Lords Sitting of 8 June 1998

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

Multilateral Organisations: Parliamentary Scrutiny
Lord Judd Lord Judd asked Her Majesty's Government:
Whether they will consider publishing the voting positions of United Kingdom executive directors at the board meetings of the International Monetary Fund, World Bank and similar multilateral organisations in order to facilitate parliamentary scrutiny; and whether they will advocate that such a policy be adopted by all member countries.
Lord McIntosh of Haringey: My Lords, decisions in the IMF and World Bank executive boards are usually taken by consensus rather than by formal vote, so a voting record, as such, does not really exist for most matters. Other institutions such as the regional development banks, the EBRD and the World Trade Organisation follow similar procedures.
Lord Judd: My Lords, but does not my noble friend agree that, at a time when the Government are very committed to the regeneration of democracy, a significant issue is developing in the multilateral institutions where decisions are made with far reaching implications not only for this country but for the rest of the world? If we in Parliament are properly to scrutinise what happens in those institutions, is it not essential that we have fuller information about what is being said in our name within them, what others are saying and how decisions are reached?
Lord McIntosh of Haringey: My Lords, my noble friend raises two very important issues with his further question. He rightly draws attention to the issue of transparency in the international organisations. The British Government have been pressing heavily for greater transparency. In a recent speech to the interim committee of the G7 the Chancellor of the Exchequer demanded that we should publish press information notices quickly, that we should publish the conclusions of Article 4 missions, and that we should improve the accountability of the IMF.
My noble friend also raised the issue of parliamentary accountability. The executive director is a British civil servant accountable to Ministers in the Government and therefore accountable, through them, to Parliament in
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House Questions, debates and Select Committees. Speeches and communiqués are also placed in the Library.
Lord Bruce of Donington: My Lords, how does the noble Lord propose to deal with the European Central Bank within the context of the Question?
Lord McIntosh of Haringey: My Lords, the European Central Bank does not come within the scope of the Question which I am answering today. However, my noble friend will have a full opportunity to debate the matter when we discuss the report of the committee chaired by my noble friend Lord Barnett.
Baroness Rawlings: My Lords, what action have the Government taken to establish a separate post of executive director for the World Bank and to make that position an appointment of the Department for International Development in consultation with the Treasury?
Lord McIntosh of Haringey: My Lords, Mr. Gus O'Donnell is executive director for both the World Bank and the International Monetary Fund. That joint appointment will be continued by his replacement, Mr. Stephen Pickford. However, the noble Baroness is right because in one case he reports to the Chancellor of the Exchequer and in the other to the Secretary of State for International Development.
Lord Hughes of Woodside: My Lords, although the British Government wish to make maximum transparency available, even though reporting to Parliament through a civil servant is not the most obvious and clear-cut way of doing so, what is the position of other member states? Is the Government's view on transparency shared by others? If so, can we look forward to better informed debates?
Lord McIntosh of Haringey: My Lords, with respect, I do not agree with my noble friend that the appointment of a civil servant as executive director is anything other than the obvious way of assuring parliamentary accountability. British civil servants are responsible to Ministers who, in turn, are responsible to Parliament.
As to whether other members of these international organisations are as keen on transparency as we are, my noble friend should draw his conclusion from the fact that we are taking the lead in promoting transparency. If we are taking the lead others are somewhat behind.
Lord Avebury: My Lords, how is any member of the public able to discover the British Government's position at a plenary meeting of the International Criminal Court, which is about to take place in Rome, on matters as important as the independence of the prosecutor, retrospection and so forth? How can any member of the public discover the Government's attitude?
Lord McIntosh of Haringey: My Lords, I have not taken the International Criminal Court to be a multilateral organisation similar to the IMF or the World Bank and

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therefore I do not know the answer to the noble Lord's question. However, I shall write to him on the issue that he raises.
Lord Campbell of Alloway: My Lords, what sort of parliamentary scrutiny is envisaged by this Question and what effect is it supposed to have?
Lord McIntosh of Haringey: My Lords, one way in which the noble Lord could find out would be by asking a Question. As I have explained in relation to the parliamentary scrutiny, there is the availability of questioning Ministers in the House; the fact that legislation, when it affects those issues, comes before Parliament; the fact that it is possible to have debates in this House and in the other place on those matters; and that Select Committees can summon Ministers and the executive director directly to be questioned about those activities in international organisations. Similarly, the speeches and communiqués which are the communication of this Government to international organisations are available in the Library and on the Internet.
Lord Judd: My Lords, will my noble friend accept that many of us find it extremely encouraging to hear it stated so firmly that the Government are leading on the issue of transparency? In particular, we are encouraged by what my noble friend said about the need to look at key civil servants who participate in those institutions themselves giving evidence when Parliament is, through its procedures, scrutinising those affairs.
Does my noble friend agree that if we could achieve more openness within those institutions, we could, for example, have a much healthier perspective on the issue of international debt? Our Chancellor has been trying to lead the world on the alleviation of debt in the poor world, which is of immense significance, but he has been blocked consistently by certain other member countries of those institutions which have hidden behind a tradition of not disclosing what goes on within them.
Lord McIntosh of Haringey: My Lords, I am grateful to my noble friend for recognising the efforts that we made at the G8 summit in Birmingham to promote the forgiveness of aid-related bilateral debt. In the absence of—shall we say?—universal agreement on all those points, we can ensure greater transparency in the international financial systems and international financial data. Indeed, that is what the Prime Minister reported back to Parliament after the Birmingham summit.

Association of Chief Police Officers
2.44 p.m.
The Earl of Lytton The Earl of Lytton asked Her Majesty's Government:
What are the purposes of a Home Office donation to the Association of Chief Police Officers for England, Wales and Northern Ireland (ACPO) of £458,000 in 1996–97, and a contribution from the
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police authorities of £330,000 for the relevant part of ACPO's 1996–97 accounting period; and what services are provided by ACPO to these donors.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, the Home Office provides a contribution to the running costs of the Association of Chief Police Officers' Secretariat in respect of salaries and administrative expenses. Police authorities contribute to the association in recognition of its role in providing professional policing policy advice to police authorities, government and others. The provision of professional policing policy advice is carried out by the association in support of local policing, rather than as a specific service to a particular organisation.
The Earl of Lytton: My Lords, I thank the Minister for that reply and I am mindful of the fact that I have a former president of the Association of Chief Police Officers sitting next to me. Will the Minister explain to the House what principles of accountability apply to those sums which come from both the police committees and the Home Office direct? What accountability is there in respect of those sums? More particularly, what scrutiny is available in relation to those in the normal way in which such sums are scrutinised?
Lord Williams of Mostyn: My Lords, the Government's contribution to ACPO is managed by the Home Office. It pays invoices for approved expenditure incurred by ACPO. Therefore, before any payment is made, scrutiny is directed to every request made by way of invoice.
Furthermore, the copy of ACPO's accounts for 1996–97 has been placed in the Library and the accounts for 1997–98, which are currently being prepared, will also be placed in the Library. In future, the accounts will be published in Companies House format and will include various references to the Government's contribution.
Lord Harris of Greenwich: My Lords, is the noble Lord aware that over a period of time, governments have given precisely that degree of financial support to the Association of Chief Police Officers? Is he aware that on a whole range of issues ranging from policy relating to crime to road traffic, the advice which it gives to the Home Office and to police authorities is of considerable public importance? Therefore, does he agree that such support is highly desirable?
Lord Williams of Mostyn: My Lords, I am sure that that is absolutely right. As the noble Lord says, this has been going on for a number of years. It is extremely useful to the Home Office to have a source of informed

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expertise. Most Ministers who have been in receipt of the advice, although they may not agree with it on every occasion, recognise its worth and value.
Lord Skelmersdale: My Lords, does that mean that other organisations will also receive core grants from the Home Office for the same reasons?
Lord Williams of Mostyn: My Lords, not necessarily, no.
Lord Merlyn-Rees: My Lords, will my noble friend confirm that the advice which comes from ACPO on a variety of issues is not the only source of advice? It comes also from within the police department and the inspectorate. It is not the only advice, is it?
Lord Williams of Mostyn: My Lords, my noble friend Lord Merlyn-Rees is absolutely right. It is a very important source of advice but we have our own internal statistical department; we consult a large number of bodies in the criminal justice field; and we have contributions from institutes of criminology, from universities and a wide variety of international sources.
Lord Knights: My Lords, will the Minister confirm that ACPO has divided itself recently into two organisations: the Association of Chief Police Officers, which is funded in the way that the Minister has already indicated, dealing with professional policing policy; and a second separate organisation, the Chief Police Officers' Staff Association, which deals with staff matters, conditions of service and so on, which it funds itself?
Lord Williams of Mostyn: My Lords, the noble Lord is quite right. It was thought appropriate that there should be a division between those two functions: the second being a matter of negotiation about terms and conditions and such matters; and the first being the sort of independent advice to which a number of your Lordships have already referred.
Lord Brougham and Vaux: My Lords, the noble Lord is probably not aware that I had lunch with the Chief Constable of Norfolk today. He will be speaking to a colleague of the Minister in the Home Office and the noble Baroness, Lady Haymah. I hope that the Government will take advice from the chief constables when that is put before them.
Lord Williams of Mostyn: My Lords, I did not know that the noble Lord had had lunch at all, and certainly not with the Chief Constable of Norfolk. I am sure that it was an excellent lunch and that the conversation was most stimulating.
We always listen with great care to what is said by chief constables. They are at the sharp end of policing. They have enormous responsibilities. As was implied earlier by the noble Lord, Lord Harris, I believe that
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there is an extremely useful, constructive relationship between ACPO and the Home Office and long may it continue.

