HL Deb 04 June 1998 vol 590 cc551-88

8.50 p.m.

House again in Committee on Clause 46.

[Amendment No. 162 not moved.]

[Amendment No. 163 had been withdrawn from the Marshalled List.]

Clause 46 agreed to.

Clause 47 [LEAs' financial schemes]

[Amendments Nos. 164 to 166 not moved.]

[Amendment No. 167 had been withdrawn from the Marshalled List.]

Clause 47 agreed to.

Schedule 14 agreed to.

Clause 48 [Maintained schools to have delegated budgets]:

Lord Whitty moved Amendment No. 167A:

Page 39, line 6, leave out subsection (1) and insert— ("(1) Every maintained school shall have a delegated budget.").

The noble Lord said: In moving this amendment, I should like to speak also to the rest of the amendments in the grouping. These are largely transitional amendments concerned with the timetable for implementing key provisions of Part II of the Bill. In essence, the main amendments allow that the financial provision should start from the beginning of the financial year and the administrative framework should start from the beginning of the academic year. I have provided the Front Benches and, as a precaution, the noble Lord, Lord Lucas, with a lengthy letter explaining the background to the amendments. They are relatively straightforward.

In certain places the Bill as currently drafted assumes that the funding provisions of Chapter IV of Part II will take effect at the same time as the new school categories are introduced. But, as was explained during the proceedings in another place, the Government have concluded that the most appropriate date for introducing the new school categories would be 1st September 1999. But there are obvious problems in attempting to introduce major funding reforms from that date. All previous reforms of this magnitude—including the introduction of LMS itself—have taken effect from the beginning of the financial year in April, and it would be difficult to contemplate any alternative. Our conclusion therefore is that these changes should take effect from April 1999. That has the consequences dealt with by the amendments.

Our intention then is to bring in the new recurrent funding regime from April 1999 and apply it from the outset to all schools in the present LEA and GM sectors. This means, in brief, that GM schools will retain their existing governance arrangements for the five months April to August 1999, pending the transfer to their new legal categories on 1st September, but they would receive their recurrent funding from their LEAs from 1st April, under the provisions of Chapter IV of Part II. A capital grants regime for GM schools would, however, be kept in place for the time being to fund the completion of projects already in progress at 31st March plus any projects on which a start between April and August is essential.

Amendments Nos. 167A and 167B, 168B and 168C, 168E, 168G, 175E, 176G, 176H, 246B, 246E and 259D deal with the date issue. That arises because Clause 48 is the one clause in Chapter IV of Part II which is linked explicitly to the "appointed day", to be designated under Clause 20(6) as the starting date for the new categories. So the aim of the amendments is simply to disconnect Clause 48 from the provision on the appointed day. The effect of this group of amendments is to leave Clause 48 as a set of substantive provisions which define the entitlement of existing schools to delegated budgets from the start of the new regime, and also deal with the position of new schools which open thereafter. We intend to bring these provisions into effect from 1st April 1999.

The present subsections (2) to (5) lay down the circumstances in which, exceptionally, an existing school will not receive a delegated budget under the new regime. The substance of these subsections is now transferred to Schedule 31, by way of Amendment No. 259D. The rest of the amendments simply correct various cross-references so that they refer to Clause 48. None of the amendments affects the substance in terms of who is and who is not entitled to a delegated budget. The only material change concerns the decoupling of the operative date.

Amendments Nos. 257Q, 257Y, 259B and 259C are also concerned with timing. Clause 130 defines the phrase "school maintained by a local education authority" in terms of the new school categories. Amendment No. 257Q simply allows for the situation in which a provision containing this expression comes into force before the new categories. Amendment No. 257Y is the key amendment here. We propose to bring about the "phasing" which I have described by using the powers in Clause 132 to make "incidental, consequential, transitional and supplementary" provisions. Some of the provisions in the Bill will need to be applied temporarily to the existing school categories although they are expressed in terms of the new categories.

Amendments Nos. 259B and 259C are concerned with the winding up of the GM school funding regime. Again they are about timing. Schedule 31 enables the Secretary of State to specify an "appointed day" for this purpose, which need not be the same day as that appointed for the new school categories. But since Schedule 31 at present provides for only one appointed day, we wish to be able to extend the GM capital funding regime beyond that point. Those amendments provide for that.

There are other relatively technical amendments which are not timing amendments. I refer to Amendments Nos. 257T to 257X. Clause 132 confers a power to make incidental, consequential, transitional or supplementary provisions by order. However, these amendments convert that power into a regulation-making power so that it can be used in conjunction with other regulation-making powers in the Bill to produce a single set of regulations rather than hybrid orders and a set of regulations. The purpose is simply to reduce complexity and bureaucracy and to enable users to rely on one statutory instrument instead of having to refer to two. Again, no additional power is conferred by the amendments.

Finally, there are two further technical amendments, Amendments Nos. 168D and 168F. These relate to Clause 49(7), which provides that, in spending its delegated budget, the governors and heads of a maintained school are ordinarily deemed to be acting on behalf of the LEA. That is to say, they are in law acting as agents, not as principals. This is not intended to change the law. It frankly reflects what the department has always understood to be the legal position. However, for the avoidance of doubt, it seemed advisable to put this express provision in the Bill. One reason for that is that it removes any doubt as to whether VAT can properly be reclaimed by LEAs under Section 33 of the VAT Act in respect of purchases made by schools from their delegated budgets and other funds provided by the LEA.

The present amendments reflect discussions with Customs and Excise. I understand that that department is satisfied that the amended provisions are sufficient to meet its requirements for the purposes of that Act not only in relation to schools now maintained by LEAs but also in relation to former GM schools from the point at which they begin to receive funding from their LEAs under Chapter IV, Part II of the Bill.

That is a rapid explanation of the changes. As I say, the bulk of them relate to timing and there are the other two batches of technical amendments. I beg to move.

9 p.m.

The Deputy Chairman of Committees (Lord Lyell)

For the convenience of the Committee I advise it, and especially the noble Lord, Lord Lucas, that if Amendment No. 167B is agreed to I shall not be able to call Amendment No. 168, which would have been pre-empted.

Lord Lucas

Therefore I am required to speak to Amendment No. 168 at this stage, with apologies for it not having appeared at its right place in the groupings. If I leave it where it is I cannot speak to it. However, I would like to begin with a small protest directed generally at the House. For amendments to Clause 131 the alphabet goes C, D, E, R, F, G, S, H, T, U, V, W, X, Y, Z, J, A, A.

There is a well-established system of ordering sequences of characters, which is employed in a dictionary or telephone directory. It is perfectly adequate for all purposes and it can be easily adapted to the numbering of amendments. It occasionally leads to slightly long strings, but at least one can find what one is looking for. It has been a real terror trying to find my way round to my amendments. I have been backwards and forwards. Even the old arrangement was better.

That said, perhaps I may turn to Amendment No. 168. It deals with the deletion of a subsection which has now been moved to become Amendment No. 259D and paragraph 3 of the schedule, if I have got it right. Therefore I shall address it in that place, where it will be in the Bill if these amendments are agreed to. In this new amendment we have removed from its original place in the Bill a totally unjustified, random power in suddenly deciding that a school should not have a delegated budget. That is not based on any factual evidence, as required by the immediately preceding subsection, but at the whim of the Secretary of State.

I would like to know in what circumstances the Government propose to use the power and why they consider it necessary as a part of the Bill? Will the Government choose to specify a school to which, if this clause became active today, it would then apply? What circumstances are we looking at? How can we justify a power that is so wide and random and, to my mind, so unusual? Surely, it is something that can be conveniently forgotten. If a school has been condemned by Ofsted that is fine; if it has been found to be failing in conventional ways, then that is fine; but if it has not, then it has not and it should receive its delegated budget until it is found to be failing. That is the question.

If we are forced to pursue this matter to an issue I would point out that the amendments I object to in this group are the first two and the last. I would not be seeking to bring down any others in the group were we to win the vote.

Lord McIntosh of Haringey

Perhaps I may make an immediate response to the first point made by the noble Lord, Lord Lucas, about numbering. I learnt only this week that a new system of numbering had been introduced towards the end of last year. I have already entered my protest, which is exactly that of the noble Lord, Lord Lucas. It seems to me that we had a numbering system which, although complex, was profoundly rational in that one could always find an amendment in its place in the Bill. We have now introduced a system in which the time of the tabling of the amendment becomes a significant factor in the numbering. I can assure the noble Lord that the Government Front Bench will take up the issues that he has raised.

Baroness Blatch

I, too, am very grateful for what the noble Lord has just said. It may also be convenient to deal with the tabling of amendments. The truth is that we spend a long time looking for our amendments and reporting back to the office that they are not there only to be told through a telephone call that they are there. That adds a great deal of time to our handling of the Bill, particularly when we have a group of amendments such as this, which is a very large batch of technical amendments.

I wish to ask the noble Lord, Lord Whitty, some questions on Amendment No. 257Y under Clause 132 relating to articles and instruments of government. I am decidedly unhappy about that. If I read the notes properly, it is designed with an eye to the position of GM schools from Easter through to September and that somehow it will be at variance with the GM articles of government. I see no reason whatsoever why the GM articles of government cannot continue until the school formally becomes a foundation school. I see no reason at all for Amendment No. 257Y.

My other point relates to Amendments Nos. 168D and 168F. I join with my noble friend Lord Lucas on the points he made about these amendments. I have worries about the schools acting as agents and not principals. My understanding is that GM schools have been principals and not agents. Even so, under the new system—and this is another bit of autonomy that will be removed—they will become agents and not principals. If that is the case the school spends the money and the LEA collects the VAT. Is the VAT then reimbursed to the school? If it is not then the LEA receives a nice little pot of money. I hope to have that clarified.

I also take this opportunity to say that it is helpful to have the explanatory notes in advance. It gives us the opportunity to see what the amendments are about. But the letter I received was copied only to the noble Lord, Lord Tope. My noble friend Lord Pilkington received a "Dear Lord Tope" letter and my noble friend Lord Lucas received no letter at all. Given that we are now seasoned participants in these debates, when letters of this kind are sent out, which are meant to help everyone in the House, anyone participating in the debates should receive copies of the letters. It is not only me who is interested but everyone in the Chamber.

Lord Lucas

Perhaps I may add that it is very helpful, when faced with a small desk and a pile of junk mail, if envelopes containing important documents have "ministerial/urgent" stickers on them. Such stickers help one to identify which envelopes to open first. I confess that my copy may be lying unopened on my desk.

