert—
(" . Omit section 50 (recoupment by local education authority of costs of teachers' premature retirement).").
Page 263, line 22, at end insert—
(" . In section 57 (minor and consequential amendments, repeals etc), omit subsections (2) and (3).").
Page 263, line 28, at end insert—
("Education (Schools) Act 1997 (c.59)
201A. In section 2 of the Education (Schools) Act 1997 (transitional arrangements for existing assisted pupils), after subsection (6) add—
"(7) Nothing in subsection (1) shall be taken as prejudicing the operation of any regulations under section 3 by virtue of which assisted places authorised to be provided under that subsection by a former participating school may instead be so provided by another such school or a new school created on the merger of such a school with another school.").
On Question, amendments agreed to.
Schedule 31 [Repeals]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 228B to 231:
Page 264, line 51, at end insert—

("1980 c. 44. Education (Scotland)

In section 75A(9A), the

Act 1980.

word "and" immediately preceding paragraph (b).")

Page 267, column 3, leave out lines 13 and 14.
Page 269, column 3, leave out line 48 and insert ("In section 573, in subsection (2) the words from "and "alterations'"' onwards, and subsections (4) to (6).").
Page 269, column 3, leave Out lines 50 to 53 and insert ("Section 576(2).").
On Question, amendments agreed to.
Schedule 32 [Transitional provisions and savings]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 232 to 234:
Page 272, line 23, after ("effect") insert ("on and").
Page 274, line 27, leave out ("appointed day (as defined by") and insert ("day appointed under").
Page 274, line 43, at end insert—
("Limits on class sizes
.—(1) The transitional provision which may be made for the purposes of section 1 by regulations under section 141(1) includes provision with respect to any relevant time—

(a) for disapplying to any extent in relation to existing maintained schools (whether or not subject to compliance with any prescribed requirements) section 411(6), 416(1) or 426(1) of the Education Act 1996 (provisions about admission numbers);

(b) for otherwise modifying any of the provisions (whether statutory provisions or articles of government) which are relevant to the determination or publication of the arrangements—

(i) for the admission of pupils to such schools, or

(ii) for appeals by parents against decisions taken in relation to the admission of pupils to such schools,

or to the procedure relating to such appeals;

(c) for requiring or authorising bodies responsible for determining such arrangements to determine and publish fresh arrangements, subject to such consultation as may be prescribed, where arrangements previously determined (or previously determined and published) by them are to any extent inconsistent with the provisions mentioned in paragraph (b) as they have effect in accordance with the regulations.

(2) Regulations made in pursuance of paragraph (b) of sub-paragraph (1) may, in particular, modify the provisions mentioned in that paragraph so that they apply in relation to existing maintained schools with the addition of provisions whose purposes correspond to those of any of paragraphs 6(5), 10(5) and 11 of Schedule 23 to this Act.
(3) In this paragraph—
"existing maintained school" means—