Millennium Dome: Progress
2.50 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they can give any further information on the Millennium Dome, its progress, its contents and their cost.
Lord McIntosh of Haringey: My Lords, progress on the Millennium Dome is on time and within budget and details of the project will continue to be released as it develops. The New Millennium Experience Company is continuing to make good progress on sponsorship, with £87 million already committed, putting the company on course to achieve its sponsorship target. On 1st June, the New Millennium Experience Company and Marks and Spencer announced "The Children's Promise" initiative—a scheme to encourage people to donate their last hour's pay of this millennium to enhance the opportunities of the nation's children in the next—as part of Marks and Spencer's £12 million founding partner sponsorship support. That was in addition to the founding partner and official sponsors announced on 24th February.
Lord Peyton of Yeovil: My Lords, I give the Minister a rather half-hearted and token "thank you" for that Answer. Does he not think it a little odd that so little is known about the contents of this really rather magnificent building, which is now nearing completion both on time and within budget? Indeed, it is splendid. We have been told that the sexless giant which was surveying its own child has been removed and replaced by a golden lady. However, apart from that, we know nothing. Is it not about time that those concerned with this huge building were informed as to what its contents will be?
Lord McIntosh of Haringey: My Lords, I am sorry if the noble Lord thought that I was rather half-hearted—
Noble Lords: He was!
Lord McIntosh of Haringey: My Lords, I now realise that he was half-hearted in his thanks. That is even worse. On reflection, I believe that I was too modest in my response. In fact, the construction work is two weeks ahead of schedule. As the noble Lord knows, seven out of the 13 zones in the Millennium Dome were presented to the public at the end of February and work

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is proceeding on them as well as on all the others. We still have 18 months to go. Would not the noble Lord like a few surprises at the end?
Lord Beloff: My Lords, does the Minister agree that it would be very appropriate for the dome to be left completely empty? It could then act a symbol of New Labour.
Noble Lords: Oh!
The Viscount of Falkland: My Lords, can the Minister help the House a little as regards the cost involved? Is there any distinction or overlap between the funding which has been well publicised for construction and allied purposes and the amounts of money which he has enumerated; namely, those moneys which have been provided by generous sponsors? Are those two sums of money quite distinct and separate, or will some of the sponsorship money be used for construction purposes? Perhaps the Minister can give us some guidance on the matter.
Lord McIntosh of Haringey: My Lords, clearly the sponsors have a right to require that some part of their money should be used for specific purposes; indeed, they have done so. However, the funding of the project as a whole, which includes large amounts of lottery money, will be used for all purposes such as construction, filling, access and for other aspects of the Millennium Dome. It is a single budget.
Lord Montague of Oxford: My Lords, perhaps my noble friend the Minister can clarify one aspect of his original Answer, which relates to the raising of £100 million for the children's programme. My noble friend said that people are being asked to contribute their last hour's salary of the millennium to the fund. However, does he intend to commit his last hour's salary to that end? I shall of course commit mine, but will my noble friend support the rest of the House doing the same?
Lord McIntosh of Haringey: My Lords, on the dangerous assumption that I still have a salary at that date, I will. As I also have a pension, I will undertake, without any qualification, to contribute the last hour of earning from my pension.
Lord Renton: My Lords, bearing in mind that the millennium marks 2000 years of Christianity, can the Minister say in what way the contents of the dome will record that fact?
Lord McIntosh of Haringey: Yes, my Lords. As I have said on numerous occasions in this House, the spiritual aspect of the dome's contents are being worked out in close collaboration with the Lambeth Group, which is sponsored by the Church of England but which includes all Christian and other faiths. The group is
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taking a leading role in deciding that part of the dome's contents which fall within what we call, "the spirit zone".
Lord Skidelsky: My Lords, is the Minister in a position to say whether any changes have been made to the planned contents of the dome since we last debated the matter two months ago? In particular, can I urge the Minister to try to find a space in its 20 acres to depict some defining moments in our far from inglorious national history?
Lord McIntosh of Haringey: My Lords, changes are taking place all the time as design concepts are developed and approach completion. The noble Lord's suggestion about our,
"far from inglorious national history",
can and certainly will be taken into account. There are those who are urging us in the spirit of contrition, which is so popular these days, to make amends for some of the less glorious parts of our history. However, I should not pass a personal comment on that suggestion.
Earl Russell: My Lords, is the Minister aware of the message contained in the latest Wonder Bra advertisement, which says:
"Some domes enjoy public support"?
Lord McIntosh of Haringey: My Lords, my principle is to allow noble Lords who use Question Time to make jokes to have them unimpeded by interventions from me.
Lord Cocks of Hartcliffe: My Lords, in order to encourage and set an even better example, will my noble friend the Minister consider asking his colleagues to announce that they are donating rather more than an hour's pay towards this project?
Lord McIntosh of Haringey: My Lords, I shall follow with interest any initiative that my noble friend takes in that direction.
Lord Peyton of Yeovil: My Lords, can the Minister assure the House that those who will be responsible for the contents of the Millennium Dome actually know how much money will be available to them?
Lord McIntosh of Haringey: Yes, my Lords; without doubt. I can certainly give that assurance. Those who are carrying out the design and preparation work are very well aware of the budgets which have been set for them by the New Millennium Experience Company.
Baroness Rawlings: My Lords, does the Minister agree that support given by the Deputy Prime Minister for a fun-fair in the grounds of Battersea Power Station shows that either the Government are surreptitiously looking for a backup to their preparations for the year 2000 celebrations, or that they are hopelessly divided over them?
Lord McIntosh of Haringey: My Lords, as the noble Baroness well knows, neither is the case. Only a

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minority of the millennium funding goes on the dome. The vast majority of lottery money will be spent on celebrations, buildings and activities in all parts of the country, including Battersea. Indeed, why not?

