Lords Sitting of 13 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 Oxford.

Coal-related Lung Diseases
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they are satisfied that advances in medical science and engineering technology have substantially removed the dangers to health, in particular to lungs, of work in deep mining of coal.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, coal-related lung diseases are progressive and irreversible. However, much can be done to relieve the symptoms through the use of drugs. In some cases patients can benefit from home oxygen treatment. It is not possible wholly to remove the hazards to health that arise from the deep mining of coal, but the current situation is a substantial improvement on the past. This is particularly true in relation to the risk of lung disease. The Coal Mines (Respirable Dust) Regulations 1975 have significantly reduced the incidence of pneumoconiosis among miners. The regulations are currently under review to ensure that they remain effective.
Lord Campbell of Croy: My Lords, I am grateful to the noble Baroness for her reply. Is the Minister aware that some noble Lords who have been concerned in Parliament with the issue of disablement, in my case for nearly 40 years, have observed many cases of severe occupational illnesses that are eventually recognised with compensation and they shall be reminded of that
2
on Thursday when the Pneumoconiosis (Compensation) Regulations are laid before the House? Can the noble Baroness assure the House that this is now all history and it is unlikely to be repeated on the scale of the past?
Baroness Hayman: My Lords, the noble Lord is quite right to point out the terrible and long-standing consequences of lung disease and sometimes the long time it has taken to recognise the risks that workers have endured in their particular occupations. The Government always look at ways to improve health protection. The evidence of British Coal health surveillance, in particular its programme of X-ray screening, shows that the introduction of the Coal Mines (Respirable Dust) Regulations 1975 has brought about substantial improvements. But we are concerned to ensure that the prevalence of this disease that has reduced dramatically since 1975 continues to decline. For that reason a review is being undertaken into the 1975 regulations to see whether action should be taken to improve their effectiveness.
Lord Hardy of Wath: My Lords, while the development of technology and the practice of safety in mines has led to the British mining industry being the safest in the world, is my noble friend aware that the extinguishment of the role of the colliery deputy, and therefore the lack of primacy in safety underground, is hardly helpful in maintaining that achievement? Does my noble friend also accept that there may well be too much sustained overtime worked underground which is hardly conducive to health? Further, does my noble friend agree that if the previous government had been a little more concerned about the health and safety of the coalfields they would not have been contracted at the speed they were?
Baroness Hayman: My Lords, I am aware of my noble friend's long-standing concerns in this area. The 1993 regulations which changed the position of deputies in the pits still provide that every person working underground must be under close supervision and that every part of any underground mine must be regularly

3
inspected. I understand that the additional flexibility as to who carries out those roles should not be taken as a cause for reduced safety standards. The changes were instigated as part of an overall ongoing review by the Health and Safety Commission of health and safety legislation as it related to the mining industry. It is in that context that the review with particular regard to dust, to which I referred earlier, is being undertaken.
The Earl of Lauderdale: My Lords, is the noble Baroness aware that the Pneumoconiosis etc. (Workers' Compensation) Act 1979 was one of the first Acts of the incoming Conservative Government?
Baroness Hayman: My Lords, I did not look in my briefing to see which political party introduced that particular Act. It was very important because it introduced no-fault compensation for a group of workers who needed it.
Lord Davies of Coity: My Lords, can my noble friend advise the House about the Government's current stance in relation to vibrating white finger, which is an injury that is experienced by a good number of miners as a result of the drilling that they have had to carry out in deep mines?
Baroness Hayman: My Lords, I understand that that disease is being considered as part of the industrial injuries list. I shall take further advice on that matter and write to my noble friend.
Lord Ezra: My Lords, does the Minister agree that over the years since the war enormous strides have been made in fighting pneumoconiosis; and that the levels of new incidents have been dramatically reduced? With regard to the intervention of the noble Lord, Lord Hardy, does the noble Baroness also agree that we lead the world in the technology for dealing with pneumoconiosis? Is full advantage being taken of that in technological exports?
Baroness Hayman: My Lords, the noble Lord is right to point out the progress that has been made. Prior to the 1975 regulations, the prevalence of ILO Category 2 simple pneumoconiosis and higher in the 55 to 59 year-old age group representing those who had worked in the industry for 35 years exceeded 4 per cent. By 1993 the level had fallen to 0.025 per cent. in that age group; so there is considerable progress. There are opportunities because of the technological expertise that exists. I am sure that those are transferable to other countries' coal industries.
Lord McColl of Dulwich: My Lords, as coal mining is bad for the health of the workers, why do the Government continue to give subsidies to increase or encourage coal mining?
Baroness Hayman: My Lords, on 25th June the Government published a clear consultation document on their review of energy and the different factors to be
4
taken into account when looking at the sources of energy on which this country should depend. The period of consultation will end on 20th July. It would be wrong to speculate on the outcome of that process before we have had a chance to consider the representations made—including, I am sure, the representation that the noble Lord has just made, if he wishes to make it.
Lord Renton: My Lords, is the Minister aware that pneumoconiosis has been caused mainly by miners who shot-fire with explosives when cutting new galleries underground having failed to observe the regulation that they must not fire a further shot until dust has settled? When they failed to do so, they sometimes died. Will those regulations be enforced in future?
Baroness Hayman: My Lords, I do not wish to debate with the noble Lord about who was at fault here. There were clear indications that the prevalence of dust in mines was a factor that caused pneumoconiosis. The responsibility rests with the operating organisations to ensure that workers operate in safe conditions. The review will consider whether the 1975 regulations, which have made such a vast improvement, need any further tightening up.

Sri Lanka
2.45 p.m.
Lord Lucas Lord Lucas asked Her Majesty's Government:
Whether they will take the initiative in trying to bring the various parties in Sri Lanka to the negotiating table.
Lord Whitty: My Lords, Her Majesty's Government believe a lasting solution to this tragic conflict in Sri Lanka can be reached only through a political settlement. We stand ready to help in the resolution of the conflict and would be prepared to facilitate talks if both sides asked us to play such a role.
Lord Lucas: My Lords, I am saddened by that disappointing Answer. Were the Government to take an initiative, does the Minister believe that it might do some good? I understand that his right honourable friend Mr. Cook might feel somewhat shell-shocked over sticking his finely-tuned nose into the affairs of the sub-continent. However, do the Government realise that we are strong friends with both major parties in Sri Lanka and that we support and nurture the Tamil Tigers in that country? We should therefore enjoy good relations with them. Under the last government, my honourable friend Dr. Fox made considerable progress, on his own initiative, in getting talks under way.
Lord Whitty: My Lords, perhaps I may take two or three points. Her Majesty's Government clearly stand by. My right honourable friend the Secretary of State would be prepared to help settle any dispute in friendly countries, whether the India-Pakistan conflict or within Sri Lanka. However, our information is that a proactive move by us at this stage would not meet with a positive

5
response. The initiative from the former parliamentary secretary, Dr. Liam Fox, to which the noble Lord rightly refers, had some benefit: it led to a bipartisan approach from the two main political parties. But it was not negotiation between the Tamil Tigers and the Sri Lankan Government, which is the basis of this conflict.
Lord Goodhart: My Lords, does the Minister agree that it is a complicated situation involving at least four parties: the Government, the Opposition, the Tigers and the moderate Tamil groups? Intervention at this stage might well be counter-productive. Is it not better to proceed behind the scenes until such time that it becomes clear that there is a genuine wish among the parties involved for an initiative to be taken leading to negotiation?
Lord Whitty: My Lords, I thank the noble Lord. It is precisely that complexity which led to the caution in my initial reply.

Parliament: Constitutional Safeguards
2.48 p.m.
Lord Waddington Lord Waddington asked Her Majesty's Government:
What steps they propose to take to strengthen the safeguards against a government seeking to extend the duration of a Parliament beyond five years.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, we believe that the present safeguards are sufficient.
Lord Waddington: My Lords, I thank the noble Lord for his somewhat complacent reply. Is it not obvious that if the hereditary Peers' right to sit and vote were abolished and nothing else done to change the composition of this place, the constitutional safeguard in the 1911 Act giving the Lords an absolute veto on Bills to extend the life of Parliament would be gravely weakened in that the Government could easily secure the creation of enough Peers to get such a Bill through? Would it therefore not be rash and irresponsible for the Government to press ahead with their plans to create a wholly nominated Chamber when history shows that decades could elapse before a comprehensive reform took place—decades during which a vital safeguard against arbitrary power would have been rendered virtually useless?
Lord Williams of Mostyn: My Lords, I do not believe that my reply was complacent. Parliament has had its life extended on only two occasions this century; once in 1916, for obvious reasons, and once in 1940 for
6
the same obvious reasons. I agree with the noble Lord that a speedy reconstitution on rational bases of your Lordships' House is long overdue.
Lord Dean of Beswick: My Lords, in view of the Minister's definitive Answer to the Question, is not the noble Lord, Lord Waddington, tilting at windmills?
Lord Williams of Mostyn: My Lords, partly.
Lord Mowbray and Stourton: My Lords, has the noble Lord forgotten that in Cromwell's time the Parliament was extended?
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Mowbray and Stourton, is right in saying that Cromwell's time was before the relevant Act. The Septennial Act was passed only in 1715, so the Lord Protector's many virtues would not have been interfered with by that Act.
Lord Beloff: My Lords, does the Minister agree that if we were to go forward as is proposed—or likely to be proposed by the Jenkins Commission—to a form of proportional representation which would entrench a Lab/Lib government for ever, future elections would not be necessary and therefore there would be no point in the safeguard?
Lord Williams of Mostyn: My Lords, I believe that is the best recommendation for the noble Lord, Lord Jenkins, that I have heard in many a year. As everyone knows, it is true that there is overwhelming support for the Prime Minister and all his manifold deeds. But I believe that the public ought to have an opportunity—say, every five years—to reinforce their absolute confidence in Her Majesty's Government.
Lord Wallace of Saltaire: My Lords, in recollecting that over the years Her Majesty's Government have granted many former Commonwealth colonies written constitutions, has the Minister considered that one part of a long-term programme of constitutional reform might be to provide this country at last with a written constitution?
Lord Williams of Mostyn: My Lords, there is certainly an argument to be made for that. There are also arguments to the contrary. I did not understand that it was the present policy of the present Opposition that we ought to have a written constitution.
Lord Peyton of Yeovil: My Lords, since the Minister declared that the Government were satisfied with existing safeguards, would he be very careful not to remove them in such a way that your Lordships' House might become a mirror image of the House of Commons and thereby wholly amenable to the Party Whips—a dreadful prospect?
Lord Williams of Mostyn: My Lords, I can see no immediate or long-term prospect of the noble Lord, Lord Peyton of Yeovil, being a mirror image of anyone

7
at all, nor indeed being subject to any whipping of any kind in any circumstance. The present safeguard is the Septennial Act of 1715. As I said in Answer to the Question from the noble Lord, Lord Waddington, that Act has worked extremely well over more than 250 years because it has been put on one side only twice; once in the First World War and once in the Second World War. That is not a bad record.
Lord McNally: My Lords, has the Minister noticed that hobgoblins such as threats of an extension of Parliament or needs for a government of national unity and so forth arise only when there is a non-Conservative government? Would not the best guarantee of our democracy be a functioning Opposition? Would it not be better, following the rather mediocre interventions from the Government Front Bench this Question Time—
Noble Lords: Opposition Front Bench!
Lord McNally: My Lords, the Opposition Front Bench—I will correct that in Hansard. Would it not be better if they followed the example of Miss Widdecombe in another place and the noble Baroness, Lady Blatch, in this place and knuckled down to being an effective opposition because they have a long time to get used to it?
Lord Williams of Mostyn: My Lords, there are no hobgoblins in your Lordships' House, whether hereditary or nominated. The fact is that I have not heard an intervention from the Opposition Front Bench on this pressing question. I am sure that we are all agog to have such a contribution.
Lord Strathclyde: My Lords, is the Minister aware that the Liberal Democrats have far greater experience in opposition than either the party in government or indeed ourselves and that it is therefore not surprising that they have used that experience to good effect during the course of the past 90 years?
Is the noble Lord also aware that there is a serious point behind my noble friend Lord Waddington's Question to which the Minister has not faced up? It is that if the hereditary peerage is to be removed—in other words, if the Government go ahead with their stage one without producing stage two—it will create a real danger that the life of Parliament could be extended against the interests of the people of this country.
Lord Williams of Mostyn: My Lords, I have heard some pretty thin arguments in my time, but I have to say that that pretty well takes the biscuit. The hereditary Peers are not necessarily the sole or indeed significant bastion of our rights in this country. The Act has worked well in the past; it does not need alteration at the moment. Ingenious though the noble Lord is, I cannot see that the Septennial Act has much to do with the reform which is long overdue. As the
8
Lord Privy Seal said the other day, it is unfinished business since 1911. It has nothing really to do with it at all—has it?
Lord Annan: My Lords, has the Opposition Chief Whip forgotten that there is one safeguard in this House against abuse of this kind—the Cross-Benchers?
Lord Williams of Mostyn: And long may they remain, my Lords.
Lord Bruce of Donington: My Lords, while in any way refusing to criticise the role of the Cross-Benchers, I invite the Government to answer the much more important question as to when they will make an effort to safeguard the rights of the British Parliament as a whole against the ever encroaching European legislation that is being inflicted upon us without, in many cases, any approval of our Parliament at all?
Lord Williams of Mostyn: My Lords, life is really such fun! I did not imagine that even the noble Lord, Lord Bruce of Donington, could have got the European Parliament into this Question. But my answer to him is that the safeguards of the independence of this Parliament here in Westminster lie with the individual conscience and duty of every Member, whichever House he or she inhabits.
Lord Waddington: My Lords, is not the noble Lord overlooking the fact that the difference between the present situation and the situation which has appertained over the past few centuries is that if the hereditary Peers' right to vote and to sit is abolished and nothing else is done it will only need the Prime Minister to recommend the creation of quite a few Peers for the government of the day to dominate this House absolutely?
Lord Williams of Mostyn: My Lords, that is of course the position, and over the past 18 years incumbent prime ministers have used their power of party patronage to increase their representation in this House. It has been the fact that, numerically, Conservative Peers have always formed the largest segment. That does not seem just, it does not seem rational and it ought not necessarily to be tolerated for all time.
Lord Stoddart of Swindon: My Lords, would not my noble friend agree that the answer to the Opposition was actually given to this House last Tuesday in the debate and the decision on Scottish education fees when the existing Government were defeated, and would have been whether or not hereditary Peers had voted?
Lord Williams of Mostyn: My Lords, that is factually correct. Whether that is the answer to the noble Lord's question, I am not quite sure.

Industrial Action: Extent of Controls
2.58 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway asked Her Majesty's Government:
Whether disproportionate industrial action in the public sector will be proscribed as unlawful unless submitted to mandatory arbitration with binding effect.
Lord Haskel: My Lords, the Government see no justification for adding to the existing controls on industrial action.
Lord Campbell of Alloway: My Lords, I thank the noble Lord for that Answer. Do the Government not believe that it is high time some steps were taken to deal with the sporadic and persistent strikes on the London Underground, which are disproportionate and which cause excessive damage and disturbance? Can he recall that when in opposition his party rejected every proposal in the Green Paper, No. 3470, to deal with such strikes in public sector services but that his right honourable friend, now the Prime Minister, then appeared to favour some form of mandatory arbitration?
Lord Haskel: My Lords, I shall not comment on an industrial dispute which is taking place at present. The United Kingdom has some of the tightest controls on industrial action. Some groups such as the police and prison officers are prohibited from taking action and secondary action is banned. It would be unnecessary and unfair and almost certainly contrary to our undertakings under the ILO, of which we are members, to increase restrictions on industrial action.
As regards the Green Paper referred to by the noble Lord, yes, that was published in November 1996. I seem to remember that almost everyone felt that its recommendations were both unnecessary and undemocratic. In particular, the CBI and the Institute of Directors felt that way.
Lord Davies of Coity: My Lords, does my noble friend agree that the term "disproportionate industrial action" could be used to describe any form of industrial action? Secondly, does he agree that employers, as much as trade unions, are reluctant to be subjected to compulsory or mandatory arbitration? Finally, will he confirm that trade unions are still subjected to industrial action ballots which were introduced by the government supported by noble Lords opposite?
Lord Haskel: My Lords, I can confirm that trade unions are subjected to industrial ballots introduced by the previous government. I confirm also that this Government have no intention of changing that at this time. As regards my noble friend's other question, we
10
certainly encourage employers and employees to make greater use of conciliation and arbitration, pay review bodies and early recourse to ACAS.
Lord Rochester: My Lords, following that question and answer, will the Government actively encourage employers and trade unions to reach voluntary no-strike agreements with a commitment to arbitration if a dispute cannot otherwise be settled?
Lord Haskel: My Lords, certainly it is the Government's view, that employers, employees and trade unions should reach voluntary arrangements. If they believe that no-strike agreements are right for them, then the Government are quite satisfied with that. But it is not for the Government to say what those arrangements should be.
Lord McCarthy: My Lords, does the Minister agree that there is no need for any imposition of statutory binding arbitration agreements because the trade union movement would like to return to the situation which existed in 1979, before the previous government abolished voluntary arbitration agreements? Would it not be a good idea if the present Government were to reintroduce them, particularly in the public sector?
Lord Haskel: My Lords, certainly in 1979 arrangements were in force in relation to arbitration. I believe that they were called ex parte agreements where one side or the other could insist on arbitration. However, those agreements have ceased since privatisation. As regards my noble friend's last recommendation, I repeat that it is a matter for the employer and employee. It is not for the Government to say what those arrangements should be.
Lord Campbell of Alloway: My Lords, is the noble Lord aware that the noble Lord, Lord McCarthy, from a wealth of practical experience, makes a lot of sense and that his proposals warrant serious consideration? Is the noble Lord also aware that he did not answer my first Question, did not answer either of my supplementary questions, and that it is virtually a waste of time asking some questions in your Lordships' House?
Lord Haskel: My Lords, certainly my noble friend Lord McCarthy speaks sense and I know that he is highly regarded in the Labour Party. I am sorry that the noble Lord feels that my responses to his questions were unsatisfactory. I have tried to respond in a practical manner as far as the circumstances will allow.
Earl Russell: My Lords, as I am a member of the Association of University Teachers, I must declare an interest in this Question. Is the Minister aware that in the case of many trade unions, certainly my own, we

11
have no objection to the proposal of the noble Lord, Lord Campbell of Alloway? The objection comes entirely from H.M. Treasury.
Lord Haskel: My Lords, I thank the noble Earl for that observation.
Lord Mackay of Ardbrecknish: My Lords, if the Minister thinks so highly of the intervention of the noble Lord, Lord McCarthy, do I take it that he considers that industrial relations in the winter of 1978–79 were perfect?
Lord Haskel: My Lords, I certainly do not consider them perfect. However, at present the industrial relations situation is very good. We have the lowest number of days lost due to strikes since 1891.
Lord Peyton of Yeovil: My Lords, does the noble Lord understand that his tribute to the legislation of the previous government is extremely welcome? Also, I offer him a word of congratulation on the answer he gave to the noble Lord, Lord McCarthy, although it was a disappointing answer for the noble Lord.
Lord Haskel: My Lords, I thank the noble Lord for his comments.

Business
3.5 p.m.
Lord Carter: My Lords, in view of the grouping of amendments this afternoon on the Third Reading of the School Standards and Framework Bill, it has been agreed through the usual channels that the stages of that Bill will be completed before the dinner break this evening. As a result of that, the Unstarred Question in the name of the noble Lord, Lord Lester of Herne Hill, will be taken at the end of business. The Question will be allowed one-and-a-half hours instead of the usual one hour in the dinner break. Information on the timing of speeches in that debate is displayed on the speakers' list.

Landmines Bill
Brought from the Commons; read a first time, and to be printed.

Statute Law (Repeals) Bill [H.L.]
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee (on re-commitment). Therefore, unless any noble Lord objects, I beg to move that the order of re-commitment be discharged.
Moved, That the order of re-commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

School Standards and Framework Bill
3.7 p.m.
Read a third time.
Clause 24 [School organisation committees]:
Lord Tope Lord Tope moved Amendment No. 1:
Leave out Clause 24.
The noble Lord said: My Lords, we start today by returning to the school organisation committees and the role of the adjudicator. As it is some time since we discussed this very fully in Committee—it having been raised on Report at a particularly crucial time with regard to events in France—I thought it may be helpful to outline briefly again the role of a school organisation committee and its composition; to deal with the reasons why we on these Benches object so strongly to it; and, indeed, why I felt in Committee that there was widespread concern throughout your Lordships' House about it.
The intended role of a school organisation committee is to approve, amend or certainly to consider a school organisation plan to be prepared by the local education authority. The committee is to be composed of a number of groups—the LEA, the Church of England, the Roman Catholic Church, the Further Education Funding Council and a number of others. The membership of each group can comprise a one-person group or one with up to seven members. However, the crucial point is that each group has only one vote on the school organisation committee, including the LEA. That, too, will have only one vote.
The final point is perhaps the most important one as regards our concern about school organisation committees; namely, any decision by such a committee has to be unanimous. One dissenting voice or one dissenting group—it could, indeed, be one individual voice if it is a group of one—would be enough to prevent the committee from making a decision. In the event of the committee being unable to make a unanimous decision, the matter would be referred to an adjudicator to be appointed by the Secretary of State. After due process, the adjudicator would make the final decision on the school organisation plan, but there will be no right of appeal from the adjudicator's decision.
I hope that that is a very brief but accurate description of the position. I intended it to be so, even though it is one about which I am most unhappy. I have no doubt that the Minister will correct any factual inaccuracies that I may have made in that brief summary. The reasons behind our objection to the process are that it is cumbersome, bureaucratic and, in the end, it is fundamentally undemocratic. It is either a 10 or an 11-stage process in full, depending on how the stages are allocated. But it begins with the LEA drawing up the school organisation plan.

13
I should like to spend a few moments outlining how that will happen. The plan is not something which will appear mystically and magically from the office of the director of education and be seen for the first time when it is delivered to the school organisation committee.
In drawing up the plan, any LEA—and most certainly a good one—will consult widely with all the partners and providers in local education. I am sure that the plan will be subject to widespread discussion and debate before it reaches the education committee of the LEA where it will again be debated and discussed in public, not only by the elected members of the LEA but also by the other people who are represented on education committees; namely, the Churches, the soon-to-be parent governors, and so on. It is to be hoped that the education committee will then agree the plan unanimously. I am sure that it will have to be formally agreed by the full council. That is normal practice in such major policy matters.
Therefore, before a school organisation plan is agreed by an LEA, it will have been subjected to very considerable informal and formal consultation with all the players in the local education scene. It will have been debated and discussed and it will finally have been decided upon by a democratically elected body. Then it will be referred to the school organisation committee for further consideration.
At earlier stages of the Bill, my noble friends and I moved amendments which suggested that there may be a useful advisory role here for school organisation committees which can bring together in a more formal way the partners who will already have been involved in the discussions. There is perhaps some use in having an advisory role. I am not wholly convinced in that respect, but I can envisage some scope for it. What I find hard to understand and accept is the fact that a school organisation committee set up statutorily should have the power to amend or, even worse, to override and reject a school organisation plan which will have been prepared in the way that I have described, and decided finally by the elected LEA.
However, school organisation committees will consider school organisation plans. The various groups that have an input will discuss it. No doubt all of them will have their own particular points of interest; indeed, one might say, their own agenda. The Government expressed the desire that that should be done in a spirit of co-operation and that consensus would be sought. As I have said before, I applaud that; and, indeed, I say it again. I very much hope that such matters will always be discussed in a spirit of co-operation and in an attempt to reach consensus and agreement. We will all be pleased where that succeeds. But after years of experience on an LEA—others with similar experience have said the same—I know that that is not always the case in the education world. Unanimity does not always rule naturally; nor is it always easily achieved. As we have heard during our debates, there are sincerely and deeply held views which are diametrically opposed to each other. It is not always easy to achieve unanimity.
We can speculate on how often a school organisation committee will reach unanimity, or fail to do so. I can bandy words with the Minister about whether or not the requirement for unanimity is, in effect, giving a veto to any one group. If one group can ensure that a school organisation committee is unable to reach a decision simply by withholding its vote, it seems to me that that amounts to a veto. When we discussed the matter previously, the Minister expressed some difficulty with that view, which I did not understand at the time. However, perhaps I will understand it when it is explained to me again. Is it the case that one group will have the ability to prevent such a committee reaching the required unanimous decision?
The Government have argued in favour of that process in that it devolves power and decision-making from the Secretary of State to a local level—namely; to a school organisation committee. But that is only true where agreement can be reached—and where agreement can be reached, a contentious issue is not usually involved. If there is a consensus, in a sense it matters a little less where the actual formal decision is taken. The crucial point is where a decision is taken if consensus does not reign and where unanimity cannot be achieved, however hard it is being sought. In that case, a decision does not pass onwards to the Secretary of State, who is perhaps imperfectly at a distance but is, at least to some extent, democratically accountable. He can be lobbied by Members of Parliament and others and is, albeit in a distant form, accountable for his decisions.
Under the proposals before us today, the final decision goes to an adjudicator. I have no doubt that the adjudicators will be given guidelines to follow in making their decisions. I do not doubt that it will be possible to talk to them and I am sure that interested parties will submit their cases. But, at the end of the day, the decision is not made by any democratically-elected or accountable person—however inadequate that democracy or that accountability may be—it is made by a person appointed by the Secretary of State who, incidentally, may or may not have any local connection. Indeed, he may have none.
Moreover, there is not even a right of appeal. When I first heard about these proposals, I compared them to the situation on planning where appeals against planning decisions usually go to an inspector appointed by the Secretary of State. At least in that case it is ultimately the Secretary of State who makes the decision and there is some right of appeal. However, there is no right of appeal as regards the decision made by appointed adjudicators who are, presumably, accountable only to the Secretary of State—should they wish to have their appointments renewed at some stage.
Assuming that agreement is not reached, we are talking about what is ultimately an 11-stage process, which I believe to be cumbersome and bureaucratic. The first step in that process—and only the first—is the extensive consultation and discussion carried out by the LEA in preparing its school organisation plan.