Lord Whitty

I note those points. We shall attempt to ensure that the Front Benchers participating in these debates receive copies. Frankly, it is impossible for us to predict which other noble Lords are likely to participate in any debates. The question of misaddressing mail is slightly different, and I apologise for that. However, we managed to anticipate that the noble Lord, Lord Lucas, would be participating in this debate though, unfortunately, not early enough or clearly enough to ensure that he received the note.

The noble Lord's main concern relates to the justification for the Secretary of State having the power to remove a delegated budget. We would not see that power being used on a whim, as the noble Lord implied, but that is the only provision which allows the Secretary of State to suspend the delegation of a budget if the governing body has been guilty of financial mismanagement. That is the reason for that provision. I think that I am right in saying that these amendments do not alter that provision, which has been there throughout.

With regard to the point raised by the noble Baroness about Amendment No. 257Y on the overriding of instruments and articles of government of GM schools, we do not imagine that that provision will come into play extensively. It is designed mainly with an eye to the position of a GM school which finds itself without a delegated budget in the transitional period—that is, between April 1999 and August 1999—before the new regime is operating. In that event, we intend that staffing matters at the school should be governed by the rules which will apply to aided and foundation schools from September 1999. That would be at variance with the pre-existing articles, and it does not seem sensible to deal with the conflict by producing an amended set of articles which would be valid for only a few weeks. That is the reason for that provision.

The noble Baroness also asked about VAT. These amendments seek to make clear the position with regard to VAT payments which will normally be reimbursed. The removal of doubt as to that provision should enable a more favourable VAT arrangement to apply to schools as well as to LEAs.

With those comments, I ask the Committee to accept Amendment No. 167A—

Lord Lucas

Although the noble Lord's comments are much appreciated, they did not answer my question on sub-section (3) of what will be new Section 4A, under Amendment No. 259D. The basic powers for suspending delegated budgets are contained in Schedule 15. I refer to the continuing power which the Secretary of State or a local authority or whoever—it is principally the local authorities—has under various other pieces of legislation. We are looking at the transitional provisions that will apply as the Bill comes into effect. It is not clear to me that there is any necessity for this as a transitional provision. It is drawn extremely widely and, unlike the other powers under Schedule 15, it is not controlled by way of requiring there to be prior evidence of suitability.

Can the noble Lord give an example of the sort of circumstances in which this provision will be required? I do not wish to deprive the Government of this provision if it is clearly required to deal with some massive crisis. However, if it is merely a matter of a safety provision to a safety provision, which is the way it looks, it is drawn far too widely for us to regard it as a reasonable provision for the Government to have.

Lord Whitty

Schedule 15 will apply to LEA maintained schools. It would be needed to stop a GM school getting a delegated budget on entry into the new framework if during the transitional period there occurred an impropriety, or whatever, in relation to which the Secretary of State would normally intervene. Again, this reflects the transitional provision. Without it, the school would move immediately into the new framework, under which it would be entitled to a budget.

Lord Lucas

Perhaps a short letter with an example and some dates would be the best way of handling this.

Lord Whitty

As this provision will arise later perhaps we may deal with it then. In the meantime, I shall let the noble Lord have some further information.

Baroness Blatch

If a school does not have a delegated budget between May and September, what on earth does it have? Is the noble Lord suggesting that this applies only to a GM school that has failed to manage its affairs, has been formally decreed by the authorities to be incapable of self-management, has had its management responsibility taken away and is without power to manage a delegated budget? If that is so, I understand the position. I would find it helpful if that was confirmed.

As to VAT, will the noble Lord return to the Dispatch Box and make clear that, where self-governing schools spend money and incur VAT, that will be reclaimed by the LEA merely as a technicality and pound for pound it will be reimbursed to the particular source of the expenditure?

9.15 p.m.

Lord Whitty

On the first point, I believe that the noble Baroness has correctly interpreted the position, but I welcome the opportunity to provide an answer in writing. This relates only to the situation during the transfer period and to financial mismanagement. I shall clarify that matter by way of clause references, if that helps the noble Baroness. As to the question of VAT, that is exactly the regime that we intend should be put in place, and this amendment is for the avoidance of doubt.

On Question, amendment agreed to.

Lord Whitty moved Amendment No. 167B:

Page 39, line 9, leave out subsections (2) to (5).

On Question, amendment agreed to.

[Amendment No. 168 not moved.]

Lord Whitty moved Amendments Nos. 168B to 168E:

Page 39, line 37, leave out ("Every maintained school other than an existing") and insert ("A new").

Page 39, line 40, leave out ("A school within subsection (6)") and insert ("Such a school").

Page 40, line 12, at end insert— ("(8A) Any amount made available by a local education authority to the governing body of a maintained school (whether under section 49 or otherwise)—

  1. (a) shall remain the property of the authority until spent by the governing body or the head teacher; and
  2. (b) when spent by the governing body or the head teacher, shall be taken to be spent by them or him as the authority's agent.

(8B) Subsection (8A)(b) does not apply to any such amount where it is spent—

  1. (a) by way of repayment of the principal of, or interest on, a loan, or
  2. (b) (in the case of a voluntary aided school) to meet expenses payable by the governing body under paragraph 3(1) or 3(2) of Schedule 3 or paragraph 14(2) of Schedule 6.").

Page 40, line 13, leave out subsection (9).

On Question, amendments agreed to.

Clause 48, as amended, agreed to.

Clause 49 [Effect of financial delegation]:

Lord Whitty moved Amendment No. 168F:

Page 41, line 8, leave out subsection (7).

On Question, amendment agreed to.

Clause 49, as amended, agreed to.

Clause 50 agreed to.

Schedule 15 agreed to.

Clauses 51 and 52 agreed to.

Clause 53 [Staffing of community, voluntary controlled and community special schools]:

Lord McIntosh of Haringey moved Amendment No. 168G:

Page 42, line 37, leave out ("Or by virtue of section 48(2) or (4)").

On Question, amendment agreed to.

Clause 53, as amended, agreed to.

Schedule 16 [Staffing of community, voluntary controlled and community special schools]:

Lord McIntosh of Haringey moved Amendment No. 168A:

Page 162, line 5, leave out ("below") and insert ("in paragraphs 4 to 7").

The noble Lord said: The Committee having now moved into that part of the Bill which deals with staffing, it may be of assistance if I say a few general words before I introduce this amendment and speak to the amendments of other noble Lords. The main purpose of the staffing provisions is to carry existing provisions forward into the new framework. Most of these provisions appeared in the Education Reform Act 1988 and some have their origins in the 1944 Act. I have in mind the basic provisions on appointments and dismissals and religious safeguards.

The changes that we have introduced arise mainly from, first, the need to provide for foundation schools which will come back into the LEA-maintained fold but retaining their power to employ their own staff; secondly, the abolition of articles of government, which means that we need to provide to allow some historical practices to continue, such as the right of Catholic religious order schools to give prior consideration to members of the order when a headship becomes vacant; thirdly, the need to clarify but not extend the religious safeguards for Church schools which were couched in the outdated language of the 1944 Act—which I shall gladly explain to the very reverend Canon the noble Lord, Lord Pilkington, if necessary—and, fourthly, our policies set out in the White Paper Excellence in Schools in support of good management and leadership, in particular the requirement for schools to have capability procedures and the local education authority's right to make representations to the governing body on unsuitable head teacher appointments.

The basic principles of the staffing provisions reflect earlier arrangements, including those put in place when Local Management of Schools was introduced 10 years ago. I hope that, since there are no changes involved, we need not spend too much time on those provision.

I should like to speak first to the government amendments. There are two amendments in the name of the noble Lord, Lord Lucas, in the group. If he agrees, I shall speak to them after he has spoken. There is also an amendment tabled by the noble Lord, Lord Elis-Thomas. As he is not in his place today, I assume that it will not be moved.

Government Amendment No. 168A is a tidying-up amendment which removes the need for the governing body initially to notify the LEA of a vacancy for a head or deputy head teacher in circumstances where the incumbent is merely absent and the governing body proposes to recommend someone as an acting head or deputy head teacher.

Government Amendments Nos. 175A and 176E will provide Church of England and Roman Catholic diocesan authorities with advisory rights on the face of the Bill. Those are currently provided in the Church of England Board of Education Measure 1991, in the case of Church of England voluntary aided schools, and in the articles of government of Catholic voluntary aided schools. The entitlement for a diocesan authority to advise at a governing body's proceedings on appointments and dismissals will apply where the chief education officer of the LEA has advisory rights on staffing matters. The amendments will also provide Church of England, Church in Wales or Roman Catholic foundation and voluntary controlled schools with the discretion to extend advisory rights on staffing matters to diocesan authorities. The scope to accord advisory rights will apply at any time in the case of voluntary controlled schools, as the chief education officer of the LEA enjoys advisory rights at all times. In the case of foundation schools, it will apply only where the governing body has agreed advisory rights for the chief education officer of the LEA. These amendments represent a rolling forward of the current arrangements for diocesan advice on staffing matters in these church schools, and I therefore trust that the Committee will agree that they should be included in the Bill.

Government Amendments Nos. 176A, I76B, 176C, 176D and 176F also roll forward arrangements that currently exist. They are provided for in the articles of government of those voluntary aided schools which deal with head teacher appointments in the way permitted by those provisions. The effects of amendments are twofold. In the case of a voluntary aided school which is run by a Roman Catholic religious order, provision is made for the major superior of the order to propose a suitably qualified person from the order for appointment to a head teacher vacancy. Provision is also made for the governing body of a voluntary aided school to determine the selection of a head teacher by the whole governing body rather than using a selection panel.

These amendments have benefited from consultation with the churches and I believe that they represent a sensible way forward for providing these church schools with advice on their staffing functions. I hope that the Committee will join me in supporting their inclusion in the Bill. I beg to move.

Lord Lucas

Perhaps I may speak briefly to the two amendments in my name in this group of amendments. They cover the circumstances, which I must say I have been in on the other side of, where the chief education officer, or one of his delegates, gives advice on the appointment of a teacher or head teacher. On one occasion that person gave extremely prejudicial advice about a certain individual, saying, "Oh, we have heard this, that and the other about him". The chief education officer—in that case he was giving information on a deputy head in his care—is in a position to deny that person promotion and advancement by spreading information—rumour—which is totally unsubstantiated.