Bristol Royal Infirmary: GMC Inquiry
2.58 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
In the light of the General Medical Council's inquiry into children's deaths while undergoing heart surgery at the Bristol Royal Infirmary, whether the Department of Health were aware or were informed of the situation at the time of the operations; and, if so, what action, if any, was taken.
The Minister of State, Department of Health, (Baroness Jay of Paddington): My Lords, my noble friend will be aware that these tragic events took place over a number of years during the term of office of the previous administration. However, I understand from Department of Health records that concerns were raised informally with officials as early as 1992. Those concerns were pursued with the Bristol trust which, in 1994, agreed plans to improve the service. In January 1995, the department took formal action to ensure that the situation in Bristol was investigated by independent experts. Your Lordships will know that a professional inquiry by the General Medical Council has just been completed.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply. But is it not obvious that at the time these terrible tragedies took place, the safeguards—if there were any in place—were not sufficient to prevent a large number of these children from dying? Will the Government take steps to introduce measures as quickly as possible to provide a better future for children, and anyone else who is undergoing an operation, to prevent this carnage from happening again?
Baroness Jay of Paddington: My Lords, the Government are committed to try to raise quality standards of all National Health Service treatment. For the first time in England we intend to publish comparative death rates following surgery in individual hospitals. Those hospitals will be weighted for case, mix and catchment area. We also intend to set up an independent commission for health improvement. The commission will visit every NHS trust regularly and will have special powers to investigate particular problems in any hospital. This work must be matched by more comprehensive clinical audit. For example, there are at present four national confidential inquiries into deaths after surgery, maternal deaths, still births, infant deaths, and suicides, but participation is voluntary. Among our range of new measures the Government will take action to require all relevant clinicians to participate in these professionally led external audits.
Baroness Gardner of Parkes: My Lords, no doubt the Minister is aware that the BMA's consultants and
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specialists committee has indicated a need for publication of clinical audits. The rate of deaths which the Minister has just mentioned is, of course, the most basic and simple measurement. However, the BMA is not in favour of individual practitioners being audited or their results being published. The Minister mentioned the commission for health improvement which is to be established next year. Will she ask that commission to undertake a review of the competence of consultants in all fields? Is it not the case that once a person has reached the top of his profession, there is no peer review and, unfortunately, we discover incompetence too late?
Baroness Jay of Paddington: My Lords, the noble Baroness rightly draws attention to the problems in the existing system which mean that much audit is retrospective. The commission for health improvement will undertake regular visits to hospitals to make a regular check on individual and collective performance within hospital trusts. In addition, the audit I mentioned this afternoon of clinicians and hospitals has previously been carried out on an entirely voluntary and confidential basis. We shall now require clinicians to participate in that.
Lord Tordoff: My Lords, should we not consider the effect of stigmatising a particular cardiac surgery department in Bristol—where terrible things have occurred in the children's department—without redressing the balance slightly by adding that much cardiac surgery is successfully carried out there, including an operation on myself a year last September?
Baroness Jay of Paddington: My Lords, I am delighted that the noble Lord is so obviously a striking advertisement of the good care that is available within the NHS. I think we always recognise that the vast majority of care within the health service is of the highest quality. The problem consists of identifying those who fall below the good standards of most clinicians. That is what we hope the new system will achieve.
Lord Alderdice: My Lords, does not the Minister agree that the reply that she has given indicates, to some extent, a sluggishness on the part of the Department of Health in addressing some of the concerns which were raised over a period of time? Does she not accept that if we are merely to go down the path of collecting crude mortality statistics, there could be a danger that consultants may adopt a rather conservative approach to treatment, and they would tend not to take on patients who represented a high risk as they feared a problem in respect of mortality statistics? Can I take it that the rather sophisticated measures the Minister has mentioned will address that concern?
Baroness Jay of Paddington: My Lords, of course all of these statistics are bound to be stigmatised—to use the expression of the noble Lord, Lord Tordoff—as crude. Mortality rates can, of course, he inappropriately interpreted. That is why the clinical governance arrangements which the NHS will be required to follow

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from next year will include not just an assessment of the financial health of any institution but also its broad quality outcomes. That will address the more subtle aspects that the noble Lord mentioned. I do not have time to discuss that extensive system in detail at Question Time.
Lord Hunt of Kings Heath: My Lords, does my noble friend agree that while the activities of the doctors and Department of Health officials concerned should come under the closest possible scrutiny, the activities or non-activities of the board of the trust of that hospital should also be examined? Can my noble friend assure me that the responsibilities and actions of the executive and non-executive directors of that trust will be subject to the closest possible review?
Baroness Jay of Paddington: My Lords, I do not wish to comment on the exact terms of the independent inquiry which we have announced will take place with regard to the Bristol trust once the General Medical Council's conclusions are finally reached. It is specific in the terms of the new commission for health improvement that in the last resort the Secretary of State will be able to dismiss a trust chairman and board if they have fallen short of any of the new standards.
Lord Ironside: My Lords, in view of the growing importance of quality assurance in the medical field nowadays, is the noble Baroness aware that the Bristol oncology centre has quality assurance approval to ISO 9002, which is an important part of its procedures to avoid accidents? Has the heart surgery department in the Bristol Royal Infirmary—or did it have—ISO 9002 quality assurance approval? If it has that approval, the accidents we are discussing should not have taken place.
Baroness Jay of Paddington: My Lords, for the reasons which I gave in response to the first supplementary question of my noble friend Lord Dean, I hesitate to comment on the history of the relationship between the Department of Health and the organisation we are discussing. As I understand it, services from the department in Bristol were commissioned by the Supra Regional Services Advisory Group but contract monitoring was limited to cost and volume considerations. That is, of course, precisely what we seek to change by introducing the quality element in monitoring.

Business
3.9 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Clinton-Davis will, with the leave of the House, repeat in the form of a Statement an answer to a Private Notice Question in the other place on the Dounreay nuclear reprocessing plant. This will be followed by my noble friend Lord McIntosh of Haringey who will, with the leave of the House, repeat a Statement on the "millennium bug". I take this
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opportunity to remind the House that interventions should be confined to brief questions and comments for clarification. Peers who speak at length do so at the expense of others.
Lord Peyton of Yeovil: My Lords, can the noble Lord the Government Chief Whip arrange for a third Statement to be made—which would give us such a wealth of enjoyment today—and for the noble Lord the Leader of the House to make it, on the future of this House? It seems to some of us that ordinary good manners—which I know are a little out of date—might have suggested to the Government that, before the noble Lord the Leader of the House made a statement about the future of this House, he might have considered doing so here within your Lordships' House. I shall quote from a handout which was available in the Library shortly before lunch. I quote from the speech of the noble Lord the Leader of the House in the Queen Elizabeth Conference Hall. He states,
"I am delighted to have the opportunity today to set out the Government's proposals".
I think that it is not asking too much, even in one of the Houses of Parliament which is under severe threats at the moment, for it to be treated, while it is still in existence, with the same courtesy as the Government would expect it to show to them.
This is a very serious example of the way in which the Government ride roughshod over other people's feelings and disregard the respect that is due to this House. Had they made a Statement today, as they ought to have done, it would have given some of us an opportunity to say that we regret the way in which the Government have picked upon supposed blemishes in this House, while they have entirely ignored those that undoubtedly exist in the far more powerful House of Commons. It would have been seemly had they done so.
Lord Cocks of Hartcliffe: My Lords, perhaps I may follow the noble Lord, Lord Peyton, and say that I was rather surprised that this statement was made to a conference called by the Daily Telegraph and a constitutional unit that has been formed for only six months, has no trustees and no aims, and is an offshoot of the Manorial Society, which sells titles.
Lord Strathclyde: My Lords, I very much support the remarks of my noble friend Lord Peyton. It was to my surprise, as Opposition Chief Whip, that I discovered that, although many Statements were offered today, none was on the subject discussed this morning at the QEII Conference Centre.
Perhaps I may point out to my noble friend that, although we were promised an outline of the Labour Government's proposals on the House of Lords, I am afraid that very little in it was new. However, it did contain one important announcement: namely a promise by the noble Lord the Leader of the House that an options paper, a consultation document, would be produced. If that is the case—and I have no reason to disbelieve the noble Lord—when is it to be delivered? Will time be made available for a debate to take place in this House, so that the House can inform the

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Government of its view when the Government reach a decision? Since the noble Lord promised that a Bill would be forthcoming this autumn, it must be preferable to have that debate as soon as possible and, it is to be hoped, before the summer Recess.
Members of this House know a great deal about the reform of this place. However, could not the opportunity have been taken to make a Statement that could have been repeated in another place? It is surprising from time to time to meet colleagues from another place who understand very little about the issues under consideration. Since reform of the House of Lords will affect another place considerably, should not Members there also be given an opportunity, through a government Statement, to discuss the matter and question the Government about the future of this place?
Earl Russell: My Lords, without wishing to prolong these remarks, will the noble Lord the Leader of the House join me in asking the noble Lord, Lord Cocks of Hartcliffe, to withdraw his slur on the Constitution Unit? It is a body dedicated to the provision of information which the noble Lord might find as useful as other noble Lords do.
The Lord Privy Seal (Lord Richard): My Lords, to correct a point of fact, in answer to the noble Earl it was not the Constitution Unit that was involved in the organisation of the conference. Therefore, my noble friend Lord Cox, in saying what he had to say in his usual salty and forthright way, was not directing his ammunition at the target that the noble Earl feared.
I am rather surprised at the somewhat waspish way in which the noble Lord, Lord Peyton, has approached this matter. As the Opposition Chief Whip said, there was little that was new in my statement this morning. There was no cataclysmic novelty. The idea that I or any other Government Minister cannot make a speech on an issue that is clearly of public importance, repeating what we have said previously—that I have to come to this House in order to repeat what I have said previously in this House before I am allowed to repeat it outside—seems an extraordinary proposition. I am bound to say that I reject what the noble Lord, Lord Peyton, had to say.
The Government have said that there will be an options paper. We have said that there will be a debate. I have nothing further to add today, save for the time-honoured phrase used so much by Members on the other side when they were in power; namely: we shall publish the options paper when the time is right. The matter of a debate is one for the usual channels.
Lord Peyton of Yeovil: My Lords, the noble Lord the Leader of the House has rejected my remarks out of hand. In doing so, he has acted unsurprisingly and totally in character. Since I have been in this House successive Leaders of the House from my own party have bent over backwards at least to treat the Opposition with courtesy and to consider whether there was anything in any point
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that they wished to raise. As it is, the noble Lord the Leader of the House has given me the impression that he is a man whose conceit will not allow him to apologise.
Lord Rodgers of Quarry Bank: My Lords, perhaps I may intervene in this unseemly bilateral argument. I think the noble Lord, Lord Peyton, is being quite unreasonable and totally unfair. I listened this morning to the noble Lord, Lord Richard. I believe that he will not mind my saying that there was nothing unusual in what he said. Indeed, the speech was made up of remarks that he had made in this House from time to time. There is nothing at all wrong with that. This conference was arranged to provide a platform for the noble Viscount, Lord Cranborne. It was wise, right and courteous of the noble Lord, Lord Richard, to open the conference in the way that he did. I say that totally without prejudice, to the extent that I agreed with him; and totally without prejudice as to the need for a debate in this House.
Lord Richard: My Lords, I am obliged to the noble Lord for his remarks. I am extremely surprised, indeed astonished, at what the noble Lord, Lord Peyton, said. I totally reject his suggestion that I do not treat the Opposition with consideration, and, if it is not too harmful to him, with some affection. I do not believe that I have behaved in a conceited way in the office that I hold. Nor, with great respect to the noble Lord, Lord Peyton, do I believe that the House as a whole feels that I have behaved in that way since I have been doing this job. I am sorry that the noble Lord felt the need to express his feeling in the way that he did. I hope that, on reflection, he will feel that he went too far.
Lord Cocks of Hartcliffe: My Lords, perhaps I may thank my noble friend for clarifying the point raised by the noble Earl, Lord Russell. I was not in fact referring to the Constitution Unit.

