HL Deb 21 July 1998 vol 592 cc745-51

244A Schedule 9, page 143, line 25, at end insert—

("(3) The instrument of government for any community or voluntary school which—

  1. (a) is a primary school, and
  2. (b) serves an area for which there are one or more minor authorities,
shall provide for the governing body to include (in addition to the governors required by virtue of paragraph 9, 13 or 14, as the case may be, and any required by virtue of sub-paragraph (1)) one co-opted governor nominated by the minor authority or (as the case may be) one of the minor authorities in question.

(4) Where any such school serves an area for which there are two or more minor authorities, the relevant governors shall, for the purposes of the appointment of any such co-opted governor, seek nominations from such one or more of those authorities as the governors think fit.

(5) In sub-paragraph (4) "the relevant governors" means those members of the school's governing body who are not co-opted governors.").

Lord Whitty

My Lords, I beg to move that the House do not insist on their Amendments Nos. 237 to 240 and Amendment No. 244 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 244A in lieu thereof.

I hope that we shall bring our debate today to a positive conclusion. The amendments proposed by the Government provide a way forward that is a workable compromise on the issue of minor authorities. We have listened carefully to the concerns expressed by noble Lords as the Bill has made its way through Parliament. The case for minor authority governors in some schools has been made with skill and persistence. Our amendments now take account of that case within the context of our wider proposals for restructuring governing bodies.

As the House requested, governing bodies of community and voluntary primary schools will, under these proposals, have no option but to appoint a minor authority nominee. An additional place will be available for that purpose.

I do not want to go over the history in detail. Suffice it to say that we have always wanted those with the greatest interest in the success of a school to be guaranteed representation. In adopting that approach we did not intend removing minor authority governors from governing bodies where that arrangement has worked well. There was every reason to suppose that the governing bodies would continue to invite them onto that governing body under the new framework. We certainly had no wish to under-estimate the valuable contribution that parish and town councils make to many primary schools. I am sorry if our proposals were interpreted in that way.

The government amendments build sensibly and constructively on those that were proposed in this House. First and foremost they provide a legally watertight version of those original amendments. That is not intended as a criticism of the amendments. I say that before the noble Baroness, Lady Maddock, admonishes me yet again. But, for example, when challenged, the noble Baroness, Lady Blatch, accepted that the original amendments failed to address the particular issue of Welsh community councils. The Government's amendments deal with that and other such issues.

Secondly, and more substantively, the government amendments provide for a more flexible mechanism than was proposed in the original amendments. Those original amendments would have restricted the nominating minor authority to the parish in which the school is situated. The position is frequently a good deal more complicated than that. A school's location may well be an historical accident. For example, where schools have merged, the location may depend on which of the previous schools was able to expand, or on the availability of building land for a new school to serve several villages, rather than on the location where the majority of children who attend the school happen to live. Furthermore, the original amendments would not have allowed for district council representation in an area which is not covered by a town or parish council.

Our approach allows all authorities which are minor authorities at present to continue to be minor authorities. In short, the appointment mechanism which we propose is much more likely than that put forward by this House to permit every school affected by this issue to work with the minor authority with which it has the closest relationship.

The Commons' amendment places the responsibility with the school governing body—where it should be—for settling its membership in a speedy and practical fashion. Where a primary school serves more than one minor authority, it will be for the governors to decide which authorities are the most appropriate to nominate governors. They may wish to invite a single minor authority to provide the nomination; in many cases, there will be that obvious choice. In some cases they may wish to invite more than one minor authority to nominate. That will not prevent minor authorities agreeing on a nominee, where they are able to do so, among themselves. In what I would expect to be the very few cases where minor authorities do not agree and more than one nominee is put forward, it is the governing body which will decide between them.

Someone has to take the decision in these circumstances, and the school governing body is best placed to make that choice. I do not believe that it is possible to defend the mechanism whereby failure to agree on a joint appointment means that a fundamentally local decision would end up being taken by the Secretary of State. We shall ensure that governing bodies have guidance to help them through the appointment process in a sensible and brisk manner.

I hope I have made it clear that the Government's amendment deals with the points made in this House and puts forward a mechanism which is positive and workable. I hope that the House will welcome it on that basis. I beg to move.

Moved, That the House do not insist on their Amendments Nos. 237 to 240 and Amendment No. 244 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 244A in lieu thereof.—(Lord Whitty.)