The Government, and the previous government, have gone to considerable lengths to prevent credit reference agencies from doing that. It is now a well-established principle that a person has the right to his personal file in order to know what is being said about him on occasions which make a great difference to his life. The chief education officer is and should be a responsible person. If he is prepared to give advice to the governors of a school, those people appointing a head teacher, he should do so in writing. He should make that advice available to the person about whom he is writing. There should be nothing secret, underhand or under the counter about it. If the chief education officer is prepared to say something in public, he should say it, otherwise he should keep decently quiet about it.

The Lord Bishop of Ripon

I welcome the amendments relating to Church schools. I refer to Amendments Nos. 175A and 176E. Amendment No. 176E refers to voluntary-aided schools. As the Minister said, that extends on to the face of the Bill the provision which has been made by articles of association until now. That is a different provision from that in Amendment No. 175A for controlled schools, whereas for aided schools the Bill provides that the appropriate diocesan officer shall have the same advisory rights as the chief education officer. In relation to controlled schools, the governing body may agree that that shall be the case. Their consent is required. It seems to me that that is proper.

Although many controlled schools had articles of association which provided in that regard, it was not universally the case. Therefore that amendment extends to all voluntary controlled schools a practice which was already largely but not universally in place. It is important because in recent years voluntary controlled schools—they are not on precisely the same basis as aided schools—have come to recognise their Church affiliations, not least because of the Ofsted inspections of such schools. This provision will help those who appoint the teachers to such schools to recognise the Church association and the provision which such a controlled Church school can make to education in the locality.

I welcome the amendment, which will encourage controlled schools to recognise their Church affiliation.

Lord McIntosh of Haringey

Perhaps I may reply to Amendments Nos. 172 and 173, in the name of the noble Lord, Lord Lucas. I understand the point he makes about the possibility of any superior, whether a chief education officer or anyone else providing a reference, for example, behaving in an irresponsible way. But the place to remedy that is in a code of practice rather than on the face of the Bill. I do not know whether the noble Lord has taken part in the selection of a head teacher in a governing body, as I have. As chair of a governing body, I have run the selection panel which selects the head teacher. We have the chief education officer of the local education authority with us during the interviews. At the end of the interviewing process he or she gives his or her opinion on the candidate. That cannot be in writing. Therefore, the noble Lord's amendment, which requires it to be in writing, cannot be achieved.

Similarly, where a meeting takes place in those terms, what the chief education officer says cannot be and normally should not be revealed to the candidates. Even if it should be revealed to the candidates, the effect would be to make it impossible for the meeting to come to a conclusion about which candidate to appoint. Therefore, on purely practical grounds, I ask him to withdraw his amendment and to accept our assurance that in terms of general employment law a code of practice is the better approach.

I am grateful for the comments of the right reverend Prelate about the government amendments. I commend Amendment No. 168A to the Committee.

On Question, amendment agreed to.

9.30 p.m.

Lord Lucas moved Amendment No. 169:

Page 162, line 6, leave out ("and either") and insert (", and").

The noble Lord said: In moving Amendment No. 169, I shall speak also to Amendment No. 170. These are purely grammatical quibbling. Quite clearly, a comma is required after "teacher", otherwise the vacancy is "in and either" the post. A comma is required. I would prefer the word "either" to be removed because I find the either/or construction in that particular collection of commas and sentences to be inelegant and it looks better without. I am certain about the commas, but the word "either" may give rise to a bit of an argument. I beg to move.

Lord McIntosh of Haringey

I have consulted Fowler and Sir Ernest Gowers and neither of them gives me any guidance. I must point out that legislation is not a literary form and where, in a literary form, we probably would include a comma, in legislation we do not. I am advised that the professional draftsmen have it right and that the noble Lord's amendment would make no practical difference. I ask him to withdraw it.

Lord Lucas

I retire defeated.

Amendment, by leave, withdrawn.

[Amendment No. 170 not moved.]

Lord Lucas moved Amendment No. 171:

Page 162, line 36, leave out ("England and Wales") and insert ("the United Kingdom").

The noble Lord said: I do not see why we should deprive our schools of the many wonderful teachers from Scotland, many of whom I remember with pleasure. It seems to me an unnecessary bit of provincialism to leave out Scotland, in particular at a time when what we can do to keep the Union together seems to be worth doing. I beg to move.

Lord McIntosh of Haringey

I shall not respond to the noble Lord's unionist point; we can deal with that when we come to the Scotland Bill. Amendment No. 171 could place an additional burden and additional financial cost on the governing bodies of voluntary controlled and community special schools. The purpose of the provision requiring them to advertise their senior posts throughout England and Wales is to ensure that the vacancies come to the attention of the best possible candidates both within and beyond the local area of any school.

The noble Lord will know as well as I that many of the places where one might advertise senior vacancies—notably, without giving undue prominence to the publications of Mr. Rupert Murdoch, The Times Educational Supplement and The Times Higher Educational Supplement—are circulated throughout the United Kingdom. Therefore, it is likely that what he proposes would be the case. To put it on the face of the statute underestimates the ability of those in Scotland or in Northern Ireland who wish to apply for jobs in England and Wales to use their initiative to do so. If they were not willing to use that initiative they might not be the best people for the job. Let us keep the matter as simple as we can. I ask the noble Lord to withdraw the amendment.

Baroness Blatch

In the light of that answer, why should we not put an obligation on schools simply to publicise the post in appropriate documents? Why should Wales have any superiority over Northern Ireland or Scotland? It seems to me that, in some subjects which are short of teachers, schools will want to advertise more widely.

The Minister will no doubt say that schools can advertise where they like, if they wish to do so. But why put a legal obligation in the document? Such examples appear throughout the document. Indeed, there is great prescription in areas that really do not matter, but no prescription in those that do. It seems to me that the obligation on the school should be to advertise the post: end of story.

Lord McIntosh of Haringey

We are concerned to ensure that the post should not simply be advertised locally. I agree that it specifies England and Wales, and perhaps that is an historical accident. Indeed, perhaps it tends to be thought of as a single phrase like, for example, fish and chips—although I probably should not say that. I shall consider the remarks made by the noble Baroness but, in the meantime, I urge the noble Lord to withdraw his amendment.

Lord Lucas

My noble friend is probably more sensible in this respect than I am. It is indeed an old phrase and I understand that it has an historical background. However, if we are going to specify something, I believe that "The United Kingdom" is the right expression and is as it should be for now. The Welsh will end up with a different curriculum and a different school system pretty rapidly under this Bill and under the Welsh Bill when they are enacted. There is no reason to link England and Wales together and exclude Scotland and Northern Ireland. It should either be a general requirement to publicise, or the document should specify the United Kingdom of which, thank goodness, we are still part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172 and 173 not moved.]

Lord Lucas moved Amendment No. 174:

Page 167, line 8, after ("capability") insert (", or the failure to give education efficiently and suitably,").

The noble Lord said: This amendment explores a particular phrase used in paragraph 22 of Schedule 16 to the Bill which is used to describe the rules for dealing with staff who are not up to the job, if I may employ ordinary English. The phrase chosen in that particular part of the Bill is, lack of capability on the part of members of the staff". It may be lack of capability on some occasions but, generally speaking, what we are faced with in such circumstances is lack of performance. The teacher may be capable of doing his job but he is not doing it. A good school with a good system for looking after teachers will endeavour to train and encourage them. However, at the end of the day, the problem is lack of performance and not lack of capability.

Elsewhere in the Bill in the section which deals with the employment of teachers of religion in religious schools, the phrase is used that I have included in Amendment No. 174; namely, the failure to give education efficiently and suitably". The two together seem to me to give the right answer. I hope that the Minister will feel able to accept my amendment. I beg to move.

Lord McIntosh of Haringey

I, too, had teachers like that. The amendment is unnecessary. The provision in the Bill requires the governing body to establish disciplinary rules and procedures including rules and procedures for dealing with lack of capability of staff. Normal disciplinary rules and procedures would cover such matters as the conduct of someone who does not provide efficient or suitable education, to use the perfectly legitimate phraseology of the noble Lord, but whose capability is not in question.

One can quite see that those who have, for example, been good teachers may have become slack and not actually do the job. It is important to remember that disciplinary rules and procedures should be able to deal with problems of both conduct and capability. The requirement for disciplinary rules and procedures already provides adequately for school staff whose performance is not satisfactory. Therefore, as I said, the amendment is unnecessary.

Lord Lucas

I am duly comforted and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 175:

Page 168, line 1, at end insert— ("( ) In determining whether to make such a suspension, the governing body shall have regard to any guidance given from time to time by the Secretary of State.").

The noble Lord said: This amendment addresses the problem which, again, I can remember not quite coming across as a governor. When one becomes involved in the question of suspending a head teacher, most governing bodies—thank goodness—are entering into complete terra incognita; indeed, sometimes one has never been through such things before.

These days, if one is anywhere near a national newspaper, one is in danger of becoming featured in television and radio reports in a very big way and entering into extremely deep water. At that time I was aware of no guidance from the DfEE as to how one should conduct oneself in those circumstances. I am not aware that any exists now, although that may be due to my ignorance. However, it would be an enormous help to have some. I beg to move.

Lord McIntosh of Haringey

I must confess that in many years of being a school governor I never had the misfortune to need to suspend a teacher. I bow to the noble Lord's superior experience on that. His amendment would require governing bodies to have regard to guidance provided by the Secretary of State before suspending a member of staff. It would encourage a prescriptive approach to this function which in practice might not always be wise or helpful. As he said, there are many circumstances in which it may be necessary to suspend an employee. The kind of guidance for which he asks could involve an exhaustive list of circumstances in which suspension would be appropriate, or indeed circumstances in which it would not be appropriate.

In practice I believe one would seek advice locally from the local education authority, the social services department or even the police, if that were necessary. As regards the protection of children, the Secretary of State already provides guidance in the context both of teachers' misconduct and the medical fitness of teachers. That guidance sets out general advice to schools but it cannot take the place of local professional advice on the circumstances of any particular case. Generally, suspension of staff is an employer function. It would be neither necessary nor appropriate for the Secretary of State to provide general guidance on the exercise of that function.

The ACAS code of practice on disciplinary procedures in employment which is available to all employers recommends that in serious cases consideration should be given to suspension with pay for a brief period while the matter is being investigated. The problem with the guidance the noble Lord asks for is that it would be either too general to be useful, or it would be so detailed that it would run the risk of covering far too many, but perhaps not quite enough, cases. I hope that in the light of that response the noble Lord will withdraw the amendment.