School Standards and Framework Bill
3.19 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blackstone.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 60 [Responsibility of governing body and head teacher for discipline]:
Baroness David Baroness David moved 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: Now that there is a chance that I shall be heard, I shall begin my remarks. In speaking to Amendment No. 183, I am speaking to a

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group of 10 amendments, of which Amendments Nos. 183, 184, 185, 190, 191 and 198 are in my name. Some are government amendments, and some stand in the names of my noble and learned friend Lord Archer and the noble Baroness, Lady Byford.
I begin by stating some of the general aims of this group of amendments and of the group starting with Amendment No. 186—a big group of 18 amendments. There are various things I should like to see done with regard to these clauses which deal with exclusion. First, we wish to put in place steps that will prevent so many exclusions. The situation is not good at the moment. Different schools and different local authorities have very different records of exclusion. We need to discover the reasons for so many exclusions in some cases and suggest methods by which there might he fewer.
I wish to see more pupil involvement in matters to do with schools. I spoke at Second Reading about the fact that pupils are not mentioned in the Bill; they will be mentioned in some of the amendments which I shall move today.
Where a pupil has been excluded from school, particularly permanently excluded, we wish to make sure that he or she is reinstated quickly and does not miss out on a lot of education in the meantime. We also wish to see more LEA involvement where there have been exclusions. I believe that some of the government amendments deal with that matter. I shall move my amendments as they arise, but I expect that there will be some answers from the Government when their amendments are moved.
Amendments Nos. 183 and 185 require that governors and head teachers give consideration to the views of pupils and staff on discipline measures. It seems extraordinary that the two groups that make up the school community—the schools' pupils and staff—are excluded from those who must be consulted about discipline measures. The value of including both groups in the process is overwhelmingly obvious. The purpose of the amendment was supported by the Labour Front Bench when in opposition and I therefore hope for a sympathetic response.
The aim of Amendment No. 184 is to introduce more constructive principles for school discipline. In the Bill the Government simply repeat the previous government's principles with regard to school discipline. The amendment reframes these principles and adds others which we believe set a clearer and more constructive framework for the drawing up of schools' behaviour codes—for example, requiring bullying to be tackled and encouraging appropriate sanctions. This amendment, too, was supported by the Labour Party when in opposition.
The responsibility for good order in a school should be of importance to everyone involved in the school community—the governors, the head, the teachers and the pupils. There is much more likely to be a positive outcome if measures have the support of everyone. I am very anxious about bullying. There has been a great deal of talk about it, and no wonder. It clearly happens in
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a great many schools and is not at all a nice thing to contemplate. I hope we can receive some positive responses on that matter.
The purpose of Amendment No. 190 is to ensure that the governing body asks for, and considers, advice from the LEA before confirming an exclusion or reinstating a pupil excluded by the head teacher. There is wide variation between schools in terms of outcomes for pupils who may be experiencing difficulties and in terms of school policy and practice relating to exclusion. It is therefore essential for the statutory framework to provide the necessary checks along the road to exclusion.
The Special Education Consortium argues that one of the most important checks is for the LEA to have the power to intervene in the process of exclusion. This should happen at a point before the governing body confirms an exclusion or reinstates a pupil reinstated by the head teacher. That would provide an opportunity for the LEA to advise the governing body on the appropriateness of steps it has taken and on any steps that the school might take. One of the issues on which the LEA may wish to advise is whether the school has recognised any specialised need that the child may have. I mentioned this point late last Thursday night when I spoke to Amendments Nos. 182 and 189.
The aim of Amendments Nos. 191 and 198 is to entitle pupils to attend appeals against their exclusion. The amendments would put education legislation in line with other domestic children's legislation—the Children Act, for instance—and Article 12(2) of the UN Convention on the Rights of the Child. It appears that in practice it would not cause any bother to the system since the department states that it has not had complaints about pupils being excluded from appeal hearings.
I quote from a paper by Professor Neville Harris, which is shortly to be published, which was mentioned by my noble and learned friend Lord Archer, entitled The developing role and structure of the education appeal system. It appears in an edited collection of papers entitled Administrative Justice in the 21st Century. Professor Harris and two others are writing up the findings of their research into school exclusion appeal procedures, which is being funded by the Nuffield Foundation. The research has included observations of 46 appeal hearings in eight LEA areas and questionnaire responses from nearly 300 parents of permanently excluded children. A book discussing the research findings in detail is planned.
"The excluded child may only bring an appeal in his or her own right if aged 18 or over. Thus, in practice, children will only he witnesses, and then only if called. Save the Children sec this as meaning that. 'A child facing exclusion … has no automatic entitlement to challenge accusations made against him or her'.
Some panel members have told us that it is helpful to be able to speak to the child and elicit the child's version of the events. Turner J. has said that hearing the child's account of the matter constitutes 'an act of obvious fairness' in exclusion appeal cases. In our research, 16% of children who attended the hearing gave oral evidence, although 11% … were not given an opportunity to do so. Although 84% of children who attended gave oral evidence, it must be appreciated that the excluded child attends in only a minority of cases (42% of the observed hearings). Moreover, there is no mechanism by which the child can he summoned unless the parent brings him or her and the child expresses a wish to speak to the