15
The process ends with a decision taken by an adjudicator appointed by the Secretary of State and accountable to no one for that decision. That seems to me to be fundamentally undemocratic.
I would be the last to pretend that our present system is the ultimate in democracy; indeed, demonstrably it is not. I accept that there must be some LEAs which probably do not consult as fully, as widely or as co-operatively as I would certainly wish them to do. The right solution is to improve and enhance the democratic process and, if necessary, to require LEAs to carry out the proper and necessary consultation. The right way to deal with the matter is to enhance the democratic process, not subvert it. However, that is what the Government propose. That is why we are today moving amendments which would remove the clauses dealing with the setting up of school organisation committees and the appointing of adjudicators. I beg to move.
Baroness Blatch: My Lords, yet again I give my enthusiastic support to these amendments. I do not know where the support for the Government's proposals is coming from. It is certainly not coming from local authorities. That is the case whether one talks to a Labour councillor, a Liberal councillor, an Independent councillor or a Tory councillor. They are all of one mind. They believe they were elected to make these decisions and to be accountable to their local population. They feel that the bodies we are discussing constitute unelected placemen and women appointed at the whim of the Secretary of State. They are not accountable. As the noble Lord, Lord Tope, has explained so clearly, when a decision is referred to the adjudicator, there is no right of appeal. One only has to read the interim guidance on school admissions to appreciate the kind of power this body will have. I refer to all the decisions that flow from the school organisation plans and from education development plans.
I now discuss what I consider the unkindest cut of all. A number of decisions that come before a council are supported by all the parties on the council. Those decisions are now no more than recommendations. Decisions may be referred to a panel of unelected people who may take a different view on them. If they do not reach a unanimous decision, the matter is referred to the adjudicator, who can—this has now been confirmed by Written Answer—accept the majority recommendation from the organisation committee. He can also reject that and accept the minority view, which may represent the minority view of only one block vote on the organisation committee. He can also reject both of those views and propose a solution that is different from both of them. There is nothing democratic about that.
As regards admissions policies, there has been a real misunderstanding on the part of grant-maintained schools. They believed that when they became foundation schools they would be their own admissions authority. The Government have said that those schools will be free to determine their own
16
admissions arrangements. However, they will not be free to determine their own admissions arrangements because, if any other admissions authority disagrees with that—including the local education authority—that matter also is referred to the adjudicator, who finally makes the determination, which could be in conflict with that of the so-called admissions authority of the school.
Partial selection can be ended by the adjudicator, as can priority by aptitude. There is no accountability whatsoever. The power of the organisation committee and the adjudicator is unacceptable in a world that is supposed to be more democratic. The Government talk about democracy, open government, accountability and even about sharpening up accountability as regards local authorities. But, in practice, the Government do something quite different. I support these amendments extremely enthusiastically because we are discussing what is probably the most undemocratic proposition that has come from the Government in this past year.
Lord Peston: My Lords, I apologise as I did not manage to enter the Chamber in time to hear the first sentences of the noble Lord, Lord Tope, when moving this amendment. Everything happened slightly more quickly than I thought it would. The noble Baroness, Lady Blatch, in speaking for the main Opposition, said that no one supported this measure. I thought it would be useful if I repeated what I said at an earlier stage of the proceedings; namely, that I certainly support this measure.
Noble Lords: Oh!
Lord Peston: My Lords, occasionally people inside this Chamber like to have their views heard. I support the measure because I view it as an experimental procedure. I can envisage that some of the difficulties that the noble Lord, Lord Tope, has mentioned, could arise. However, it was, and remains my view, that the Government in endeavouring to devolve decision making in this area are doing the right thing. If we look at the matter positively, there is every reason to believe that the committees and/or the adjudicators will behave reasonably.
The whole point of arguing for devolving decision making—I do not take it for granted that local authorities will act in a totally barmy way, although on occasion they have done so—is that I believe it is reasonable for us to give this measure a fair wind to see whether local people at local level can reach some kind of agreement on this matter. I repeat the point—I hope that when my noble friend the Minister responds to the amendment she will also repeat this point—that the adjudicator is subject to all kinds of rules and regulations. At the very least he is subject to all the tradition and philosophy of administrative law, which means that he has to be reasonable. When he gives reasons, those reasons have to make sense. The idea that this is somehow a diktat flies in the face of all similar decision makers who act within administrative law.

17
The noble Lord, Lord Tope, may give us some examples of that philosophy not working. As an economist I suppose I am bound to take the view that one should always plan bearing in mind the worst case. However, I am convinced that it is sensible to take the final say away from the Secretary of State in settling this kind of dispute and to ask the local education authority to prepare the organisation plan. That is then examined by the body we are discussing, which tries to reach agreement on it, and only in the last resort, if it cannot reach agreement, the adjudicator is asked to determine the matter. We have every reason to believe that the adjudicator will be a reasonable, sensible person. I believe we should at least give that procedure a try.
To my knowledge what is proposed here is unusual in the realm of education. However, that does not necessarily mean that it is flawed. I accept that I speak as one poor soul inside the Chamber—it may he only myself in this Chamber who holds this view—but I think that this measure is worth supporting.
Lord Pilkington of Oxenford: My Lords, the noble Lord has missed the point. As a distinguished scholar, he will be aware that many people have chosen between administrators, nominated bodies or democracies to decide matters. Many of us from this side of the House have criticised the working of local government. But at least you can chuck the rascals out! The Government have developed a double tier system. They have moved from local democracy—where you can chuck the rascals out—to an organisation committee, of which a substantial part is nominated, and, then, to an official, an intendant. That is a dirigiste policy, on which I have criticised the Government on many occasions. It is contrary to the tradition of English education. Local authorities have not always acted in the interests of either the Liberals, the Tories or the Labour Party. However, to implement this measure is contrary to everything that has happened in English education over the past 120 years.
I know that the noble Lord has a great regard for democracy. I am surprised that he has supported this measure. The adjudicator is appointed by the Crown and is subject to regulations issued by the Crown. We all know that he will be appointed to prevent the inconvenience experienced by the Secretary of State in the past when local MPs, local authorities and agitators protested when a school was closed. I admire the noble Lord, Lord Peston, in many ways, but I am surprised that he can defend such an authoritarian measure. That shocks me.
3.30 p.m.
Baroness Maddock: My Lords, I support the noble Lord, Lord Pilkington, in his "shock". Normally I am in agreement with the noble Lord, Lord Peston. I wish to draw the attention of the House to some of the points made in defence of the proposal on 1st June. The noble Lord, Lord Whitty, made much of the fact that, in setting up school organisation committees, the Government were concerned to ensure true partnership.
18
He said that the provision of the committees was a matter of partnership between the different providers. He went on to say:
"The school organisation committees give formal effect to the existing partnership which is at the heart of these provisions. A fundamental element of any genuine partnership is that the views of all the partners have force. Therefore, it is not sensible that the local education authority over-rules the views of the other partners. If we arc to retain balance, one partner cannot be more equal than the others".—[Official Report, 1/6/98; col. 17.]
I suggest that in a democracy the democratically elected body has the right to overrule another party. The Government, last week and this week, have been doing just that in reference to other bodies, particularly in relation to school fees. The Government have said that the democratic body has the right to overrule all other bodies. That is what they have said in relation to the Scottish question On the Teaching and Higher Education Bill. Yet this Bill says something quite different; namely, that the undemocratic body, the school organisation committee, has the right to overrule a democratic body. The Government are very twisted in their interpretation of what is democratic. This matter is at the heart of the argument about school organisations and the adjudicator.
The noble Lord, Lord Whitty, went on to say that,
"Local education authorities and the other groups will effectively have the opportunity to secure that any proposals to which they are opposed are considered by the adjudicator".—[Col. 18]
The local education authority will be part of the organisation committee. If it objects, it can then go to the adjudicator.
The Government have spent a lot of time trying to persuade us that the adjudicator will be a local person. On questioning that a little further, we discovered that the adjudicator will not necessarily be a local person, and that he or she might deal with several areas in the same way as inspectors do under the planning system. It is a little rich of the Government to try to sell the proposal to us in this way on the basis that it represents decentralisation.
In a democratic system there is a hierarchy of democratically elected bodies. In this country we have parish councils; district and other councils; and Parliament. It may be the case that some of us in this Chamber would like to see a regional tier, but that does not exist at present. Democratic accountability goes right to the Minister at the top. That is how it has always been. The worst aspect is that not only will that democratic line of accountability go, but people who wish to object to the pronouncements of an adjudicator will have no right of appeal. That goes against everything that we have had in our democratic system in this country.
We do not dispute that it is important to have partnership between local authorities and those on behalf of whom they administer and who are affected by their decisions. No one disputes that. In many areas, local authorities implement that partnership very well, and we should like to see that approach enhanced. However, it cannot be enhanced by simply ignoring democratically elected bodies. That is our case. We must support the democratically elected bodies. You cannot,

19
just because you do not like what is happening, suddenly try to introduce a committee that is not democratic and say that it can overrule a democratic body. That is not the way that we do it. That is the purpose of our amendments. They are forceful, and I hope that we shall have the support of the whole House on this important matter.
Lord Swinfen: My Lords, school organisation committees will form an additional and unnecessary layer of bureaucracy that will syphon funds away which could be better used in the schools themselves.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, this is the third time that we have debated these issues. Admittedly, on one occasion there was a great deal of excitement elsewhere. Much of this ground has been covered before. But I hope your Lordships will bear with me if I go over again the basics behind what we are proposing, not because the noble Lord, Lord Tope, was inaccurate in any way, but because they are fundamental to our reasons for persisting with our belief in these arrangements as the best way forward.
I start with the position as it is. Noble Lords will know that many proposals for change to school organisation are currently considered by the Secretary of State. The Secretary of State takes decisions on all proposals relating to voluntary and grant-maintained schools; and all LEA proposals to which there have been objections. In addition, the Secretary of State may call in any LEA proposal for his own decision. Noble Lords opposite have spoken on a number of previous occasions of their experiences in dealing with such cases. We want to get away from that position. What we want, and what we have support for from consultation, is as local a decision-making process as possible. But it must be a local process based on partnership, reflecting in particular the significant contribution of the Churches over many years in the provision of school places.
Noble Lords opposite drew attention to the consultation and discussion between partners locally that is already undertaken in the development of proposals for change to school organisation. The Government entirely support that and hope that it will continue. Our proposals seek to build upon that partnership at local level. But the existing partnership is supported by the formal arrangements that I have just described in which proposals made by partners other than the LEA come automatically to the Secretary of State. Because the Secretary of State takes all decisions on cases where there is the slightest dispute, there is no incentive to resolve conflict locally.
I was surprised by the remarks of the noble Baroness, Lady Blatch. In giving effect to the principle of decisions at local level, building on local partnerships, we concluded that it was right to involve those other partners directly in the decision-making process. We also concluded that it was right to do so in such a way as to give their views the degree of force that they are now given: hence a school organisation committee, in which the key partners at local level are brought together to reach decisions at a local level.
20
The noble Lord, Lord Tope, and his noble friend Lady Maddock referred to the local education authorities. Our proposed new arrangements do not reduce the powers of local education authorities in respect of proposals for change to school organisation. LEAs will be responsible for securing that there are sufficient school places in their area; and for that reason will draft the school organisation plan. LEAs will retain their powers to publish proposals for all types of change to community schools and to decide any of their own proposals that do not attract objections. In that respect our proposals represent no change from the current arrangements.
Where they do introduce change is in the decision-making on those proposals that local education authorities have never had the power to determine: proposals of their own that attract objections, proposals made by voluntary schools and proposals made by foundation schools. Those proposals are currently removed from the local arena. From the noble Lord's remarks, it appeared that he did not completely understand that. I am sure that he does. However, I was surprised by his remarks in the light of that. In our proposed arrangements, these decisions will be made jointly by all the partners, with each having a direct voice in the decisions on those proposals.
The noble Lord, Lord Tope, seemed to be saying that decision-making can be devolved to the local authority, particularly since other partners have seats on education committees. The fact remains that in the provision of school places the LEA is only one partner. It makes decisions for only some of the schools in its area. Partnership works now because it is supported by the involvement of the Secretary of State in making decisions on voluntary and grant-maintained schools. The school organisation committee, through its membership and voting arrangements, maintains the balance in decision-making partners.
Baroness Blatch: My Lords, with the leave of the House, I am grateful to the Minister for giving way. She invoked grant-maintained schools and foundation schools. I proposed an amendment for the Government to agree that they should be represented on the organisation committee, but the Government objected to it.
Baroness Blackstone: My Lords, perhaps I may pick up the issue of membership of the committees. We have made it absolutely clear that the right way to organise the committees is not to have individual school representation in the way that the noble Baroness suggested. All schools have power to publish proposals of at least one kind within the new framework, including proposals to change categories. Voluntary schools covered by dioceses will be represented on the committee. We believe that it is right that other schools, particularly foundation and non-diocesan voluntary schools, should have a voice on the committee when proposals published by individual schools come to be considered. However, that is a level of detail for regulations rather than appearing on the face of the Bill.
School organisation committees and adjudicators will also be required to have regard to guidance from the Secretary of State. They will have to consider each case

21
on its merits and on the facts. A committee could not take a policy decision always to approve or reject proposals of a particular type, and our guidance will make sure that that does not happen.
The noble Lord, Lord Tope, in particular, among other noble Lords, expressed pessimism that decisions would not be reached by school organisation committees. Proposals going to school organisation committees will cover a wide range of change, including the addition of nursery provision, an enlargement beyond a certain minimum limit, the amalgamation of two schools. Many of those are not at all controversial. LEAs already decide some 40 per cent. of proposals published and that will continue. The number of proposals published varies from year to year, but might amount, in a typical year, to some 600 proposals. That is an average of four for each LEA. Of course, that average covers a range. There are authorities where, in a given year, no proposals at all are published; and others where periodically there is a very large number.
I accept that some proposals may be particularly difficult. Many proposals to close schools are, but even in that case they are not all difficult. I do not accept that school organisation committees will not be able to reach decisions on such proposals. Of course they will be difficult sometimes. Of course there will be pressures on individual members and on groups of members on the committee. But it seems to me a positive outcome that there will be members of the committee presenting a range of views on a particular proposal. But, when it comes to a vote, I think that in the great majority of cases the committee will be able to reach a collective decision. I think that we ought to be a little more optimistic than the noble Lord, Lord Tope, seemed to be.
I turn to the question of adjudicators. While the school organisation committees and the admissions forums provide the framework for local discussion and agreement, we have always recognised the need for a mechanism to cover occasions—which, as I have said, we anticipate will be relatively rare—when local agreement cannot be reached. We hope that it will not be necessary, but of course we must provide for it. We propose that the role should be filled by an adjudicator appointed by the Secretary of State. We shall advertise the posts and recruit openly, following guidance set down by the Committee on Standards in Public Life.
We have placed in the Library a statement on the adjudicator which describes in a little more detail his or her functions. The adjudicator will look again at proposals, comments and objections and the reasons for disagreement at local level. The adjudicator will consider all cases in the light of principles that are set out in public guidance from the Secretary of State and, as appropriate, in the school organisation plan and the code of practice on school admissions.
My noble friend indicated during discussion at Report stage—and I have written to the right reverend Prelate the Bishop of Ripon and the noble Lord, Lord Pilkington—that the guidance will, for example, make clear that adjudicators are not expected to take decisions on proposals to which the Church groups on the school
22
organisation committee had objected and which would reduce the proportion of denominational school places within an authority.
Perhaps I may confirm what my noble friend Lord Peston rightly said and say to the noble Lord, Lord Pilkington, that I do not think that is in any way an authoritarian set of arrangements. The adjudicator will make an independent judgment on the relative merits of each case, based on the facts and against those principles. Of course, he has to make a decision which is reasonable. In all cases, decisions will be judgments between restricted options and we should remember that.
The noble Lord, Lord Tope, said that what we propose is undemocratic, in which he was supported by the noble Baroness, Lady Blatch. During our most recent debate on the issue, the noble Baroness, Lady Maddock, acknowledged that,
"politics does come into this—quite often".
She went on to regret that,
"in some cases that happens more than perhaps it should".
However, elected members do not have a monopoly of reasonable common-sense decisions. That is what we shall expect of adjudicators. They must be separate from any concern that decisions have been prompted by political considerations.
Baroness Maddock: My Lords, I am grateful to the Minister for giving way. That is the problem with democracy, we all know that. One has to accept in a democracy that we do not always agree with those who make the decisions. It happens all the time. That is the point of what we are saying and of what I said before. The Minister has made my point for me.
3.45 p.m.
Baroness Blackstone: My Lords, the local education authority and its elected representatives will have every opportunity to express their views. It is not as if they are being shut out of the decision-making process, as was more or less implied by what the noble Baroness said.
Perhaps I may return to adjudicators. They must also be able to keep an objective perspective, be able to weigh competing arguments and be accepted for their ability to do so. Adjudicators will be assigned to cases on the basis of their availability and they will be excluded from considering cases in which they might be regarded as parti pris. They will also have to give reasons for their decisions and set them out in formal letters which give the decision and which indicate how, in balancing the information put forward, the individual decision has been reached. Since the adjudicator is the second stage of consideration, all the relevant information should already be available. However, if the adjudicator does exceptionally need to consider new information, naturally the parties concerned will have every opportunity to comment on it. That would only be right.
Adjudicators will also be able to invite oral representations from any party with an interest, although whether or not they do so will be at each individual's

23
discretion. Adjudicators may also hold public inquiries into cases if they wish and will be required to do so in considering any proposals published by the Secretary of State. Any additional information the adjudicator received would be copied to relevant parties for comment. So decisions will be clear, open and transparent.
I ask the noble Lord, Lord Pilkington—who is holding another conversation—how can that be authoritarian? The focus of the arrangements is that there should be local decision making. I believe school organisation committees will reach decisions on the majority of proposals and that our objective will be achieved. Noble Lords opposite may accuse me of optimism. I prefer to think of it as trust in the ability of those responsible for providing school places locally to reach agreement on important issues.
However, we must of course provide a mechanism for resolution of those cases, which we hope will be very few, that cannot be decided by school organisation committees. We see greatest strength in there being an independent means of reaching the decision. That is what the clause is about.
Our proposed new arrangements secure decision-making on school organisation at local level; a principle for which there is wide support. They also provide, for those occasions where there is not local agreement, an independent means of reaching a decision. The Government believe that that is the right way to secure local decision-making. I hope that the reasons for that are now clear. I invite the noble Lord to withdraw his opposition to these clauses and schedules.
Lord Tope: My Lords, I am grateful to the Minister and to all who have taken part in this short debate. Perhaps I may speak first on the comments of the noble Lord, Lord Peston, who has, in the past, described himself not as "old Labour" but as "Labour Gold". With that in mind, I was slightly less surprised at the views he was expressing. The noble Lord expressed the hope and the expectation that school organisation committees and adjudicators would act reasonably. Indeed, I think he said in parenthesis that it is not unknown for local education authorities to act reasonably.
All public bodies are under a legal duty to act reasonably. Sometimes a court has to determine what is "reasonable"—most of us regret that stage being reached, but that is the position. When it gets to that stage and a court has to decide what is and what is not "reasonable", it looks at the process and not at the policy decision. That is an important difference which is fundamental to our objections here. I have no doubt that the adjudicator or, indeed, the school organisation committee and, dare I say it, first of all the local education authority, will act and reach decisions in a way which they believe to be reasonable. But those decisions are seen to be reasonable only if you happen to agree with them. If you disagree with a decision, it may well appear to be unreasonable as a policy decision. We come back to the issue of where the final decision is made.
24
The Minister has said that aim is to reach agreement, to reach a consensus. I have said on every occasion that we have discussed this issue that that is the right approach. I am keen for that to happen. The Minister accused me of pessimism and claimed optimism for herself. One of us is being realistic; perhaps the other is not. Your Lordships will have to judge which of us is realistic and which is optimistic. However, there is common ground between us. There will be occasions—never mind how many—when try as it may, a school organisation committee will not reach the required unanimity and the matter will go to an adjudicator—an adjudicator who is not democratically elected, not accountable, but who is appointed by the Secretary of State.
It is said that the adjudicators will be wise persons—I am sure that they will be—that they will hear all the evidence that is put to them and make wise and balanced decisions. I am prepared to accept that until I hear or see otherwise. But one might just as well say that every decision by local government, or by central government for that matter, should go to a judge or—some of your Lordships may agree with this—to a permanent secretary who will weigh all the evidence, consider the matter carefully and make a balanced judgment. I am sure they would do so, but that is not what we describe as a "democratic" process. That is the heart of our objections to this process.
These matters are extremely important to people in any education area. We tend to talk about "local people", but everybody is a local person somewhere. These matters should be decided finally and ultimately after full consideration and consultation through a democratic process, not by a process involving appointees, however wise the appointed persons may be.
As the Minister mentioned, when we discussed school organisation committees, we did so during extra time on some event that was taking place in France. By the time we reached the question of adjudicators we were into penalty shoot-outs. I received a message from the Government Chief Whip—I hasten to say the Government Chief Whip, not my own—that on no account should we seek to call a Division. On that occasion at least, we concluded that the Government Chief Whip was correctly interpreting the wishes of the House and we did not call a Division. But these issues have, as the Minister rightly said, now been debated here three times. Considerable concern has been expressed. Indeed, I think it has grown each time the issue has been discussed.
Lord Carter: My Lords, when the noble Lord mentioned me did he say that I asked him to do something and the Liberals did it?
Lord Tope: My Lords, as the Chief Whip knows only too well, we are always reasonable people, prepared to listen to a reasonable case. When the noble Lord suggested to me that calling a Division during extra time or during a penalty shoot-out was not a good thing to do, I thought that was a reasonable point and I acceded to it. If the noble Lord makes a similar suggestion to me

25
now, I shall not accede to it. I think the time has come when we must test the opinion of the House on this matter.
3.54 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 173; Not-Contents, 104.

Division No. 1

CONTENTS

Aberdare, L.

Fookes, B.

Addington, L. [Teller.]

Gainford, L.

Addison, V.

Gardner of Parkes, B.

Ailsa, M.

Garel-Jones, L.

Alexander of Tunis, E.

Glentoran, L.

Ampthill, L.

Goodhart, L.

Anelay of St. Johns, B.

Halsbury, E.

Annaly, L.

Hamwee, B.

Astor of Hever, L.

Harding of Petherton, L.

Balfour, E.

Harlech, L.

Barber, L.

Harris of Greenwich, L.

Beaumont of Whitley, L.

Hayhoe, L.

Belhaven and Stenton, L.

Henley, L.

Berners, B.

Higgins, L.

Biddulph, L.

Hogg, B.

Biffen, L.

Holderness, L.

Blaker, L.

Holme of Cheltenham, L.

Blatch, B.

Home, E.

Bowness, L.

Hood, V.

Bridgeman, V.

Hooper, B.

Broadbridge, L.

Hylton-Foster, B.

Brougham and Vaux, L.

Ilchester, E.

Bruntisfield, L.

Iveagh, E.

Burnham, L.

Jenkins of Hillhead, L.

Butterworth, L.

Johnston of Rockport, L.

Byford, B.

Kimball, L.

Cadman, L.

Knight of Collingtree, B.

Caldecote, V.

Lane of Horsell, L.

Campbell of Alloway, L.

Layton, L.

Campbell of Croy, L.

Leigh, L.

Carlisle, E.

Liverpool, E.

Carnegy of Lour, B.

Long, V.

Charteris of Amisfield, L.

Lucas, L.

Chesham, L.

Lucas of Chilworth, L.

Coleridge, L.

Ludford, B.

Colwyn, L.

Luke, L.

Cope of Berkeley, L.

McColl of Dulwich, L.

Courtown, E.

MacFarlane of Bearsden, L.

Cowdrey of Tonbridge, L.

Mackay of Ardbrecknish, L.

Craig of Radley, L.

Mackay of Drumadoon, L.

Cranborne, V.

Macleod of Borve, B.

Cranbrook, E.

McNair, L.

Cullen of Ashbourne, L.

McNally, L.

Darcy de Knayth, B.

Maddock, B.

Davidson, V.

Masham of Ilton, B.

De L'Isle, V.

Mayhew of Twysden, L.

Dean of Harptree, L.

Mersey, V.

Dearing, L.

Middleton, L.

Denbigh, E.

Miller of Hendon, B.

Denham, L.

Milverton, L.

Denton of Wakefield, B.

Monteagle of Brandon, L.

Dholakia, L.

Mottistone, L.

Dixon-Smith, L.

Mountevans, L.

Elibank, L.

Mowbray and Stourton, L.

Ellenborough, L.

Moyne, L.

Elles, B.

Munster, E.

Elliott of Morpeth, L.

Murton of Lindisfame, L.

Eme, E.

Naseby, L.

Ezra, L.

Nathan, L.

26

Newby, L.

Saatchi, L.

Nicholson of Winterbourne, B.

Sandberg, L.

Norfolk, D.

Seccombe, B.

Norrie, L.

Selkirk of Douglas, L.

Northesk, E.

Sharples, B.

O'Cathain, B.

Simon of Glaisdale, L.

Onslow of Woking, L.

Soulsby of Swaffham Prior, L.

Oppenheim-Barnes, B.

Strange, B.

Orr-Ewing, L.

Strathclyde, L.

Oxfuird, V.

Swinfen, L.

Pender, L.

Taverne, L.

Perry of Southwark, B.

Taylor of Warwick, L.

Thomas of Walliswood, B.

Pilkington of Oxenford, L.

Thomson of Monifieth, L.

Platt, of Writtle, B.

Tope, L. [Teller.]

Prentice, L.

Tordoff, L.

Pym, L.

Trumpington, B.

Rankeillour, L.

Vinson, L.

Rawlings, B.

Vivian, L.

Razzall, L.

Waddington, L.

Renton, L.

Wallace of Saltaire, L.

Renwick, L.

Warnock, B.

Roberts of Conwy, L.

Westbury, L.

Rochester, L.

Wigoder, L.

Rodgers of Quarry Bank, L.

Williams of Crosby, B.

Romney, E.

Winchilsea and Nottingham, E.

Russell, E.

Wise, L.

Russell-Johnston, L.

Young, B.

NOT-CONTENTS

Ailesbury, M.

Howie of Troon, L.

Arnos, B.

Hoyle, L.

Annan, L.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Barnett, L.

Irvine of Lairg, L. [Lord Chancellor.]

Bassam of Brighton, L.

Berkeley, L.

Islwyn, L.

Blackstone, B.

Jay of Paddington, B.

Blease, L.

Jeger, B.

Blyth, L.

Jenkins of Putney, L.

Borrie, L.

Judd, L.

Brooks of Tremorfa, L.

Kennedy of The Shaws, B.

Bruce of Donington, L.

Kennet, L.

Burlison, L.

Levy, L.

Carmichael of Kelvingrove, L.

Lockwood, B.

Carter, L. [Teller.]

Lofthouse of Pontefract, L.

Clinton-Davis, L.

Longford, E.

Cocks of Hartcliffe, L.

Lovell-Davis, L.

Currie of Marylebone, L.

McIntosh of Haringey, L. [Teller.]

David, B.

Marsh, L.

Davies of Coity, L.

Mason of Barnsley, L.

Dean of Beswick, L.

Merlyn-Rees, L.

Desai, L.

Milner of Leeds, L.

Dixon, L.

Monkswell, L.

Donoughue, L.

Montague of Oxford, L.

Dormand of Easington, L.

Morris of Manchester, L.

Dubs, L.

Murray of Epping Forest, L.

Evans of Parkside, L.

Nelson, E.

Falconer of Thoroton, L.

Nicol, B.

Farrington of Ribbleton, B.

Orme, L.

Fitt, L.

Oxford, Bp.

Gallacher, L.

Peston, L.

Gilbert, L.

Ponsonby of Shulbrede, L.

Gladwin of Clee, L.

Prys-Davies, L.

Glenamara, L.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Gregson, L.

Rendell of Babergh, B.

Grenfell, L.

Richard, L. [Lord Privy Seal.]

Hacking, L.

Ripon, Bp.

Hardy of Wath, L.

Rix, L.

Haskel, L.

Rogers of Riverside, L.

Hayman, B.

Sefton of Garston, L.

Hilton of Eggardon, B.

Serota, B.

Hogg of Cumbernauld, L.

Shepherd, L.

Hollis of Heigham, B.

Shore of Stepney, L.

27

Simon, V.

Turner of Camden, B.

Simon of Highbury, L.

Walker of Doncaster, L.

Stallard, L.

Weatherill, L.

Stoddart of Swindon, L.

Whitty, L.

Williams of Elvel, L.

Strabolgi, L.

Williams of Mostyn, L.

Taylor of Blackburn, L.

Winston, L.