Lord Lucas

I thank the noble Lord for that reply. It is not what I had hoped for, but I shall take instruction. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 175A:

Page 169, line 5, at end insert—

("Advisory rights for appropriate diocesan authorities

.—(1) This paragraph applies to a voluntary controlled school which is a Church of England, Church in Wales or Roman Catholic Church school.

(2) The governing body may agree with the appropriate diocesan authority to accord to the appropriate diocesan officer—

  1. (a) with respect to all teachers at the school, or
  2. (b) with respect to any particular description of such teachers,
the same advisory rights in relation to their appointment. engagement or dismissal as are exercisable by the chief education officer in accordance with paragraphs 18 and 28.

(3) The agreement of the governing body for the purposes of sub-paragraph (2) must be given in writing and may only be withdrawn by notice in writing to the appropriate diocesan authority.

(4) In paragraphs 18 and 28, as they apply to a voluntary controlled school within sub-paragraph (1) above, references to the chief education officer accordingly include the appropriate diocesan officer, so far as necessary for giving effect to any advisory rights exercisable by him under this paragraph.

(5) In this paragraph "the appropriate diocesan officer" means such person as the appropriate diocesan authority may nominate.").

On Question, amendment agreed to.

Schedule 16, as amended, agreed to.

Clause 54 [Staffing of foundation, voluntary aided and foundation special schools]:

Lord Pilkington of Oxenford moved Amendment No. 175B:

Page 43, line 7, leave out subsection (1).

The noble Lord said: As ever, the noble Lord, Lord McIntosh, provides me with a marvellous introduction. He does not believe in prescriptive legislation and I want to talk about prescriptive legislation. In moving Amendment No. 175B I wish to speak also to Amendments Nos. 175C and 175D which underline my wish that Schedule 17 shall not stand part of the Bill.

As we are all mentioning our credentials at the moment I should say that I have been a governor of seven schools and I was a headmaster for 17 years. I have suspended teachers and therefore I suppose I can speak with some authority on the matter. The most important function of governing bodies is to appoint heads. It is possibly the only great thing that they do, because the future of their school depends on it.

The amendments relate to Schedule 17 standing part of the Bill. Therefore I am referring to Schedule 17. My worry is that, under the schedule, too much is referred back to the local authority. On page 171 of the Bill, Schedule 17 reads: If, within the period of 14 days beginning with the date when they receive a notification under sub-paragraph (2)(a), the authority make written representations to the selection panel that any of the applicants selected by the panel is not a suitable person for an appointment".

I should have thought that a governing body would be quite capable of making its decisions without an extra level of bureaucracy referring matters to the local authority.

I welcome the amendments in relation to foundation and voluntary-aided schools allowing for the normal procedure to be followed, which was not to be followed under the Bill as originally drafted; namely, a selection panel referring people to the whole governing body. I am delighted about that, as I am about the fact that the superiors of religious orders have rights of appointment.

9.45 p.m.

Lord McIntosh of Haringey

They have rights of inclusion in a list for consideration, to be precise.

Lord Pilkington of Oxenford

They own the buildings, it must be remembered. But I thank the Minister.

Line 16 refers to the chief education officer and the provision states that, the selection panel's notification … shall be accompanied by such information", and so on. The provision introduces needless bureaucracy. So far as I can gather, the whole essence of the Government's policy is to hand autonomy to schools, to give them responsibility for these issues. However, under Schedule 17, the Government are nannying more than is necessary. Governing bodies are ready to be responsible. They will appoint the right person. We do not need this extra bureaucracy.

Turning to the appointment of teachers, if a head is going to be any good at all in his job, the appointment of staff is the key test of his ability. A head teacher stands or falls on whether or not he appoints the next member of staff. The Bill lays down a regulation that a post has to be advertised. Perhaps I may relate an anecdote. It is very hard to get teachers of mathematics or physics. A colleague of mine was searching for a teacher of physics. He heard from Australia that a brilliant teacher of physics was moving back to England. He telephoned him, trusted the advice of his colleague, and appointed him without advertisement. He proved absolutely superb. I myself appointed a teacher of mathematics in a similar way. I went to a dinner at Oxford and met a student fellow who was giving up his fellowship and said he was looking for a job. I saw him as a genius, and I appointed him. He was a genius. That would be forbidden under this provision. The initiative of an enterprising headmaster such as myself or many of my colleagues would be stopped. Posts would have to be advertised throughout England and Wales. Under this provision many noble Lords on the Benches opposite would not have occupied their posts. Many jobs have been given to people.

My point is that this measure is prescriptive. I hope the noble Lord will justify that prescription, which I am sure has never applied in his own career. A manager at Marks & Spencer would not accept the restrictions that would be laid upon him under this schedule. It does not exist in many other fields. It is sheer waste in terms of local authority bureaucracy. Will the noble Lord therefore tell us how this prescriptive provision could be relaxed? I beg to move.

Lord McIntosh of Haringey

I admire the noble Lord's initiative in recruitment. I think it is fair to say that, having run a business myself for 30 years as a managing director, I would have done exactly the same as he did. When I found somebody, particularly if they were working for a competitor, I would try to poach them. But I have to remind the noble Lord of what I said when we began to talk about staffing. I pointed out that, with the very few exceptions that I read out, we are carrying over into this legislation, with only the minimum necessary adaptation, prescriptions which already exist in legislation.

The noble Lord is right to say that this is prescriptive, but he is attacking something that has been around for a very long time. He, as a head teacher of an independent school, was able to act as a buccaneer, but his colleagues in the state system have never had the type of freedom that he describes—or, if they have, they adjusted the rules slightly.

As I am sure the noble Lord would acknowledge, the effect of these amendments would be to remove Schedule 17 from the Bill, which could have been done more simply by the clause stand part procedure, which has been given notice of. I hope to persuade the noble Lord that Schedule 17 is an essential part of the structure of the new framework, providing for the staffing provisions for foundation, voluntary aided and foundation special schools where the governing body is the employer.

The schedule contains the details of the arrangements for the appointment of heads and deputies, other teachers and non-teaching staff; the regulation of conduct and discipline of staff; the suspension and dismissal of staff; and, where appropriate, the provision of professional and expert advice on those functions from both the chief education officer of the LEA and the diocesan authority. The noble Lord's attack has been very narrowly focused on the appointment of teachers, and in particular of teachers other than the head, and not on the other elements of Schedule 17 which would be removed by his amendments.

I hope to persuade the noble Lord of the need for the staffing functions of the schools to which this schedule will apply to be dealt with in a consistent and considered way as between schools and as between education authorities. These arrangements are currently provided in the instrument and articles of government for voluntary aided and grant-maintained schools, which will be replaced in the new framework. The Churches, which have interests in both voluntary aided and grant-maintained schools with a religious ethos, have made no representations to us about removing the staffing provisions for these schools from the face of the Bill. Indeed, they have worked closely with us in order to include additional staffing provisions in the Bill, as provided for in the government amendments on diocesan advisory rights, head teacher appointments at religious order schools and governing body selection panels to which we have just agreed. If these schools were left to provide for all the details of Schedule 17 themselves, we would create a large vacuum that would need to be filled in some other way to ensure that schools were governed and managed in a prudent and responsible fashion.

Staff appointments, particularly those of head and deputy head teachers, are among the most important decisions that fall to governing bodies. In that I entirely agree with the noble Lord, Lord Pilkington. I am reminded of the late Nicholas Ridley, who thought he could reduce local authorities to bodies which met once a year to award contracts and then adjourn for a good lunch. I think that that is carrying it to extremes, but there is no doubt that this is the most important thing that governing bodies do. The composition and abilities of the staff, and in particular the head teacher, are vital to the success of any school. The teacher appointment provisions give governing bodies the overall decision on who to appoint to their schools.

It is right that governing bodies should have this responsibility. They are best placed to understand their schools' needs and serve their schools' interests. But the appointment provisions provide for governing bodies to take a responsible and considered approach to this important function. They require detailed consideration of head and deputy head teacher vacancies by a duly appointed selection panel of governors after such posts have been advertised—my text says "throughout England and Wales", but that is perhaps a reserve issue—and for the panel's recommendation to be approved by the full governing body. They also provide for the governing body to agree advisory rights for the chief education officer of the local education authority and, where those are not agreed, for the Secretary of State to determine that such rights be accorded if necessary. The Secretary of State might, for example, determine that advisory rights be accorded to the chief education officer where a governing body is unable to satisfy him that they are receiving an appropriate level of good quality professional advice from some other source and that the school is in no way failing to provide a good quality of education to its pupils.

So it is not necessarily the case that the chief education officer will always get advisory rights, but even where he does not, the local education authority will enjoy specific entitlements to make representations to any governing body. That underpins the local education authority's enhanced role of intervening and supporting those schools which fail to provide a satisfactory level of education for their pupils. This is a schools standards Bill and this is the role of the education authority.

Included in the teacher appointment provisions are new arrangements—this may relieve the noble Lord's mind—which give governing bodies the scope to engage staff on a temporary basis; that is, engage persons to provide services as teachers at schools otherwise than under contracts of employment. This includes temporary teachers for less than four months and acting heads and deputies while a permanent replacement is being found or the incumbent is on long-term sick leave. The teacher employment market has changed in recent years, as the noble Lord made clear, and there are now a number of ways to meet short notice staffing needs. Schools need to be able to get the best available local support and that sometimes means using teacher supply agencies. They also need to be able to take decisions on covering absences at short notice. The staffing provisions of the Bill provide governing bodies with the scope to meet such staffing needs as they see fit. The scope to engage staff also extends to heads and deputy heads. Very often it is possible to cover short absences or gaps by using recently retired staff and there are many good retired teachers who can help schools in that way, including retired heads and deputies.

I will not go into the detail of disciplinary procedures or of suspension and dismissal since the noble Lord did not raise objection to those elements in Schedule 17. However, I urge him to recognise that Schedule 17 is much wider than the specific points he raised and deserves and needs to stay in the Bill.

Lord Pilkington of Oxenford

The noble Lord's reply worries me. In essence we are trying to draw out of the maintained sector the initiative and imagination that is there. As the noble Lord knows from his practice in business, initiative and imagination are drawn out by giving responsibility for decisions.

Schedule 17 is a belt and braces operation. Fundamentally, it says that we cannot really trust a governing body to appoint the right man or woman; we need the local authority to look at it. We cannot rely on the head to appoint the right teacher; we need to safeguard. As the noble Lord said, that does not apply anywhere else. The schools are surrounded by the diocesan authorities and the local authorities. My objection to Schedule 17 is that it does not allow the initiative which exists to come through.