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committee. In a recent case, Collins J. was critical of the appeal panel's failure to question the child concerned when they wanted to do so; they allowed themselves to be swayed by the parents' representative who did not want the child to speak to the panel … Overall, current practice in school exclusion appeals does seem to run counter to the principle of the child's participation in welfare-related decisions, reflected in s.1 of the Children Act 1989 and article 12 …
Where the child does participate in the appeal hearing there are, in our experience, sometimes serious shortcomings in the manner of questioning of the child adopted by some appeal committee members or LEA or school representatives. In particular, there was on certain occasions a fairly oppressive questioning of a kind which was quite inappropriate … It demonstrated the quasi-criminal character of the proceedings in some cases. As one parent wrote to us: 'One member of the panel interrogated my daughter. His tone of voice was disgusting. He was trying to make her admit to things she had not done. His tone of voice reduced her almost to tears'.
A lack of independent representation of the child (and no equivalent of the guardian ad litem in family court proceedings), together with the lack of a lawyer chair, has probably contributed significantly to this kind of problem in these cases".
I am sorry for having quoted at length, but it is an important matter, and I hope that the Minister will respond accordingly. I beg to move.
Baroness Darcy de Knayth: Perhaps I may speak briefly in support of the noble Baroness, who has covered the points very thoroughly. My name is to Amendment No. 190, the aim of which is to ensure that the governing body requests and considers advice from the LEA before deciding to exclude or reinstate a pupil. I believe the government amendment deals with that point. I support entirely what the noble Baroness said.
3.30 p.m.
Lord Archer of Sandwell: Perhaps my noble friend will permit me one correction. I do not believe that any of the amendments now included in this group are tabled in my name. That followed certain representations I made after last Thursday because I did not feel that it would assist the Committee's clarity of debate. It does not in any way diminish my support for what my noble friend said.
Baroness Byford: Perhaps I may speak to the amendments standing in my name, Amendments Nos. 191A and 187A, and the other two with regard to the 15th school day. I shall come back to those if I may.
Amendment No. 191A requires that, where a child has had problems and been considered for exclusion, not only should bad behaviour be looked at, but also the possibility that there may be medical reasons for that misbehaviour. We all know that many children today are diabetic and some have personality disorders. They are often labelled "bad" children when there may be good medical reasons why their behaviour is disruptive.
The Minister will agree that the amendment is not technically correct. As I understand it, there is no medical officer of health to which the matter can be referred. I am willing to withdraw the amendment later and perhaps come forward with more appropriate wording. The point behind the tabling of the amendment is that some children in the system are wrongly labelled bad or naughty when their behaviour may be caused by
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a medical problem. I hope that the Minister will consider this matter because it is not only the occasional child who faces these problems from time to time. I turn now to Amendment No. 187A.
Lord Whitty: Amendment No. 187A is in a different group.
Lord Addington: Briefly, I wish to support the amendments of the noble Baroness, Lady David. These amendments are important. A child excluded from school represents a failure for the system and any means of looking more closely into the problem should be incorporated in the Bill. The amendment is a sensible approach to what may be a medical problem leading to disruptive behaviour.
A good example was given to me at lunchtime concerning a child with diabetes. The child can suffer from a blood-sugar imbalance which makes him manic and disruptive in the classroom before the level goes too high and the child passes out. That sort of behaviour should be considered and some form of medical check, if such a situation arises, may be extremely important. It should be built into the system.
All we are asking is that the right type of expertise be made available before a final decision on exclusion is reached. Surely that is not too much to ask.
Baroness Lockwood: I support my noble friend in these amendments. The whole question of exclusion from school is one of concern to the education system. We need to look at the matter in a much more positive frame of mind, as my noble friend indicated.
In the current climate of schools with league tables and competition there is a tendency to look upon exclusion as one way out of the difficulty. I do not for one moment underestimate the problems faced by teachers having to cope with disruptive children. However, a number of research projects looked at the inclusion rather than the exclusion of children in a more positive way. I should like to see much more encouragement along those lines.
The amendments to which my noble friend referred give an opportunity to the education authorities to give advice and to help schools be more positive in their approach to the problem. It is important not only to encourage pupils and families to make representations and to put their point of view, but also there needs to be an understanding of how difficult it can be for an inarticulate family to put forward the positive views that are needed. Help for such parents and children is very important and I hope that the Minister will be able to give a positive response to the amendment.
Lord Rix: I rise to support the amendment in the name of the noble Baroness, Lady David, and in particular Amendment No. 184 concerning the new subsection (4A)(d) involving bullying.
Scratch any actor or ex-actor and one will probably find that they bleed from having been bullied at school. That is probably because we were all ghastly little show-offs but, if my memory and that of my fellow

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thespians serves me right, there is no question but that, if the headmaster had been able to act on our behalf and prevent bullying in our childhood, it would have made our lives a great deal happier. New subsection (4A)(d) is a splendid provision to include in this Bill.
Lord Swinfen: I too welcome this group of amendments. When the Minister replies, will he say whether, when the teachers receive their training either before they take up their initial post or in continuing their training later, help is given to recognise in a pupil any medical or psychiatric condition which may be affecting the pupil so that appropriate advice can be obtained? I am not expecting teachers to be doctors or psychiatrists, but sometimes a layman can see that something is wrong and suggest that appropriate advice be obtained.
Lord Peston: Can my noble friend say how he is proposing to proceed? We have two classes of amendment—those from Back-Benchers and two from the Government. Though they are grouped together it is difficult to see how they fit. Is my noble friend proposing to speak to his amendments and then sit down and let the debate continue, or is he proposing to reply to the debate and speak to his own amendments?
Lord Whitty: Since the government amendments and the amendments of my noble friend Lady David are somewhat interlocked I propose to speak to the government amendments and then comment on the related amendments if that is acceptable to the Committee. I hoped to do that fairly soon, but I note that the noble Lord, Lord Pilkington, is about to rise.
Lord Peston: I am still hoping to speak first as a Back-Bencher and I am sure that the noble Lord would rather speak afterwards. I find it difficult to see how the amendments interlock; they do not seem to be related and bear little resemblance to each other. I shall speak simply to the Back-Bench amendments and then wait to hear my noble friend speak to his amendments.
It seems to me that two or three fundamental principles are involved in this issue which ought to be on the face of the Bill. In other words, this is not a matter of regulation or ministerial Statement in your Lordships' Chamber. Central to this issue, first and foremost, is that the interested child—if I dare use that word; I know that it is not politically correct—the young person should have the right to be heard included on the face of the Bill. I have no doubt that the Government ought to accept my noble friend's amendments or themselves table an amendment that leaves beyond a shadow of doubt that principle.
Secondly, and reverting back to my schooldays, the noble Lord, Lord Rix, referred to bullying. What upset me most about my schooldays was the totally arbitrary behaviour of teachers, particularly the head teacher. I am not in touch with schools so for all I know that kind of arbitrary behaviour still goes on. It quite clearly goes on in the field of exclusion.
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The point of the amendments tabled by my noble friend and others is that we should remove arbitrary behaviour and that decisions regarding exclusions should be rule-based and articulated rationally. My noble friends' words and the reasons for them should be obvious. However, I prefer wording such as "the reason for each rule should be spelt out so it becomes obvious". Either way, we need more than that which exists at the moment. Those are the two main points that I wish to put forward.
I speak as someone who would always wish to be supportive of head teachers, but reinforcing the removal of arbitrary behaviour relates to my noble friend's amendments. One relates to the inclusion of teaching staff and others at the school. I am immensely supportive of her expression in Amendment No. 184,
"encouraging good behaviour on the part of all members of the schools".
The implication of the way in which the world works is that the only badly behaved people in the school are a number of unruly pupils. That was certainly not my experience when I was at school and it is not my view now. I very much underline the words at the beginning of Amendment No. 184. I am well aware that this is an immensely difficult matter and I hope that we shall pursue it—if we are all alive after the Statements which will occupy our time. Other matters to do with exclusions are also relevant. If I dare to use the word "philosophy" underlying the amendments put before us, they are the ones to which the Government should respond positively and make sure that there is something on the face of the Bill.
I do not wish to be party political. As a layman I accept entirely what the noble Baroness, Lady Byford, said. It seems to me that very frequently a medical difficulty underlines the exclusion problem. I would like that to be on the face of the Bill so that people are reminded of it. In supporting my noble friend, I am supporting what was said by the noble Baroness, Lady Byford.
Lord Dearing: I hope that the breadth of support for these amendments influences the Government in their response to them. I welcome their thrust and I support particularly the amendments relating to bullying. It causes such misery. It has now become a well-recognised problem among many nations such as the Japanese. Its government has instituted a colloquium of six nations, of which the United Kingdom is one, to go into this matter. Part of the reason for the misery is that the victim is often most reluctant to draw attention to his or her experience. It can be disabling. It is a matter about which the Secretary of State has expressed concern. Therefore, I very much hope that the Government will respond to this particular amendment in this group.
Lord Pilkington of Oxenford: As the only practising teacher and former head teacher, my profession has some contribution to make to this debate. I admire the noble Baroness, Lady David, and I share the desire of the noble Lord, Lord Peston, to support human rights. Like him, I am very much against arbitrary behaviour.