Taylor of Gryfe, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
4.5 p.m.
Clause 25 [Adjudicators]:
Lord Tope Lord Tope moved Amendment No. 2:
Leave out Clause 25.
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
Clause 28 [Proposals for establishment or alteration of community, foundation or voluntary school]:
Baroness Blatch Baroness Blatch moved Amendment No. 3:
Page 27, line 8, at end insert—
("( ) Proposals under this section shall include provision to ensure that any school making the transition to foundation, voluntary aided or community status shall retain at least the same level of financial autonomy as it had before that transition.").
The noble Baroness said: My Lords, Amendment No. 3 seeks to ensure that any school making the transition to foundation status, voluntary aided or community status shall retain at least the same level of financial autonomy as it had before that transition. After all the amendments that have gone to and fro and all the amendments that have not been accepted by the Government, which aroused suspicions in the minds of grant-maintained schools about what exactly will happen on transition to another status, this is an opportunity for the Government now to be unequivocal on schools' financial autonomy.
The Government will have seen on Saturday a letter in The Times showing six signatures—there were many other signatures but The Times printed only six. The letter was from a large number of schools saying that the proposals set out in the School Standards and Framework Bill constitute a risk and that some of the proposals could damage some of the country's best schools. The level of financial autonomy enjoyed by grant-maintained schools is a matter they regard very seriously. Those schools fought jolly hard to become grant-maintained schools. They fought for that autonomy and now they wish to retain it.
I have to say at this point that I support very strongly indeed the extension to all schools of the kind of autonomy enjoyed by grant-maintained schools. I hope that that will happen, and very quickly. I am disturbed by the notion that it will be a phased in policy. I do not see any dangers because most of the schools that have enjoyed financial autonomy have dealt with the challenge well. In fact, there are measures both in this Bill and in previous statutes to cater for those schools which, for one reason or another, get into trouble, enabling financial management to be wrested away from them while matters are sorted out. Whatever the risks are, there is provision for dealing with them as they
28
arise. However, schools are suspicious about what will happen and what the practice will be when grant-maintained schools change their status to another category.
There are two particular areas of concern. The first, which I have just mentioned, is the phasing in of financial autonomy to schools that have hitherto not enjoyed that degree of autonomy. It would be helpful to hear unequivocally from the Government that, whatever the phasing in system and however long it takes, no grant-maintained school that becomes a foundation school or a voluntary aided school will have to go back to the base of that local authority area, that it will retain all this autonomy and that the other schools will be phased in to meet at least the level of autonomy mooted in the Fair Funding paper—and possibly more. The first assurance I want from the Minister therefore is to say that, however this system is phased in and whatever happens to schools that have not enjoyed this autonomy in the past, it will not affect the level of financial autonomy enjoyed by grant-maintained schools as of today.
The other area which gives cause for concern—the answers we have had to date from the Government only add to that concern and heighten it—is the proposition in the Fair Funding paper that schools, in choosing whether or not to accept local autonomy (local financial management), will be invited to vote on certain aspects of central funding or central services. The primary and/or secondary sectors will vote as a block to decide whether they want to provide the services themselves or have them provided by the local authority.
Suggestions have been put forward as to the kinds of service for which they would be voting. But whatever they are, if the requisite percentage—the document suggests 80 per cent.—of schools vote to have a service provided by the local education authority, there is no good reason, given that the viable economic unit has been reached, for all schools to have to accept that autonomy. If schools that were previously grant-maintained are not part of that 80 per cent.—or the percentage decided at the end of the consultation process—they should retain their autonomy to provide the service. In almost all these services the schools have proven beyond doubt that they are able to secure value for money and make decisions that are better suited to their own schools and their own situations. Therefore, they jealously guard the right to be able to make decisions for themselves.
In those two critical areas therefore, schools are concerned. Because the Government never stop reminding us that they believe that grant-maintained schools received disproportionately favourable funding, which implies—it can imply no other—that funds will be reallocated away from ex-grant-maintained schools, they would like to know what funds will be allocated away from them. The argument either has force or it does not. If it has force, then they will lose money because the Government say that they are going to amortize funding across the whole sector. I do not disagree with that, except to say this. The additional funding that goes to grant-maintained schools and that ought to go to them when they become foundation

29
and/or voluntary aided schools represents additional functions that their schools carry out. It is not there for any other reason. There is a rationale for it and, therefore, either the money is taken away and the functions remain or the functions are taken away, in which case it flies in the face of my amendment.
Amendment No. 3 seeks to ensure that during and following any transition, grant-maintained schools will not lose any financial degree of autonomy that they enjoy at this time. I beg to move.
4.15 p.m.
Baroness Blackstone: My Lords, this amendment seeks to pursue essentially the same objectives as the noble Baroness was seeking to pursue by other amendments tabled at the previous stages. Her concern—as she made very clear—is essentially to provide special protection for grant-maintained schools within the new framework.
I have to say that the amendment now tabled seems to be quite out of place in Clause 28, and I shall want to return to that aspect in a moment. But before I do so, I ought to address the issues of policy underlying the amendment, even though we have gone over the ground pretty thoroughly during the Bill's previous stages and I am not sure how much there is to add now. Indeed, the noble Baroness poses exactly the same questions as she has posed on several previous occasions and I felt I had done my best to try to answer them.
Throughout the debates on the school funding provisions of the Bill, the noble Baroness seems to have spoken of little else but grant-maintained schools. The Government are concerned to establish a funding system which will meet the needs of all schools, including the vast majority of schools which declined to apply for grant-maintained status despite all the energy with which the GM status was promoted by the previous government.
Our proposals for the detailed implementation of the funding provisions of the Bill have now been set out in the consultation paper Fair Funding, and it would not be right to pre-empt the view which we may take on this or that matter of detail once we have considered the responses we receive. The fundamentals of the new devolved funding system should, however, be clear. In this regard, either directly or indirectly, I shall be answering the question of the noble Baroness.
First, the funding arrangements must treat all school categories impartially. There may, at the margins, be some room for argument as to what that means in practice. In the light of responses to the consultation paper, we shall consider whether there are in fact any grounds for differentiation between one category of school and another. But as I say, this is very much at the margins. On the arguments as they stand so far, impartial treatment for the different categories seems to us—and I would have thought to most sensible people—to imply similar treatment.
Secondly, however, it remains our aim that all schools should receive this impartial treatment within a framework which reflects the experience of the grant-maintained sector as closely as possible, in terms
30
of the financial autonomy which schools enjoy. I have said that before to the noble Baroness and would like to reassure her again on that point. Autonomy, of course, has two aspects. On the one hand, it is about the freedom of schools to manage the funding allocated to them, subject only to whatever controls are reasonably necessary to protect the funding bodies' legitimate interests. In the new situation, it would be unrealistic to promise GM schools that nothing whatever will change, in the area of financial procedures and controls. We have to recognise that the LEA is statutorily accountable for ensuring that the funds which it allocates to the schools which it maintains are properly spent. That will apply in future to schools which are at present grant-maintained.
But we shall certainly make it our business to ensure that GM schools' existing arrangements are disturbed as little as possible. Any changes which LEAs may want GM schools to make will need to be justified in terms of necessity rather than convenience. And the Secretary of State will make vigilant use of his powers under Clause 56 and Schedule 14 to ensure that changes do not in any event have the effect of interfering with the right of governing bodies to decide how best to deploy their delegated funding for the purposes of the school. That, after all, is what autonomy is really about.
The other crucial aspect of financial autonomy is of course the balance between funding delegated to schools and funding retained centrally by LEAs. On that, we want the balance between delegated and centrally-retained funding to reflect the principle that funding should follow function: and in considering what that means, we shall wish to take a stringent view of the role of the LEA while ensuring that LEAs have access to the resources which that role requires.
What that will mean in detail necessarily depends on several factors. It will depend on the decisions we finally take on the division of responsibilities and associated funding, in the light of the responses to the consultation paper. It will depend on the level of financial resources available to LEAs, and on the decisions which LEAs take within those constraints. But our aim remains as we stated it last year in the Technical Consultation Paper on the New School Framework: to level up and now down, and to establish a funding regime which maximises self-management for all schools subject only to the need for LEAs to be able to carry out their essential tasks.
I now need to return to the terms of the amendment as tabled by the noble Baroness. Whatever one's view on the policy issues, it seems to me that the amendment misfires in two important respects. First, it assumes that financial autonomy is readily measurable. Of course, it will often be clear whether a particular change, or set of changes, will have the effect of reducing autonomy or increasing it. But that will not always be the case. It is not too hard to visualise a situation in which a funding body might wish to tighten some of its rules while relaxing others. In such a situation it may not be at all self-evident whether the net result is to enhance or reduce the independence of the bodies which are being

31
funded. It seems to me to be very unwise to try to write a provision into primary legislation which would leave such a wide margin for doubt and argument.
Secondly, and as I mentioned at the beginning, the amendment is quite out of place in Clause 28. The financing of schools is dealt with in Clauses 53 to 59 and their associated Schedules 14 and 15. Schools' autonomy will be determined mainly by the terms of the regulations made by the Secretary of State under Clause 54, and the terms of the LEA schemes which the Secretary of State is prepared to approve under Clause 56 and Schedule 14. Clause 28, however, is concerned purely with the making of proposals for the establishment or alteration of community, foundation or voluntary schools.
There is no other suggestion in Clause 28, as it stands, that these statutory proposals should say anything at all about the funding of the schools which are to be established or altered; nor is Clause 28 directly concerned with the possible movement of schools from one category to another. It is indeed very difficult to see how the discretions vested in the Secretary of State and LEAs by Clauses 53 to 59 could be constrained by the addition of a subsection of this kind to Clause 28.
I have taken note of the concerns on specific points which have been expressed by the noble Baroness on behalf of the grant-maintained sector at previous stages. We shall take these fully into account in reaching our final conclusions. I know that the noble Baroness in some ways would like me to pre-empt the process of consultation by saying here and now what the conclusions will be on all manner of detailed decisions yet to be taken. But from her experience I am sure she will realise why I cannot do this. I hope also that she will acknowledge that her objective could not in any event be achieved satisfactorily—or indeed at all—by the amendment which she has tabled. I hope very much that she will see fit to withdraw it.
Baroness Blatch: My Lords, I stand chastised by the noble Baroness as not being very sensible. The noble Baroness is very sensible, so I simply concede to the very sensible noble Baroness, Lady Blackstone. I am not pre-empting consultation and neither is my amendment. We have no wish to do so. It is an interesting paper and there will be much to be said about it. In my amendment I simply ask to sustain the level of autonomy when such schools move from one category to another whatever happens. The noble Baroness said that the Government are concerned about levelling up, not levelling down. That is precisely what my amendment seeks: that the Government should level up to the autonomy of grant-maintained schools and not level down.
The first point I am making is that we are asking for a commitment from the Government that the GM schools will not lose out. The Government have consistently refused to give that assurance, so do not let us be surprised if the grant-maintained schools are concerned and suspicious about the Government's intentions.
32
As regards my amendment not being in the right place, given the midnight oil that I have burnt in considering these amendments in the last few weeks, it is not surprising that I make mistakes from time to time. I can see that this may well be one. When I was in the same position on the Benches opposite, if an amendment was carried by the House and it was incorrect or in the wrong place, it was for the Government to put it in the right place and to make sure that it was correct en passant. That was done frequently by my departments when I was working for the then government.
The noble Baroness was wholly inconsistent in saying that I was asking for more special protection. I am not asking for that, but simply that the schools should not lose something that they already have. As I understand it, the Government's notion of treating all schools the same is to treat all of them like GM schools. That is certainly what the Prime Minister has said. The "glitzy-ritzy" schools Minister is always talking about bringing all schools up to the autonomy level of the grant-maintained schools. I have to say to the noble Baroness that that is not special. We would like to see all schools enjoying the freedom, flexibility, financial and operational autonomy that has been enjoyed hitherto by grant-maintained schools. So it is not special; I am simply saying that those schools should not lose out with regard to their current position.
The Government have said that they are concerned about all schools; that is right. Again, my amendment does not prevent the Government from being concerned about all schools or treating them all in the manner of grant-maintained schools. The noble Baroness spoke about all schools being treated impartially. She said that she was addressing the particular point about whether grant-maintained schools lose out. If the noble Baroness is right that there shall be no partiality at all, even during the transition period, the only way that that can be read is that the grant-maintained schools must go down to the level of all the community schools and then be phased up with them. If there is no partiality, at least as an interregnum, we should allow GM schools to retain their autonomy and the autonomy of all other schools should be phased up to that level. I have to accept, given what the noble Baroness has said, that there will be no differentiation during and after the interregnum until the phasing of financial autonomy is complete.
In our earlier debates, the grant-maintained schools took the Government on trust. It is only in the final days of this Bill that they have found that its provisions do not match what they believed the Government to promise them when they become foundation schools. It was a streak of honesty, but it was very inconsistent with some of the other things that the noble Baroness said in the course of responding earlier to a similar amendment.
The noble Baroness also said that the Government wanted all schools to reflect the grant-maintained school set-up. That is certainly what the schools Minister and Mr. Blair have been saying during the past year. They would like that to be done as closely as possible. One cannot have it both ways. If there is to be no partiality whatsoever in the early stages where grant-maintained

33
schools keep their autonomy and other schools are phased up to that level, that cannot be delivered. It means that the level playing field will start on transfer.
The noble Baroness said that she cannot give a guarantee that nothing will change. I am asking that nothing should change as regards grant-maintained schools. If there is to be change following transition, it should he change for the better, not for the worse. That is a matter for the Government. It is a question of resources and of how the new proposals bed down. I am asking that grant-maintained schools (as they translate to foundation schools) and all voluntary aided schools should not lose out. I believe that it is possible that they will see a reduction in their level of autonomy, but not in the detail, as concerns the central services and functions for which they are now funded and which they are carrying out very well indeed.
Those schools opted for self-government and, as I said earlier, they went through a great deal of difficulty to reach that position. The noble Baroness said the Government cannot possibly put that safeguard on the face of primary legislation. I see no reason why that cannot be done. There is no technical reason. It is only a philosophical reason on the part of the Government because they do not want to put in place a guarantee that standards will not be reduced and become worse for grant-maintained schools as they transfer.
The critical point is that financial and operational autonomy are very important to such schools. If one is to believe the rhetoric, there is to be a levelling up to that level of autonomy. The noble Baroness said nothing about the 80 per cent. That was completely disregarded in her answer. She said nothing about the Government's view on the favourable allocation of resources to grant-maintained schools and what that means. She said nothing about the interpretation of that or about the practical application of removing from grant-maintained schools their favourable allocation. The noble Baroness did not refer to those matters. I am wholly dissatisfied with the answer, for the third time of hearing it. I now seek to test the opinion of the House.
4.30 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 134.

Division No. 2

CONTENTS

Aberdare, L.

Berners, B.

Ailesbury, M.

Biffen, L.

Ailsa, M.

Blaker, L.

Alexander of Tunis, E.

Blatch, B.

Ampthill, L.

Bowness, L.

Annaly, L.

Brentford, V.

Ashbourne, L.

Bridgeman, V.

Astor, V.

Broadbridge, L.

Astor of Hever, L.

Bruntisfield, L.

Baker of Dorking, L.

Butterworth, L.

Balfour, E.

Byford, B. [Teller.]

Belhaven and Stenton, L.

Cadman, L.

Beloff, L.

Caldecote, V.

34

Camegy of Lour, B.

Marsh, L.

Charteris of Amisfield, L.

Masham of Ilton, B.

Coleraine, L.

Mayhew of Twysden, L.

Coleridge, L.

Mersey, V.

Colwyn, L.

Middleton, L.

Craig of Radley, L.

Miller of Hendon, B.

Cranbrook, E.

Milverton, L.

Davidson, V.

Mottistone, L.

De L'Isle, V.

Mountevans, L.

Denham, L.

Mowbray and Stourton, L.

Denton of Wakefield, B.

Moyne, L.

Derwent, L.

Munster, E.

Dixon-Smith, L.

Murton of Lindisfarne, L.

Donegall, M.

Naseby, L.

Elibank, L.

Newton of Braintree, L.

Ellenborough, L.

Noel-Buxton, L.

Elles, B.

Norfolk, D.

Elliott of Morpeth, L.

Norrie, L.

Erne, E.

Onslow ot Woking, L.

Fookes, B

Oppenheim-Barnes, B.

Gainford, L.

Perry of Southwark, B.

Pilkington of Oxenford, L.

Gardner of Parkes, B.

Platt of Writtle, B.

Garel-Jones, L.

Prentice, L.

Gray of Contin, L.

Pym, L.

Haslam, L.

Rawlings, B.

Hayhoe, L.

Renton, L.

Hemphill, L.

Romney, E.

Hogg, B.

Rowallan, L.

Holderness, L.

Seccombe, B.[Teller.]

Home, E.

Selkirk of Douglas, L.

Hood, V.

Soulsby of Swaffham Prior, L.

Hooper, B.

Strange, B.

Inchcape, E.

Strathclyde, L.

Jenkin of Roding, L.

Swinfen, L.

Knight of Collingtree, B.

Teviot, L

Lauderdale, E.

Trefgame, L.

Lloyd-George of Dwyfor, E.

Trumpington, B.

Lucas, L.

Vinson, L.

Lyell, L.

Vivian, L.

McColl of Dulwich, L.

Waddington, L.

Mackay of Drumadoon, L.

Westbury, L.

Macleod of Borve, B.

Young, B.

NOT-CONTENTS

Addington, L.

Dormand of Easington, L.

Allenby of Megiddo, V.

Dubs, L.

Amos, B.

Eatwell, L.

Annan, L.

Evans of Parkside, L.

Archer of Sandwell, L.

Ezra, L.

Avebury, L.

Falconer of Thoroton, L.

Barnett, L.

Farrington of Ribbleton, B.

Bassam of Brighton, L.

Fitt, L.

Beaumont of Whitley, L.

Gallacher, L.

Berkeley, L.

Gilbert, L.

Blackstone, B.

Gladwin of Clee, L.

Blease, L.

Glenamara, L.

Blyth, L.

Graham of Edmonton, L.

Borrie, L.

Gregson, L.

Brooks of Tremorfa, L.

Grenfell, L.

Bruce of Donington, L.

Hacking, L.

Burlison, L.

Harnwee, B.

Carlisle, E.

Hardy of Wath, L.

Carmichael of Kelvingrove, L.

Haskel, L.

Carter, L. [Teller.]

Hayman, B.

Clinton-Davis, L.

Hilton of Eggardon, B.

Cocks of Hartcliffe, L.

Hogg of Cumbernauld, L.

Currie of Marylebone, L.

Hollis of Heigham, B.

David, B.

Hooson, L.

Davies of Coity, L.

Howie of Troon, L.

Dean of Beswick, L.

Hoyle, L.

Desai, L.

Hughes, L.

Dholakia, L.

Hunt of Kings Heath, L.

Dixon, L.

Irvine of Lairg, L. [Lord Chancellor.]

Donoughue, L.

35

Islwyn, L.

Razzall, L.

Jay of Paddington, B.

Rendell of Babergh, B.

Jeger, B.

Richard, L. [Lord Privy Seal.]

Jenkins of Putney, L.

Ripon, Bp.

Judd, L.

Rix, L.

Kennedy of The Shaws, B.

Rochester, L.

Kennet, L.

Rogers of Riverside, L.

Levy, L.

Russell, E.

Lockwood, B.

Russell-Johnston, L.

Lofthouse of Pontefract, L.

Sandberg, L.

Longford, E.

Scotland of Asthal, B.

Lovell-Davis, L.

Sefton of Garston, L.

Ludford, B.

Serota, B.

McCarthy, L.

Shepherd, L.

McIntosh of Haringey, L. [Teller.]

Shore of Stepney, L.

McNair, L.

Simon, V.

McNally, L.

Simon of Highbury, L.

Maddock, B

Smith of Gilmorehill, B.

Mason of Barnsley, L.

Stallard, L.

Merlyn-Rees, L.

Stoddart of Swindon, L.

Milner of Leeds, L.

Strabolgi, L.

Molloy, L.

Taverne, L.

Monkswell, L.

Taylor of Blackburn, L.

Taylor of Gryfe, L.

Montague of Oxford, L.

Thomas of Walliswood, B.

Morris of Manchester, L.

Thomson of Monifieth, L.

Murray or Epping Forest, L.

Tope, L.

Nathan, L.

Tordoff, L.

Newby, L.

Turner of Camden, B.

Nicholson of Winterbourne, B.

Walker of Doncaster, L.

Nicol, B.

Wallace of Saltaire, L.

Orme, L.

Whitty, L.

Oxford, Bp.

Williams of Crosby, B.

Peston, L.

Williams of Elvel, L.

Ponsonby of Shulbrede, L.

Williams of Mostyn, L.

Prys-Davies, L.

Winchilsea and Nottingham, E.

Ramsay of Cartvale, B.

Winston, L.

Randall of St. Budeaux, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.39 p.m.
Clause 39 [Additional functions of governing body]:
Baroness Maddock Baroness Maddock moved Amendment No. 4:
Page 34, line 22, at end insert—
("( ) The governing body of a maintained school shall have a duty to facilitate and give reasonable assistance to parents who wish to establish an organisation within the school to represent parents when 20 per cent. of those parents have petitioned for it.").
The noble Baroness said: My Lords, I beg to move Amendment No. 4. Many noble Lords will be aware that this amendment is a redrafting of Amendment No. 107 which was moved on Report. That amendment sought the right of parents to set up a parents association at a school to be enshrined in legislation. The difference between that and the present amendment is that the new wording refers to 20 per cent. of parents who petition for such an association. This amendment is moved in response to concerns on the part of the Government and some noble Lords that possibly a few parents may hold everyone else to ransom. That was never the intention of what we sought to achieve.
The debate at Report stage became hung-up on references to CASE and its national policy and proposed national structure of interacting parent associations that would be federated to a countrywide body. The Minister was adamant that that was a step too far and that was a reason for rejecting the amendment. The aims of this
36
amendment are far more modest. We wish to remedy the situation that occasionally arises in which headteachers or governing bodies refuse the reasonable requests of a significant proportion of parents to form an organisation to represent them in a school. We and many others believe that such an organisation should be afforded reasonable assistance by governors.
The amendment speaks only of parents who wish to establish an organisation. We do not say that every school must have such an organisation. It is up to parents to decide whether or not to push for it. We acknowledge that there must be a substantial proportion of parents who are anxious to form such an organisation. In the short time that we have discussed this matter in the House we have received a considerable number of letters of support from various organisations, notably the Parent Teacher Associations of Wales, the Alliance of Parents & Schools, the Leicestershire Federation of Parent Teacher Associations and many other secretaries to parent groups.
At the previous stage of this Bill the Government also objected to the statutory responsibilities of governing bodies being placed on the face of the Bill. This happens elsewhere in the Bill. The imposition of home school agreements places far greater statutory responsibility on governing bodies than this amendment. It is difficult to understand why the Government believe it is right to put home school agreements in primary legislation and yet will not give parents the right in legislation to support governing bodies if they wish to form an association to represent them. Surely, it is inconsistent to give parents the sole right to decide on the future of selection but not to decide whether to have an organisation in the school to represent them. I hope that this time the Government will listen more carefully and see the merit in what is proposed. Both I and other noble Lords find it difficult to understand why the Government are so vehemently against this proposal. It is not as if it is a matter of great party policy that will undermine the whole Bill. It is all about enshrining in the Bill the right of parents to take part in supporting the school. That is something that noble Lords on all sides of the House agree is essential in seeking to raise standards in schools.
I finish by quoting a short passage from a letter written by the executive secretary of CASE who puts the matter rather well:
"Only last week I spoke to two parents who contacted CASE having been told they had no right to form an association. One of these was following a parental resolution to the governing body at a quorate annual parents' meeting. I know that bad cases can make bad laws, but all that this amendment will do is clarify the confusion about whether parents have the right to set up an association".
I believe that the case is well made by others outside this House and by many noble Lords. I hope that this time the Government can give just a little. We do not ask the Government to do very much.
4.45 p.m.
Baroness David: My Lords, I moved a very similar amendment at Committee and Report stages. The reference to 20 per cent. of parents requesting the establishment of an organisation has been added to this amendment to deal with the criticism made earlier that

37
a few awkward parents may cause trouble. I believe that the Government have been very unresponsive and extraordinarily inflexible. The Minister has said that the Government are all for parental involvement and want the total co-operation of parents in the running of schools and so on. Yet this amendment which gives them the right to form an association is denied. That is very odd given that when home school agreements have to be organised by the governing body, they are very much more complicated. The Minister also said that it would place a burden on the staff and head of the school. Staff would not be required to attend meetings. The parents would organise it themselves. They would require a room and what is called "pupil post" for children to take home messages about possible future meetings. I do not believe that it would be a burden but that it would encourage the involvement of parents.
One is told that there are schools in which parents have been denied the right to make such an association by a difficult head or governing body. I hope that this time, with the addition of the reference to 20 per cent., it will not be said that a few parents are making ridiculous demands on a governing body. I very much support the amendment.
Lord Taylor of Blackburn: My Lords, I too support the amendment. Since Committee stage I have conducted a survey in my part of Lancashire. I have discovered that the majority of governing bodies and parents' associations wish this amendment to be accepted. Over the years I have spent a good deal of time looking at this problem and encouraging parents to take a more active role in the government and working of their schools. I believe that the Government make a sad mistake in not accepting this amendment.
Lord Hunt of Kings Heath: My Lords, this is an important issue. We have already debated the involvement of parents in schools. Over the past 20 or 30 years we have seen much greater engagement by parents in the classroom and in the activities of parents' associations. This amendment is concerned with the small minority of schools in which parents are not welcome through the front door and where in meetings with headteachers they often feel intimidated about raising issues of concern. It is here that an association can help in allowing parents to raise matters of concern in a rather safer environment than before the headmaster in his office. Unfortunately, it is often in these kinds of schools that there is no parents' association or such association is inhibited from raising issues of this kind and is confined to raising funds for the school. It is also likely that in such a school the governing body is itself rather weak and beholden to the head.
I do not believe that the amendment will put all of that right. I doubt whether the requirement for 20 per cent. of parents to sign the petition is the right approach. To me it sounds rather bureaucratic, confrontational and, I suspect, over-prescriptive. But I believe that it is helpful to have some reassurance that governing bodies will at least he rigorously reminded that opportunities for parents to raise issues of concern is not a charter for troublemakers, but a sign of a healthy school environment.
38
Governing bodies need also to be reminded that a school without an active parents' association is not a complete school. If I were to devise a set of performance indicators to judge the effectiveness of a school governing body, at almost the top of my list would be an active and involved parent body.
Lord Peston: My Lords, it was most remiss of me not to have spoken on this subject on an earlier occasion. My only excuse is that the case was put so well by my noble friends and by noble Lords on the Liberal Democrat and Opposition Benches. However, since this may be my last opportunity to speak on the issue, I feel that I must take it.
There was reference to awkward parents causing trouble. I suppose therefore that my wife and I and other friends were "awkward parents causing trouble". We suffered from the delusion that we were concerned parents, anxious to improve the quality of education in our children's school in Haringey. When we behaved in that way in our local primary school, it was the first time that I had been involved in anything practical in the world of politics. I was a hot-shot theorist telling everyone what they should do. When the issue concerned my children's education, it dawned on me that I had a responsibility to become involved.
However, to echo the words of my noble friend Lord Hunt, it was quite easy in Haringey—even though the head was determinedly against what we wanted—for middle-class, articulate parents to get their own way. With reference to the remarks of the noble Baroness, Lady Perry, we were brilliant fundraisers as well. Our head was not going to get up the noses of the people who were providing considerable sums of money for the school.
However, that is not remotely the reason why one supports the amendment. It is demonstrably the case that parental involvement is educationally productive. We want parents to be involved because that improves education. We want that not because parents replace or undermine teachers, but because parent involvement makes the teacher's task easier.
The Government whom I support—and I strongly supported them during their hard 18 years in opposition—would give the best possible signal to parents and to the world of education in general by making this provision a statutory imposition in the Bill, as the noble Baroness, Lady Maddock, said when introducing the amendment.
I speak for my own sake; I know that I am completely wasting my time. If I were not, my noble friend Lady Blackstone would have accepted a similar amendment earlier, or said that she would come back with an amendment of her own. None the less, those of us who have been involved can envisage what such a measure would provide. It would help those parents who often cannot speak for themselves. It would be wrong of me to let the amendment pass, even though I know that I am wasting my time, without offering it my total support.
Lord McIntosh of Haringey: My Lords, I recognise that the amendment proposed by the noble Baroness,