I do not want to harp on about the Oratory School and I do not raise that as a political point in relation to the Prime Minister. However, I must mention the name of John Mackintosh. He is a distinguished headmaster who transformed his school on his own initiative, on his own appointments within the state sector. I want to see 3,000 John Mackintoshes and this schedule stops that happening.

The fact is that people like the noble Lord apply one rule in their business, as does everyone else in society. It is true that the flag of the independent sector, like the flag of the noble Lord's sector, was the skull and crossbones. I acknowledge that, but we followed our initiative and we failed if we did not do that. Why not allow this in the state sector? What is it about teaching that needs this elaborate, complicated control which does not apply in any other area of English life?

I shall withdraw the amendment, but the noble Lord has not proved his point and he did not live his life by the philosophy which he is putting forward.

Amendment, by leave, withdrawn.

10 p.m.

Lord McIntosh of Haringey moved Amendment No. 175E:

Page 43, line 11, leave out ("or by virtue of section 48(2) or (4)").

On Question, amendment agreed to.

[Amendments Nos. 175C and 175D not moved.]

Clause 54, as amended, agreed to.

Schedule 17 [Staffing of foundation, voluntary aided and foundation special schools]:

[Amendment No. 176 not moved.]

Lord McIntosh of Haringey moved Amendments Nos. 176A to 176F:

Page 170, line 9, at end insert ("(but paragraphs 6 to 8 so apply subject to paragraphs 28 and 29).").

Page 170, line 11, leave out ("below") and insert ("in paragraphs 5 to 8 (or, in a case where paragraph 28 or 29 applies, any of the steps falling to be taken under that paragraph)").

Page 170, line 35, at end insert— ("(6) In sub-paragraph (1) the reference to paragraphs 6 to 8 includes a reference to paragraph 28 or 29; and in sub-paragraph (2) the reference to paragraphs 6 to 8 includes a reference to paragraph 29.").

Page 173, line 23, after ("9") insert ("or 28 and 29").

Page 176, line 4, at end insert—

("Advisory rights for appropriate diocesan authorities

27.—(1) This paragraph applies to a voluntary aided or foundation school which is a Church of England, Church in Wales or Roman Catholic Church school.

(2) If the school is a voluntary aided school, the appropriate diocesan officer shall have the same advisory rights in relation to the appointment, engagement or dismissal of teachers at the school as are for the time being exercisable by the chief education officer in accordance with paragraph 2(3).

(3) If the school is a foundation school, the governing body may agree with the appropriate diocesan authority to accord to the appropriate diocesan officer—

  1. (a) with respect to all teachers at the school, or
  2. (b) with respect to any particular description of such teachers,
the same advisory rights in relation to their appointment, engagement or dismissal as are exercisable by the chief education officer in accordance with paragraph 2(3).

(4) The agreement of the governing body for the purposes of sub-paragraph (3) must be given in writing and may only be withdrawn by notice in writing to the appropriate diocesan authority.

(5) In paragraphs 18 and 25, as they apply to a school within sub-paragraph (2) or (3) above, references to the chief education officer accordingly include the appropriate diocesan officer, so far as necessary for giving effect to any advisory rights exercisable by him under this paragraph.

(6) In this paragraph "the appropriate diocesan officer" means such person as the appropriate diocesan authority may nominate.").

Page 176, line 4, at end insert—

("Appointment of head teachers for schools of Roman Catholic religious orders

28.—(1) This paragraph applies to a voluntary aided school if the trustees under a trust deed relating to the school are also the trustees of a Roman Catholic religious order.

(2) Subject to sub-paragraph (6), sub-paragraphs (3) to (5) shall have effect in relation to the filling of a vacancy in the post of head teacher of the school, in place of paragraphs 6 to 8.

(3) The governing body shall notify the Major Superior of the vacancy in writing.

(4) The governing body shall—

  1. (a) interview such persons who are members of the order as are proposed as candidates for appointment to the post by the Major Superior; and
  2. (b) appoint to the post one of the persons so interviewed by them unless, by virtue of sub-paragraph (5) or otherwise, they have good reason for not making any such appointment.

(5) No person shall be appointed under sub-paragraph (4)(b) if he does not meet any staff qualification requirements which are applicable in relation to his appointment.

(6) If no appointment is made by the governing body under sub-paragraph (4)(b), paragraphs 6 to 8 shall have effect in relation to the filling of the vacancy.

(7) In this paragraph— the Major Superior" means the Major Superior of the order; the order" means the order mentioned in sub-paragraph (1); Roman Catholic religious order" means a Roman Catholic religious institute or society of apostolic life.

Selection procedures involving whole governing body

29.—(1) If the governing body of a voluntary aided school so determine (and paragraph 28 does not apply), sub-paragraphs (2) to (6) below shall apply in relation to the filling of a vacancy in the post of head teacher or deputy head teacher of the school, in place of paragraphs 7 and 8.

(2) No selection panel need be appointed by the governing body under paragraph 7(1), but the following provisions, namely—

  1. (a) paragraph 7(2)(a) and (b),
  2. (b) paragraph 7(3), and
  3. (c) paragraph 7(6),
shall apply to the governing body or (as the case may be) to any decision of that body taken by virtue of this paragraph as it applies to a selection panel or (as the case may be) to any decision of such a panel taken under paragraph 7.

(3) If, within the period of 14 days beginning with the date when they receive a notification under paragraph 7(2)(a) (as it applies in accordance with sub-paragraph (2) above) the local education authority make written representations to the governing body that any of the applicants selected by them is not a suitable person for appointment to the post of head teacher, the governing body shall not appoint that person unless they have—

  1. (a) considered those representations, and
  2. (b) notified the authority of their response to the representations.

(4) The governing body shall not appoint any person if he does not meet any staff qualification requirements which are applicable in relation to his appointment.

(5) If the governing body do not appoint any person interviewed by them, the governing body—

  1. (a) may, if they think fit, re-advertise the vacancy in the manner required by paragraph 6, and
  2. (b) whether or not they re-advertise the vacancy, may repeat the steps mentioned in paragraph 7(2)(a) and (b) (as they apply in accordance with sub-paragraph (2) above).

(6) Paragraph 7(7) shall apply for the purposes of this paragraph.").

On Question, amendments agreed to.

Schedule 17, as amended, agreed to.

Clause 55 [Staffing for non-school activities]:

Lord McIntosh of Haringey moved Amendment No. 176G:

Page 44, line 18, leave out ("or by virtue of section 48(2) or (4)").

On Question, amendment agreed to.

On Question, Whether Clause 55, as amended, shall stand part of the Bill?

Lord Pilkington of Oxenford

Following on from the previous amendment, in respect of what other walk of life would you put in an Act of Parliament a provision such as how a school is to employ people who maintain non-school activities and relative staffing provision? I would like the noble Lord to tell me why it is that the headmaster and governing body of a school are not able to deal with these matters.

I shall not dwell on the issue. This is nannying of the highest order. One is talking about a school which has a reputable governing body and head teacher, and the Government wish to put in an Act of Parliament how they should govern the school. Does the Minister think the management of Marks and Spencer would accept that? This relates to employing extra, part-time staff and 25 trees will have to be chopped down to put this in the Bill. Is it necessary? What is it about governing bodies that makes them so helpless that they cannot employ a couple of extra people to organise a fete in the evening?

I would like the Minister to tell us why he has to put this sort of thing in a Bill? It seems to me to be a waste of trees. I beg to move.

Lord McIntosh of Haringey

The noble Lord fails to recognise that this is a permissive clause. In other words, it only happens to the extent that the local education authority may determine. If the local education authority so determines, Schedule 16—for community, voluntary controlled and community special schools—and Schedule 17—for foundation, voluntary aided and foundation special schools—apply in relation to persons employed to work solely or partly for the purpose of non-school activities. Thus, either the governing body is able to manage all the staff who work on the school premises or, where appropriate, the local authority can take responsibility for staff engaged in non-school activities.

This is not new. The clause appears in similar form in Section 140 of the Education Act 1996—the consolidation Act—and it dates back to the introduction of Local Management of Schools by the noble Lord's own government in the Education Reform Act 1988.

What we want to do is ensure that non-school activities can take place in schools and that there is a legal framework in which that can happen. It does not have to be imposed if the local education authority does not so determine. But schools have found that where they want to encourage non-school activities on school premises it is helpful to have this kind of provision. It should not be a controversial clause at all. It represents a commonsense approach to dealing with responsibility for staffing at those schools where non-school activities take place.

The school of which I was chair of governors for many years called itself a community school. We prided ourselves in Drayton School in Tottenham on the number of out-of-school activities that took place. Some of them had teachers from the school; some of them had people from community groups outside; a lot of them had adults squeezed into children's desks. But the school was an active place right up into the evening. I am sure the noble Lord shares my enthusiasm for that kind of activity. But it is for the comfort of governing bodies and for the security of those involved that we should have this approach to responsibility for staffing. If the clause were not in the Bill it would introduce an element of confusion over the organisation of these activities and take away a sensible mechanism for organising the staffing of these important community services. I beg the noble Lord not to try to take it out of the Bill.

Lord Pilkington of Oxenford

I accept what the noble Lord has said. I have the advantage over him that I was not responsible for the policies of the previous government as he was for the policies of the Opposition. The Bill is being introduced by a new Government, a Government who are prepared, so I am told, to look at history with a new eye, but who are not prepared to question the restrictions of the past. I accept the noble Lord's point that, legally, most likely in terms of insurance, this is possibly necessary. But the thrust of the Bill ought to be to hand the governors, the headmaster and the staff responsibility for these matters. The Government have avoided doing it. They have surrounded these schools with the same restrictions that existed historically—in particular, the shackles of local authority control—which makes it rather hard to do the kind of things the noble Lord wants. In various parts of the country some schools have found it hard to do this. Some local authorities have worried about the structure of the buildings.

All these amendments rest on the governors and the headmaster carrying responsibility and the local authority recognising that they are able to enter into insurance arrangements and so on. Unless we achieve that level of responsibility, we will never get English schools right.

I accept the noble Lord's point. I raise my point about giving responsibility to schools which I do not think this Bill does. That is why I have tabled these amendments. Fundamentally, this Government or a subsequent government, will have to do that if English education is to be put right. The same factors as made the Minister a success in business will also make headmasters successful in state schools. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55, as amended, agreed to.