(a) any county or voluntary school, or

(b) any grant-maintained school,

within the meaning of the Education Act 1996;
"relevant time'", in relation to an existing maintained school, means any time after the coming into force of regulations under section 1 by virtue of which any limit on class size is to apply, or be varied, in relation to the school.").
On Question, amendments agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 234A:
Page 275, leave out line 4.
The noble Baroness said: My Lords, I seek to remove a line in the Bill which was, at one stage, the very last line in the Bill and something of an afterthought. There are now other passages in the Bill. It is on page 275 and refers to line 4.
This amendment seeks to remove the Secretary of State's powers to revoke or vary a grant-maintained school's right to disapply pay and conditions. This is an Oratory School amendment. That school fought quite hard for this facility to allow paragraphs 6(a) and (b) to be put into the Bill. At the very last minute appeared the words:
"and any such order may be varied or revoked accordingly".
Either those grant-maintained schools are to be allowed to continue with that facility or they are not. We are very worried that the Government may have some future intention to remove it. I believe that there has been a genuine oversight here. I hope it is an oversight. I hope that the Government will agree to my amendment. I suspect, from the way that they have resisted almost everything that we have suggested, they will not. However, I ask them to look that school in the eye and say why the Secretary of State is to retain a power to revoke or to vary a grant-maintained school's right to disapply pay and conditions. I beg to move.
Lord Whitty: My Lords, I am tempted to respond to the somewhat excessive paranoia on behalf of the London Oratory. However, in this case and many of the others that have been referred to, the concern is misplaced. There is no ulterior motive behind those words. They simply serve to make paragraph 6 of the schedule work. But it is rather a complicated matter to explain.
Clause 13 of the Bill amends Section 3 of the School Teachers' Pay and Conditions Act. It does so by substituting a completely new section. Only two orders, including the one to which the noble Baroness referred, have been made under the existing Section 3 and those orders will still be in force when the entirely new Section 3 comes into force.
It is true that we have no wish to extend any such exemption to other schools but we have made it quite clear that we accept that the position relating to those schools should stand. Paragraph 6 of Schedule 32 is a saving provision. It serves to protect the existing orders from the effect of the repeal of the old Section 3. It provides that any such order which relates to a grant-maintained school which becomes a foundation or voluntary-aided school under the new framework shall continue to have effect.
The words in line 4 of page 275 provide that:
"any such order",
that is, these orders,
"may be varied or revoked accordingly".
That means that any such order can be varied or revoked under the powers previously contained in old Section 3 as though that section were still in force and notwithstanding its repeal. It therefore simply suggests the restoration of the pre-existing position.

1223
Moreover, the orders are subject to Section 570(3) of the Education Act 1996 which provides that no order varying or revoking an order under old Section 3 could be made unless two preconditions apply. Those conditions are that the governing body initiates the process and that it must consult the school teachers concerned beforehand. Paragraph 6 operates to preserve that position. It does not grant to the Secretary of State any greater powers in respect of those two outstanding orders than he currently has. It certainly does not allow him of his own volition, as the noble Baroness suggested, to initiate a variation or revocation, nor does it alter the present position of the schools concerned. I therefore think the amendment is unnecessary and could be a restrictive provision should the schools themselves wish to vary the form of their exemption at a future date. I am sure that is not the intention of the noble Baroness, and I therefore ask her to reconsider and withdraw the amendment.
Baroness Blatch: My Lords, I find the answers more gobbledy-gookish as we go along. The provision states that,
"any such order may be varied or revoked accordingly".
That gives a power to vary and a power to revoke. As these are schools that exist, as it states in paragraph 6:
"The amendment made by section 13 of this Act shall not affect the operation of section 3 of the School Teachers' Pay and Conditions Act 1991, as in force immediately before that amendment comes into force, in relation to any order made under section 3 of that Act which—

(a) is then in force; and

(b) relates to a grant-maintained school which becomes a foundation or voluntary aided school on the appointed day in accordance with Schedule 2 to this Act",

if the Government have no intention of varying or revoking such an order, then we would not wish him to have this power. If he has the power, then we remain suspicious as to why he should need it. Therefore I do not understand it.
1224
I am pleased that it was the noble Lord who put on the record the paranoia of the Oratory. It happens to be a particularly good school.
Lord Whitty: Would the—
Baroness Blatch: I will not give way at this moment. Maybe the noble Lord will come back if the noble Lord, Lord McIntosh, will allow it under the rules.
The school has been singled out by very senior members of his own party as being a school of outstanding excellence. I agree with that.
If all schools were like the Oratory, we would not have any problems in this country. Some of the important freedoms the Oratory has today will be lost under the Bill, some of which we have mentioned tonight and one or two that the Government have already voted against. It is not paranoia; it is a passion for allowing schools like that to remain good, to remain in the system and to enjoy the flexibility and the autonomy that they have had under the Conservative government, which we understand Mr. Byers and Mr. Blair agreed with. We are simply asking the Government to amend the Bill in a way that would allow that to happen. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 235 and 236:
Page 275, line 4, at end insert—
("Orders for purposes of section 20(4A)
. The Secretary of State may only make an order under section 20(4A) where he considers it appropriate to do so on an application made for the purpose by—

(a) the former maintaining authority (within the meaning of that provision), or

(b) the local education authority in whose area the school in question will be situated immediately before the appointed day,

and received by him not later than 30th November 1998.").
Page 275, line 26, leave out from ("Act") to end of line 27.
On Question, amendments agreed to.
House adjourned at three minutes before eleven o'clock