39
Lady Maddock, seeks to address the concerns expressed during our debate on Report by the noble Lord, Lord Swinfen, and others, about the number of parents required to set up a parents' organisation. The Government never believed that the threshold was the major problem—that is the suggestion made in the amendment—and even if we had, I am sorry to say to the noble Baroness, Lady Maddock, that her amendment is defective. I almost said "hopelessly defective" in order to secure her attention. The amendment states,
"give reasonable assistance to parents who wish to establish an organisation within the school to represent parents when 20 per cent. of those parents"—
in other words, those parents who wish to establish an organisation—
"have petitioned for it".
The amendment should have referred to 20 per cent. of all parents rather than the parents who have expressed that wish. I am afraid the amendment does not work in the sense that the noble Baroness intends.
I agree with my noble friend Lord Hunt. A petition sets a rather poor tone for the partnership between parents, the school and the governing body. We are all agreed—we always have been—on the importance of parental involvement in their children's education. I can say this in particular to my noble friend Lord Peston since we were involved together in these matters. I accept his excuse for not taking part in the Report stage; his reason for not doing so, as opposed to his excuse, was that there was a football match on at the time.
When on Report we debated an amendment in the name of my noble friend Lady David, we made it clear that the Government are committed to working with parents and to increasing parental participation. We are increasing that participation in other ways; for example, by encouraging parents to become more involved in what is happening in schools through, for example, our literacy strategy. We are increasing the number of parents on governing bodies; we are providing parent representatives on education committees; and we are involving parents through our proposals for home-school agreements. All of those changes implement commitments we made in our manifesto.
Of course we agree that parents should be consulted and have the opportunity to make their views known to the governing body. The changes I have already mentioned will mean that schools and governing bodies will need to develop new ways of working with parents. Governing bodies need to work in partnership with parents. By increasing the number of parent governors we hope to ensure that parents' views are firmly reflected within the governing body.
During the debate on her amendment on Report, my noble friend Lady David quoted the Alliance of Parents and Schools as saying,
"Many headteachers and governing bodies still do not permit parent groups within schools".
We have no evidence that head teachers and governors block the formation of parent groups. However, we would certainly be against such action. We would be
40
very happy to look at any cases which are brought to our attention where head teachers and governors have acted in this way.
I am sure that head teachers will want to follow the advice of their professional associations. The Secondary Heads Association has assured us that it supports the establishment of representative associations of parents which have the objective of supporting the school and giving effective expression to parental opinion. The National Association of Head Teachers has also assured us that it is not opposed to parent associations. Indeed, the NAHT has done much to encourage home-school partnership. It pioneered the whole idea of home-school partnership agreements.
I accept that there may be a few head teachers who have not yet accepted the need to involve parents in the work of the school. However, the requirement for all schools to have home-school agreements, drawn up in consultation with all parents of pupils of compulsory school age, will encourage schools to work more closely with parents. Our guidance—I am able to say this for the first time—on home-school agreements will highlight the value of parents' associations. It will also include examples of good practice to encourage governing bodies to give parents a voice. The draft guidance will be issued for consultation this month and I look forward to suggestions from parents' associations on how the guidance can best address that issue.
I suggest to noble Lords who have spoken with great sincerity and passion that it is more sensible for this provision to be in the form of guidance rather than as a more authoritarian duty laid down on the face of the Bill. I do not suggest that there is a great burden involved. However, the principle of local determination which runs through the Bill means that it is more appropriate to make provision through guidance than by legislation. I am not convinced that there is a need to formalise the school-parent relationship through primary legislation in the way proposed. I hope that I have assured noble Lords that we are committed to working with parents and to increasing parental participation.
Baroness Maddock: My Lords, I thank the Minister for his answer. He delights in pointing out to the House the inadequacies of my amendments. I heard mutterings under the breath to the effect that someone thought that that was a little petty. I appreciate that the Government have not been in power for a long time. However, when Members who are not lawyers or draftsmen did not manage to get amendments right the previous government were in the habit of being rather more generous than the Minister has been today. Giving that as a reason for refusing the amendment does not go down well with people outside the House. I made my intention clear in my introduction and I believe that everyone outside will recognise that.
I am disappointed. The Government have the support of a large number of people; they have a huge majority in the other place; and they appear to be popular in the country. I do not understand why they are so diffident about giving in to suggestions from anywhere other than their own Benches. That is a terrible shame.

41
The Government have stated how they want to work with people and that they want school standards raised. I agree with them, but some of the most important partners in that are the parents. The Government appear to be saying, "Yes, we want parents to be partners and to help us raise standards, but only where we say and on our terms". That is a terrible shame. Although the Government are popular, it sends a terrible message from a government who do not need to behave in that way. I do not believe that people outside will understand.
I am not convinced by the Government's argument. We have received support from all sides of the House, even from Members on the Government's own Benches, and I therefore wish to test the opinion of the House.
5.2 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 115.

Division No. 3

CONTENTS

Addington, L.

McNally, L.

Ailesbury, M.

Maddock, B.

Alton of Liverpool, L.

Nicholson of Winterbourne, B.

Avebury, L.

Orr-Ewing, L.

Beaumont of Whitley, L.

Ripon, Bp.

Carlisle, E.

Rochester, L.

Charteris of Amisfield, L.

Rodgers of Quarry Bank, L.

Chichester, Bp.

Russell, E.

Dholakia, L.

Sandberg, L.

Falkland, V.

Thomas of Walliswood, B. [Teller.]

Geraint, L.

Goodhart, L.

Thomson of Monifieth, L.

Halsbury, E.

Tope, L. [Teller.]

Harris of Greenwich, L.

Tordoff, L.

Hooson, L.

Wallace of Saltaire, L.

Jenkins of Hillhead, L.

Williams of Crosby, B.

McNair, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Allenby of Megiddo, V.

Davies of Coity, L.

Amos, B.

Dean of Beswick, L.

Archer of Sandwell, L.

Denton of Wakefield, B.

Barnett, L.

Desai, L.

Bassam of Brighton, L.

Dilhorne, V.

Berkeley, L.

Dixon, L.

Blackstone, B.

Donoghue, L.

Blatch, B.

Dormand of Easington, L.

Blease, L.

Dubs, L.

Borrie, L.

Eatwell, L.

Braine of Wheatley, L.

Evans of Parkside, L.

Broadbridge, L.

Falconer of Thoroton, L.

Brooks of Tremorfa, L.

Farrington of Ribbleton, B.

Bruce of Donington, L.

Fitt, L.

Burlison, L.

Gallacher, L.

Carmichael of Kelvingrove, L.

Gilbert, L.

Carter, L. [Teller.]

Gladwin of Clee, L.

Clinton-Davis, L.

Glenamara, L.

Cocks of Hartcliffe, L.

Graham of Edmonton, L.

Coleridge, L.

Gregson, L.

Courtown, E.

Grenfell, L.

Cox, B.

Hacking, L.

Cranbrook, E.

Hardy of Wath, L.

Currie of Marylebone, L.

Haskel, L.

42

Hayman, B.

Murray of Epping Forest, L.

Hilton of Eggardon, B.

Newby, L.

Hogg of Cumbernauld, L.

Nicol, B.

Hollis of Heigham, B.

Orme, L.

Howie of Troon, L.

Paul, L.

Hughes, L.

Pilkington of Oxenford, L.

Hughes of Woodside, L.

Ponsonby of Shulbrede, L.

Irvine of Lairg, L. [Lord Chancellor.]

Prys-Davies, L.

Ramsay of Cartvale, B.

Islwyn, L.

Randall of St. Budeaux, L.

Jay of Paddington, B.

Rendell of Babergh, B.

Jeger, B.

Richard, L. [Lord Privy Seal.]

Jenkins of Putney, L.

Rogers of Riverside, L.

Judd, L.

Scotland of Asthal, B.

Kennedy of The Shaws, B.

Serota, B.

Kennet, L.

Sewel, L.

Lauderdale, E.

Shepherd, L.

Leigh, L.

Shore of Stepney, L.

Levy, L.

Simon, V.

Lockwood, B.

Simon of Highbury, L.

Loufthouse of Pontefract, L.

Smith of Gilmorehill, B.

Longford, E.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Lovell-Davis, L.

Strabolgi, L.

McCarthy, L.

Taverne, L.

McIntosh of Haringey, L. [Teller.]

Taylor of Gryfe, L.

Tenby, V.

Mallalieu, B.

Turner of Camden, B.

Mason of Barnsley, L.

Walker of Doncaster, L.

Merlyn-Rees, L.

Weatherill, L.

Milner of Leeds, L.

Whitty, L.

Molloy, L.

Williams of Elvel, L.

Monkswell, L.

Williams of Mostyn, L.

Montague of Oxford, L.

Winston, L.

Morris of Manchester, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.10 p.m.
Clause 63 [Staffing of foundation, voluntary aided and foundation special schools]:
Baroness Blatch Baroness Blatch moved Amendment No. 5:
Page 47, line I, leave out subsection (1) and insert—
("(1) Arrangements concerning the staffing of foundation, voluntary aided and foundation special schools may be made in the instrument of government.
(1A) An default of such arrangements, Schedule 17 shall have effect in relation to the staffing of foundation, voluntary aided and foundation special schools.").
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 13 to 23. For self-governing schools, there is no greater factor which influences standards than that of staffing. The quality of staff is absolutely crucial. Quality, recruitment and retention of staff are critical, particularly to a good school. The best schools fulfil that function very well and are, in the words of the Minister for School Standards, to be allowed to get on with what they do best without undue interference. But that is what Schedule 17 is: extensive and undue interference. It is incredibly bureaucratic. No business in the land would put in place an equivalent to Schedule 17 to allow that company to recruit the best staff available. Why should a school be any different? Speed is often of the essence; again, good companies know that. Often, in order to recruit a good and talented teacher who may

43
come onto the market unexpectedly, the school needs freedom and flexibility. It does not need any bureaucratic hurdles in its way.
It may be said—no doubt it will be said by the Minister—that some schools will steal a march over others and that the bureaucratic hurdles must be in place so that there is a level playing field. Local authorities, it is argued, need time to consider whether they approve the names on the list; approval must go down the line; and the school governors must consider what the LEAs have to say. That really is a nonsense. We are talking about freedom and flexibility for schools which care about the quality of staffing to employ the most suitable and talented staff and sometimes to do so very quickly.
My preference—and I repeat what I said at the last stage of the Bill—would be to see Schedule 17 removed altogether from the Bill. The schedule is a nonsense. I happen to know that at least one ministerial member of the Government agrees that it is a nonsense. But given that I cannot take Schedule 17 out of the Bill, or rather that it would be considered bad form to do so, I have made an honest attempt to rewrite it in such a way to provide schools with the freedom and flexibility to secure the most talented staff without impediment.
I looked at and re-read the arguments used by the Government on the previous occasion. Not a single defence was put forward against my amendment. There was nothing which made sense to the schools concerned about this matter. I should put right what I said a few moments ago about having rewritten the schedule. I have not done that. That has been done by grant-maintained schools—people concerned with the GM schools sector. They have drafted the amendment. They want to continue to be good schools and want to have the freedom and flexibility to recruit the best possible staff without bureaucratic impediments in their way. I beg to move.
Baroness Thomas of Walliswood: My Lords, I make only three brief points. First, in some ways we can see some merit in a critique of Schedule 17 as being extremely prescriptive on schools. On the other hand—and this is my second point—if there were to be any loosening of the schedule, I see no reason why that should be limited to certain classes of schools. The amendment seems to us more an attempt to continue special status for some schools rather than a loosening of the bonds imposed by Schedule 17.
My last point is that at present, with a case at law which reveals, if it does nothing else, that people's qualifications have not always been verified as carefully as they may have been, it is important to continue to impose upon local education authorities the responsibility for doing just that. I hope that the schedule will be used to that effect. Therefore, although we have broad sympathy for some aspects of the amendments, in general we do not support them.
Lord Whitty: My Lords, as the noble Baroness indicated, similar amendments were tabled at an earlier stage. I apologise in advance that I shall have to repeat many of the arguments which the noble Baroness found
44
unconvincing. However, the major point is that the effect of the amendments would not be, as the noble Baroness claims, to protect the flexibility of a few good schools. But it would drive a coach and horses through the protection offered by Schedule 17 for all schools against abuse or maladministration in their staffing provisions. As the noble Baroness, Lady Thomas, delicately reminded us, sometimes under the existing system that goes wrong. We should not wish to do anything which removed the protection and guidance given by statute to all schools.
Schedule 17 is extremely important in that it provides a framework which makes clear the responsibility of voluntary-aided and foundation special schools in relation to their staffing. It reflects also what the noble Baroness wishes to see: namely, that LEA intervention should be in inverse proportion to a school's success.
It is not the case that Schedule 17 reduces schools' flexibility. But there is a difference between schools and private companies. Schools in the state sector are funded by public money. They are subject to a great deal of public interest and to scrutiny by local authorities, by Parliament and by the inspectorate. They also care for children. It is therefore extremely important that there are certain safeguards. Among those must be to safeguard the way in which teachers are appointed. Head teacher and deputy head teacher vacancies need to be advertised nationally. Classroom teacher posts need to be advertised, not necessarily nationally, if there is no possibility of an internal appointment. It is right and good for standards that schools establish a field from which to make appointments. It is no hardship that they should be required to adopt the good practice of advertising posts. It is not that we are restricting schools in that respect. Indeed, the schedule provides a system whereby those schools have the widest choice of excellent staff. Schedule 17 also provides a framework which minimises the danger of schools falling foul of employment law. It offers flexibility. For example, schools are unable to appoint temporary and agency staff. Without such a provision, such appointments would be unlawful. Temporary appointments should not be allowed to linger any longer than is necessary for a school to find a good permanent member of staff, but we need provision for short-term temporary appointments.
Schedule 17 gives a balance between flexibility and safeguards. Schools are already subject to safeguards through existing statutes and that is carried forward in Schedule 17, or through the pre-existing articles of government which are being abolished. Those provisions are broadly carried forward by means of the schedule. I deny the noble Baroness's claim that this is excessively bureaucratic. Most schools are familiar with the provisions because they were there before under articles of government.
I believe I need to say a little about the details of the amendments. I shall begin with Amendments Nos. 5 and 13. Incidentally, Amendment No. 13 appears to be defective as the intention presumably is to make arrangements in Schedule 12 pursuant to Section 63(1), rather than Section 63(1A). In view of the strictures of

45
the noble Baroness, Lady Maddock, I shall not make a great point of that. Nevertheless, I assume that to be the intention.
We do not consider that the amendments are either a sensible or a practicable way for foundation and voluntary aided schools to make arrangements for their staffing provision. There would be no guarantee that new practicable and workable provisions would be put in place. But, more importantly, there could be serious problems as regards reaching agreement with the LEA over the content of the instrument of government with respect to staffing matters.
As noble Lords will know, the Bill provides for the instrument of government of schools without foundation governors to be made and reviewed by the LEA in consultation with the governing body. Where there are foundation governors, the instrument will be made by agreement among the governing body, the LEA, the foundation governors and any trustees and relevant diocese. If there is a dispute, the Secretary of State will make a direction. However, we wish to avoid disputes. We want instruments to be made amicably. We certainly do not want to set up arrangements which will be almost bound to promote disagreement between LEAs and schools. That would be the effect of Amendments Nos. 5 and 13.
The remaining amendments seek to replace much of the provision in Schedule 17 regarding the appointment of teachers in foundation and voluntary aided schools. None of the amendments would be beneficial, either because they remove safeguards which we consider appropriate or because they are no improvement on what is already in the schedule. For example, Amendment No. 14 would remove the procedure in Schedule 17 for governing bodies to consider head and deputy head teacher appointments by setting up a selection panel, which is the usual practice. I know that a small number of church schools do use the whole governing body to consider senior staff appointments—indeed, we have made provision for that—but that is not the general rule and not something that other schools have requested.
I believe that the noble Baroness has still not yet realised what the full effect of Amendment No. 15 would be. Again, we are entering into the territory mentioned by the noble Baroness, Lady Thomas. By removing the need for a candidate for a deputy head teacher post to meet any staff qualification requirements, it would allow foundation and voluntary aided schools to appoint teachers, or anyone else for that matter, who are not qualified and who may be barred by the Secretary of State on misconduct or medical grounds. Surely we do not wish to remove such a safeguard.
Amendments Nos. 16 and 17 would increase from four months to one year the reference period for the appointment of a temporary teacher. This period would disapply the more detailed procedure that is required in making a substantive teacher appointment. The Government believe that teaching is so important that substantive posts should be properly advertised and filled. We do not believe that the four-month limit should be extended.
46
Amendment No. 18 would delete the requirement to inform the LEA of a teacher vacancy. We wish to promote co-operation and good relations between schools and LEAs. The noble Baroness appears to start from a position of wanting to cut off the flow of information and then stir up difficulties between them. Amendment No. 19 would delete the current provisions for the LEA to nominate a candidate for a vacant teaching post and includes the provision for the governing body to advertise the teaching post vacancy, unless a decision is made to fill it by other means, without being committed to appoint anyone who replies to the advertisement. That does not seem to us to be an improvement on the existing provisions in the Bill. At present, it is not compulsory to appoint someone who replies to an advertisement.
Amendment No. 21 would delete the current provisions for interviewing and deciding on teacher candidates where the governing body advertises a vacant post. Again, this does not seem to improve matters for the school; they will need a procedure. Indeed, the procedure set out in the Bill is very flexible. So, again, there would be no improvement in that respect. Amendment No. 20 would delete the current provisions to advertise a vacant teaching post and includes a requirement for teachers to be employed,
"under a written contract of employment".
That requirement would apply across the board and would cause a difficulty by preventing flexibility in that it would prevent schools from engaging supply teachers from teacher employment agencies.
By looking at the detail, I believe noble Lords will see that, far from providing flexibility for schools, the amendments would, on the one hand, remove some of the flexibility and, on the other, remove safeguards. I give way to my noble friend.
Lord Peston: My Lords, I seek clarification on something I believe my noble friend the Minister said. In my view, Schedule 17 is a very considerable addition to our legislation and one I strongly support. I thought my noble friend said that the contents of Schedule 17 either repeat what is already in statute as regards such matters or, indeed, improves what is already there. That accords with my view. Of course, parts of Schedule 17 are also about suspension and dismissal. Indeed, it makes the whole thing much more objective and open than it was before. Surely that is one particularly good reason why we should accept Schedule 17 as it is, rather than seek to amend it.
Lord Whitty: My Lords, I believe I said that Schedule 16 and 17 between them either repeat existing legislation and clarify it or put into legislation provision that was previously in articles of government and, therefore, accepted by schools. So we have clarity of provision in those two schedules are regards staffing and related matters. I am sure that most schools would welcome that clarity. Indeed, it provides flexibility and helps promote standards in appointment procedures and will thereby improve the standards of teachers.

47
It would be wrong to accept these amendments. They take the guts out of Schedule 17 to the detriment of quality in both areas. I give way to the noble Baroness.
Baroness Blatch: My Lords, before the Minister sits down and before I respond to his reply, can he explain in more detail how my amendments would prevent the employment of supply teachers?
Lord Whitty: Yes, my Lords. As I see it, by virtue of its provision that,
"a teacher shall be employed by the governing body under a written contract of employment"
without qualification, Amendment No. 20 would prevent short-term supply situations being covered by a teacher from a teaching agency.
Baroness Blatch: My Lords, I still do not understand; indeed, I do not understand the impediment at all. Such schools have been employing supply teachers without the provisions contained in Schedule 17. I do not believe that there is anything in my amendments which means that any school would have no teacher for a class. However, be that as it may. I believe that there is a possible printing error in my Amendment No. 5. It should say:
"In default of such arrangements".
as opposed to,
"An default of such arrangements".
However, that is a minor point.
The Minister referred to Amendment No. 13 and said that it was faulty because it refers to Section 61(1A) and not to Section 63(1). Again, can the Minister tell me why? In fact, Section 63(1A) in the amendment refers to subsection (1A) in Amendment No. 5.
Lord Whitty: My Lords, I am not entirely sure that this interrogation is in order at this stage of the Bill. However, perhaps I may try to clarify the matter. Presumably the intention of Amendment No. 5 is to effect changes in Schedule 12 in relation to Section 63(1), to which the draft amendment applies, rather than Section 63(1A). Indeed, Section 63(1A) makes no reference to arrangements; it only refers to not having arrangements. Therefore, it should apply to the previous clause.
Baroness Blatch: My Lords, my understanding is that Section 63(1A) refers to the new subsection (1A) in Amendment No. 5. The intention is that such arrangements which disapply the provisions of Schedule 17 to a certain number of schools would in fact apply where a school was in default of them. Those arrangements are set out in subsection (1) of Amendment No. 5 which says:
"Arrangements concerning the staffing of foundation, voluntary aided and foundation special schools may be made in the instrument of government."
Thereafter, subsection (1A) should read:
"In default of such arrangements, Schedule 17 shall have effect".
48
However, that is a technicality. No doubt if I am wrong, the noble Lord will correct me in writing.
I believe the noble Baroness, Lady Thomas, was worried about the special treatment of some schools. Voluntary aided schools have enjoyed autonomy for a long time. Although the right reverend Prelate from time to time says that he does not want special treatment for voluntary aided schools, they have particular arrangements for employing staff in their schools and special arrangements as regards the nature of the staff they employ. Grant-maintained schools have enjoyed a good deal of freedom and flexibility which has been reflected in their articles of government. This Bill sets out to destroy that. Although there is now to be a model form of articles under Schedules 16 and 17, that is a strait-jacket because it comprises one model for all schools and it does not suit all schools. Some schools have enjoyed much flexibility but will lose it under the present arrangements.
I have enormous sympathy with the other point raised by the noble Baroness, Lady Thomas. I would be happy to see such measures made available to all schools. I believe that the more flexibility schools have and the more freedom they have to control the quality of their staff, the better. The degree of mistrust on the Government Benches of the schools which have enjoyed this flexibility so far is profound. They refer to some grant-maintained schools as good schools. They talk of excellent schools and of not permitting undue interference in excellent schools and of leaving them to get on with what they do best. However, the Minister argued against that view. We have one Minister saying one thing and another Minister saying another. The noble Lord referred to things going wrong. I say in defence of the schools that when they are using their own money to pay staff, they make a real effort to ensure that they employ the best possible staff. As far as possible, they do not employ poor quality staff as they are costly to the school.
I refer to the concept that an LEA remotely understands all the nuances and the needs of a particular school better than the school itself. That is not always the case. I refer also to the idea that the LEA has the monopoly of appointing staff. Manchester LEA has just received the most scathing report from Ofsted. The idea that Manchester LEA with its poor performance will become the arbiter of which staff are employed in schools is, frankly, a nonsense.
The noble Lord also said that schools may fall foul of employment law. Is there any suggestion that schools which have enjoyed this flexibility have fallen foul of the law? They are as subject to the law as the local authorities. We are all subject to the law. The law is the law. Those schools are subject to the law. One cannot suggest that schools will make mistakes in this area and will fall foul of the law but LEAs will not, and that the provisions set out in Schedule 17 will somehow prevent that.
My understanding is that talks are continuing between grant-maintained schools, the Prime Minister, the education advisers at No. 10 and education advisers in the department. I believe some progress will be made

49
on these issues. I believe there is an understanding inside No. 10 that this is a restrictive schedule and that something should be done about it. I believe there will be some movement on this at some stage even after the legislation has been passed and that ways will be found to loosen some of the ties. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 106 [Admission for nursery education or to nursery or special school]:
5.30 p.m.
Lord Whitty Lord Whitty moved Amendment No. 6:
Page 78, line 37, leave out from ("schools") to end of line 39 and insert—
("(7) Subject to subsections (8) and (9), nothing in this Chapter applies in relation to children for whom statements of special educational needs are maintained under section 324 of the Education Act 1996.
(8) Any provision made by, or (as the case may he) by virtue of, section 92 or 100(3) to (6) or this section applies, or (as the case may be) may be made so as to apply, in relation to such children.
(9) Such children shall, in addition, be taken into account for the purposes of——

(a) the reference in section 94(5) or (9) to a number of pupils, and

(b) the fixing of admission numbers under section 101 and the determination, variation and review of standard numbers under Schedule 23.

(10) In subsection (8) the reference to any provision made by this section includes a reference to subsection (4) only so far as it has effect for the purposes mentioned in subsection (9).").
The noble Lord said: My Lords, I apologise to the House for bringing forward this amendment at this late stage. However, it is necessary because it clarifies the important question of whether children with statements of special educational needs admitted to a mainstream school should count towards the school's published admission number when determining whether other, non-statemented pupils should be admitted. The amendment also allows the Secretary of State to give relevant guidance in the code of practice.
The clarification is a little complex. I should explain that under Clause 94 one of the grounds upon which a non-statemented child may be refused admission to the school preferred by his parents is that his admission would cause prejudice to efficient education or the efficient use of resources; for example, because of the measures which would have to be taken to ensure that infant class size limits were met. But this ground may not be relied on by the admission authority unless the number of applications for admission exceeds the relevant standard number determined under Schedule 23, or any higher admission number fixed under Clause 101(1).
However, under Clause 101(6) as presently drafted, statemented pupils would not count towards a school's published admission number. Accordingly, in the case of an infant school with a single reception class and a standard number of 30, the admission authority would have to admit 30 non-statemented pupils up to that limit irrespective of whether it also had a duty to admit one
50
or several statemented pupils. At the same time, it would have to ensure that no child was in a class of more than 30. That may be a difficult circle to square.
The Government's view as reflected in this amendment is that statemented children who are known about at the time of the admissions round should be included in the count of pupils for the purposes of Clause 94. We think it would be artificial that the presence of such children cannot be taken into account when determining whether or not that would cause prejudice to efficient education.
Indeed, under the Education Act 1996, statemented pupils count towards a school's standard and admission numbers. Unfortunately, this was overlooked when what is now Clause 106 was drafted. This amendment is therefore designed to restore the position which applies under the 1996 Act.
The amendment would widen somewhat the scope of the guidance in the admissions code of practice. It would allow for guidance to relate to the admission of children with statements to mainstream schools and the effect on children without statements. The amendment also carries over the provision in the Bill for regulations under Clause 100 to require LEAs and governing bodies to publish information concerning the admission of children with statements. I believe this amendment is necessary. I commend it to the House. I beg to move.
Baroness Blatch: My Lords, the noble Lord had the courtesy to apologise for bringing this amendment forward at this stage. I accept those words with thanks as they are the most appropriate ones that could be said at this stage. This Bill was written last autumn. It has been through all its stages in the Commons and this is its final day in this House, subject to toing and froing on amendments. I believe it is unprecedented for a Bill still to be rewritten up to the very last moment. No doubt if there were another day's discussion on the Bill, more amendments would be brought forward. The noble Baroness is obviously racking her brains for precedents. It would be helpful to hear of precedents of this number of amendments being brought forward at Report and Third Reading at the final stage of a Bill in the second Chamber, either here or in another place. I do not believe that this extent of rewriting of a Bill has occurred previously. The amendments that have been tabled at this late stage are afterthoughts which could have been thought of many months back.
Baroness Thomas of Walliswood: My Lords, I am less concerned with the legalities of all this than with the substance of it. I must confess that—
Noble Lords: You cannot speak again.
Baroness Thomas of Walliswood: My Lords, the noble Lord has brought forward an amendment. I can speak to that amendment and I wish to do so. In fact, I was asked by my noble friend to do just that. As I said, I am less concerned with the legalities than with the content of the measure.