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When the Minister replies I hope that he will pay regard to the situation that exists in many parts of the country. My daughter is in her first year of teaching at Bethnal Green. Apart from one reference in this debate by the noble Baroness, Lady Lockwood, I was surprised that the noble Baroness, Lady David, paid no attention to the real and urgent problems that teachers face.
There are two groups of people involved when discipline is bad or when children become disruptive. The first is the teachers themselves and in many cases they are unable to control their classes. The second group comprises the other pupils who are not disruptive, but who find that their education is severely damaged.
I am not opposing these amendments in principle, but I am surprised that their proposers, and the noble Baroness, Lady David, in particular, at no point paid regard to the other side of the coin. For example, I have a serious worry that there are only 20——
Baroness David: I do not think the noble Lord listened carefully to what I had to say. My Amendment No. 183 wants teachers to be involved. It wants the teaching and the non-teaching staff at the school to have a chance to express their views. I was not elaborating on that, but I certainly want the teachers to be able to express their views. I hope that that partly answers the noble Lord.
Lord Pilkington of Oxenford: I am delighted that the noble Baroness wants the teachers to express their views since they are the most intimately involved. But I felt that the whole tenor of the noble Baroness's amendment was to emphasise human rights against the corporate necessity to maintain an ordered community in a school. I also believe that one of the great problems that the teaching profession faces is that there are too few referral units. I cannot quote the exact figures, but I believe that there are only about 20 in the country.
Referral units for pupils who are seriously disruptive are very important. They can also be used for those with medical problems to whom my noble friend Lady Byford has referred. I hope that in his reply the Minister will show more regard than some other Members of the Committee for the poor souls in places like Bethnal Green, and in many inner city areas, who are facing the problems. My daughter had to separate pupils fighting with a knife in the playground, and that at a junior school!
I am delighted that the noble Baroness, Lady David, agrees that teachers have some part to play, but we must realise that we have to give them sanctions as well. As the Minister responsible for these matters, I hope that he will pay some regard to the teachers' worries when he replies.
3.45 p.m.
Lord Tope: I have some hesitation in joining in this debate because I have no intention or wish to repeat memories or confessions from my schooldays, but rather to recount some more recent experiences. I believe I mentioned on the last day of the Committee stage that I was a governor of a junior school. We had a
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governors' meeting only last week to consider the joint annual report. We spent some time considering the school behaviour policy. That is the more recent and relevant experience that I wish briefly to touch on in this debate.
I particularly wish to commend Amendment No. 184 and the approach outlined there. On Thursday I expressed some doubts as to whether it is necessary to have these matters on the face of the Bill, but, if it is thought to be necessary, then I have a very great preference for the approach as well as the wording of Amendment No. 184 because it is a constructive approach. It is very much what we were discussing at the governors' meeting. We discussed bullying which, sadly, is an issue in any school. Perhaps it always has been, but it certainly is today. The school has a "no blame" approach to bullying. That may be easier to implement in a junior school than in a secondary school. I recognise that it may be easier to implement in the London borough of Sutton than in the London borough of Tower Hamlets. But it is the aim that matters and that is the aim shown here.
The approach in Amendment No. 184 is exactly right. Bullying is an increasingly important issue. While all of us stand up for the rights of individuals, be they the bullies, those being bullied, or the teachers, it is proper to approach bullying in a whole-school context. The whole school should be involved including the head—it is hard to imagine how the head would not be involved—the teachers and all the pupils, including the perceived bullies and the perceived victims. The "no blame" approach that I heard at first-hand from the head teacher last week seems to commend itself. It was working very well in that school.
I move on to what the noble Lord, Lord Pilkington, said. Even if he had not said what he did. I would have dealt with the matter but perhaps not in quite the same style. I know the noble Baroness. Lady David, well enough to know that she most certainly recognises that the difficulties are not wholly with the child or the victim, but that they also apply to the staff. We have a responsibility and duty to teachers who have to cope with a very disruptive child in a class. Whatever the reasons for that disruptive behaviour, its effect on the rest of the class can at best be disruptive and at times be seriously alarming. I speak from some experience. As I have said before in this Chamber, my wife is a teacher and she has had to deal with similar situations. One has responsibility for other children in the class, to the school as a whole and to teaching staff.
I believe that the approach to these problems outlined in Amendment No. 184 is a positive and constructive one. I shall say a little more about how best to deal with that when we move on to the subject of exclusion. While we are rightly mindful of the needs of pupils who may be subject to exclusion, I am sure that we do not need the noble Lord, Lord Pilkington, to remind us again that we must also be mindful of the needs of other pupils, the school staff and the reputation of the school itself, which is increasingly important these days. I warmly

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support the amendment moved by the noble Baroness, Lady David. In particular I commend to the Committee the approach outlined in Amendment No. 184.
Lord Whitty: I partly agree with my noble friend Lord Peston that this group of amendments is not obviously logical. It is slightly more logical following the withdrawal of my noble and learned friend Lord Archer; but even so, it requires some explanation. If I speak to the first two government amendments it may make our position clearer. This group of amendments deals with the serious issue of permanent exclusion of children from schools. The Bill as drafted introduces a single system governing exclusions under which the LEA will have a role at the appeal stage for all schools. In the light of the report of the Social Exclusion Unit on truancy and school exclusion we have tabled government amendments to give the LEA a stronger role earlier on in the exclusions process. I believe that that point is related to Amendment No. 190 moved by my noble friend Lady David. Government Amendments Nos. 189A and 189B would require the governing body to allow an official of the LEA to attend a meeting of the governing body, to consider any exclusion of more than five days, and require the governors to have regard to the LEA's written and oral representations. The LEA's role will be to offer advice on how other schools locally may have responded to similar incidents and, if necessary, to advise on procedural matters.
In some cases the LEA may also be able to offer constructive alternatives to permanent exclusion; for example, a period of part-time education in a pupil referral unit before re-integration into school, or some other form of counselling. I believe that at an earlier stage in this debate—perhaps it was late at night—I indicated the number of pupil referral units in operation. The figure is not 20 but 330. Therefore, that option is available in a large number of authorities. Under these amendments the authority will not be able to instruct the governing body to reinstate the pupil but governors must have regard to the LEA's representations. I believe that those amendments meet the same concerns as my noble friend's Amendment No. 190 and the points referred to by my noble friend Lady Lockwood and the noble Baroness, Lady Darcy de Knayth. Therefore, I hope they agree that those amendments achieve the same aim and are prepared to withdraw Amendment No. 190.
As to the question of discipline and consulting parents, pupils and staff, Amendments Nos. 183 and 185, in the name of my noble friend Lady David, have already been spoken to by my noble friend Lord Peston. I agree that it is important to involve pupils and staff when drawing up a school's discipline policy. It is not our intention to exclude teachers from that area. The noble Lord, Lord Pilkington, referred to his experience. Others have similar experience. I have never been a teacher but I come from a teaching household. As the son of a teacher, I am aware that issues of discipline are some of the most difficult ones faced by teachers. It is our aim to ensure that teaching staff in particular should make a contribution to drawing up a school's discipline policy.
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However, the question is where, how and when that input takes place for both pupils and staff. Our approach is that that should be a matter for individual schools in the light of their particular circumstances. In some cases that may be before the governing body makes its statement of general principles; in others, head teachers may decide that it is best to consult pupils and staff when determining the detailed rules and codes of conduct. Therefore, for reasons of flexibility we are not convinced that it is necessary to include a specific requirement on the face of the Bill for widespread consultation either by the governing body or the head teacher. Schools require flexibility, and that is best left to guidance rather than wording on the face of the Bill.
Amendment No. 184 seeks to be more prescriptive and specific than the present wording of the Bill about the principles of school discipline. Most of the comments in that regard have related to the proposed paragraph (d), which is concerned with bullying. It is important that schools' discipline policies take action to combat bullying. We all recognise the seriousness and probable growth of this problem, although it may be a decade or two ago since my noble friend Lord Peston and the noble Lord, Lord Rix, experienced bullying. But it is not tolerable even if it produces the kind of talent that both noble Lords have exhibited in this House, together with that of the thespian friends of the noble Lord, Lord Rix. Nevertheless, it is intolerable and sometimes deeply destructive of children.
The main aim of our policy in this area is to provide schools with clear and helpful guidance so that they can tackle the problem of bullying. Reports of the Chief Inspector of Schools have shown that most schools have clear procedures to deal with bullying and that the use of the department's anti-bullying pack indicates that most schools operate it either separately or as part of a wider behaviour and discipline policy. The question is how effective that policy is in practice. We believe that that is best left to guidance rather than prescription on the face of the Bill.
I turn to Amendments Nos. 191 and 198, which relate to pupil attendance at appeal hearings. In many cases schools already allow or encourage pupils to attend governors' meetings to consider their exclusion or make an appeal to an independent appeal hearing. In many cases, particularly for older pupils, it is right to allow the excluded child to present his or her case. Certainly we expect the school to give the child an opportunity to set out his or her version of events before a decision to exclude is made. But to allow a pupil to attend the appeal hearing will not be appropriate in every case, particularly where a very young or immature child is involved.
While we acknowledge that the amendment before us would not force the pupil to be present at either the governing body hearing or at the appeal, we are concerned that by placing this right on the face of the Bill we may create an expectation that the pupil should be there in all cases. Therefore, implications could be drawn from the pupil not being there. We consider that to meet the point it is more appropriate to have statutory guidance. I hope that my noble friend Lady David agrees that that is the best way to allow children to