Clause 56 [Payments in respect of dismissal, etc.]:

Lord McIntosh of Haringey moved Amendment No. 176H:

Page 45, line 8, leave out ("or by virtue of section 48(2) or (4)").

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 agreed to.

Clause 58 [Staff at community, secular foundation or voluntary, or special school]:

Lord Lucas moved Amendment No. 177:

Page 46, line 18, leave out ("religious opinions") and insert ("opinions as to religion").

The noble Lord said: In moving this amendment I shall speak at the same time to Amendment No. 181. Amendment No. 177 questions the wording of Clause 58(2). At the moment it says, No person shall be disqualified by reason of his religious opinions", which one might conveniently translate into "religious convictions". There are some comfortable religions in this House and many which are not. Some people's religious convictions may amount to things that one does not want to have in a school and quite reasonably so. I propose to change the wording to "opinions as to religion"—in other words, seeking to mean that the person cannot be disqualified because of his opinions about religion. But opinions may also involve doing nasty things to children in a ceremonial sort of way; for example, at the moment a devil worshipper, according to the way in which things are written at the moment, could get in under this clause. If one can change the wording to make sure that the opinions are about religion rather than the nature of the opinions themselves, which are exempt from disqualification, then it will be a safer clause to have in the Bill.

Amendment No. 181 turns to the last line on page 46 of the Bill. I find it an astonishing concept. We are here legislating to make sure that a teacher of religious education in a religious school should not be paid less because he teaches religious education. I find it astonishing that it should be necessary to legislate for that. Perhaps the right reverend Prelate can enlighten us as to whether someone teaching religion in a Church of England school would or could be paid less because he did that. I have not bothered to delete the following line where he could be paid less because he attends church. I find it an astonishing concept. I would like the noble Lord to explain. I beg to move.

Lord McIntosh of Haringey

We accept Amendment No. 177 in principle. There is a question about how to catch all shades of opinion, including those people who have no opinion at all on matters religious. I do not accept that "opinion" means the same as "conviction", but I do not believe that that is essential to the argument. We shall look into this rather than accepting the amendment now. There may be consequential changes. If appropriate, I shall invite the noble Lord to bring forward an amendment at Report stage which we can accept.

I now turn to Amendments Nos. 177A, 178A and 179A, which update and clarify the current safeguards of church schools allowing them to employ teachers with a commitment to the religious ethos of such schools. Government Amendment No. 179A provides for voluntary-aided schools to give preference, in connection with the appointment, remuneration or promotion of teachers to persons whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school; or who attend religious worship in accordance with those tenets; or who give, or are willing to give, religious education at the school in accordance with those tenets. Regard may also be had, in connection with the termination of the employment of any teacher at the school, to any conduct which is incompatible with the precepts, or with the upholding of the tenets, of the specified religion or religious denomination of the school.

Government Amendments Nos. 177A and 178A provide a discretion for foundation and voluntary controlled schools with a religious character to have regard to a person's ability and fitness to preserve and develop the religious character of the school in connection with the appointment of any such person as head teacher. The amendments will ensure that Church schools will be able to continue to preserve their religious character and ethos through the discretions that they exercise in employing teachers who support that character and ethos. I commend the amendments to the Committee.

Perhaps I may respond finally to Amendment No. 181, to which the noble Lord, Lord Lucas, referred. I remind the noble Lord that line 42 of Clause 59 refers not only to the question of remuneration but also to deprivation of, or disqualification from, any promotion or other advantage. The provision is a good deal wider than the noble Lord suggested. I submit that line 42 fits well into the clause as drafted and with the amendments to this clause to which I have spoken. I hope that the noble Lord will not seek later to press his amendment.

10.15 p.m.

Lord Lucas

I see with relief that Amendment No. 179A deletes the offending subsection, so I take it that that is no longer at issue.

The Lord Bishop of Ripon

I rise to speak to Amendments Nos. 177A, 178A and 179A. These arise from the amendment passed in your Lordships' House to the Human Rights Bill at Third Reading. I have already expressed my thanks to the noble Baroness, Lady Young, for the part that she played in moving that amendment and in being instrumental in having it passed in your Lordships' House. The noble Baroness is unable to be in her place at the moment, but I repeat my previous tribute.

I should like now to express my thanks to the Government for what I regard as a most generous response to the concerns which were expressed by members of the Churches in our debates on human rights. On Report, the noble and learned Lord the Lord Chancellor went to some lengths to make clear his view that appointments to Church schools should have regard to belief and practice in accordance with religious tradition. The amendment moved in your Lordships' House at Third Reading largely reflected the Lord Chancellor's words—and that amendment was passed.

I led a delegation to the Home Secretary which included members of the Roman Catholic Church and the free Churches as well as of the Church of England. The Home Secretary expressed the view that our concerns about Church schools would be properly met by an amendment introduced into this Bill. Therefore, I wrote to the Secretary of State for Education and Employment putting that point. I am delighted that the Government have accepted it. The form of the amendment was prepared in consultation with the Churches and we express ourselves completely satisfied.

Perhaps I may address Amendment No. 179A first. It refers to the appointment, remuneration, promotion and termination of employment of teachers at voluntary aided schools. It is of particular importance to us that the matters that are clarified relate not only to appointment, but also to termination. We are particularly glad that the two words "precepts" and "tenets" appear in the amendment. We take it that "precepts" refers to behaviour and that "tenets" refers to belief. The amendment clarifies what we took already to be the case; namely, that in appointing or dismissing either heads or teachers, regard could be had both to whether their behaviour was in accord with the religious tradition that the Church represented and to whether their belief was in accord with that tradition.

As to Amendments Nos. 177A and 178A, these are new provisions relating to foundation and voluntary controlled schools. Controlled schools are Church schools but have a different status from aided schools. The Committee is aware that the 1944 Act gave schools the choice to become aided or controlled schools. In many cases the decision was fairly haphazard. Aided schools were required to make a financial contribution to the capital costs of the buildings and have a majority of foundation governors. Aided schools had various other features. A controlled school made no financial contribution. Although foundation governors represented the religious foundation of the school they were not necessarily in the majority.

However, controlled schools are still quite clearly Church schools. In recent years there has been greater understanding on the part of such schools that they have Church status and need to pay attention to their religious character. But up to this point it has not been possible when interviewing for headships to make any kind of inquiry about a person's religious convictions or sympathy for a religious belief. A friend of mine told me that when interviewing people for the post of head he had to resort to questions such as how the candidate spent his time on Sunday mornings. This amendment means that questions can be put to establish whether a person has the ability and fitness to preserve and develop the religious character of a voluntary controlled school. We regard that as of great importance to Church schools. Therefore, I thank the Government for a most generous response to the concerns that we have expressed. We wholeheartedly support the amendment.

Baroness Byford

Perhaps the Minister can clarify whether this provision will ensure that there is no conflict between this Bill and the Human Rights Bill. This matter may have posed problems in the past. The right reverend Prelate expressed satisfaction with the amendment. However, can the Minister confirm that there will not be any conflict at any stage and that Church schools will be able to ask very direct questions? It is only right that they should be able so to do. Perhaps the Minister will enlarge upon that matter in his response.

Lord McIntosh of Haringey

The noble Baroness will be aware that the Government's position was that nothing in the Human Rights Bill removed the ability of Church schools to act in the way provided for in these amendments. Therefore, the conflict that she describes does not arise. I hope that she is as satisfied with these provisions as is the right reverend Prelate.

Lord Lucas

I am totally delighted and overwhelmed by the reply of the noble Lord, Lord McIntosh, to Amendment No. 177. It is an enormously rare privilege to have an amendment, if not quite accepted, at least approved by the Government. I am particularly delighted because it has arisen for reasons that I had not intended. I have stumbled across something where for different reasons we both agree that the amendment should be made. This is an amusing contrast to Amendment No. 181 where his speaking note appears to deny that my amendment is right whereas his amendments, Amendments Nos. 179 and 179A, clearly show that my amendment is right. I have won another amendment by the deletion of Amendment No. 179. However, I have not won any hearts in the DfEE in doing so. I shall chalk it up to my personal score, even if I am not allowed to acknowledge it in public. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

Clause 59 [Staff at foundation or voluntary school with religious character]:

The Deputy Chairman of Committees (Lord Cocks of Hartcliffe)

I should point out that, if Amendment No. 179A is agreed to, I cannot put Amendment No. 181.

Lord McIntosh of Haringey moved Amendments Nos. 177A, I78A and 179A:

Page 46, line 33, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").

Page 46, line 38, at end insert— ("(3A) In connection with the appointment of a person to be head teacher of the school (whether foundation or voluntary controlled) regard may be had to that person's ability and fitness to preserve and develop the religious character of the school.").

Page 46, line 39, leave out subsection (4) and insert— ("(4) If the school is a voluntary aided school—

  1. (a) preference may be given, in connection with the appointment, remuneration or promotion of teachers at the school, to persons—
    1. (i) whose religious opinions are in accordance with the tenets of the religion or religious denomination specified in relation to the school under section 66(4), or
    2. (ii) who attend religious worship in accordance with those tenets, or
    3. (iii) who give, or are willing to give, religious education at the school in accordance with those tenets; and
  2. (b) regard may be had, in connection with the termination of the employment of any teacher at the school, to any conduct on his part which is incompatible with the precepts, or with the upholding of the tenets, of the religion or religious denomination so specified.").

On Question, amendments agreed to.

Clause 59, as amended, agreed to.

[Amendments Nos. 178, 179 and 180 had been withdrawn from the Marshalled List.]

Clause 60 [Responsibility of governing body and head teacher for discipline]:

Lord Pilkington of Oxenford moved Amendment No. 181A:

Page 47, line 18, leave out ("ensure that policies designed to").

The noble Lord said: I am sorry that the noble Baroness is not here to listen to my talk on discipline. I am sorry that the Minister cannot make it late in the evening. I hope that her other engagement is equally interesting. So the noble Lords, Lord McIntosh and Lord Whitty, will have to listen to me.

Many a tree has died in vain over this. Imagine this in any other walk of life. You are appointing a head teacher, and, such is the parlous state of English education, you have to put in a Bill what he shall do. He shall promote among pupils self-discipline and a proper regard for authority. He shall encourage good behaviour and respect for others, and secure that the standard of behaviour of pupils is acceptable. Why, uniquely, among the professions of England does a head teacher have to be told to do his job? I do not understand why Parliament should have to put what a man should do on the face of a Bill. Is it done for trade union secretaries or directors?