51
I listened to the explanation of the amendments given by the Minister. I think I understood. In broad terms he was saying, as I am certain is the case as regards the publication of admission numbers, that the amendments respond to some of the concerns expressed by the special educational needs lobby over the course of the Bill. If I am right, and that is the intention, I very much welcome it. The provisions concern the publication of information about the admission of children with special needs and with statements. That is precisely what we or another group of Members requested in an earlier amendment. I hope the noble Lord can reassure me that I have the right end of the stick in regard to the other amendments, which I must say I found quite difficult to follow.
Baroness Byford: My Lords, further to the contribution made by the noble Baroness, I wish to ask one question. I understand that the admission number will be X plus the special places. Does the Minister confirm that? Is it the case that the standards that presently exist will be the same, plus the extra places for special educational needs? Or am I becoming totally confused? Perhaps the Minister will return to the matter. If that is the case, will consideration be given to the question of targets set and league tables? If extra children are coming in, it will affect the balance of the level of attainment for some children. I wonder whether a counter argument will be included in any other aspects of the Bill.
Lord Whitty: My Lords, I realised that the presentation was rather complicated because of the cross-references between clauses. I did not realise that I was quite so misunderstood as the noble Baroness, Lady Byford, suggested. So far as concerns admission numbers and class sizes, statemented children who are taken in at the normal point of the admission round count as part of that number; they are not in addition to that number. In other words, when it comes to the issue of class sizes, statemented children are not 30 plus X number of statemented children; they are included within the 30.
There is the complication that, if statemented children arrive in an area and it is the parents' choice of school at a later stage, then they should be taken into mainstream education in that school if it is at all possible on other grounds. The school would be allowed to exceed the 30 size limit for only one year, if it came within the age range covered by the class size provision.
I do not particularly wish to reopen the issue of the 31st child. It has been dealt with ad infinitum at earlier stages. However, it affects the way in which the figure 30 is accounted for within the Bill. On this limited basis, I accept some of the strictures by the noble Baroness, Lady Blatch. In its original draft form the Bill failed to carry forward a previous assumption that statemented children would be included in the admission numbers, a calculation which would then "read over" to the class size amendment. We are correcting that presumption in restoring the earlier position.
However, I do not accept the more general strictures of the noble Baroness in relation to the number of amendments that we are bringing forward as compared
52
with the record of the previous government. I recall earlier in the debate my noble friend Lady Jay referring to an example when no fewer than 40 amendments were brought forward at Third Reading in this House. The Bill was before my time, but, as I recall, it had passed through the other House. I have just been passed a note indicating that the Education Reform Bill 1988, with which the noble Baroness will be familiar, added extra full clauses after it had been through the other place. So I do not think that we are behaving unreasonably in this respect. This particular amendment is a clarification which everyone should welcome.
5.45 p.m.
Baroness Blatch: My Lords, with the leave of the House I wish to make two points. The example given by the noble Lord in reference to the noble Baroness, Lady Jay, occurred at the end of a Parliament. My noble friend Lady Cumberlege saw the noble Baroness, Lady Jay, personally, and all the team and those who were concerned with the amendments. A large amount of trouble was taken and agreement was reached that because it was the end of the Parliament, it was the only way in which to terminate the business. There was agreement across all parties. It is a very different example.
I wish to return to the point made by my noble friend Lady Byford. I am told that I can ask a question arising out of a particular point made by the noble Lord in this debate. I shall be advised by the Clerk. It is a question about a statemented child when the number goes beyond 30.
Lord Haskel: My Lords, the opinion of the Clerk is that if it is a brief question on a matter arising from the opinion given by the Minister, it is permissible. However, it should be brief.
Baroness Blatch: My Lords, it is brief. If a statemented child comes into a school in the course of a year, the child is, say, five, and the preference is that the child should attend that school, and that means taking the number above 30 if the child is accepted, the noble Lord said that that position would last for only one year. When the child becomes six, if the number still exceeds 30, does that mean that the statemented child has to be moved on to another school?
Lord Whitty: No, my Lords. It means, as in other discussions we have had on the 30 limit, that at the beginning of the following year the school should so organise its staff, and the local authority should provide sufficient resources, to ensure that none of the next year's classes exceeds 30 provided they come within the age range to which we are referring.
In response to the point raised by noble Baroness, Lady Thomas, on information, this clause will allow, as referred to in Clause 100, information to be carried through on this issue and the code of practice to be extended to cover these issues in the way she was seeking. With those clarifications, I commend the amendment to the House.
On Question, amendment agreed to.
Clause 113 [Procedure for deciding whether grammar schools should retain selective admission arrangements]:
Lord Whitty Lord Whitty moved Amendment No. 7:
Page 84, line 1, leave out ("section 114") and insert ("sections 114 and 115").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 8. These are small amendments. They come as a pair of similar adjustments. They correct a mistake in cross-reference, and that is all. I beg to move.
On Question, amendment agreed to.
Lord Whitty Lord Whitty moved Amendment No. 8:
Page 84, line 7, leave out ("sections 114 and 115") and insert ("section 114").
On Question, amendment agreed to.
Clause 114 [Ballot regulations: eligibility of parents to request or vote in ballot]:
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 84, line 37, after ("are") insert—

("(a) registered parents of registered pupils at the grammar school or schools in question; and

(b)").

The noble Baroness said: My Lords, this amendment addresses an issue that is causing enormous concern among the parents of children who attend grammar schools throughout the country, particularly in areas where they are one of a group of schools or are stand-alone grammar schools. The Government have not so far explained why there should be a distinction between franchises for the elections in an all-LEA ballot and where there is a group or a stand-alone school. Parents of children from nought to 16 in one franchise are allowed a vote—that is, of all primary and secondary school children, including children from birth to the age of five. Yet, where there are groups of schools or stand-alone schools, only the parents of children in feeder schools are allowed to vote—and even then only where there has been a tradition of sending five or more children over a period of three years. Not even a school where parents aspire to send their children is included. That was the point of an amendment turned down earlier by the Government. If a ballot goes against a school, the school ceases to exist. Yet the very parents of the children who attend those schools are not allowed to vote on the future of their own school. I find that absolutely incomprehensible. So, too, do those parents.
The convention of the Government all the way through this Bill has been not to accept any amendment at all. I hope that, even at this late stage, they will give some real thought to the pain and anguish that is being caused to parents whose children—I know it is not popular with the noble Lord, Lord Hunt—for example, attend the King Edward schools, the Wirral grammar schools or some
54
Essex schools. Why do they not have at least a say in the future of the schools they have chosen and which their children attend? I beg to move.
Baroness Blackstone: My Lords, this amendment appears to be about fairness and democracy, but I have a suspicion that it is about tailoring the electorate in order to achieve a particular result.
The ballots are not about closing grammar schools; they are about future admission arrangements. Pupils who are already at the school have passed that hurdle; it is not a matter for their parents how admission arrangements work in future. Many parents may claim an interest in the issue of whether existing grammar schools should retain their selective admission arrangements, but parents of pupils at feeder primary schools are the ones who have the strongest interest because they may be hoping that their children will go to the grammar school.
Parents of pupils who are already at grammar schools have less interest because their children will not be directly affected by the future admission arrangements. Their children entered the school as part of a selective entry and we expect that they will continue in a selective stream until they leave the school.
If parents of pupils at grammar schools were to have a vote, there would be a strong argument for including parents of pupils at other secondary schools. A line has to be drawn somewhere and, given that we are talking about the possibility of a ballot on future admission arrangements, we believe it right to limit it to parents of pupils at traditional feeder schools.
The principle of how we define a feeder school is set out on the face of the Bill, as a result of our amendments to meet the recommendations of the Select Committee on Delegated Powers and Deregulation, with the details filled in in the draft regulations which are currently out for consultation. As the noble Baroness knows, a feeder school is defined as a school which has sent five or more pupils in total to the relevant grammar school or schools over the previous three years. That definition was arrived at after consultation with a number of grammar schools. But we will want to bear in mind comments raised in response to the draft regulations before making any final decisions about what the right threshold should be.
In wholly selective LEAs, such as Buckinghamshire, Kent or Trafford, a wider range of parents have an interest in a ballot because a ballot in favour of change would affect the whole structure of secondary education in the area. That is why there is a difference. The noble Baroness asked about that. In such circumstances, the Government believe it is right to give the vote to parents at all primary and secondary schools right across the authority. However, where grammar schools are not part of an overall selective system, there is no well defined area across which one could say that the whole local education system would be affected by a ballot. It is therefore

55
right that ballots be defined in terms of the schools where parents may be considering sending their children to the grammar schools affected by the ballot.
That is why we propose that, for feeder ballots, only parents of pupils at the feeder schools will be able to petition or vote in a ballot.
At previous stages of the Bill, but not this evening, noble Lords opposite talked about "rigged ballots". Frankly, I can see no surer way of rigging a ballot than by including all grammar school parents, but not parents of children at other secondary schools. That is presumably why it is being proposed. I ask the noble Baroness, Lady Blatch, to withdraw her amendment.
Baroness Blatch: My Lords, those who voted on 1st May last year who believed they were voting for new Labour ought to read what the noble Baroness has said, not only today but also what she and her colleagues on the Front Bench have said as they have worked their way through the Bill. If ever there was unreconstructed old Labour in force, it is on these issues. The politics of envy are strong when it comes to such matters.
The noble Baroness scoffed at me for referring to "rigged ballots". The ballots are rigged. The only rigging of which the Government approve is that in favour of ensuring that selection ends. It is all very well to play with words, which the noble Baroness does well. She says that such schools will not close. One day it will be King Edward's Grammar School and the next day it will be Birmingham Comprehensive School. I have no quarrel with the noble Lord, Lord Peston, because he is a believer in what is happening here. What will happen is that the children who thought they were attending an all-through grammar school will find, after they have been at the school for one or two years, that staff who were geared up for fast-track grammar school education are required to teach a full ability range in a comprehensive school. When a school is part of the way through the transitional stage, it will be neither one thing nor the other. That will blight the lives of both sets of children because it is not at all a happy arrangement.
Some schools will close. If the Minister says that no schools will close, she is wrong. Some will close; some will merge. Already Trafford, Kent and Buckinghamshire say that they cannot simply call a school "comprehensive" and carry on as though nothing had happened, just changing the intake of the school. Many such schools are too small to become comprehensive schools; they will change and some dramatically. Some, I am afraid, will go into the independent sector. I find that deeply depressing: it means yet another rung taken out of the ladder for bright young children from homes where parents cannot afford independent education.
The noble Baroness is plain wrong on all the issues. She said that some children will have entered such schools. Yes, they will. What happens if a school has
56
to close as part of the reorganisation? What then? Where do the children go? The Minister has already set her face against giving them five, six or seven years over which to complete the transition. She turned down my amendment asking for more time for schools to put proper reorganisation plans in place which would have provided proper transitional arrangements to protect the education of the children—both those in the grammar school stream and those coming into the all-ability stream.
The one argument the noble Baroness used is: this is about the future of the schools, so there is no case for asking secondary school parents to vote. Then why should secondary school parents vote in the other franchise? What is the logic? It is about the future of those schools too, so why should grammar school parents be given a vote but not the secondary school parents?
The noble Baroness is irritated by such arguments, but they are not only powerful but heartfelt among the parents of children in our schools. I find depressing that dismissive approach to people's real concerns. But they are not Labour's kind of people; they are people whose children have a particular need for a fast-track academic education. That amuses the noble Lord, Lord Peston, and irritates the noble Baroness, Lady Blackstone. I think they ought to be ashamed of themselves. I commend the amendment.
5.58 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 130.

Division No. 4

CONTENTS

Allenby of Megiddo, V.

Fookes, B.

Alton of Liverpool, L.

Fraser of Carmyllie, L.

Annaly, L.

Glentoran, L.

Barber, L.

Greenway, L.

Beloff, L.

Harlech, L.

Berners, B.

Haslam, L.

Biddulph, L.

Hemphill, L.

Blaker, L.

HolmPatrick, L.

Blatch, B.

Hooper, B.

Bowness, L.

Howell of Guildford, L.

Burnham, L. [Teller.]

Hunt of Wirral, L.

Butterworth, L.

Hurd of Westwell, L.

Byford, B.

Jenkin of Roding, L.

Cadman, L.

Knight of Collingtree, B.

Calverley, L.

Lane of Horsell, L.

Carnegy of Lour, B.

Lucas, L.

Clark of Kempston, L.

Lyell, L.

Coleraine, L.

Macleod of Borve, B.

Coleridge, L.

Mancroft, L.

Colwyn, L.

Massereene and Ferrard, V.

Cope of Berkeley, L.

Mayhew of Twysden, L.

Cox, B.

Mersey, V.

Croham, L.

Middleton, L.

Dean of Harptree, L.

Monson, L.

Dixon-Smith, L.

Montagu of Beaulieu, L.

Elibank, L.

Montgomery of Alamein, V.

Ellenborough, L.

Mottistone, L.

Elliott of Morpeth, L.

Mountevans, L.

Elton, L.

Mowbray and Stourton, L.

57

Nelson, E.

Sharples, B.

Norrie, L.

Simon of Glaisdale, L.

Northesk, E.

Skelmersdale, L.

Orr-Ewing, L.

Soulsby of Swaffham Prior, L.

Park of Monmouth, B.

Stewartby, L.

Peyton of Yeovil, L.

Strange, B.

Pilkington of Oxenford, L.

Sudeley, L.

Platt of Writtle, B.

Tebbit, L.

Prior, L.

Trefgarne, L.

Pym, L.

Trumpington, B.

Vinson, L.

Rawlings, B.

Vivian, L.

Rees, L.

Waddington, L.

Rowallan, L.

Weatherill, L.

Saatchi, L.

Wedgwood, L.

St. John of Fawsley, L.

Wharton, B.

Seccombe, B. [Teller.]

Wise, L.

NOT-CONTENTS

Addington, L.

Irvine of Lairg, L. [Lord Chancellor.]

Amos, B.

Archer of Sandwell, L.

Islwyn, L.

Barnett, L.

Jacobs, L.

Bassarn of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Jeger, B.

Blackstone, B.

Jenkins of Putney, L.

Blease, L.

Judd, L.

Borrie, L.

Kennedy of The Shaws, B.

Brooks of Tremorfa, L.

Lester of Herne Hill, L.

Bruce of Donington, L.

Levy, L.

Burlison, L.

Lockwood, B.

Carlisle, E

Lofthouse of Pontefract, L.

Carmichael of Kelvingrove, L.

McCarthy, L.

Carter, L. [Teller.]

McIntosh of Haringey, L. [Teller]

Clinton-Davis, L.

Cocks of Hartcliffe, L.

McNally, L.

Currie of Marylebone, L.

Maddock, B.

David, B.

Mallalieu, B.

Davies of Coity, L.

Mason of Barnsley, L.

Dean of Beswick, L.

Merlyn-Rees, L.

Desai, L.

Milner of Leeds, L.

Dholakia, L.

Molloy, L.

Dixon, L.

Monkswell, L.

Donoughue, L.

Montague of Oxford, L.

Dormand of Easington, L.

Morris of Manchester, L.

Dubs, L.

Murray of Epping Forest, L.

Nathan, L.

Eatwell, L.

Newby, L.

Evans of Parkside, L.

Nicholson of Wrnterbourne, B.

Falconer of Thoroton, L.

Nicol, B.

Falkland, V.

Orme, L.

Farrington of Ribbleton, B.

Paul, L.

Fitt, L.

Peston, L.

Gallacher, L.

Pitkeathley, B.

Gilbert, L.

Ponsonby of Shulbrede, L.

Gladwin of Clee, L.

Prys-Davies, L.

Glenamara, L.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Gregson, L.

Rea, L.

Grenfell, L.

Redesdale, L.

Hacking, L.

Rendell of Babergh, B.

Hamwee, B.

Richard, L. [Lord Privy Seal.]

Hardy of Wath, L.

Ripon, Bp.

Harris of Greenwich, L.

Rochester, L.

Haskel, L.

Rodgers of Quarry Bank, L.

Hayman, B.

Rogers of Riverside, L.

Hilton of Eggardon, B.

Russell, E.

Hogg of Cumbemauld, L.

Russell-Johnston, L.

Hollis of Heigham, B.

Scotland of Asthal, B.

Hooson, L.

Sefton of Garston, L.

Howie of Troon, L.

Serota, B.

Hoyle, L.

Sewel, L.

Hughes, L.

Shepherd, L.

Hughes of Woodside, L.

Simon, V.

Hunt of Kings Heath, L.

Simon of Highbury, L.

58

Smith of Gilmorehill, B.

Tordoff, L.

Stoddart of Swindon, L.

Turner of Camden, B.

Stone of Blackheath, L.

Walker of Doncaster, L.

Strabolgi, L.

Wallace of Saltaire, L.

Whitty, L.

Taverne, L.

Williams of Crosby, B.

Taylor of Blackburn, L.

Williams of Elvel, L.

Taylor of Gryfe, L.

Williams of Mostyn, L.

Thomas of Walliswood, B.

Winchilsea and Nottingham, E.

Thomson of Monifieth, L.

Winston, L.

Tope, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.8 p.m.
Clause 119 [Supplementary provisions about home-school agreements]:
Lord Pilkington of Oxenford Lord Pilkington of Oxenford moved Amendment No. 10:
Leave out Clause 119.
The noble Lord said: My Lords, we brought back this amendment on Third Reading because we were not satisfied with the defence of this clause which the noble Lord, Lord McIntosh, made at Report stage and we wish to explore the matter further.
We still feel—and this is the fundamental reason for bringing this amendment forward again—that the failure to attach any sanctions to the making or keeping of home-school agreements will greatly weaken their effectiveness. That is the nub of this amendment, and why we are asking for the removal of this clause.
When the noble Lord, Lord McIntosh, spoke, in essence he met this objection by laying emphasis on the theme of partnership. He felt that the ideals of the preceding clause, Clause 118, which defines the home-school agreements, would be better realised by the removal of any sanctions in Clause 119. In other words, as I understood the noble Lord, Lord McIntosh, he saw the two clauses as a seamless whole, one putting forward the ideals, the other restricting sanctions and laying the emphasis on partnership.
I accept some of the noble Lord's defence in that I share his view that it should be laid down that a school should be hindered from making over-prescriptive demands on parents—he mentioned joining the parent teachers' association being a compulsory demand as one example. But where we part company is on Clause 119 which allows the schools little power over the enforcing of the agreements so ably defined in Clause 118, other than moral exhortation. They cannot—the noble Lord made the point very strongly—be used in any admissions procedure. At Report stage the noble Lord said that the Government 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.
Here we are beginning to touch on the nub of our objections on this side of the House. I remind noble Lords opposite about the ideals of the previous clause, which we all share. I emphasise that there is no argument between us as regards what is set out in Clause 118. That states what should be the essence of all home-school agreements. They should define a school's

59
aims and values; they should define responsibilities with regard to moral, cultural and social development; and they should define parental responsibilities and a school's expectation of its pupils. We have no objection to that. It is a good and hopeful thing for education.
When we place those values in relation to Clause 119, one can imagine the relationship between parents, pupils and the school if, before the child enters the school, the parents say to the head teacher and the governors, "We reject this document. We do not like it". That document sets out the very nature of the school that the child is to attend. I put a question to the Government, to which I hope they can supply me with a satisfactory answer: how can that child prosper when, prior to admission, the parents feel that they do not like the ideals of the school and are not prepared to sign the home-school agreement?
Also implicit in the clause is that if parents and pupils fail even to try to fulfil the ideals of the home-school agreement no sanctions can be applied; it is an unfortunate accident. Thus a school could face a situation where it will have to deal with one section of parents who rejected the home-school agreement before the child entered the school and another section who pay scant regard to it. We have to face those extreme examples if we are to interpret Clause 119 as it appears on the face of the Bill. The noble Lord, Lord McIntosh, did not meet those objections, which is why I have brought the matter back at this late stage of the Bill. Apart from exhortation, the school can do little about that. I suggest that that will reduce the value and effectiveness of the home-school agreement.
At Report stage the noble Lord, Lord McIntosh, suggested that this amendment was specifically designed to satisfy the needs of the London Oratory School. I do not know why he said that. I know that the school is held in deep affection in the present Government, but I was surprised at the suggestion that we proposed an amendment purely in that school's interests. My children did not go there.
It is true that the Oratory uses these agreements to great effect and that is why the noble Lord's honourable and right honourable friends choose to send their children there. However, noble Lords opposite must remember that the Oratory School draws children not only from leafy and prosperous Islington, but also from the more difficult areas of Fulham and Hammersmith. The London Oratory has proved that enforceable home-school agreements are an important element in its great success with children from such areas.
That again touches the core of our argument. The purpose of removing the clause and allowing schools some sanctions over the keeping of home-school agreements is particularly directed at schools dealing with difficult children in difficult areas, often with irresponsible parents—parents who are not motivated by home-school agreements; who would not sign them and with whom the school has to deal. I remind the House again that Clause 119 can create a situation in which parents say, "No, we will not sign it. You have to take our child and, anyway, we will not keep the agreement".
The areas which we are discussing and which I mentioned at Report—at which time I received completely unsatisfactory answers—are the difficult areas in which the school has to work in an environment where the parents do not share the ideology or the hopes of the school. Both noble Lords opposite and we on this side of the House are trying to raise standards and help children to realise their true potential, particularly those who suffer from disadvantaged housing and parents who are not ideal. When dealing with such situations, exhortation is not enough. Ideas of partnership, such as those put forward by the noble Lord, Lord McIntosh, can be at best wishful thinking and, at worst, mere rhetoric. I can assure noble Lords opposite that many head teachers in such areas—not only of the London Oratory School—have seen value in home-school agreements with some sanctions which allow them to transform their schools and fulfil the hopes of many of their children.
As I said at the beginning, I see the Minister's point with regard to schools not requiring agreements or making impossible demands. But I do not see that it follows from that that we should deprive home-school agreements of any teeth whatever.
This is the last time I shall speak before the Bill goes to the other place. In the course of 13 days the Government have not accepted either a comma or a full stop of what I have said; but this is their opportunity to show generosity, kindness and regard for my intellect, which has managed to see me through my life thus far so I hope that they can see it further now. If the noble Lord, Lord Whitty—a man who has seen a lot of life—sees the value of my argument, he could bring forward a new clause. God knows, he transformed the Labour Party; why not help the schools? That clause could ensure that schools do not make excessive demands on parents, yet allow the schools to demand compliance with the ideals and objectives they set out in their home-school agreements. That will be impossible if parents refuse to sign and object to such agreements before the child enters the school.
Surely, to a man who helped transform a political party, that must seem sensible. It cannot be too much to ask that we send this Bill back to the House of Commons with a lovely smell and a marvellous halo around it. I beg to move.
6.15 p.m.
Lord Dormand of Easington: My Lords, the noble Lord, Lord Pilkington, mentioned a number of areas where successful sanctions have been imposed on those who do not keep the home-school agreements—that was the theme of his speech. Perhaps he can tell us what some of those sanctions are.
Lord Pilkington of Oxenford: My Lords, the sanctions are that if one does not accept the home-school agreement, the child will not be admitted to the school. In fact, it has rarely had to be used. The strange thing that happens is that when this occurs, it is almost a missionary act in such areas. It is true that it is a tank wheeled on to people's lawns, but it makes a demand on parents before the child enters the school

61
which, from what I have heard, makes the parents think. They see what the ideals of the school are and then follow them. It is saying, "If you do not do this, bad consequences will follow." The essence of what I am saying is that these are difficult areas in that parents have often not realised what is the ethos and what are the demands of the school. If schools say, "If you sign here, this is what is demanded of you", that has an effect in itself. I take the analogy of marriage. My marriage might not have lasted if I had been told, "It is only moral exhortation." But I was required to sign on the dotted line and be told, "'Til death do you part. Those whom God has joined together let no man put asunder". It does not work with everyone but it makes many of us think.
Lord Dormand of Easington: My Lords, perhaps I may just come back.
Lord Haskel: My Lords, this is Report stage.
Lord Dormand of Easington: My Lords, I shall speak to the noble Lord after the debate.
Baroness Maddock: My Lords, I am totally confused by the procedure. I understand what the noble Lord, Lord Pilkington, is trying to achieve but I suggest to him that what he proposes will not achieve what he wants. The very parents whom he wants to exhort to sign the agreements are the very parents who will not co-operate in signing up to them. Every school will have a home school agreement. What will happen to the children of unco-operative parents, parents who never go near the school? Much as I can see the merits of trying to get as many parents as possible to sign home-school agreements, the sanctions being proposed are extremely unsatisfactory for the children who will be on the end of them. It will be a challenge for every school to try to establish an ethos so that parents understand what the school requires of them.
I am reminded that when the poll tax was put forward many people believed that, however much one agreed with the arguments for it, it could not be made to work. I feel exactly the same about this amendment. However much people might agree with the arguments being put forward, to make this work would be to the detriment of the children whose parents do not care and who do not go near the school. For that reason, I feel I have to support the Government.
Lord Whitty: My Lords, flattered though I am by the noble Lord's belief that I might finally succumb to his intellectual rigour and recognise the importance of his argument, I cannot do so. Were he simply to propose a dot or comma, I would, in view of his kind words, consider it very seriously. However, what he proposes runs counter to the way in which we see home-school agreements working.
The noble Lord said that he supports Clause 118, which is welcome to us because at one point his colleagues in another place voted against us. However, in this House we always give a great welcome to a conversion. The noble Lord also supports the concept of partnership. So now we all agree that home-school
62
agreements should be taken seriously. Clearly, it is open to schools to discipline a pupil who has broken his side of such an agreement. However, as the noble Baroness, Lady Maddock, said, partnership requires consent and partnership has its limits. If a pupil should otherwise be admitted to a school, are we really saying that the pupil should be punished if his or her parents refuse to sign an agreement or if they fail to comply with that agreement?
The noble Lord has made this explicit. He is saying that the sanction is to keep such a pupil out of the school or presumably expel him from the school if he is already there. He asked how the child could prosper in those circumstances. Is it the way for the child to prosper that he or she does not get into the school or is excluded from the school? As the noble Lord indicated, these will most likely be difficult areas, with possibly difficult children, and certainly difficult parents. If this sanction were to be applied, it would surely make the situation far more difficult for the child whom I genuinely believe the noble Lord is seeking to look after.
These home-school agreements are not about sanctions. They are designed to ensure that schools, parents and pupils understand what is expected of them. They will be morally though not legally binding. There is a moral authority, but the moral authority is never recognised by everyone. We know that some parents will refuse to sign these agreements. Whatever their reason, should the parents' attitude be taken out on the child?
We made these considerations clear in the discussion on Report. We need also to put them in a wider context. The clause requires governing bodies to have regard to guidance on home-school agreements from the Secretary of State. We are still consulting widely on that draft guidance. But the guidance will make clear that we expect the agreements to include expectations about the standard of education, the ethos of the school, regular and punctual attendance, discipline, homework and so on. The guidance will also make it clear that agreements must be fair and balanced and must maximise the spirit of partnership. But sometimes there will be those who do not respond to that approach.
We want to use home-school agreements to demonstrate to children the importance of education by declaring their commitment to work in partnership. We do not want to threaten sanctions on them if their parents refuse to be co-operative. The more this approach is accepted the more parents will accept it. But there will always be some who refuse to be co-operative and they will be in the most difficult cases. Therefore, employing or even threatening sanctions will jeopardise the future of the child in those most difficult cases.
I should also mention that the clause forbids the use of certain words which would have a particular effect if included 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 any school fund. We need such a safeguard in the clause. We do not believe that it is right to allow admission authorities to base their decisions on admission on whether a parent has signed or is willing to sign. We uphold the principle that an

63
admission authority should not be able to attach such 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 a home-school agreement.
There is also the legal dimension to this matter. Failure to comply with the terms of a home-school agreement should not be treated as something which could give rise to a liability in one direction or another. We certainly do not want to see home-school agreements as potentially subjects of litigation between parents and schools. The clause therefore includes important safeguards for parents and pupils and puts in place an important new mechanism for strengthening and clarifying the partnership to raise standards. It is a partnership which some will refuse to accept; but for the sake of the children we should not employ sanctions here.
I hope that the noble Lord, Lord Pilkington, will accept the logic of my argument in this case. Even though he has astounded us by some of the constructions that he has put on other parts of the Bill which has caused us on occasion to think again, if not entirely to accept the force of his argument, I hope that on this occasion he will accept that the deletion of the clause would make vulnerable pupils more vulnerable; and none of us wants that. I ask him to withdraw the amendment.
6.30 p.m.
Lord Pilkington of Oxenford: My Lords, I shall be brief. My first point is that I mention to the noble Lord, Lord Dormand, our beloved Durham. When he and I went to school, there was no question but that one had to accept what the school laid down, and we all did. I make that point. I realise that the age of hierarchy is over, but the schools were very effective.
The second point is this. As regards those schools which have had enforceable home-school agreements, as far as I can gather—this is more anecdotal than absolute fact—almost always people have signed the agreement and kept to it. There have been very few expulsions, as the Government will find if they make a study of those schools.
The third and last point I make is that, whatever the noble Lord says, I cannot, as a former schoolteacher, ever envisage an educational process working if the parents are so adamantly opposed to the very simple and honourable ideals set out in a home-school agreement. Unless it is stuffed with Archangels Gabriel no school will be able to do anything with a child. I served for six years on the Parole Board dealing with the products of such families. In my experience, they might have been helped if at an early stage pressure of the kind that I am suggesting had been put on them. Idealism is fine for the children of the Minister's honourable and right honourable friend, but in the harsher areas of the city which many of us have long left, sanctions can often make worthy people of the pupils admitted.
I would love to leave this Bill in an atmosphere of friendliness and kindness. I have enjoyed the debates, although they have limited my social life a great deal. But I have to ask the opinion of the House.
6.31 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 41; Not-Contents, 117.