Baroness Blatch

My Lords, I rise to thank the noble Lord and his colleagues in another place for responding on these amendments. We heard a very different speech today from the one we heard from noble Lords on the Benches opposite when these amendments were discussed. They saw no reason for them and were vigorously opposed at each stage of the Bill, until finally the House took a view about the matter.

However, there is a problem. I spoke at length yesterday with an official in the Department for Education. The amendment is not as generous as would appear from the manner in which Mr. Byers spoke to it in another place, nor as generous as would appear from the manner in which the noble Lord, Lord Whitty, spoke to it today. It would be helpful if what the official said to me on the telephone could be repeated on the Floor of the House and recorded in Hansard. In these matters Pepper v. Hart will be important.

It is unfortunate that the initiative has been left with the governing body. It seems to me that, if it had been left to the mix of minor authorities, whichever they may be, whether they be district councils or parish councils, they could be given the opportunity to come together to determine their nominations. If it were a single nomination, that would be the nomination and the school would be bound to accept it. If, however, they came to a view that they wished to put forward more than one name, it would then be for the governing body to make the choice. Instead, it is the other way round. The governing body will simply approach one of those minor authorities. If that minor authority presents a representative, irrespective of what the other minor authorities think, that is the appointment that is made. I believe it is a great pity that that is the case.

When I spoke to the official on the telephone, I made it clear that we were pleased with the amendment and with the extra co-optive place for the minor authority representative. But I was told that the guidance which would go out to local authorities—not the regulations, because the primary legislation would not be consistent—would include a recommendation that, where possible, governing bodies should not approach just one of the minor authorities but should approach them all, encouraging them collectively to come to a view about their representative, and that, if there were a single nomination, that would be the nomination that would be accepted by the school.

A passage in the letter which the noble Baroness sent to me states that, where all the minor authorities collectively determine a single nomination, the school would be bound to accept it. That is not in the legislation; that is not in the amendment. What the official said to me was that the guidance which would go to local authorities would be to encourage minor authorities themselves to come to a view about who the representative should be and only in the event of its being more than one nomination would the school make the choice.

That is a view also held by the National Association of Local Councils, which, I believe, is also very pleased that the Government have gone the extra yard to accept the right of minor authorities to be represented on the governing bodies of their primary schools. But the council, too, would like to send out guidance which, I hope, would be consistent with the DfEE guidance to schools, encouraging them, where possible, to invite the minor authorities collectively to come to a view as to who should represent them on the governing bodies of primary schools.

I live in a village which has the primary school which serves many other villages. It is true that two or three of those villages have about an equal number of children who attend the school. It may well be that the minor authorities collectively will come to a view that they should rotate the membership on the governing body between those villages that have comparable numbers of children attending the school. That would make a great deal of sense. But it may not always be consistent with what the governors want. That is the concern I have about putting governors in the driving seat in this amendment.

Nevertheless, I thank the noble Lord and his colleagues in another place for conceding what I believe was a very important amendment which was supported throughout the whole country.

4.45 p.m.

Baroness Maddock

My Lords, perhaps I may say how much we on these Benches welcome this amendment. We spent a lot of time pushing the Government and I am very disappointed that they did not start to lean earlier. I agree with everything that the noble Baroness, Lady Blatch, said. At this stage, when amendments have been tabled in the other place and come back here, we are pushing to obtain clarification. The matter could have been sorted out much earlier if we had been listened to. We have debated the matter at great length. It is now clear that there is no disagreement between us, except perhaps on the detail. I repeat that I cannot understand why the Government were so intransigent and why they appear to be so unsure of themselves when they have a huge majority and, by all accounts, are still popular out in the country. This measure does not change the direction of the Bill one iota. It is something on which everybody, it now appears, is agreed; yet here we are, at this very late stage, concerned about one or two minor details.

We welcome the improvements. I had always understood that the point of going through legislation in stages was to improve it as we went along. We could have made some of these improvements earlier. We particularly welcome the fact that Wales will be included and are appreciative of the fact that an extra governor will be co-opted. However, I agree with the noble Baroness, Lady Blatch, that there is a worry about paragraph (4) of the amendment. As the noble Baroness said, we are not sure where the authority lies.

I received a copy of the letter which the noble Baroness, Lady Blackstone, sent to the noble Baroness, Lady Blatch. That letter contains a passage which I believe it would be helpful to have confirmed on the Floor of the House. I quote from the letter: Consideration would allow the governors to decide on the minor authority or the authorities who would be able to make nominations". I believe that this is the key phrase: Whilst it would be open to the governors to approach only one minor authority, if all the relevant minor authorities wished to continue to co-operate by putting forward an agreed nominee, the governors would have no choice but to make the appointment". I believe it is important that that be confirmed in the House today.