Lord McIntosh of Haringey

The noble Lord did it in an amendment earlier on this afternoon with regard to what happens at a parents' annual meeting.

Lord Pilkington of Oxenford

Oh, spiritual values!

Lord McIntosh of Haringey


Lord Pilkington of Oxenford

The noble Lord does not like ideology. He must admit that this is a very different matter. I admire the noble Lord's clever tongue, but he does not get away with it. No, no, this is telling a man how to sign a letter.

Everyone knows that a school depends upon good discipline. A head teacher is judged upon whether or not he or she maintains discipline. The judgment comes from two sources. It comes from the parents, who will not send their children to the school if discipline is not kept. It comes, secondly, from inspection.

In all the amendments that I have proposed, I have said that I find that there is amazing mistrust of the education system so that one has to put on the face of a Bill what head teachers see as the essence of their exercise. All schools work well when the teachers and staff agree on a disciplinary code and the parents accept it. It can sometimes be difficult. Sometimes the parents resist some of it; sometimes there is conflict.

It is amazing that Her Majesty's Government should have such disregard for the teaching profession that they have to tell a head teacher that his job is to promote self-discipline, encourage good behaviour and secure the standard of behaviour of pupils. Are you expecting to take him to court if he does not do it? Are you going to take her to court if she does not do it? It is not necessary. Teachers have a standard of professionalism. God knows, I was part of it for long enough. The profession does not need to be told this sort of thing.

I ask the noble Baroness the Minister to tell us why she has to put on the face of a Bill what every head teacher would expect to be part of his or her job. It is an insult to the job that I carried out for 40 years. I beg to move.

10.30 p.m.

Lord Whitty

As the noble Lord indicates, the amendments would remove the important duties of head teachers for determining the school's discipline policy. They would leave the governing body with the sole duty of promoting good behaviour on the part of the school's pupils. Important though the governing body's duty is, it is only part of the equation in determining the school's discipline policy.

I find these amendments from the official Opposition somewhat extraordinary. I am advised that Clause 60 with relatively minor amendments, re-enacts Section 154 of the Education Act 1996 as substituted by Section 2 of the 1997 Act taken through this House only 15 months ago by the noble Lord, Lord Henley, for the previous government. I cannot understand the ideological, or almost trade union, position of headmaster that the noble Lord takes—I use the word "headmaster" advisedly in this case—against this section. It is identical to Section 154 of the 1996 Act.

Secondly, the report of the noble Lord, Lord Elton, on discipline in schools made clear how important it is for schools to have a whole school policy, and the responsibilities of head teachers in that respect. These amendments would remove the duty on the head teacher of maintained schools to draw up a disciplinary policy setting out the standards of behaviour: what it expects; how good behaviour and discipline will be encouraged; and the sanctions which will be applied.

It is important that there are separate and specific duties on both the governing body and head teacher for determing the school's disciplinary policy. The governing body sets the framework of that policy by making the statement of general principles. The head teacher has responsibility for determining the measures which make up the school's code of conduct.

That was recognised in the 1996 Act. It was retained in the 1997 Act and we are retaining it now. I therefore believe that the amendments are misguided and in their effect would not help schools to promote and maintain high standards of behaviour. I believe that they should be withdrawn.

Lord Pilkington of Oxenford

I am glad to recognise another dinosaur! I accept that I was not a Member of the previous government, nor I think a Member of this House when the previous legislation was passed. The tendency has been to reiterate clauses from previous Acts as has occurred in this Bill. I am not being trade unionist on this. If a head teacher feels that to maintain discipline it has to be on the face of an Act of Parliament, there is something wrong with the relationship between the Government and teaching profession. Let us envisage a situation where there is fighting in the yard and the head teacher says, "It has nothing to do with me. It is not in an Act of Parliament".

The Government profess to be casting a new light on education. I am encouraging them in that. I ask that the vision should be realised in effect. But the Government prefer to tie themselves to old totems from Acts of Parliament that have been in existence for 50 years. This is not New Labour; it is old-fashioned government.

Lord Tope

It is new Tory.

Lord Pilkington of Oxenford

I hear "new Tory" being mentioned by noble Lords. It is better to trust the head teacher, master or mistress, to do the job than to tell them, "We mistrust you so much we have to put it on the face of the Bill". If that is done, those people will go by the letter of the law. I doubt that the noble Lord understands that.

Lord Tope

The noble Lord, Lord Pilkington, is right to say that it is not new Labour. The Minister himself in responding told us that it was old Tory and that is where it comes from. I am afraid that we see that too often.

I have total sympathy and support for what is in the Bill. It is clearly right and proper. However, I share a great deal of what the noble Lord, Lord Pilkington, said about the fact that the provision is included. Much though I support the objectives, it is yet another example of being too prescriptive in telling professionals how to do their job. If it is borrowed from the previous government, so be it.

I have a great deal of sympathy for what has been said. Although I support the provision, I question whether it needs to be included and whether it is not another case of the Government being far too prescriptive.

Lord Whitty

I wonder whether either noble Lord has considered the implication of removing the provision. What kind of signal would be given to head teachers and to people who follow our proceedings if we cross out a requirement for head teachers to have a responsibility for discipline? Whatever the merits of whether it ought to have been there in the first place, a detrimental impression would be given if we removed it at this stage.

Lord Tope

I am not sure that it is a defence to say, "We have included something which should not have been included but we cannot take it out because that would send the wrong signals." There is a changed circumstance. Might the creation of a general teaching council be an appropriate reason for removing provisions from a Bill? When we debated the GTC, many of us argued that this is exactly the kind of aspect for which it should be responsible. We are about to have a GTC undertaking that works so perhaps this is the time to remove such over-prescriptive legislation without sending the wrong message, as the Minister suggests. I do not believe that he has made his point.

Baroness Byford

The Minister asked what signals would be sent to the teaching profession. I believe that to say, "Here we trust you to do a good job. We are not going to prescribe, written down, what you should be about", would send a good signal. I thoroughly support the comments of my colleagues about being too prescriptive. The Government should not be negative but should embrace what we are saying and delete the provision. I do not believe that they should be afraid.

Lord Pilkington of Oxenford

I shall withdraw the amendment, so noble Lords need not worry; there will not be another vote tonight. English education has gone through a considerable amount of turmoil. I agree with the noble Lord, Lord Tope, that with the GTC we are moving into a new situation. In my experience, the teaching profession, with proper support from the Government, will behave responsibly. That is why we on this side of the Committee have argued about giving responsibility to schools. Our view is that if you hand out responsibility people will behave. The grant-maintained schools have shown that.

In consequence, we feel a certain amount of distress about putting on the face of the Bill the basic duties which are demanded of a head teacher. Do the Government want to ask people to trust them? This is like telling a bank cashier that he does not take £10 out of the till. It is as crude as that.

The Government will never gain the support of the teaching profession if they tell head teachers that one of their jobs is to promote good discipline. It used to be regarded as par for the course. Quite honestly, the Government are trying to combine stick and carrot and it will not work. They must decide where they stand. On the one hand they say they are giving 100 per cent. responsibility to the schools; on the other hand they believe that they must put on the face of the Bill every prescription that they can as regards the appointment of staff and so much else. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 181B and 181C not moved.]

Baroness David moved Amendment No. 182:

Page 47, line 23, after ("principles") insert (", taking account of children who may have special educational needs,").

The noble Baroness said: At last we come to exclusions. In moving this amendment, I shall speak also to Amendment No. 189. In these two amendments I have the support, at any rate in name and spirit, of the noble Baroness, Lady Darcy de Knayth, and the noble Lords, Lord Swinfen and Lord Northbourne, although they are not actually in the Chamber in the flesh. The purpose of Amendment No. 182 is to build into the behaviour and discipline policy the recognition of the need to respond to children's special educational needs. The purpose of Amendment No. 189 is to ensure that the governing body of a school considers whether a child has special educational needs when it is informed of an exclusion.

One of the difficulties that schools have is in identifying and addressing learning difficulties among those pupils who are demonstrating behavioural difficulties. This is not a new phenomenon. David Galloway's work in Sheffield in the early 1980s showed that teachers significantly overestimated the IQ of pupils excluded from school for behaviour difficulties. They construed them as being brighter pupils who were misbehaving rather than children who were having difficulties engaging with the curriculum and for whom learning difficulties might be a factor contributing to their behaviour difficulties.

Those findings were echoed more recently in the 1996 Ofsted report, Exclusions from secondary schools, 1995–1996, which identified significant levels of unrecognised and unmet learning difficulties among those pupils who were excluded. Carol Hayden reports similar findings in respect of primary school children and it is here that there has been a significant increase in the number of children excluded—indeed, very young children—which is really very upsetting.

Carol Hayden was the principal researcher on a national research project focusing on exclusions from primary schools. She argues that, the evidence about children excluded from primary schools illustrates that they should be viewed primarily as children with special educational needs and/or children 'in need' and therefore entitled to the support and protection from the legislation which recognises these needs, rather than viewed as a discipline problem which requires appropriate sanctions, one of which is exclusion from school… The public debate about exclusion tends to focus upon `naughty', 'bad' and 'ill-disciplined' behaviour and thus views the problem in terms of the need for stronger discipline in schools and more punitive action against those who break the rules. If, on the other hand, we look carefully at the mounting evidence about the circumstances of individuals who are excluded from school, we may decide to try to understand the factors at work in order to provide a considered and, we hope, more effective response". It is precisely this considered response that may be missing in some schools. One of the difficulties is that children with behaviour difficulties who are seen as naughty, bad and ill-disciplined, may be dealt with through the pastoral side of the school rather than through the SEN side of the school. Where the two sides of the school's operation are not well dovetailed with one another, this may mean that pupils' behaviour and learning difficulties are not given the considered and staged response set out in the code of practice.

Evidence in the Ofsted report, The Implementation of the Code of Practice Two Years On, supports that view. The report showed that a significant number of schools do not put pupils with behaviour difficulties on their SEN register. The consequence of this is that neither their behaviour nor their learning difficulties, where these accompany the behaviour difficulties, are then addressed through the staged response of the code of practice.

These are two important amendments. I look forward to hearing what my noble friend the Minister has to say about them. I hope that he will be able to accept them. I beg to move.