Division No. 5

CONTENTS

Belhaven and Stenton, L.

Mancroft, L.

Beloff, L.

Marlesford, L.

Blaker, L.

Massereene and Ferrard, V.

Blatch, B.

Milverton, L.

Bledisloe, V.

Mountevans, L.

Bowness, L.

Mowbray and Stourton, L.

Burnham, L. [Teller.]

Napier and Ettrick, L.

Cadman, L.

Norrie, L.

Calverley, L.

Park of Monmouth, B.

Carnegy of Lour, B.

Pilkington of Oxenford, L.

Clark of Kempston, L.

Rawlings, B.

Rees, L.

Coleraine, L.

Seccombe, B. [Teller.]

Coleridge, L.

Strange, B.

Elton, L.

Tebbit, L.

Hardwicke, E.

Tugendhat, L.

Haslam, L.

Vivian, L.

Hemphill, L.

Waddington, L.

Hunt of Wirral, L.

Wedgwood, L.

Hurd of Westwell, L.

Wise, L.

Leigh, L.

Young, B.

NOT-CONTENTS

Addington, L.

Hayman, B.

Allenby of Megiddo, V.

Hilton of Eggardon, B.

Amos, B.

Hogg of Cumbernauld, L.

Archer of Sandwell, L.

Hollis of Heigham, B.

Barnett, L.

Hooson, L.

Berkeley, L.

Howie of Troon, L.

Blackstone, B.

Hoyle, L.

Blease, L.

Hughes, L.

Borrie, L.

Hughes of Woodside, L.

Burlison, L.

Hunt of Kings Heath, L.

Carlisle, E.

Irvine of Lairg, L. [Lord Chancellor.]

Carmichael of Kelvingrove, L.

Carter, L. [Teller.]

Islwyn, L.

Clinton-Davis, L.

Jacobs, L.

Cocks of Hartcliffe, L.

Jay of Paddington, B.

Currie of Marylebone, L.

Jeger, B.

Darcy de Knayth, B.

Jenkins of Putney, L.

David, B.

Judd, L.

Davies of Coity, L.

Kennedy of The Shaws, B.

Dean of Beswick, L.

Lawrence, L.

Desai, L.

Lester of Herne Hill, L.

Dixon, L.

Levy, L.

Donoughue, L.

Lockwood, B.

Dormand of Easington, L.

Lofthouse of Pontefract, L.

Dubs, L.

McCarthy, L.

Eatwell, L.

McIntosh of Haringey, L. [Teller.]

Evans of Parkside, L.

Falconer of Thoroton, L.

McNally, L.

Falkland, V.

Maddock, B.

Farrington of Ribbleton, B.

Mallalieu, B.

Gallacher, L.

Mason of Barnsley, L.

Geraint, L.

Merlyn-Rees, L.

Gilbert, L.

Milner of Leeds, L.

Gladwin of Clee, L.

Molloy, L.

Graham of Edmonton, L.

Monkswell, L.

Grenfell, L.

Montague of Oxford, L.

Hacking, L.

Murray of Epping Forest, L.

Hamwee, B.

Newby, L.

Hardy of Wath, L.

Nicholson of Winterbourne, B.

Haskel, L.

Nicol, B.

65

Orme, L.

Simon of Highbury, L.

Perry of Walton, L.

Smith of Gilmorehill, B.

Pitkeathley, B.

Stoddart of Swindon, L.

Ponsonby of Shulbrede, L.

Stone of Blackheath, L.

Prys-Davies, L.

Taylor of Blackburn, L.

Ramsay of Cartvale, B.

Taylor of Gryfe, L.

Randall of St. Budeaux, L.

Thomas of Walliswood, B.

Rea, L.

Tope, L.

Redesdale, L.

Tordoff, L.

Rendell of Babergh, B.

Turner of Camden, B.

Renwick of Clifton, L.

Vinson, L.

Walker of Doncaster, L.

Richard, L. [Lord Privy Seal.]

Wallace of Saltaire, L.

Ripon, Bp.

Whitty, L.

Rochester, L.

Williams of Crosby, B.

Rogers of Riverside, L.

Williams of Elvel, L.

Scotland of Asthal, B.

Williams of Mostyn, L.

Sefton of Garston, L.

Winchilsea and Nottingham, E.

Shepherd, L.

Winston, L.

Simon, V.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
Schedule 4 [School organisation committees]:
Lord Tope Lord Tope moved Amendment No. 11:
Leave out Schedule 4.
On Question, amendment agreed to.
Schedule 5 [Adjudicators]:
Lord Tope Lord Tope moved Amendment No. 12:
Leave out Schedule 5.
On Question, amendment agreed to.
Schedule 12 [Instruments of government]:
[Amendment No. 13 not moved.]
Schedule 17 [Staffing of foundation, voluntary aided and foundation special schools]:
[Amendments Nos. 14 to 23 not moved.]
Baroness Blackstone: My Lords, I beg to move that this Bill do now pass.
In moving the Motion, I would like to say a few words of thanks to all noble Lords who have spoken on the Bill. This is the fourth Bill I have taken through as a Minister and it has certainly been an interesting, even memorable experience.
I should like first to express my warm gratitude to my noble friend Lord Whitty for his support on this, the second education Bill we have worked on together during this session. I thank him for his diligence and patience when explaining some of the difficult-to-grasp, technical areas of the Bill. He has now become an expert on land transfers and the new school framework. I am also extremely grateful to my noble friend Lord McIntosh for his support and particularly his commitment to keeping all of us on the straight and narrow on matters of procedure.
I should like to thank my noble friend Lord Carter and all his colleagues in the Whips' Office for their advice and support throughout the Bill's progress in this House.
I turn now to the Opposition Front Benches. I must thank the noble Baroness, Lady Blatch, and the noble Lord, Lord Pilkington, for the considerable part they have played in the lively and extensive debates. Our
66
encounters have certainly been as challenging as I had anticipated. I was even told earlier this afternoon, along with my noble friend Lord Peston, that I ought to be ashamed of myself.
I should also like to thank the noble Baroness, Lady Seccombe, for her contribution, and I thank also the noble Lord, Lord Tope, and the noble Baroness, Lady Maddock. I am most grateful to them for their constructive and considered contributions. Sometimes they agreed with us and sometimes they disagreed. Their wealth of knowledge and experience in local authorities have informed our discussions; particularly on the practical implications of various provisions.
On the very important issue of special educational needs, our discussions have benefited greatly from the constructive contributions of the noble Baroness, Lady Darcy de Knayth, the noble Baroness, Lady Thomas of Walliswood, and the noble Lords, Lord Rix, Lord Addington and Lord Swinfen. I hope noble Lords agree that in respect of special educational needs issues the Bill will leave this House in a better state than when it reached us.
My warm thanks go also to the Right Reverend Prelate the Bishop of Ripon for representing the interests of the Churches as helpfully and courteously as ever. The constructive relationship my department has with the Churches has manifested itself in the thoughtful debate we have had.
I am sure my noble friends on the Front Bench would join me in thanking the noble Lords, Lord Lucas, Lord Baker of Dorking, Lord Skidelsky and Lord Northbourne. I am most grateful too to the noble Baronesses, Lady Byford, Lady Young, Lady Carnegy of Lour and Lady Park of Monmouth for their contributions.
I should like to thank my noble friends Lady David, Lady Lockwood, Lord Dormand of Easington and Lord Peston. I am also grateful to my noble and learned friend Lord Archer of Sandwell, in his role as Chairman of the Council on Tribunals for his constructive approach to our discussions.
I must thank also all my officials, including my private office, the Bill team and the legal advisers. They have all worked harder than noble Lords realise.
I should also like to express my gratitude to Parliamentary Counsel for his hard work in drafting not only this Bill but also the Teaching and Higher Education Bill. He had continued to provide an exemplary service during the passage of both Bills.
Finally, I thank the doorkeepers and all the staff of House. They have been as helpful, courteous and cheerful as ever, even when our debates have clashed with the World Cup.
The Bill is a central plank in our drive to raise standards. The Government's manifesto clearly sets out our commitment to education, and since last May we have consulted widely, listened carefully and responded in a number of ways. We have identified priorities for immediate action, establishing the Standards and Effectiveness Unit in my department and the Standards Task Force.

67
Our proposals will require local education authorities, teachers, governors and parents to work together in partnership. They will be able to focus their enthusiasm and energy towards ensuring that everyone has the skills and knowledge needed in today's world.
We owe it to our children to give them the future they deserve by tackling under-performance and raising standards for all, whatever the setting. I commend the Bill to the House.
Baroness Blatch: My Lords, I too should like to address some of the formal courtesies which, although formal, are no less heartfelt.
I have been helped enormously in my task of opposing the Bill by my noble friend, Lord Pilkington. He has endured a very real personal tragedy and his stoicism and great courage are a great testimony to him and his very good humour. I thank him profusely for his support. My noble friends Lady Seccombe and Lady Byford have not been involved in such a complex Bill before, but they have taken part with good grace and, on occasions when I have been less than graceful in my own demeanour, they have supported me and been steadfast in that support, for which I thank them.
I should like to thank the noble Baroness, the noble Lord, Lord Whitty, and the noble Lord, Lord McIntosh, for putting up with me and for putting up a stout defence to the Bill. The noble Lord, Lord Whitty, has carried a greater workload than any Whip I know of on a major Bill and he is to be congratulated on that. I join the noble Baroness in thanking him.
The noble Lord, Lord McIntosh, has become almost a quasi-clerk to the House and has kept us in order by reminding us of the rules. I admit to being just a little aggrieved to have been called out of order when I was speaking to my own amendment, which was an amendment to the noble Lord, Lord McIntosh's amendment. Such is his intimidatory style that I stood back and accepted what he said, only to be told by both the clerks and by the noble Lord on the Woolsack on the day that I was entirely within my rights and ought to have stood my ground.
Lord McIntosh of Haringey: My Lords, the noble Baroness is entirely right: she should have stood her ground. I was entirely wrong and I apologise.
Baroness Blatch: My Lords, that was not said in any way to criticise the noble Lord; I am just cross with myself that I did not stand my ground on that occasion. On a more serious note I was cross with myself because I was standing up for those people who had assisted places and who are now to be denied them. In relation to that point I know that the noble Lord, Lord Whitty, has received a letter from a lady whose letter I quoted in the debate. She calls into question some of the information we were given at the Dispatch Box, in that there were 170 applications and the Government are claiming that 100 of them have been dealt with. I should be grateful if that information could be confirmed or rectified in the days following the Bill passing from this place.
68
In another place the schools Minister, Mr. Stephen Byers, wrote recently in the Fabian Review, which will be very familiar to noble Lords:
"The new framework for the education service is based on some clear guiding principles: we need to shift the focus from the structural issues constantly highlighted by the last Government and focus firmly on standards—ensuring that all children, whichever school they attend, receive a good education. We need to get beyond the outdated ideological debates which have tormented education for a generation and focus on what works. We need to celebrate and highlight success".
This Bill is predominantly about structures, not standards. We have already highlighted how many of the clauses are about structures. If it was not about structures, there would not be an issue between us about grant-maintained schools, grammar schools, organisational committees and adjudicators.
The schools Minister went on to say:
"We seek to put in place a virtuous circle which starts from the premise that every school should take responsibility for its own improvement".
I endorse that. He uses the right words, but the practice is very different.
The education adviser to the Prime Minister, Mr. Andrew Adonis, whose words I quoted the other day, has also gone into print in the Fabian Review. When addressing the failures of the comprehensive system, he said:
"One can see why. In the 1997 [Financial Times] survey of A level performance, the top state school ranked a mere 71st. The best English comprehensive came outside the top 200.
There are many reasons for the public sector's failure. Disparity in funding; the rigid separation of the two sectors; the abolition against their will of grammar and direct grant schools; and the anti-education culture that remains so deeply rooted within the British working class: all these are fundamental".
Those are not my words but the words of a political adviser to the Prime Minister.
Mr. Adonis in his book, A Class Act, goes on to condemn very strongly the past policies of the Labour Party that have again come to fruition in this Bill. Almost every leader of the Labour Party has wanted to do something about grammar schools and selection. The new Labour Government are bringing all that to fruition.
At one stage in this Bill I was accused of being over-passionate about my amendments. I make no apology for it. I am passionate about the rungs in the ladder for children, particularly bright children from low income families. They have now been denied assisted places at grammar schools and grant-maintained schools. Even the level of financial autonomy for which I fought today cannot be guaranteed by the Government. I find that quite dreadful. All attempts to guarantee that the benefits of grant-maintained status—that is, the operational and financial autonomy—should be sustained without loss for grant-maintained schools as they transfer have been rejected by the Government.
Another issue regarded as important by grant-maintained schools relates to their rights as admissions authorities. We know from Written Questions that should there be a disagreement with the LEA or any other admissions authority when a grant-maintained school apparently determines its

69
admissions arrangements, that school will be bound by the decision of the adjudicator even if that decision is disagreeable to the grant-maintained school.
The headmasters of the grant-maintained schools who wrote to The Times on Saturday last ended their letter by saying:
"As head teachers of grant-maintained schools of every kind, we believe that the independence which has been vital to our success is seriously at risk. The proposed legislation could seriously damage some of the country's best schools".
Rhetoric is one thing; action is another. What we see in terms of action is the destruction of excellence, the levelling down, the production of endlessly gimmicky schemes, the announcement of the same tranche of money over and over again in different guises—no doubt we shall get some of that in the weeks to follow in the context of the public spending review—the talking up of standards and yet an obsession with structures. It is not new Labour but "real Labour" which is in the driving seat of this particular vehicle.
The Bill marks the end of the most successful grant-maintained schools. No guarantees are offered by the Government to sustain their levels of autonomy. Over time there will be the demise of grammar schools by a rigged balloting system. I make no apology for using those words. There is also to be an end to selection, the use of unelected adjudicators, massive bureaucracy and greater central control.
The noble Lord, Lord Dunleath, when speaking in a debate on Friday last said:
"However, my wife and I took a conscious decision to send our own children to school in Northern Ireland. Our daughter has just finished her A-levels at a voluntary grammar school in Belfast and we have two boys currently at a separate voluntary grammar school in Belfast.
I too welcome the information which the Minister gave so clearly, as he always does, on the provision of additional funding for voluntary grammar schools and integrated schools. In particular, I am very pleased that the boards of governors and head teachers of these voluntary schools will still have the wherewithal to decide how to apply the funds they are given and that the power is not to be vested in the education and library hoards. That is a welcome move. I have no problems with the order before us today".—[Official Report, 10/7/98; col. 1528.]
There we have the same Government making it possible for further development of voluntary grammar schools on the one hand and yet on the other hand inserting into this Bill clauses to ensure that those schools do not survive for very much longer.
In thanking other noble Lords who have been active in this Bill, I must not leave out my noble friend Lady Young who is not in the Chamber at present. She has been the doughtiest fighter for education. She had success with one of her amendments. I hope that it will succeed in another place. However, given the might of the vote there, it may go the same way as that on tuition fees for higher education.
In conclusion, I should like to thank noble Lords on the Liberal Benches. As the noble Baroness, Lady Blackstone, has said, we have not always agreed, but the debate has been conducted with great humour. I have enormously admired the staying power and boxing
70
and coxing on those Benches and the humour that has been displayed. I thank noble Lords very much indeed for their contribution to this Bill.
7 p.m.
Lord Tope: My Lords, I begin by thanking both noble Baronesses for their kind words. At times over the past three months I have felt quite intimidated in intervening in the battles between the two noble Baronesses across the Dispatch Box. I particularly thank the Minister for her kind words to me and to my colleagues. I reciprocate by saying how much we on these Benches have appreciated her patience which at times has been sorely tested—occasionally perhaps by us as well—and her help throughout the Bill. The noble Baroness once said to me that she was "subbing" on this Bill. I recognise that this does not fall directly within her ministerial responsibilities. However, the way in which she dealt with the matter from the Front Bench certainly has not betrayed that fact.
Much has been said about the noble Lord, Lord Whitty, and his contribution. I pay tribute to him. I believe that the most tantalising comment came this afternoon from the noble Lord, Lord Pilkington, who announced to the House that the noble Lord, Lord Whitty, had seen a lot of life. I am sorry that this is the last day of the Bill. We have yet to hear exactly what kind of life the noble Lord, Lord Whitty, has seen so much of. If we could carry on for a few more days perhaps it would become even more interesting.
Reference has also been made to the role of the noble Lord, Lord McIntosh. We on these Benches have tended to mark our progress on the basis of how the noble Lord has responded to us. We began by tabling hopelessly defective amendments. Today I believe that we have made real progress: they are only mildly defective. That is a great step forward. Casting my mind back to what we have achieved over these long weeks, I believe that it was the noble Lord, Lord McIntosh, who almost accepted one of our amendments. When I moved an amendment which in effect suggested better wording in the Bill, all he could say was that he had not expected it and he would have to think about it. Lo and behold, at the next stage of the Bill an amendment was tabled in the name of the Minister which bore an astonishing likeness to the amendment that I had moved. I count that as my one and only success on the Bill, even if I was not allowed to move the amendment myself.
The noble Baroness, Lady Blatch, referred to the interesting arrangements on this side of the House. I was moved on one occasion to point out that there are two parties opposite. It has been an interesting and at times enjoyable experience working here. I have welcomed, occasionally with a little surprise, the at times passionate support from the Conservative Benches for local democracy and local education authorities. Even more welcome, into the early hours of the morning, was the constant supply of Polo mints from the Conservative Front Bench; on one occasion we had to send out for supplies ourselves so that we were not too much in hock to the Conservative Front Bench!

71
Reference has been made to my two noble friends Lady Maddock and Lady Thomas. I have felt that at times I aroused their maternal instincts. On the last day of Report stage, I had been on the 6.30 a.m. plane to Brussels and still had to get my car out of Gatwick Airport that evening. As we droned on towards 11 o'clock, my two noble friends sent me off to catch the Gatwick Express. I was enormously grateful to them for their consideration. I shall not suggest that my noble friend Lord Addington has any maternal instincts towards me, but he has been most helpful and supportive as regards his interest in special educational needs. That has been much appreciated.
I pay tribute to my noble friend Lady Nicholson of Winterbourne who made a valuable contribution on a subject of great importance to her and to all of us—the profoundly deaf. She kindly invited me to a meeting with the noble Lord, Lord Whitty. I know that some progress is being made. I hope and believe that she will return to that subject in your Lordships' House. I look forward to that.
I thank my team. I believe that it is not customary practice—I am not sure why—to mention those who have been particularly supportive but who are not Members of your Lordships' House. The Minister referred to her own department. I wish to make an exception and refer to two people whose help has been exceptional. Denys Robinson volunteered to be my education adviser. He recognised a need and felt that he would wish to give up some of his spare time when he retired as a teacher to help me with that. When he volunteered for the job he did not realise that a School Standards and Framework Bill was coming. He has worked tirelessly in briefing and supporting us. We could not have managed without that help.
I wish to single out for special mention Carolyn Rampton in our Whips Office. She has to support us on education, health and a range of other subjects. Her unflappability and tireless good humour and support have been invaluable. If I am in breach of convention in mentioning them, I make no apology because I believe that they deserve that mention.
We began the Second Reading debate on 7th April at about the time I launched a London borough election campaign in my borough. The first day in Committee was two days before polling day; and I am now three months into our fourth administration. We have been through not only my annual council meeting but also the World Cup. I think that it was one of the most bizarre experiences that I have had in your Lordships' House. These Benches are nearest to the door. We were getting the signals first, and from time to time could hear the noises off as people watched the TV annunciators, which for once were not tuned to the Chamber. It was a strange but interesting experience. When we finally had the result, I noted that a rather surprised looking Opposition Chief Whip sat on the Woolsack as the Lord Chairman had briefly to leave the Chamber to cope with his sadness!
In conclusion, through the Minister, perhaps I may express thanks and appreciation for the help we have received from the Minister's private office and the
72
department. The noble Baroness, Lady Blatch, occasionally suggested that she had not received enough information. She must speak for herself, but at times I have felt that I have had information overload. The mountains of paper which I have accumulated throughout the Bill have been memorable. I came into my office and found five empty crates. I thought that someone had been considerate, knowing that today was virtually the last day of the Bill. However, I understand that we simply have to pack up the office because something is to be done during the Recess. I shall need more than five crates for the paper arising from the Bill.
I do not intend to follow the noble Baroness, Lady Blatch, in commenting on the Bill except to say that we have won some and lost some. I am grateful to the Government for what they have given us on special educational needs, a subject important to all of us. I am grateful for the short debate on Nonsuch High School; and the recognition of an unintended effect of the Bill. I am grateful for my one victory in correcting the legislation on collective worship in Clause 78. I am disappointed that the Government are likely to reverse the amendments made today on the iniquities of school organisations and adjudicators. I believe that the Government are wrong with regard to foundation schools. I am sad that they have not listened on the issue of parent organisations in schools. That is the one criticism I wish to make. There are times when we know that we shall not change government policy. We do not expect to and perhaps it would not be right if we could do so. But sometimes on the lesser subjects perhaps the Government could show their strength by listening and conceding more.
That is the only slightly churlish comment I wish to make. We all share a sense of pleasure and relief that we have at last reached this stage. I do not wish to prolong the matter, but merely echo the thanks given to the staff of your Lordships' House and all noble Lords who have taken part.
The Lord Bishop of Ripon: My Lords, I am not clear whether the conventions of the House allow or expect a contribution from these Benches. However, since the education departments of the Churches have played such a considerable part in the Bill, perhaps I may be allowed to say a brief word.
I enjoyed the contributions from all sides of the House. I found myself in the Lobbies with a variety of partners. I noted today that I had been through the Lobbies with each of the parties in turn at various stages of the Bill. I hope that this Bench will not be accused of political partisanship.
When the proposals were first published last summer, there was considerable alarm among the Churches. In response to that alarm, the Secretary of State wrote a letter to the Daily Mail saying that we need have no fears: church schools were secure with the new administration. A great deal of hard work had to be done convincing Ministers that our concerns were genuine. Eventually they were taken seriously.
A major turning point was reached following the statement from the Church of England House of Bishops. The turning point was the removal of

73
church-controlled schools from the category of foundation into the category of voluntary schools. That decision, coupled with other changes on a range of issues such as foundation governors, adjudicators, admissions policies, and religious education syllabuses meant that the Bill when published was more acceptable to the Churches. Since then many further negotiations have taken place. Nearly 60 suggestions for amendments to the Bill have been made to the Government from the Churches. Each suggestion has been the subject of discussion at either official or ministerial level. In the end each has been resolved to the satisfaction of the Churches.
The level of communication between the staff of the Church of England Board of Education, the Catholic Education Service, the Free Church Council Education Committee and civil servants has been high. I have been intrigued to note that the banter has risen to an extremely high level during the long process of the Bill. The work on all sides has been enormous.
As was said by the noble Baroness, Lady Blatch, all the discussion has been about framework and structures, but this is the School Standards and Framework Bill. We are all agreed on the raising of standards, but, as the noble Baroness said, we are not necessarily agreed on the framework which will deliver it. However, I believe that there is widespread agreement in this House and in the country that Church schools deliver excellent educational provision. They are able to draw together parents, governors, teachers, pupils and the community into a body with shared values and beliefs within which personal growth, intellectual stimulus and the acquisition of skills are held together.
We in the Churches have been concerned to preserve and enhance the structure which has delivered such a popular and well regarded provision. In the case of over-subscribed schools, denominational allegiance has to be the admissions criterion. But many parents wish their children to be educated in schools which cannot be filled on denominational choice alone. I am pleased to believe that as a result of the work done in relation to this Bill those schools will be able to continue to make a contribution. I believe that the structure and character of Church schools has been both preserved and enhanced.
I thank the noble Baroness, Lady Blackstone, for her unfailing courtesy in listening to our concerns. I thank also her ministerial colleagues and the officials of her department. I wish to make particular mention of the officials of the boards of the Church of England, the Catholic Church and the Free Church. Those are tiny boards whose staff have carried huge responsibilities during the year. I believe that they and their legal advisers have served the Churches and the education service extremely well.
Baroness Darcy de Knayth: My Lords, my noble friend Lord Rix and the noble Lord, Lord Swinfen, are unable to be here, but have asked me, as one of the three who attended the most helpful meeting with officials, to comment on special educational needs. Both noble Lords, together with the noble Baronesses, Lady David and Lady Thomas, and the noble Lord, Lord Addington,
74
who may wish to comment later, worked far longer than I did on special educational needs. In addition, I thank the noble Baroness, Lady Blatch, for her helpful interventions in support.
The Bill arrived without a mention of special needs. However, thanks to the strong support from all sides of the House, and to the Minister and the noble Lords, Lord Whitty and Lord McIntosh of Haringey, for being willing to listen and to the Minister for also being helpful in arranging that productive meeting with officials from the department and our advisers from the Special Educational Consortium, we now have a much better Bill as regards children with special needs. A number of helpful amendments have been made and many undertakings have been given. We have also had a welcome offer of further meetings, which gives me hope of progress beyond the scope of the Bill. Meanwhile, I wish the Bill well.
Lord Monson: My Lords, in the light of persuasive correspondence which I received last week, perhaps I may be permitted to say a few words about a matter which is not an integral part of the Bill but which might better be described as a last-minute bolt-on accessory. I refer to the deplorable Clause 139 which, despite the wishes of parents, outlaws even the mildest form of corporal punishment in independent schools. As a result of the proliferation of controversial legislation now being pushed through Parliament—and the proliferation of major sporting events—the clause has received far less public and media attention than it deserves.
I use the word "deplorable" because, unlike the rest of the Bill, the proposal was not in Labour's manifesto at the last general election. It was pushed through the House of Commons at five o'clock in the morning with no previous public debate and with no consultation with those affected; that is, the independent schools in question and the parents of the children at those schools.
As my noble and learned friend Lord Wilberforce powerfully intimated in Committee, it is an illiberal move rather than the liberal move it purports to be. Moreover, it seems to me to be a slap in the face for the European Court of Human Rights, which has specifically ruled that corporal punishment in moderation, of course, does not constitute cruel or unusual punishment. It was a judgment of the European Court of Human Rights which first led to a ban in state schools. The court ruled that children of parents with a philosophical objection to corporal punishment could not be so punished. Fair enough, but clearly there are many parents with precisely the opposite philosophical convictions. Surely their convictions, too, deserve respect.
Given that the Government are officially neutral about the clause, as they made quite clear—
Lord Whitty: My Lords, in the absence of the noble Lord, Lord McIntosh, perhaps I may point out that after a period of harmony in winding up the Bill we are entering an area in respect of which the noble Lord could have tabled an amendment. This subject has not been discussed today and is not appropriate for the

75
winding-up proceedings. I ask the noble Lord to take account of the traditions of the House in this respect and not to produce a full speech on the matter.
Baroness Blatch: My Lords, on that point of order, it would be helpful to be properly advised on this. My understanding is that any Member of this House can reflect on the Bill. That is what "Bill do now pass" is about. They can reflect on any parts of the Bill which were most poignant to them, or most disappointing or most pleasing. The fact that the noble Lord has not spoken with the harmony which the Minister has enjoyed to date is not an issue. It would be helpful to be properly advised on the matter.
Lord Monson: My Lords, I am grateful to the noble Baroness, Lady Blatch, for that intervention. The reason for my rising is not to complain, but to ask the Government to do something and I point to that immediately.
Given that the Government are officially neutral about Clause 139, as was made perfectly clear on 16th June and probably on other occasions too, will the noble Baroness, Lady Blackstone, and the noble Lord, Lord Whitty, urge their right honourable friend the Secretary of State to delay bringing that provision into force until the European Court has ruled on an application from parents who wish to preserve the status quo, citing their own philosophical convictions, which surely deserve respect? After all, if the court were to rule in favour, that would necessitate changing the law once again and I do not believe that anyone can think that desirable.
If the Government are not prepared to do that, I urge that implementation of Clause 139 be delayed, first, until the schools in question have had time to work out an alternative disciplinary policy; and, secondly, for long enough to allow the parents (who have made great financial sacrifices to send their children to fee-paying schools with a firm disciplinary policy and who now feel that that is no longer worthwhile) to look for places in non-fee-paying schools—all of which, including the obligatory term's notice, takes months rather than weeks. I make that suggestion bearing in mind, once again, that the proposal was not in the manifesto and therefore the institutions and individuals concerned must be given time to adjust.
On Question, Bill passed, and returned to the Commons with amendments.