I do not agree with the proposition that it is difficult for different authorities to come to an agreement about school governors. I have been a member of a local authority in which we agreed with other local authorities of different tiers on the nomination to represent us on governing bodies. It is not difficult and it is not an excuse not to confirm that this can be the situation. We welcome this amendment, though I am amazed that the Government could not introduce it earlier.

Lord Whitty

My Lords, if the only thing we are to be berated for is coming back at this late stage, I am happy to accept that criticism. However, all sides of the House must recognise that in this case, it is the Commons listening to the Lords and coming back with a better amendment. I would have thought it could have been more graciously accepted.

On the question of who decides and whether the minor authorities can agree among themselves, it is the case—this confirms what was said in the letter from my noble friend the Minister—that the governing bodies will decide who to approach and there will be guidance for them, as the noble Baroness, Lady Blatch, said, to interpret the provision. However, it will be for the governing bodies to decide who to approach.

Within that context it is clearly possible and desirable, if more than one authority is involved, for the minor authorities to reach agreement among themselves as a matter of practice. The comments of my honourable friend Stephen Byers and myself referred to that kind of informal agreement. In those circumstances, the governing body would adopt the proposition agreed between the various minor authorities.

In the few cases where no agreement is achieved, the governing body must have the final responsibility for deciding; otherwise, we shall need to include a whole new structure of decision making between the minor authorities. We consider the governing body of the school to be in the best position to decide. Though there may have been some criticism of that, the local authority associations considered the amendment to be sensible. They are grateful that we are proposing change and indicated that they hope that the Lords agree to the amendment. I hope so too and commend the amendment to the House.

Baroness Blatch

My Lords, before the noble Lord sits down, I hoped he could agree with the official who spoke to me on the telephone and would make it clear that, where the minor authorities came together and presented a nomination—we are not discussing where they disagree; we have already referred to that and in that case it would be a decision for the governing body—then the governing body would be bound to accept that nomination. Those were the words of the letter and it would be helpful to have it on the record for the purposes of the governing body.

Guidance will be sent out to governing bodies to encourage the minor authorities to produce a nomination and the governing body will only resort to making the appointment in the event of there being disagreement among the minor authorities. That was what the official said on the telephone and felt that it was possible for that to be confirmed on the record today. If it is not, then our worst suspicions are realised once again.

Lord Whitty

My Lords, I am not sure that it is proper to quote a telephone conversation with an official.

Baroness Maddock

My Lords, I am grateful to the Minister for giving way. I quoted the words of a letter sent from the noble Baroness, Lady Blackstone, to the noble Baroness, Lady Blatch. It would be helpful if the Minister could either confirm or deny those words because the whole matter hinges on it.

Lord Whitty

My Lords, I thought I earlier confirmed what was written in my noble friend's letter; namely, that where the governing body approached a number of minor authorities and they agreed on a nominee, then that nominee would be appointed to the governing body. I thought the noble Baroness was trying to push me to say that the minor authorities could decide who they were in the first place; whereas the amendment provides that the governing body, subject to flexible and positive guidance, would decide which minor authorities to approach. If those that were approached then agreed, the nominee which emerged from that process would be bound to be appointed to the governing body.

Baroness Blatch

My Lords, I am sorry to be pedantic about this but that is not consistent with the words on the page of the letter. The words on the page of the letter say that, where the minor authorities come together collectively and produce a nomination, the governing body would be bound to make that appointment. If the governing body does not want to make that appointment but wants to make another appointment under the legislation as it is in the Bill, it is free to do so. That is what we were told, not only by the words on the page of the letter signed by the noble Baroness, Lady Blackstone, but also by the official on the telephone. I do not know why I cannot refer to that 'phone call; it was extremely material to our understanding of the amendment.

Lord Whitty

My Lords, I thought I had already said that, where the minor authorities have been approached by the school and they agree, then the governing body is bound to accept.

Baroness Blatch

My Lords, the difference is that we are not talking of the minor authorities being approached by the schools, but the minor authorities themselves coming to a view about their representative, not having already been approached by the governing body. In that situation they can actually present their own nomination.

Lord Whitty

My Lords, I believe that we are dancing on a pin head. However, the intention is clear. Under the guidance, the governing body would approach as many authorities as were relevant and those authorities, if they agreed among themselves, could produce a candidate which the governing body would be bound to accept. If further clarification is required, no doubt another letter can proceed.

On Question, Motion agreed to.

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