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present their views without placing pressure on some children in inappropriate circumstances to make recommendations.
Amendment No. 191A deals with referral to a medical officer. The noble Baroness, Lady Byford, and the noble Lord, Lord Addington, also referred to this matter. We recognise that there is scope for many exclusions to be prevented by earlier intervention by schools and other agencies, including in some cases health agencies. A strong focus on early intervention on a multi-agency basis is often appropriate. Schools and LEAs are under a statutory duty to identify and assess children's special educational needs, having regard to the SEN code of practice when they do so. Our Green Paper contains proposals for improved identification and provision for all children with SEN, including those whose special needs could give rise to difficult behaviour. To answer the point put by the noble Lord, Lord Swinfen, the Green Paper includes proposals to improve that aspect in the training and information available to teachers. We shall publish an action plan to bring about these improvements when full consultation on the Green Paper has been concluded, as soon as possible after the school summer holidays. We are particularly concerned that exclusion could from time to time be used to punish poor behaviour that arises from unmet special educational needs or special medical needs.
The department will be issuing new guidance emphasising the importance of identifying such cases early and providing the necessary support which might include referring the pupil to the health professionals, as requested in this amendment. But that would be a matter for guidance. There will be detailed and flexible arrangements to ensure that such things are considered, which would help to avoid exclusion at a later date.
That deals with the amendments that have been proposed by various noble Lords in this group. I also have to speak to Amendment No. 193A. This amendment, in one sense, might logically have been better grouped with the amendments standing in the name of my noble friend Lord Archer, Amendments Nos. 192 and 193, but they deal with the question of providing reasons for exclusion.
As currently drafted, the Bill requires the governors to notify the parents of their decision but the governors do not have to give the reasons for their decision. The Government Amendment No. 193A rectifies this omission by requiring the governing body to set out a statement of their reasons for upholding a permanent exclusion when notifying the parents of the outcome of their consideration of the case. I trust that my noble friend Lord Archer will bear that in mind when we come to that group of amendments. I think it deals with one of the points covered by his amendments.
4 p.m.
Lord Peston: Before other noble Lords who have put their names to amendments possibly speak again, may I ask my noble friend a question. I apologise to him for asking it because I have forgotten the answer to the question. When the subject of guidance has come up
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before we have asked what is the legal standing of guidance. I remember asking that a couple of years ago but I regret to say I have now forgotten the answer. I take it that guidance has less statutory force than being on the face of the Bill but it has some strengths.
The reason I ask is that in one or two of these cases it seemed to me—and here I differ from my noble friend—to be compelling that the matter should be on the face of the Bill rather than left to whether you respond to guidance or not. I refer to bullying as one obvious example. Merely to say in guidance, "Our guidance is that you should do something about bullying", seems to me to be immensely less than having in this statute something of the sort we have here. I have to say to my noble friend that I did not hear him give an argument. I heard him say he prefers guidance but I did not hear him tell me why guidance is the way to do it. Unless I have totally forgotten what we used to say about guidance—and I was then in opposition so I should have remembered it better than I do—guidance was not a bad thing in many cases where it would not be unreasonable sometimes not to accept that guidance. But in this case I think it would be so unreasonable not to accept the guidance that I should have thought my noble friend might at least like to reflect on whether the rightness of the argument is much more on the side of my noble friend Lady David than it is on the side of the department and we should, at least for one or two of these matters, find a way of putting them on the Bill.
Lord Rix: May I support the noble Lord, Lord Peston, in this. If a head teacher required guidance on the question of bullying and those words were actually used, that he required guidance, I should have thought that he was a singularly inept head teacher.
Lord Whitty: It is clear that bullying in schools takes place on a fairly widespread basis. Therefore, additional guidance, help and support to schools in ensuring that bullying is minimised is desirable. The department has already provided some substantial help to schools. We would intend to improve that guidance in a number of respects under the guidance required by this Bill.
The legal status of guidance, particularly when it relates to a disciplinary procedure, as it does here, is that the governing bodies—in this case it is the governing bodies—have a statutory duty to have regard to guidance when reaching their decisions. That is the position. It is not prescriptive in terms of it being on the face of the Bill, but they will need to have regard to guidance when carrying out their procedures and reaching their decisions. I hope that clarifies at least the status point from my noble friend's intervention.
Lord Archer of Sandwell: May I intervene simply to say that I noted the comments of my noble friend on his Amendment No. 193A. I am grateful to him for having taken note of the point which I was making. But, as he says, it clearly belongs to a later group of

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amendments. I hope noble Lords will forgive me if I defer any further comment on it in the interests both of clarity and expedition until we reach that later group.
Baroness Blatch: Perhaps I may just come back to the noble Lord on his explanation of guidance. Of course technically that was absolutely right. But the truth is, and in answer to the point of the noble Lord, Lord Peston, there is such a thing as guidelines and guidance. Guidelines are a less formal obligation on the part of local authorities. Guidance they must have regard to, but they can have regard to it and dismiss it. If they are challenged on the decision they come to, it is purely a procedural matter as to whether they took into account in coming to that decision the advice that was set out in the guidance. The guidance does not oblige local authorities to be consistent with the guidance other than to have taken account of it in coming to a decision.
Lord Rix: May I echo what the noble Baroness, Lady Blatch, says. Going away from personal, long-distance memories, I should like to come to the particular problem we face at the moment; that is in regard to children with special educational needs.
It is a well-known fact that one of the major problems they face is that of bullying. Certainly in mainstream schools children with learning disabilities are, without question, subject to the most appalling bullying in many cases. I cannot believe that there should not be some statutory declaration on the face of the Bill in regard to this bullying. Forget old actors like me, but come back to people like my daughter who at one time have been classed SEN. Unfortunately, that was before people with learning disabilities were educated as a sine qua non. But in current days I know that many of the complaints from parents of children with learning difficulties, with obviously special educational needs, are that of bullying. I believe it should be on the face of the Bill.
Baroness Warnock: May I ask the Minister to supply the argument that the noble Lord, Lord Peston, was wanting, against having this on the face of the Bill? We have heard good things about guidance, but we have heard no bad things from the Minister about putting this on the face of the Bill. Partly because of what my noble friend Lord Rix, has said, I feel very strongly that children with special needs are particularly likely to be the subject of bullying. That is a matter which becomes increasingly important as there is increasing pressure for these children to be in mainstream schools.
Lord Swinfen: Would the Minister agree with me that guidance, generally speaking, has no value whatsoever when things are going well? But if something goes wrong, someone can be in considerable difficulty and have some very awkward questions to answer if they have not followed the guidance. That is the time when it is important. When everything is running smoothly guidance is not
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necessary. When things start to go wrong and the guidance has not been followed, they have some awkward questions to answer. That is what appears to me to be guidance which is much weaker even than regulations. I feel that it would be wise to have something on the face of the Bill.
Lord Dearing: I should like to support that comment. Guidance descends on schools like leaves descend on the pavement in autumn and, like leaves, it is swept aside because of the sheer volume. It has become counter-productive. If there is an issue of great seriousness, as I believe there is on bullying, it needs to be distinguished from the leaves and given a special status by being included on the face of the Bill.
Baroness Byford: I rise in support of noble Lords who have spoken. I believe firmly that this should be on the face of the Bill. Bullying is the most dreadful experience for many young people. Although my own amendment does not apply in the same way, certainly with regard to those who have special educational needs, I think we should look at it again. I urge the Government to include it on the face of the Bill. We are encouraging children who have special educational needs to take their place in mainstream schools, provided that that is the parents' wish. One thing that will put them off is the knowledge that there is no extra protection for them. That will make families hesitate to take that step which we would all welcome. I support other Members of the Committee in encouraging the Government to take this step.
Lord Addington: If bullying is to be taken seriously, it must be on the face of the Bill. With so many pieces of paper descending on teachers from all over the place, giving them a target would help. We have had a great many debates in this Chamber about integration and SEN. If this matter is dealt with properly, it will allow integration to go forward. If we do not get this right, we will find many pupils with SEN problems developing social problems as a result of being unable to cope with the classroom. That is often because they fail in the classroom. It is a chicken and egg situation. We may be able to break that process if we tackle bullying successfully. Surely something more positive should be done. That would stop many of the secondary problems that arise in the case of SEN pupils.
Lord Whitty: I do not believe that there is anything between us on how we regard the serious issue of bullying, the need for schools to have measures to tackle it, for disciplinary procedures to be effective in tackling it, and for care for the victims of bullying, whether they are SEN pupils or anyone else. The question is whether putting it on the face of the Bill would be the most effective way of dealing with it.
Amendment No. 184 sets out in some prescriptive detail each school's behaviour and discipline policy. Our approach is that each school needs to ensure that its procedures, and the way in which those procedures