European Court of Human Rights
7.17 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill rose to ask Her Majesty's Government whether they will seek to improve the procedures for the election of judges to the European Court of Human Rights by the Parliamentary Assembly of the Council of Europe so as to ensure that the Parliamentary Assembly is reliably advised about
76
the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent expert committee.
The noble Lord said: My Lords, the European Convention on Human Rights is the jewel in the crown of the Council of Europe. The European Court of Human Rights, the guardian of the convention system, is to protect the basic rights of almost 800 million people across Europe. From 1st November, we will have a new permanent full-time European Court to which everyone in the 40 countries belonging to the Council of Europe will have access.
Under the convention, each judge must be elected by the Parliamentary Assembly of the Council of Europe from a list of three nominees provided by each government. This enables the assembly to ensure that the judges selected have the qualities needed for high judicial office. The assembly should not be a rubber stamp, but party politics is not the best way of choosing independent qualified judges. Ill informed or prejudiced elections can sap independence and lead to arbitrary results. So it is important that there should be effective safeguards against the misuse of the assembly's powers in assessing the suitability of judicial candidates and in electing them.
The first elections for the new court took place a few months ago. Twenty members of the old court and the old commission were elected, together with 20 completely new judges. Half of them, chosen by lot, will have to stand for re-election, if they wish to continue, in only three years' time; and the other half in six years' time.
What prompted me to ask this Question is the seriously defective nature of the procedures adopted and carried out by the Parliamentary Assembly for the first elections to the new court. The procedures were opaque and unfair, and stood in marked contrast with the open and transparent system adopted by the British Government for selecting the three nominees. In Strasbourg as well as here, there is real concern that, in the absence of an improved system for all future judicial elections, the moral and intellectual quality, independence and impartiality of the court will be in jeopardy.
The problem is exemplified by what happened, and by what nearly happened, in selecting and electing the British candidate this time round. Our Government acted with admirable fairness. I pay tribute to the noble and learned Lord the Lord Chancellor and the Foreign Secretary for the procedures which were followed in this country. There was a strong and independent assessment and interview panel consisting of two judicial members, Lord Justice Simon Brown, and the Lord President, the noble and learned Lord, Lord Rodger of Earlsferry; two legally qualified government officials, Sir Thomas Legg, then Permanent Secretary at the Lord Chancellor's Department, and Sir Franklin Bernam, legal adviser at the Foreign and Commonwealth Office; and an independent lay member, Joanna Foster, former chair of the Equal Opportunities Commission.
The British vacancy was publicly advertised. After interviewing five of the 33 applicants, the panel proposed to the noble and learned Lord the Lord

77
Chancellor three highly creditable candidates in a specific order of preference. The noble and learned Lord the Lord Chancellor in turn secured the agreement of the Foreign Secretary and others for those three to form the British shortlist for the assembly. The candidates were, in order of preference, Mr. Nicholas Bratza, QC, the British member of the European Commission of Human Rights, Mr. Justice Carnwath, an English High Court judge, and Mr. Robert Reed, QC, a Scottish advocate.
Each was certainly well qualified to be elected to the European Court but the outstanding candidate was, as indicated by the selection panel and the Government, Mr. Nicholas Bratza, QC. His record as a barrister, and as a member of the European Commission of Human Rights since 1993, has been notable for the quality and independence of the judgment he has brought to bear and for his commitment to protecting human rights.
One would have thought his election in Strasbourg would be secure; yet events proved otherwise. A new procedure had been put in place, following a proposal made last July by the noble Lord, Lord Kirkhill, the Rapporteur for the Parliamentary Assembly's Committee on Legal Affairs and Human Rights. It required all candidates to be interviewed by a special ad hoc sub-committee. I am disappointed that the noble Lord will not be participating in this debate. He put his name down and I had hoped he would be here. I hope that there might be a similar debate in the Parliamentary Assembly.
The Strasbourg procedure involved a personal interview of only 15 minutes. The interview was, in the words of the noble Lord, Lord Kirkhill, "informal" and started with questions referring to the curriculum vitae submitted by the candidates. The sub-committee would, in most cases, limit itself to giving its opinion on the candidates' eligibility. Its reports were not to be made public, but were to be made available to the Committee on Legal Affairs, the bureau of the assembly, and the assembly's political groups.
Unfortunately, this procedure was flawed in several respects. The sub-committee had no particular expertise to interview and appraise the suitability of candidates for high judicial office. Certainly, it lacked the expertise of the panel set up by the noble and learned Lord the Lord Chancellor to appraise the British candidates. Secondly, a 15-minute interview based upon the applicant's curriculum vitae is too superficial for a thorough appraisal of candidates for the European Court. Thirdly, there were no formal rules of procedure to ensure fair and consistent treatment. Fourthly, there were no safeguards built into this procedure against the possible dangers of politically motivated, partisan or biased treatment of candidates. The members of the sub-committee were all politicians, and they had no duty to give reasons for their recommendations.
Some might argue that it was better to have this procedure than the old system of largely rubber-stamping government proposals; but it was essential for the new procedure to provide full and reliable information to the Parliamentary Assembly and to seek to avoid arbitrary, ill-informed and unfair decision-making.
After interviewing the British candidates, the sub-committee did not limit itself to giving its opinions on each candidate's eligibility. Instead it decided against the Government's first choice of Commissioner Nicholas Bratza, QC, and instead recommended the third candidate, Mr. Robert Reed, QC. It gave no reasons for reversing the Government's order of preferences; nor did its report reveal to the assembly that it was overturning a government recommendation based upon a transparent, thorough, expert system of appraisal at the national level, which had the support of the human rights NGOs. Rumour has it that Mr. Bratza was disfavoured for having acted as counsel for the Crown on behalf of Conservative governments. That would have been a thoroughly bad reason.
In the teeth of the sub-committee's recommendation, Mr. Bratza narrowly won the election. But several members of the Labour group were furious, and attacked the Government quite unfairly for having secured the election of an "establishment" candidate. One member of the Labour group, Mr. Kevin McNamara MP, was so angry that he tabled nine questions in the other place suggesting that the Government had been at fault in not accepting the views of the sub-committee of the noble Lord, Lord Kirkhill.
What Mr. McNamara and some of his colleagues may not understand is that when the assembly appoints judges it must adopt a fair and open procedure. As my friend David Pannick, QC, observed in his powerful article in The Times, the assembly's politicians should not readily depart from the conclusions reached by an objective national procedure. They should substitute their own views only if so advised by independent experts after a thorough assessment. And they should give reasons for their decisions.
Nothing could be more damaging to the reputation of the judicial system and the effective protection of human rights than partisan political manoeuvring, perhaps to further a grudge match between old and new Labour. If candidates for judicial office with the European Court have to satisfy an unfair and inefficient procedure, then, as Mr. Pannick points out, the court's performance and its reputation will be seriously impaired.
The new court will face formidable challenges. Its judges must be of the very highest quality. I hope the Government will seek to persuade the Council of Europe to improve these procedures so as to ensure that the Parliamentary Assembly is reliably advised about the qualifications of nominated candidates on the basis of a transparent, thorough and fair process of interview by an independent and expert committee. That would be an important check against the arbitrary exercise of the political power to elect members of this important court leading to perverse results.
7.27 p.m.
Lord Ackner: My Lords, when I put down my name to speak in this debate, there was then no judge on the list of speakers. Very recently I have noticed, with great pleasure, that my noble and learned friend Lord Wilberforce has added his name and therefore, basically, I am de trop. However, having read Mr.

79
Pannick's article in The Times, I should like, briefly, to support the proposition put forward by the noble Lord, Lord Lester.
Clause 18 of the Human Rights Bill makes provision for the appointment of a UK judge to the European Court of Human Rights. In Committee, I drew attention to the provision for an English judge, if appointed, to have his pension, if it was thought fit, reduced, and in Committee I took the view that that was a thoroughly unsatisfactory provision. My noble and learned friend the Lord Chancellor, with that great generosity of spirit which he represses all too often, introduced on Report the very amendments which I wished in order to ensure that a UK judge appointed to the ECR would in due course receive the same pension as though the ECR appointment had not taken place.
The basis for support of the propositions which I had raised was that it was generally accepted that it was essential that members of this new European Court of Human Rights, who will become full time from November when the eleventh protocol comes into force, should be of the highest calibre and of outstanding quality. As the noble and learned Lord the Lord Chancellor pointed out, if a United Kingdom judge did not receive the pension to which he would have been entitled if he had remained a judge in England, that might provide a powerful disincentive to some of our most able and highly qualified candidates from the judiciary to seek appointment.
Therefore, what was stressed in that debate was the very point made by the noble Lord, Lord Lester; namely, that it is vitally important that we should ensure that the ablest candidates are appointed in due course. For that reason, it is highly desirable to make sure that those who are submitted by the Lord Chancellor and in the order of merit should be adhered to, unless of course there were good and articulated reasons to the contrary.
7.31 p.m.
Lord Grenfell: My Lords, I am very grateful to the noble Lord, Lord Lester of Herne Hill, for raising this important Question tonight. I shall begin by declaring an interest as a member of the British delegation to the Council of Europe's Parliamentary Assembly.
To the extent that I have a difficulty with the proposal enshrined in the Question tabled by the noble Lord, it is more one of sequencing than of substance. Within the entire process of electing judges to the European Court of Human Rights, there is surely a need for an independent expert opinion. To my mind, the question is: at what stage in the process should that opinion be sought, and by whom?
The noble Lord, Lord Lester, suggests that, in any event, it should be sought at the point where the parliamentarians of the Council of Europe's assembly are called upon to review the names proposed by the "high contracting parties", to use the official term, and subsequently vote on them. Sadly, it is here that the noble Lord and I part company. It seems to me that independent expert advice would be more usefully sought at the point at which a high contracting party is
80
selecting from a pool of national candidates the three names that will be forwarded for the assembly's consideration, as indeed has been the case in this country.
If one holds, as I do, that each high contracting party has a duty to present three candidates, each one of whom is deemed fully qualified to sit on the court, the selection of those three persons seems to me to be the most crucial stage of the entire process. At that juncture, therefore, independent expert opinion has a very proper role to play and adds force and credibility to the high contracting party's ordering of the three names by preference. But the listing in order of preference should in no way weaken the force of the principle that each of the three should be considered fully qualified, as any of the three could be voted on to the court by the assembly.
That brings me to the question of how democratic the procedures are at present. New Article 22 provides unequivocally for the election of the judges by the Parliamentary Assembly by a majority of votes cast from each high contracting party's list of three nominees. With that settled, I am firmly of the opinion that, once the process has crossed the threshold from governmental nomination to assembly consideration, there should be no further intervention by the high contracting party itself, no pressure through ministerial or diplomatic channels, and no lobbying of delegates in Strasbourg by governments, public or covert, on behalf of a particular candidate. It must be left strictly and exclusively to the parliamentary process embodying the deliberations and recommendations of the Legal Affairs Committee and the ultimate secret ballot by all the members of the Parliamentary Assembly.
The delegates may or may not follow the recommendations of the Legal Affairs Committee. But that is as much their parliamentary prerogative as it is of the Legal Affairs Committee to accept or not the orders of preference of the high contracting parties. The interview process within the Legal Affairs Committee of the assembly is of great importance. In parenthesis, with respect to the existing arrangements, I would add that I would prefer that the length of interview be based on a 15-minute minimum rather than maximum, to accommodate the possibility that either the interviewers or the individual interviewee may find 15 minutes in his or her particular case inadequate. I am aware that the Legal Affairs Committee finds it no small task already to interview more than 100 candidates for a maximum of 15 minutes, but a measure of flexibility should not add unduly to the burden and should be considered worth bearing in the interests of reaching fair conclusions.
I am aware that voices are raised questioning whether parliamentarians can be entrusted to make ultimately the choice that the high contracting parties, and perhaps the national judiciaries, would consider right. That is the price of democracy. With all respect to governments and the judiciary, the scope for making a mistake is not necessarily narrower when three candidates are being selected from a well-populated pool of aspirants than when one candidate is being elected from a list of only

81
three, each of whom ought to be fully qualified to take his or her seat on the court. That is why, in my humble opinion, the requirement for a,
"transparent, thorough, and fair process of interview by an independent expert committee",
should be met by each high contracting party at the nominating stage, affording the assembly the assurance that the best available candidates have been presented to it, and leaving the assembly free to discharge its democratic duty unfettered by further governmental or other, extra-parliamentary, intervention.
As I said at the outset, it is a matter of sequencing rather than of substance that separates me from the noble Lord, Lord Lester, on this important issue. But at the heart of the matter is a principle of the highest importance: the inviolability of the parliamentary prerogative of the Council of Europe's Parliamentary Assembly.
7.36 p.m.
Lord Hardy of Wath: My Lords, I must say that I agree with every word that my noble friend has offered. I served on the Council of Europe for over 20 years. I ceased to be a member last September, but for l2 or 13 years I led my party's delegation. For a great deal of that time I and other British members were incensed and dissatisfied at the way in which the Council of Europe elected judges. That did not apply necessarily to the British nominees, but I raised in our political group on several occasions the absurd situation which then applied.
We would be presented with the names of three people. We would be told to vote for one of them but, usually, no one told us anything about the three people. One could sometimes obtain a little information from the delegation of the country whose judges we were about to select. However, sometimes we would have been better off sticking a pin in the piece of paper to determine our choice of vote. Indeed, on a number of occasions I flatly refused to exercise the vote because I knew nothing about the candidates. That situation went on for a very long time. Indeed, the noble Lord, Lord Lester, might like to talk to his noble friend Lord Russell-Johnston who, I believe, more or less agrees with everything that I am saying. He shared our dissatisfaction about the arrangements.
I must say that I was incensed when I read the article to which reference has been made. It was about eight years ago that I persuaded the noble Lord, Lord Kirkhill, to stand for the position of chairman of the sub-committee on human rights. The noble Lord acquitted himself so well—and I shall now bring a blush to his cheeks, as I am delighted to see that he has just entered the Chamber—that he was almost unchallenged as chairman of the Legal Affairs Committee. He held that position during the most difficult period the Council of Europe has faced while supervising and monitoring the accession of all the countries from central and eastern Europe which, by becoming democratic, qualified for entry.
The noble Lord commanded the confidence of his committee so that, when his term of office expired, having reached the maximum permitted period, he,
82
along with his sub-committee, was given the task of supervising the appointment of judges. I accept that there may have been good reasons to suggest that the length of such interviews ought to have been extended or have been capable of extension. But my noble friend has had to interview 117 candidates from 39 countries so far. I do not think the list is finished yet. Had the position been as flexible as Mr. Pannick might have suggested in his article, judges would have been interviewed for another 10 years.
That committee, which may be described as a committee of professional politicians, consisted not merely of my noble friend but of eminent professors of law and experienced and extremely highly qualified lawyers from various member states—the kind of people who do not serve in the British Parliament because the time they would have to devote to Parliament here might inhibit their practice. In other countries, parliaments sit far shorter hours and members of parliament have far more time to practise their professional pursuits. During the interviews my noble friend was accompanied by highly eminent people. It is unfortunate that there appears to have been some downgrading of the quality of the people serving on my noble friend's committee. I shall give way to the noble Lord, Lord Lester, but I hope he will be brief as I do not have much time left in which to speak.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. The Question does not in any way impugn the capacity of the noble Lord, Lord Kirkhill, whom I am glad to see in the Chamber, nor of the committee. The question is whether the committee adequately went about its job of obtaining the information and of informing the assembly of what appears to be an extraordinary decision to disqualify in its recommendation Mr. Bratza and qualify the third candidate without giving any reasons for that or even informing the assembly of what it was doing.
Lord Hardy of Wath: My Lords, I think the noble Lord may have overlooked the fact that the sub-committee in approaching the problem of electing judges from all the member states compiled a proper structure of CVs. It was equipped with the available information. My noble friend Lord Grenfell is absolutely right, in that the Council of Europe parliamentary assembly should be cognizant of the national view but it cannot, and must not be, a rubber stamp for the administration.
I shall give the House two illustrations of why I viewed governments with some suspicion. First, the Council of Europe organised a conference in Lisbon on North/South matters. I moved an amendment which sought to be specific in securing commitment from member states, only to find that the Norwegian Conservative delegation complained to me that a diplomat employed by the British Foreign Office had entered the conference and was seeking to buttonhole members of parliament from other countries on behalf of Her Majesty's Government; that he had no business to be there; and that the Foreign Office had no right to authorise that behaviour.

83
However, the second incident was more serious. I was involved in debates at the time when the convention against torture surfaced. A member of our delegation who put an awful lot of effort into that matter was Dr. Maurice Miller. He was a practising doctor. He was also a Member of Parliament. He took a refresher course every year and treated a number of Members of Parliament, and perhaps some Members of your Lordships' House. He was up-to-date in medical practice. He had been a Justice of the Peace during his long service on Glasgow corporation.
He retired in 1987 after playing a key role in implementing the convention against torture. As regards the appointment of the committee to supervise the convention against torture, there was no one more suitable to serve on it within the European political field than Dr. Maurice Miller. However, the Foreign Office—I believe at the instigation of No. 10—did not want Maurice Miller. It wanted to appoint someone who had been a Conservative Member of Parliament but had been defeated at the previous election. He had been an enthusiast for hanging and flogging. I ask the House whether it was sane for the Foreign Office to propose an enthusiast for hanging and flogging to be Britain's representative on the convention against torture.
Noble Lords will understand why people in the parliamentary assembly were not—and indeed must not be—merely the pawns of a foreign office or of a government. I am delighted that the present Government have changed the arrangement, as it needed to be changed. It has needed to be changed for 20 or 30 years. This House should be grateful to the noble Lord, Lord Kirkhill, for the efforts he has made to ensure that the system is now a great deal better than it ever was in the past.
7.44 p.m.
Lord Wilberforce: My Lords, like other noble Lords who have spoken I express appreciation of the action of the noble Lord, Lord Lester of Herne Hill, in bringing this matter before this House for discussion. It is a matter of extreme importance in relation to this particular appointment, which was one of great significance as the first appointment to the new court. I refer to the appointment of an eminently qualified person from the commission which is likely to set a precedent for other cases in the future, and is one in which the results happily came out right but might easily not have done. That could have led to disaster.
The system of nominating more than one person—two or three persons—for election to a judicial appointment is quite a common one. I believe it is right to look at this case in the context of what generally happens in other areas. Of course a system of that kind—submitting three names and then expecting one to be appointed—can only work satisfactorily given two things: first, that the electing body which does the actual election has proper information, competence and good sense to enable it to make a choice; and, secondly, that the nomination process is carried out carefully and conscientiously and is submitted as it should be to the
84
electing body. Of course these two considerations are closely interlinked because the stronger the nomination process, and the better that is carried out and is seen to be carried out, the more likely and appropriate that the electing body will bring itself into line and accept the nomination of the nominating committee.
For some time I have been on both sides of this process. I hope noble Lords will allow me to recount a little of my experience on this. I have been involved in the nominating process for the International Court of Justice at the Hague. There, as your Lordships know—certainly the noble and learned Lord will know this—there is an elaborate process by which the nomination of judges (not only the British judge but also other judges) is made by the national group of the permanent court of arbitration at the Hague. I have been a member of that permanent court for a great many years and have considered a great number of nominations for judges, both British judges and other judges. In every case—which is completely in accordance with Article 6 of the charter which requires consultation to take place everywhere—we have been to a great deal of trouble to find out who was the best candidate. We met. We did not interview but we considered the CVs and gathered evidence. We made our nomination in due course. In no case was our nomination of a British judge ever doubted.
It is important to remember that the actual election is carried out by a body even more democratic—if I may say so—than the Parliamentary Assembly of the Council of Europe. The election is made by the United Nations General Assembly and Security Council. One could not have a more democratic body than that. Given that process, the nomination of the national candidate is invariably accepted.
Another example is the European Court of Justice. As your Lordships know, judges there are appointed by common accord of the governments. In practice, by the common accord of the governments, the nomination of those governments is always respected. So much for the nomination side. I believe that this process works well, and can work well, given the two considerations which I have mentioned.
On the passive side, I have been nominated more than once, with others, for the European Court of Human Rights. I have been on the list, sometimes in one place, sometimes in another. I know that the noble Lord, Lord Hardy, does not approve of the way in which the list was drawn up. It was done no doubt after consultation; names were presented. If my name was not the first, I should be absolutely horrified at the idea of being subjected to scrutiny by the Parliamentary Assembly and summoned for interview. Had that been the situation at that time, I and others would never have allowed our names to go forward. That was the process. Three names were submitted, and in my experience the first name was almost invariably accepted by the Parliamentary Assembly.
However, there is the interest of the Parliamentary Assembly. It is a democratic body. Three names are submitted. It has the power, and probably in some cases the duty, to scrutinise those who come before it. It is a

85
very large body. All sorts of names may come up, possibly of people who have no experience at all in the field of human rights. It is appropriate that the Parliamentary Assembly should examine the names.
However, I humbly urge the Government not to go too far in the direction of accepting some new process by which interviews are to take place and liberty is to be taken to vary the list of national nominations. Given that the national nomination is properly carried out—as it was in this case; the noble and learned Lord took every trouble to get the best possible authority and the best possible names were submitted—and given the communication of that process to the Parliamentary Assembly, which is essential, and the reasons why they were chosen and by whom—then I firmly believe that the best process is that, in principle, the first name should be selected and the nomination process of the nominating state should be respected. I hope that the Government will continue to urge that. I am entirely in agreement with the proposal of the noble and learned Lord. We are grateful to him for having submitted it.
I wish to make just one comment in passing. I am not a great lover of interviews. I do not believe that they are the right way to select people for jobs, especially very high grade people of the kind that we are considering. However, if a parliamentary secretary wishes to have interviews, let them be proper interviews. To that extent I agree with the noble Lord. I should sooner be without interviews altogether. I am happy to endorse the proposal and hope that Her Majesty's Government will go along with it.
7.52 p.m.
Lord Ponsonby of Shulbrede: My Lords, I should first declare an interest. I, too, am a delegate to the Council of Europe and had a vote in the elections to which the debate refers.
All noble Lords have referred to the need for a balance to be struck between the proper selection of three eminent candidates, any one of whom could be selected, and the necessity that the assembly of the Council of Europe should not become a rubber stamp. A procedure should be established to prevent that happening.
The noble Lord, Lord Lester, made a number of accusations regarding the procedure. I am not extremely familiar with it; however, I think I can talk about some of the accusations that he made. He referred to the issue of qualifications. My noble friend Lord Grenfell dealt with that point. It was certainly the expectation of the legal sub-committee that all three candidates put forward by every country should be eminently qualified. That was certainly so in the case of the British judges who were proposed.
The noble Lord also raised the question of transparency. The assembly had the right to select from the three candidates as early as 1949, under Article 39, and under Article 22 of the new Convention of 1994. There is no debate about the right of the assembly to make the choice. The question relates to the particular time when that right was fully explored.
86
The noble Lord questioned whether the procedure was thorough and fair. I have not heard any complaints from any other country as to its foulness or fairness. I have heard no accusations of political bias. I noted that the noble Lord was careful to phrase his accusation about partisanship and political manoeuvring in the abstract. I do not think that he was actually accusing my noble friend Lord Kirkhill of partisanship in any way.
The answer to the point about being thorough and fair came in the remarks of my noble friend Lord Grenfell about the sequencing of the decision-making process. He said that all the candidates put forward should be eminently suitable for the post.
The final point made by the noble Lord, Lord Lester, related to the independence and expertise of the committee. It is my understanding that there were a number of experts on the committee. As I said, I have heard no accusation of political bias other than in the now infamous article in The Times by David Pannick.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Can he think of any good reason why the candidate who was first on the list, and who was by far the best qualified for the reasons I have given, should have been replaced by the third candidate with no reasons given? No information was given to the assembly as to why the sub-committee behaved in that way.
Lord Ponsonby of Shulbrede: My Lords, I cannot give an answer; I do not know the reason for the sub-committee's decision. I had intended to put the point to my noble friend Lord Kirkhill and ask whether he thought there were any improvements that could be introduced into the procedure in future as regards the sub-committee giving reasons for its decision. I accept the noble Lord's point.
In conclusion, I wish to raise a wider issue; namely, the moral authority of the assembly itself. The noble Lord, Lord Lester, referred to the European Convention on Human Rights as the "jewel in the crown" of the Council of Europe. The noble Lord is right. The Council of Europe has, however, grown in stature over the past few years. That is likely to continue in relation to an attempt to raise standards in the area of human rights and the acceptance of human rights within the 40 member states of the Council of Europe. There is an argument for seeking to build on the stature of the Council of Europe rather than undermining it in any way. I hope that in that spirit the noble Lord will agree that there should be an involvement and a vote by the assembly so that it can choose the judges of the Court of Human Rights.
7.57 p.m.
Lord Cocks of Hartcliffe: My Lords, I put my name on the list of speakers as a precaution. In January last year I tabled a Question about judicial appointments to the European Court of Human Rights—not in anger, I would say to the noble Lord, Lord Lester. Having listened to the debate, I do not feel that I have any fresh points to add. However, perhaps I may make a general point. Given the Nolan recommendations on