Lord Addington

This amendment addresses the chicken and egg situation which often occurs with behavioural problems resulting from children finding it difficult to cope within schools. Thus it is something which really ought to be on the face of the Bill. In the field that I know most about—namely, dyslexia—it is known that dyslexics have two standard ways of dealing with failure in the classroom. One is to disappear into the middle of the class: "Don't make too much noise; don't attract any attention and let everything go past you". The other one is to sit at the back and disrupt the classroom. We discussed this type of behaviour when dealing with an earlier amendment.

The pupil who follows the more common pattern—that is the second of those two options—will often be treated as having first and foremost a behavioural problem. However, one has to take account of what else may be happening. It could be said that virtually all pupils who have behavioural problems will have some form of special educational need. It is vitally important to give such pupils support when possible. Ultimately this will require better training for classroom teachers to enable them to recognise these factors. Disabilities such as autism are being recognised. The behaviour of children suffering from a condition such as autism may be misinterpreted as a behavioural problem. As the noble Baroness said, such problems are surrounded by myth. I have been told that all dyslexics are incredibly bright and I am a dyslexic—

10.45 p.m.

Lord Tope

It is true!

Lord Addington

The noble Lord is very kind. Bright children suffering from dyslexia are easy to spot. Once their condition has been recognised they are easy to help. I do not suggest that that is the case with all such conditions. People like to confine these conditions in a "box", but most of them cannot be confined in such a way. Teachers may well not recognise the real reason for a child's bad behaviour; namely, that he or she may have special needs.

Lord Archer of Sandwell

I support my noble friend's amendment. My noble friend the Minister may be aware of the research carried out by Professor Neville Harris of John Moore University. I believe that research was carried out some two years ago. He carried out research into special educational needs and into related appeals. He has just concluded research into exclusion appeals. He concluded that there is a high correlation between the two matters, and that if they are dealt with separately that can give rise to difficulties on appeals. Certainly, difficulties can arise on exclusion appeals if account is not taken of special educational needs.

Baroness Blatch

I have sympathy for the teachers and the children in the classroom. Whatever the reasons for it, disruptive behaviour in the classroom inhibits the effectiveness of a teacher and inhibits the learning processes of children in the classroom, particularly those children who have not exhibited the disruptive behaviour. The speeches of the noble Lord, Lord Addington, and of the noble and learned Lord, Lord Archer of Sandwell, only strengthen my belief that the disruptive element should be removed from the classroom—whatever the reasons for that behaviour—to enable the problem to be analysed.

My local authority had a primary and secondary support unit. The modern term is a pupil referral unit. Can the Minister say how many pupil referral units exist? I understand that some have recently been closed. How many are planned to support the Government's new policy? I believe there are two keys to solving this problem. One, of course, is early intervention. When I was a Home Office Minister I met young and not so young people who were on probation or in prison. Often those people had not learnt to read and write at an early stage of their education. Often they were bright people who simply had not mastered that skill early enough and had become rather clever criminals. That was unfortunate. There seemed to be a road from disruptive behaviour and disaffection to truancy, street corner and prison cell. That process was set out very well by John Patten in his White Paper and has continued to be accepted by the present Government. So early intervention is certainly one key.

The other relates to the points made by the noble Lord, Lord Addington. It is especially important that problems such as dyslexia are properly analysed. It cannot be analysed in a disruptive and chaotic classroom. I strongly support the concerns of the National Association of Schoolmasters/Union of Women Teachers. Its members feel very threatened by the measures that the Government are taking. Setting aside those young people who need special educational measures—in other words, medical, psychiatric or psychological help, or some other form of specialist help—there are young people in our schools who are simply disruptive. They are naughty and badly behaved, and they need managing. The teachers have almost nothing left now by way of sanctions. Even minor forms of corporal punishment have gone. Keeping children in after school is no longer an option because of the difficulties they might have in missing school buses and possibly travelling home in the dark. It is increasingly difficult for teachers to cope.

I am also very concerned about the whole notion of targets. Yes, everybody believes it right to reduce the number of exclusions. But if there is a case for exclusion, there is a case for it—targets or no targets. Either schools are to be made to keep those kinds of cases within the school and manage them, or they must be able to exclude them. The element of second guessing does nothing but undermine the governors and the staff, particularly the teacher who is trying to manage in a classroom. That is very disturbing. When a disruptive pupil is returned to a school where, so far as the school and the governors are concerned, there has been a case for exclusion, the effectiveness of the authority of staff and governors is greatly affected.

I believe that the Government have not found the right remedies. Merely lowering the case for exclusions is wrong. We need to have a care for the orderly running of the schools, for teachers who work very hard to maintain discipline in the classroom.

There was an effective schools unit in the DfEE. I believe it is now called the standards unit. The unit was examining those schools where there was a very low incidence of disruptive behaviour and exclusions to see why that was, and comparing them with other schools which had a high incidence. Very often, it depended upon the regime of the school: how it was run; how it was led; the consistency of approach by staff to the children; the consistency of rules applied; and often the involvement of the children themselves in establishing the rules of behaviour in the school. Some interesting experiments were carried out. That is one area for examination, There is an issue here. It is important to speak up for the school that is doing a good job and is now hard pressed by rather rigid and sometimes counter-productive measures.

Lord Whitty

I recognise and sympathise with the situations described by my noble friend Lady David and the noble Lord, Lord Addington, on the one hand, where exclusion is based on behaviour which stems from unmet special needs; and the other side of the coin, as described by the noble Baroness, where failure to deal with behavioural problems affects a whole class. It is therefore important that some degree of balance is maintained.

Turning to the amendments proposed by my noble friend Lady David, the first relates to the drawing up of the general principles of a school. It is important that the requirements of children with special needs are not overlooked when those principles are drawn up. However, the governing body should take account of all the differing needs of all the pupils in a school, including, for example, the differing ethnic and cultural backgrounds of children. I believe it would be wrong to single out one particular group and place a specific requirement on the face of the Bill. However, the situation as described on both sides of the picture makes this matter more appropriate for detailed guidance. I assure my noble friend that we shall ensure that this point is adequately covered in the revised guidance we shall need to issue following the enactment of this Bill.

As for Amendment No. 189, we recognise that there is scope for many exclusions to be prevented through earlier intervention by schools and by other agencies. A strong focus on earlier intervention, co-operation between the SEN side and the pastoral side of the school and a multi-agency approach are important. We are very concerned that exclusion may on occasion—probably quite frequently—be used to punish poor behaviour that arises from unrecognised or unmet special needs. The department will be issuing new guidance emphasising the importance of identifying such cases early and providing the necessary support to avoid exclusion at a later date.

Special needs, such as emotional and behavioural difficulties, are not in themselves adequate grounds for exclusion unless the child is likely to cause injury or severe disruption to other pupils or staff. Our guidance will make that very clear. The whole emphasis of our policy is to try to promote the helping of children by schools and to deal with the position in the school, even if that requires taking the child out of the classroom.

As regards referral units, which apply at a more serious stage of the process, the noble Baroness asked how many such units were now operating. I am advised that it is 330. Whether that has gone up dramatically or down slightly, I am not clear. I may be able to provide the noble Baroness with more information on that matter.

Unidentified special needs may be just one factor that should be considered before taking a decision to use the punitive sanction of exclusion, but it is a very important factor. That will be covered in our guidance, along with all the complex issues that have been raised by the noble Baroness, Lady Blatch, and other contributors to the debate. A bald statement on the face of the Bill is not sufficient. We consider that the matter should be covered in guidance. In the light of what I have said, I ask my noble friend to consider withdrawing her amendment.

Lord Addington

Before the noble Baroness decides what to do about the amendment, I should like to make clear that, although I stated that behavioural problems may well be caused as a result of undiagnosed special needs, I agree with the noble Baroness, Lady Blatch, that the other pupils in the class also have rights. School exclusion is something I would be worried about, whereas removal from the classroom is often appropriate. As an example, putting a dyslexic into a conventional English class without proper assistance is the equivalent of putting someone in a wheelchair on a cross-country course. They will not benefit from it. Often a unit within a school is a very practical way forward. I hope that that puts some of my comments in context.

Lord Archer of Sandwell

Perhaps I may echo what the noble Lord said. The whole point of directing the criteria of special educational needs to a particular pupil may be precisely that they are removed from the ordinary classroom situation.

Baroness David

I thank the noble Lord, Lord Addington, and my noble and learned friend Lord Archer for their sympathetic support. I am glad that my noble and learned friend mentioned the research of Professor Neville Harris, of which I had heard, which is very helpful with regard to what I have been saying. Of course, I understand what the noble Baroness, Lady Blatch says. It is very difficult indeed for teachers with disruptive pupils. But my amendments try to get at the cause of the behaviour and to deal with it early on. I thank my noble friend the Minister for his sympathetic response. I shall be happy to withdraw my amendment if I can be reassured, as I think he did reassure me, that both the points I made will be covered in the guidance. That is quite satisfactory and, in the light of that, I shall be pleased to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness David had given notice of her intention to move Amendment No. 183:

Page 47, line 37, at end insert— ("(c) registered pupils at the school, and (d) teaching and non-teaching staff at the school.").

The noble Baroness said: I understood that we were going to stop at 11 o'clock tonight. Amendment No. 183 is the first of a long series of amendments, most of which are mine. I hope that the Deputy Chief Whip will say that this is the moment when the House might resume.

Lord McIntosh of Haringey

I think my noble friend would prefer to move her amendment very rapidly, succinctly and cogently, and then other Members of the Committee can speak even more rapidly and cogently and we can try and get a little bit more business done.

Lord Tope

That is quite wrong. This group of amendments relates to extremely important subjects. It is something on which a number of us want to speak. I am sure we shall all speak cogently: we always do in this Chamber. But to have to rush it through, last thing at night on a Thursday evening, simply to suit the convenience of the Government, is unfair to the Committee; particularly unfair to the mover of these amendments, who I know has a long drive tonight; and, above all, it is unfair to the people who are affected by the amendments. It is now just after 11 o'clock at night.

Lord Archer of Sandwell

My noble friend knows that I do not make difficulties for the Government if that can be helped. But the theme which draws together the amendments in this grouping does not become obvious when one looks at it. I have two amendments which are quite different from the amendments about to be moved by my noble friend. How we can be succinct and rapid when we are dealing with a whole group of different subjects escapes me. My noble friend may want to think again.

Lord McIntosh of Haringey

I yield to the succinct and cogent arguments of noble Lords who have spoken. I beg to move that the House do now resume.

On Question, Motion agreed to.

House resumed.

House adjourned at two minutes past eleven o'clock.