87
appointments, I believe that this is only one of the debates that will occur as to whether or not the systems are fair. I believe that a great deal of your Lordships' time will be taken up in future with discussions on what seemed to be a simplification of the process but will in fact make matters a great deal harder.
7.58 p.m.
Lord Kirkhill: My Lords, if the House will permit me, I should like to say a few words in the gap. I apologise to the noble Lord, Lord Lester, and to other noble Lords who have taken part in the discussion for my non-attendance in the course of their remarks. I had inescapable commitments in Scotland and I am afraid that travel into London is fraught with difficulties. I was inescapably held up. I am at a disadvantage now as I do not know what the noble Lord, Lord Lester, said. Of course, I shall read it tomorrow in the Official Report, but it might be useful if I highlighted for noble Lords the background to the proceedings that have been taking place in the Council of Europe.
When the part-time court and part-time commission were in operation, the Parliamentary Assembly, men and women, recorded their vote as to the judge aspirant or commission member aspirant, without knowing anything at all about the candidate. They merely knew that there were candidates one, two and three. There may have been exceptions, but in the main the assembly voted for candidate one.
The consequence of the implementation of the eleventh protocol is that the full-time court now comes into operation. Members of the assembly felt that as they have to vote and have the right of appointment they should know something about the candidates. So they agreed that a sub-committee of the Committee on Legal Affairs and Human Rights, with myself as chairman, be set up to interview, on the basis of a model curriculum vitae, each of the candidates elect.
I agree that 15 minutes per candidate is not entirely adequate, although, surprisingly enough, some candidates had difficulty in filling their 15 minutes. But that is another story. I accept that generally 15 minutes is not enough, but it was against a curriculum vitae. We carried it out fairly and honourably in a non-partisan and non-political way. As the noble Lord, Lord Hardy, said a few minutes ago, the committee was distinguished in terms of its juridical input.
At least we saw the candidates. That is the first point. We then made our recommendations. To date, we have seen 117 and we have still to see the three Russian candidates. So far, it has taken myself and the other members of the committee seven full days, often working until 7.30 p.m. I honestly think that that is as much as can be expected of us, given that we are giving up our own time and there is no recompense or reward.
What the noble Lord, Lord Lester, must take into account—and he has not done so judging by the tenor of his Unstarred Question—is the following. The Council of Europe is now 40 nations strong. The majority of the nations in membership elect their judges in a quite straightforward political fashion. That may be
88
a matter for regret, many people may deplore it, but it is a political reality. That factor must be taken into account. Indeed, there are nations now saying within the Parliamentary Assembly of the Council of Europe that governments should not have the right to nominate candidates one, two and three and that the parliamentarians will get in touch with other parliamentarians and from such a discourse candidates will emerge. It is against that background that the committee met, as I said a few moments ago, and honourably, dispassionately and non-politically made its recommendations.
I wish to make one other point. We have seen candidates from 39 countries; 37 of our recommendations have been accepted by Germany, France, Sweden and Italy. Malta did not accept them and the United Kingdom did not accept them. That says something. It is for Members of your Lordships' House to decide what it says, not for me. I can only reiterate that it is an improvement on the existing system, although I do not necessarily think that it is perfect. I am certainly not prepared to say why the committee reached the recommendation that it did on the candidate for the United Kingdom. We agreed as a committee that we would discuss matters fairly, reach our majority decision and attempt then to make it a unanimous decision when we could. I may say that we did so in all cases.
The reason that initially Mr. Bratza was not our recommendation is not something I wish to make public because I have not made public anywhere the reasons for the decisions of the committee. I say to the noble Lord, Lord Lester, that I am not giving way at the moment because I wish to finish my statement. We have not made public our decision on any recommendation relative to any country.
Lord Lester of Herne Hill: My Lords, I am delighted that the noble Lord has explained matters. I wonder whether he could explain to the House what conceivable good reason there could have been for not accepting Mr. Bratza and how on earth the assembly was expected to exercise its powers if its committee did not give reasons so that it could know the full picture.
Lord Kirkhill: My Lords, I could answer in a different way. Let us take the position of the Swiss Government. The chairman of the commission was not recommended by the committee. The existing part-time Swiss judge was not recommended by the committee. We said: "We make no recommendation". One might argue that the Swiss Government would be upset by that and one might ask why we did not reach a recommendation. I am not prepared to tell noble Lords, nor am I prepared to say why we reached the decision we did regarding the United Kingdom candidate. However, in case anyone thinks that it is because I am a Scotsman and the successful recommendation was a Scots lawyer, I should point out that I was not present

89
on that occasion. Out of 117 interviews, I missed two. The two that I missed were those of Mr. Bratza and the successful nominee.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for allowing me to intervene. It may be completely untrue but what was being said afterwards around the cocktail parties of Strasbourg was that the reason Mr. Bratza was not acceptable was party political. He was regarded as the establishment candidate, having acted on behalf of Mrs. Thatcher's government and Mr. Major's. If that is not the case, then fine.
Baroness Ramsay of Cartvale: My Lords, I am sorry but I must draw to your Lordships' attention that this is a tightly time-limited debate. It is slightly unusual in that the speaker in the gap has had longer, I believe with the grace and indulgence of the House, because of the exceptional circumstances. There is to be another speaker in the gap and we cannot allow speeches to be prolonged like this.
Lord Kirkhill: My Lords, I take my noble friend's point and conclude.
8.7 p.m.
Lord Slynn of Hadley: My Lords, I regret that owing to a misunderstanding, my name was not on the list and I shall in penance be brief.
The noble Lord, Lord Lester of Herne Hill, has raised a matter of general importance to which serious attention has been given by your Lordships. The independence and integrity of the judges appointed to the European Court of Human Rights, as to the European Court of Justice, need to be assured and protected. The method of selection of the judges is a very important factor in achieving their independence. If it were seen, in particular by those who seek to assert human fundamental rights before the Court of Human Rights, that these appointments became a political football, it would detract from the value of the work of the court. It would detract from the respect in which the court is held by people who go there. It would detract from the respect in which the court is held by the judges of the national courts from whom cases will go on appeal and who will have to follow the decisions of the court.
We should perhaps learn something from the experience of the European Court of Justice, of which I was a member. People there frequently expressed great admiration of the fact that the British members who had been appointed there were appointed without political affiliation and without any political influence. The fact that I could go there, having been appointed as Treasury Counsel and as a judge by a Labour administration and as the British representative in Luxembourg and Lord of Appeal in Ordinary by a Conservative administration was regarded as a sign that the system here was applied independently.
Let us have no doubt: it was not always so in other member states. In one country, as I remember, it was well known that before the candidate was sought, it
90
was necessary to decide whether to have a Protestant or a Catholic; someone who had friends in the Conservative or Socialist administration; should his language be French or Flemish?
In another country, a judge of great experience and ability was replaced simply because it was the turn of another political party to nominate. No doubt all the people involved were excellent and well qualified to do the job and I do not suggest that they allowed their political appointers to influence them. However, the impression was unfortunate and caused considerable concern. In my view, it fully justified the decision which was taken to reject the idea put forward by those who prepared the earlier Treaty of Union that judges of the European Court of Justice should be appointed on a vote in effect on party lines by members of the European Parliament. It was felt to be safer and more efficient to have national nominations, which would be better informed than would decisions by representatives of states who had no direct knowledge of the candidates. A superficial knowledge of someone coming from 39 of the other 40 states may not be a reliable base from which to proceed.
In my view, the procedure adopted by the noble and learned Lord the Lord Chancellor satisfied the necessary tests in this case. It was open, transparent, independent and efficient. It was efficient because, among other things, it came up with the right answer. I have no doubt that the other two candidates were of high calibre but Mr. Bratza, in whom I should declare an interest since he was my pupil and my devil at the Bar, had outstanding experience and has an outstanding ability and an outstanding reputation among those who practise in this area of the law.
I hope that the system and procedure adopted by the Lord Chancellor will be followed in future and that more confidence is shown in the result which it achieves than appears to have been the case in some quarters on this occasion.
8.12 p.m.
Baroness Williams of Crosby: My Lords, it might be said that only fools rush in where angels fear to tread, and to intervene in a discussion between lawyers and politicians might be thought to be extremely foolish. So on this occasion I speak neither as a lawyer nor, in this particular discussion, as a politician since I have absolutely no axes to grind on this issue.
The reason that I asked if I might speak in this debate perhaps relates most closely to what has just been said by the noble and learned Lord, Lord Slynn of Hadley. I should like to explain briefly why I am concerned. I am concerned because it seems to me that the Council of Europe is critical to the establishment of a culture of human rights within the extended Europe in which we now live.
I believe that the establishment of that culture of human rights, and along with it a powerful series of case verdicts to uphold it, may be one of the determining factors in whether democracy is truly established in central and eastern Europe and even beyond it in countries such as Russia and Moldavia who are now

91
members of the Council of Europe. My concern therefore is quite straightforward: whether the procedures that we are now looking at are adequate to deal with what will now be the introduction of a whole new set of nominees, many of them coming from countries where the tradition of appointing judges as instruments of the state is strongly institutionalised and strongly still the case.
Only this afternoon I was speaking to the distinguished leader of one of Russia's recognisably democratic parties, the Yabloko group led by Mr. Grigor Yavlinsky. I asked him whether he thought there were any judges in Russia today who had not come out of the tradition of judges as instruments of the state. He said that it would be quite difficult to find them. I say that as no criticism of some of the new members of the Council of Europe but as recognition that traditions of judicial independence are wholly different from those that we are used to in this country.
That brings me to the debate and I should like to refer to some of the contributions made here. I begin by saying that I shall not speak about the British proposals and nominees. I have absolutely nothing to say on that matter having no view of the merits of the three persons concerned. I am much more concerned with the arguments advanced by the noble Lords, Lord Grenfell, Lord Ponsonby of Shulbrede and Lord Hardy of Wath. I am concerned about those arguments because I think they are absolutely right in saying that it would be inappropriate for member states to intervene subsequent to the sub-committee having reported to the assembly. However, I am much more troubled by what seems to me to be still, although greatly improved, an inadequate system of determining the qualifications of those who are advanced as judges.
Let me say one word about that. The noble Lord, Lord Hardy, pointed out, forcefully and eloquently, the non-existence of any adequate system of considering the qualifications of judges in the previous arrangements before Protocol 11. I accept his word for that. That seems to me to be quite astonishing. If we now look at the new structure about which the noble Lord, Lord Kirkhill, and others have spoken, that still seems to me a long way towards inadequate. It is a long way towards inadequate, firstly, because, as I understand it, no reasons are given as to why one particular nominee is favoured over another. That seems to be contrary to a proper democratic process. As I understand it, information, including blind references about each of the persons proposed, is not available for all members of the assembly, not simply the bureaux and the political groups. I, as an academic, would not dream of appointing a single assistant professor without access to a full range of references made freely available before I made that decision.
I agree that the new system appears to be much better than the old system but I am somewhat surprised that there does not seem to be any way in which the issue can be raised of whether somebody might be believed to be unsuitable by members not only of the bureau, the sub-committee itself, but by members of the assembly. I am concerned about this for two reasons. The first is
92
the point I have already made that there will be a number of nominees put forward from some countries, not one of whom should be appointed, frankly. And, secondly, I am used to the American process in which a judge, even of an appeal court or a circuit court, would not be appointed without an extremely full system of investigation, which does not appear to me to hold in this case.
I should like to conclude by saying that while I fully recognise that the new procedure is better than the old, it still seems to me to be wholly inadequate for the challenges now facing the Council of Europe; wholly inadequate to meet the central responsibility of that assembly, which is to ensure that human rights are upheld and that the judges are the best to be found from every country that is a member. I still feel, having listened to the debate, that we have not come very far towards an adequate answer to what system should now be found given the changing nature of the Council of Europe and the heavy responsibilities that rest upon it.
8.17 p.m.
Baroness Anelay of St. Johns: My Lords, I too thank the noble Lord, Lord Lester of Herne Hill, for giving us the opportunity to debate this matter. However, I have to say on a personal note that, having listened to all the contributions tonight from noble Lords who, as the noble Baroness, Lady Williams, has said, have an approach from either a professional legal background or a more professional political background than I have, I have concerns that one of the unavoidable consequences of this debate may well be to cause some embarrassment to Nicholas Bratza, QC, who was the successful candidate for appointment as the British judge on the ECHR. I hope that proves not to be the case.
At the outset of my remarks I wish to make it clear that I know none of the three candidates nominated by the United Kingdom for the position of British judge. I am also perfectly satisfied that Mr. Bratza is well qualified to serve as the British judge and that he will do so with distinction. Mr. Bratza, as we have heard tonight, was selected by the interviewing panel set up by the British Government to be the first preference of the three nominations that were put forward to the Council of Europe. As a lay person in these matters, I find it remarkable that the circumstances in which he was appointed by the Council of Europe's Parliamentary Assembly have become surrounded by such controversy. Let me stress that I have absolutely no reason to suppose or believe that Mr. Bratza has in any way played a part of that controversy.
As the noble Lord, Lord Lester of Herne Hill, explained, the procedure to be followed for the appointment of judges to the ECHR was agreed by the British Government and is set out in Protocol 11, of which we have heard much. It requires him to be elected by the Parliamentary Assembly by a majority of votes cast from the list of three candidates nominated by each member state of the Council of Europe. To assist in that process the assembly adopted a model curriculum vitae, which candidates seeking election to the court were invited to complete. The assembly also arranged for all

93
candidates to be interviewed by the sub-committee on Legal Affairs and Human Rights, chaired by the noble Lord, Lord Kirkhill. These procedures were to be carried out before the vote in the Parliamentary Assembly took place.
Such procedures appear to me to be transparent, thorough and fair, particularly when one bears in mind that they were to be followed in respect of candidates that the individual member states had already assessed as being suitably qualified and experienced to sit as judges in the court.
As other noble Lords explained, it was when the sub-committee on Legal Affairs and Human Rights expressed a preference for Mr. Reed as opposed to Mr. Bratza and the other British nominee who has had little mention tonight that events seem to have taken what might be called an unfortunate turn. I have heard comments tonight and read comments in Hansard of another place which lead one to believe that some of those who are supporters of the view that Mr. Bratza should be appointed mounted a lobbying campaign on his behalf. Whether or not that took place, I have no idea, but I question whether any lobbying campaign on behalf of any candidate could be consistent with a process of appointment which citizens in the European Union have a right to expect to be transparent, thorough and fair.
I read the Written Answer in Hansard of another place published on 5th May, to which allusion has been made tonight, in which the Government make clear that United Kingdom officials did not lobby voting members of the assembly about the election. That same Answer also makes it clear that there were extensive contacts between officials of this country and the other European states during which the candidacy of Mr. Bratza was supported, but within the context, as the Written Answer said,
"that the final selection process was entirely a matter for the Parliamentary Assembly".—[Official Report, Commons, 5/5/98; col. WA 345.]
I was grateful for that clarification. In the event, as we heard, the Parliamentary Assembly voted by a narrow majority of 89 to 79 to appoint Mr. Bratza. Reference has already been made by the noble Lord, Lord Lester of Herne Hill, to the article written subsequently in The Times of 19th May by Mr. David Pannick, QC. I managed to obtain the article from the House of Lords research department at short notice when I learnt that I was to have the pleasure of speaking in this debate. I read the article over the weekend and note that it expresses criticism of the sub-committee on the basis that it did not give reasons for its recommendation of Mr. Reed. However, reasons are not given in this country as a matter of routine as to why individual judges are appointed or, indeed, not appointed. Perhaps the noble and learned Lord the Lord Chancellor can tell the House whether the Government are considering giving reasons for appointment and refusal of appointment as a matter of routine in the future and whether they would expect that to be part of the appointment procedure for those seeking judicial office in the EU.
94
When the sub-committee was considering its recommendation, it had regard to agreed criteria, including the need to have a mix between those who had served already as members of the commission or the court and "new blood", the desirability of having a range of ages among the judges, and the need to have judges of both sexes.
I recognise, of course, that the last point could not arise in relation to the appointment of Mr. Bratza in preference to Mr. Reed. But I was intrigued to note the approach to positive discrimination adopted in the criteria governing the selection process,
"That in case of equal qualifications between candidates preference should be given to the female candidate".
I would be grateful if the noble and learned Lord the Lord Chancellor can give his view on that approach and tell the House whether he sees a future for its adoption in appointments to the judiciary in this country
Returning to the work of the sub-committee, it is important to bear in mind that, whatever its reasons may have been, all three candidates had been put forward by the United Kingdom as well qualified for the appointment. Those who speculate that the sub-committee may have preferred Mr. Reed for bad or invalid reasons should perhaps consider the implications of making such suggestions.
Earlier in this debate, the noble and learned Lord, Lord Ackner, referred to the noble and learned Lord the Lord Chancellor sometimes suppressing his good nature—but perhaps only when he is in this Chamber. I hope that tonight will not be one of those occasions and that when he replies he will agree with me that, first, the duty of government officials remains as it has always been; namely, not to promote the candidature of one candidate over another and not to be perceived as doing so; secondly, that any lobbying campaign mounted on behalf of any candidate would be unfortunate in the process of such procedures of appointment to the European Court; and, finally, that the sub-committee, carrying out its work under the rules as they currently pertain, carried out that work with due and proper diligence.
8.26 p.m.
The Lord Chancellor: My Lords, this debate, in many ways, has been remarkable. But no feature has been more remarkable than the acknowledgement by the noble and learned Lord, Lord Ackner, that this Government are a listening government, certainly on the critical subject of judicial pensions.
I agree with the noble Lord, Lord Lester, that the European Convention is the jewel in the crown of the Council of Europe. For nearly 50 years, the convention has been the bedrock of European human rights law. For 50 years the convention has stood as the objective framework of values against which governments measured their commitment to democracy and freedom. Britain has worked throughout those 50 years to uphold the values in the convention. We were there at the beginning in the drafting of the convention, and we were the first to ratify in 1951.

95
That commitment to the convention continues today. This Government, 50 years after the convention was drafted, introduced legislation to incorporate the convention into law and so to make its provisions accessible to all in our domestic courts. The Human Rights Bill, now nearing the end of its progress in another place, reminds us that the convention remains a powerful instrument, as relevant today as it was 50 years ago. This Bill is a major pillar of the Government's programme of constitutional change. But while the rights and freedoms guaranteed by the convention remain broadly the same as those drafted 50 years ago, their relevance in post-war history has a new dimension.
While the task 50 years ago was to construct a framework for the promotion of individual rights and freedoms in a divided Europe in the aftermath of war, the task now is to establish access to those rights and freedoms across the European continent. With the enlargement of the Council of Europe, we have the opportunity for the first time to develop a continent-wide community of European values based on the respect for human rights and fundamental freedoms. The convention remains central to that aim.
A strong convention is not enough on its own. Strong laws are helpless without effective courts. This Government therefore take the view that a strong European Court of Human Rights is essential to the effective functioning of the convention. The Court and Commission of Human Rights established under the convention have done a fine job in entrenching the convention as a living and effective instrument. I pay tribute to their work. But times have changed, and with them the scale of the challenge facing the court. The court has needed to adapt to retain its capacity to meet the challenges of an enlarged Europe and to deliver proper service to the swelling numbers of those who have access to the protection afforded by the convention. That is why we continue to support the comprehensive reform process under way in Strasbourg which will bring the new Protocol 11 Court of Human Rights into operation on 1st November this year. But a court is as strong as its judges. The noble Lord, Lord Lester, drew attention to that, and he is right. We recognise the hugely important role that this new court will have to play in the newly enlarged Council of Europe. The people of Russia and the Ukraine now have access to the rights and freedoms contained in the convention. This means that the judgments of the court will help shape human rights across the European continent. This is why the Government made the election to the court of high quality judges a matter of major importance.
I listened carefully to the arguments put forward by the noble Lord, Lord Lester. I recognise their strength. I recognise too that there are few better qualified than the noble Lord to put them forward. As noble Lords will know, the noble Lord, Lord Lester, has a distinguished record of promoting tirelessly the cause of human rights in general and the European Convention in particular. This is a record acknowledged and appreciated by academics and judges at home and abroad and by practitioners and members of this Government alike.
96
The Government listen carefully when the noble Lord takes the floor to argue for reform of the workings of the convention and the Government recognise the force of the noble Lord's argument when he says that the election of judges should be founded on a clear and dispassionate assessment of the qualities of the candidates.
We attach the highest importance to the effectiveness and integrity of the election process. That is why we helped to put in place a system for the early informal exchange of information about national candidates in the Committee of Ministers' Deputies. That is why we have put forward proposals in the Human Rights Bill to allow sitting High Court judges to serve on the Strasbourg court. And that is why we have set up a fair, objective and comprehensive national selection process that attracted praise as a model of its kind.
I take the opportunity at this point to thank the noble Lord for his tribute to the selection procedure adopted and followed in this country. It included advertisements in the national and legal press and interviews by a strong and independent selection panel. It was drawn to the attention of the member states of the Council of Europe by the Secretary-General as a model of its kind. It was a model, and the proof is that it produced three candidates of the very highest quality. I recognised that when the selection panel made its recommendation to me. I was faced with an embarrassment of riches. Each of the three candidates was outstanding in his field. Any would have made a fine judge at the European Court of Human Rights. Mr. Justice Carnwath is a distinguished judge of the Chancery Division; Robert Reed, QC, is an outstanding Scottish lawyer and a particularly fine constitutional lawyer; and Nicolas Bratza is a first-class member of the European Commission of Human Rights with unparalleled experience before the court and commission. So I agree with my noble friend Lord Grenfell that the assembly could safely have elected any of the three.
The noble Lord, Lord Lester, proposes that the assembly interview procedures be replaced by a system of interviews by independent experts. But Protocol 11 makes clear, as did the convention provisions it replaces, that election to the court is by the Parliamentary Assembly. The Government respect this right absolutely. There are two means by which change might be proposed. The first would be for a government to propose the renegotiation of Protocol 11. We would not entertain such an option at present or in the foreseeable future. That is because this Government support Protocol 11 as drafted, and because such a proposal, four months before the entry into force of the new Protocol 11 court, would be counter-productive to the good functioning of the new court and therefore would be comprehensively rejected by our partner states in the Council of Europe.
The second means would be for the Government to bring pressure to bear on the Parliamentary Assembly to change its own procedures for the election of judges. As I have said before, the election of judges is a matter for the assembly. This Government respect absolutely the right of the assembly to elect judges to the court. The Government believe therefore that it is for the assembly

97
to determine its own election procedures. The question of how the assembly should manage the selection process is not for governments but for the parliamentary delegations to the assembly to decide. It would be for the assembly to consider whether a system of interviews by independent experts should be incorporated into its procedures.
The noble Lord, Lord Lester, mentioned the role of the assembly sub-committee, chaired by the noble Lord, Lord Kirkhill, which was charged with interviewing and recommending candidates for election. Let us be quite clear about who is responsible for what in this election process. The noble Lord, Lord Kirkhill, clarified it to a considerable extent. It is the task of the sub-committee to make its own recommendations to the Parliamentary Assembly of the Council of Europe according to its assessment of the candidates that appear before it. It is fully entitled to do so. It will nevertheless give weight to the views of governments in considering the merits of individual candidates, just as I and my colleagues in government give weight to the recommendations of our own selection panel when we consider our shortlist of candidates for Strasbourg. It remains the right of the Parliamentary Assembly to consider the recommendations of the sub-committee when it decides how it will vote. It will not necessarily follow these recommendations. The fact that the assembly chose in the case of the United Kingdom to follow the recommendation of the Government rather than that of the sub-committee demonstrates the practical functioning of a mature process of checks and balances.
That said, this first round of elections under the Protocol 11 system was a new experience for governments, parliamentarians and candidates alike. I think we have all learnt something. The Government would agree with the noble Lord, Lord Lester, that it is important for the Parliamentary Assembly to be reliably advised of the respective qualities of the various candidates nominated by governments. I go further. In the normal course of events, governments would reasonably expect that recommendations by the sub-committee be accompanied by reasons, especially where those differ from those made by governments.
Lord Kirkhill: My Lords, I am greatly obliged to the noble and learned Lord for giving way. With the last few remarks he has made I hope he is not implying that the Parliamentary Assembly was not reliably informed by the sub-committee which I chaired. It was informed in an objective and fair manner within the agreement which had been reached between the bureau, the political parties concerned and the Parliamentary Assembly.
The Lord Chancellor: My Lords, all I am saying is that it is right to say that governments would reasonably expect, where recommendations by the sub-committee depart from the recommendations of government, that the assembly would be informed of the reasons for that departure.
I agree with the noble Lord, Lord Lester, that the absence of this kind of reasoning by the sub-committee was unfortunate. The Government have certainly
98
understood the fundamental importance of close and continuing co-ordination between governments and parliamentary delegations over elections to the court. It is in all our interests to achieve a balanced and high quality court. We can surely best achieve that in an atmosphere of co-operation and trust rather than one of competition and suspicion.
I emphasise two things. While the Government have no plans to press for changes to the procedure for the election of judges to the European Court of Human Rights, they are sensitive to the need for the assembly to be reliably advised on the qualities of the candidates put forward by governments. The Government would be happy to discuss with the United Kingdom parliamentary delegation to the Council of Europe any changes that it might be minded to propose in the selection procedure in advance of the next round of elections in three years' time. The Government will endeavour to ensure that this close co-ordination is achieved through consultation with the parliamentary delegation when the next UK election takes place.
As I have said, the Government are therefore sympathetic to the noble Lord's argument that it would have been better if the sub-committee had supported its recommendations, which were to depart from the views of government, with reasons for that departure. In that way the full assembly would have been better informed. I can assure the noble Baroness, Lady Anelay of St. Johns, that recommendations for judicial appointments in this country that come to me via the very wide consultation community and my officials are very detailed and fully reasoned and I am, therefore, fully informed. Reasons for appointing or not appointing are not given, but the point is that the decisions are taken by those who are fully informed. It is widely known in our country, however, that appointment is on merit only and those who succeed are those who are found to have best fulfilled the criteria for appointment.
I have noted the very limited measure of positive discrimination to which the noble Baroness has drawn attention in the European procedures that we are addressing. I shall repeat her quote:
"That in case of equal qualifications between candidates preference should be given to the female candidate".
For our domestic judicial appointments system, the Government are opposed to positive discrimination and favour appointment exclusively on merit. Many women are winning through on merit. I find the notion of two candidates of precisely equal merit rather fanciful. I believe that people can always be distinguished on grounds of merit. Of course, in our system my officials are available to explain to individuals in general terms why they have failed to secure appointment and how they might strengthen their position in future applications. I add that in this country a lawyer's politics are fully irrelevant to the decision whether to elevate to our independent judiciary and that it is one of the high duties of the office that I occupy to uphold the independence of the judiciary. The noble Baroness, Lady Williams, made an important point when she reminded us that our traditions of judicial independence are by no means universal.

99
Finally, I respond to the three questions posed by the noble Baroness, Lady Anelay of St. Johns. First, I can assure her that government officials did not lobby on behalf of any of the candidates for election to the European Court of Human Rights. Officials did, however, make clear to officials of the secretariat and of other member states of the Council of Europe, that the Government continued to support the candidates in the order proposed, but that the selection process was for the Parliamentary Assembly. It is, of course, the duty of officials to communicate the views of Ministers in precisely this way.
Secondly, the noble Baroness asks me to agree that the lobbying campaign was unfortunate. I make no comment on any lobbying in the assembly. This was for the individuals concerned, and the Government were not involved.
100
Finally, the noble Baroness asks me to agree that the sub-committee carried out its work with due and proper diligence. The sub-committee was, of course, answerable not to governments, but to the Parliamentary Assembly of the Council of Europe. I rather think, therefore, that this is an issue on which I have no real standing to comment. That said, I can say this to the noble Lord, Lord Kirkhill, and to your Lordships: it appears to me as an outsider that the sub-committee did diligently the job that it was appointed to do. I have already made my comments on the desirability of it supporting its recommendations to the assembly with its reasons for departing from the recommendations of Her Majesty's Government.
House adjourned at a quarter before nine o'clock.