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are conveyed to the pupils, reflect the situation within that school. The guidance, which will take into account other aspects of school behaviour and the duties of head teachers, governing bodies, pupils and staff, will be better able to guide schools in how to achieve those discipline and anti-bullying policies and will be more effective than would inserting three lines on the face of the Bill.
It is a complex situation. Different schools face different problems, and different schools will wish to deal with those problems differently. The surveys which the department and the inspectorate have carried out on how bullying is dealt with currently in schools indicate that most schools have a policy in this area. The aim of our policy is to improve the effectiveness of those policies and the protection of those pupils who are the victims of bullying. We do not believe that achieving that result, which is already recognised in virtually all schools, will be improved by having a requirement prescriptive of policy on the face of the Bill. The effective operation of policies which already exist in many cases is what is required.
In response to the noble Lord, Lord Swinfen, it is not true to say that guidance has no role where things are going well. It may well be that it is because a school is following guidance that it has no serious problem. Clearly, where things go wrong a failure to have observed that guidance—that is the point raised by the noble Baroness and my noble friend Lord Peston—before any appeals body or in any legal case would put the school authorities in a difficult position. That is the strength of guidance. Given that this places the whole question of an anti-bullying policy in a broader context, guidance seems to us to be the best means of dealing with the problem.
I stress that although we do not accept that this requirement should be on the face of the Bill, we are all committed to ensuring that anti-bullying provisions in all schools are improved and strengthened, and that the plague of bullying which some people claim is going on in some schools, should effectively be brought to an end. There is no difference in objective, but we do not believe that this provision would help meet this objective, whereas detailed and effective guidance would.
4.15 p.m.
Lord Rix: Before the Minister sits down, may I say I fear that I cannot understand how a committee, looking at guidance, will affect the life of the bullied child as quickly as is essential. If bullying is taking place it should be stamped out on day one, or on day two at the worst, not after it has been referred to the LEA, or a head masters' conference, whatever may take place. Head teachers must be told that bullying must not take place. It must be on the face of the Bill. Just to offer guidance to some committee to look at the way the head teacher and the staff stamp out bullying in their school is impossible for that poor bullied child. The Minister may say that there may be some bullying, I am 100 per cent. certain that there is bullying, and a great amount of it when it comes to pupils with SEN.
Lord Tope: I intervene again with hesitation. There is clearly considerable concern about bullying on all sides of the Chambers. I understand that the Minister
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cannot concede today, but I hope that he recognises that concern and will agree that the Government will at least think further about it.
I shall relate an experience from my own authority. As it happens, it was in the social services area rather than education, in terms of guidelines. My authority was held, in the courts, on an issue of child minders and smacking, to have had too much regard to guidelines issued under the Children Act. We interpreted the guidelines word for word. The court held that we had had too much regard to them. I have yet to hear of a local authority being held to have had too much regard for an Act of Parliament. That is an important difference.
Lord Whitty: Without interfering in the internal affairs of the Sutton LEA, and not knowing that case, that underlines the difference referred to by the noble Baroness, Lady Blatch, between guidance and guidelines. The requirement to have regard to guidance would have statutory force and therefore would have, as I said in response to the noble Lord, Lord Swinfen, a substantial deterrent effect on the ignoring of those guidelines by authorities.
In response to the noble Lord, Lord Rix, the guidance is available to the governing body, and it sets out what should be pursued by head teachers, teachers, pupils and staff within schools. That guidance would be more explicit and clearer than a general phrase on the face of the Bill. Before my noble friend replies to the debate, I take the feeling of this place on this issue. Although I remain to be convinced that it would help one bullied child to have this on the face of the Bill rather than in guidance, there may be something in what Members of the Committee have said, and I ask my noble friend whether she would be happy were I to reflect on this matter and perhaps consult her between now and Report.
Baroness David: I thank all Members of the Committee who have supported me. I have received strong support for these amendments. I have had especially strong support for Amendment No. 184 which is an amendment to Clause 80. It introduces more constructive principles to school discipline.
I have listened with great care to what has been said. It is abundantly clear from all this that bullying is an issue which really has to be dealt with properly. I was very relieved that my noble friend has now said that he will reflect on this matter, because I was afraid that he would turn it down altogether. However, it appears that what has been said has made some impression on him and of course I shall be very pleased to consult with him and others between now and the next stage of the Bill.
However, I think we must have something about bullying on the face of the Bill, and that would be included in Amendment No. 184. It is also important for the general public to see that the Government are facing up to this and appreciating how bad the situation really is. Personally, I would like to see the word "pupil" on the face of the Bill. I think that is important. Whether or not the amendments I have put down are acceptable, I hope that the Government will think about this. I would prefer them to bring forward their own amendments, which would satisfy me. I very much hope

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that that will be done. I am sure that the Government will read carefully what has been said during this debate and of course I will read carefully what my noble friend has said.
The noble Baroness, Lady Byford, with whose amendment I have a lot of sympathy, was really making the same point as I made on Thursday on Amendments Nos. 182 and 189; namely, that bad behaviour can often be caused not just by children being naughty but because their needs have not been recognised. The noble Baroness put forward the medical need, but in these amendments I am talking about special educational needs. In a way, they each cover the same point.
I think I have had support from everybody who spoke, except perhaps for the noble Lord, Lord Pilkington, who chided me not for what I had said but rather for what I had not said. I try to speak firmly to the amendments and the clauses on which they are based, which perhaps is a practice that has not always been followed on the other side of the Committee. I think that that is very important if we are to make progress, and I congratulate myself on not speaking for too long on these matters. As I have said, I hope that the Government will reflect on what has been said and bring forward their own amendments at Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 184 and 185 not moved.]
Clause 60 agreed to.
Clause 61 [LEA's reserve power to prevent a breakdown of discipline]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 185A:
Page 48, line 19, after ("(2)") insert ("or where subsection (2A) applies").
The noble Baroness said: In moving Amendment No. 185A, I shall also speak to Amendments Nos. 185B, 185C, 193B and 193C.
Where an LEA wishes to invoke Clause 61(1), as well as one or both of Clauses 16 and 17, we want them to be able to do so without having to invoke two distinct procedures. Amendments Nos. 185A and 185B would therefore allow an LEA which had started the process of intervention under Clause 15(1) to use not only either or both of their powers under Clauses 16 and 17, but also their powers under Clause 61(1). In other words, a warning notice under Clause 15(2) might result in the use of any of those powers. Alternatively, an LEA, after having given a notice under Clause 15(2) that they proposed to exercise their powers under Clauses 16, 17 and 61(1), would have the option of ultimately invoking Clause 61(1) alone. These amendments are designed to allow LEAs to make use of these different powers in a flexible way, without having to serve different types of notices, which could be confusing as well as bureaucratic.
Turning to Amendment No. 185C, this new clause gives the Secretary of State the power to require governing bodies of maintained schools to set targets for reducing unauthorised absence. A school's target would be published in the governors' annual report
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alongside its current unauthorised absence rate. This new power will be applied where a school has an attendance record significantly below average, as specified in accordance with regulations and drawing on the annual absence returns made to the department. A letter will be sent to the governing bodies of all schools so identified, informing them that the duty to set a target applies to them and for how many school years it will have effect. If, however, there is a strong reason why the governing body of a particular school should not have to set an attendance target, subsection (2)(c) provides for a waiving of the requirement.
The actual target will be for the governing body to decide in the light of local circumstances and in discussion with their local education authority. The department will be consulting on arrangements for attendance targets shortly. The aim will be to work towards a significant reduction in truancy through a partnership approach, and school-level targets will clearly need to reflect, and contribute to, LEA targets. This amendment will, if enacted, help to focus minds and resources on a key area of school improvement and will contribute to the Government's agenda for reducing youth crime and disorder, which, as we all know, so often happens when large numbers of young people are truanting from school.
Amendment No. 193C is designed to ensure that all schools follow the Government's detailed guidance on the use of exclusion. While most schools follow the existing guidance carefully, it is clear that a fairly small minority do not. At present the guidance is non-statutory, so there is little that parents can do if, for example, a school excludes their child for a quite trivial reason, or fails to follow the correct procedure. These amendments will mean that the head teacher or the governing body will be required by law to have regard to the new guidance on exclusion which will accompany this legislation, strengthening a parent's case when it comes to an independent appeal.
We intend to make regulations requiring the governing body's functions in relation to exclusion to be carried out by a discipline committee, as is currently the case in grant-maintained schools. The purpose of Amendment No. 193B is simply to ensure that the discipline committee, too, must have regard to the guidance on exclusion. I commend these school discipline and attendance amendments to the Committee. I beg to move.
Lord Peston: In rising warmly to support these amendments, perhaps I may make a slightly acid comment. Of course, they are quite prescriptive and if we were worried about matters of this sort I would rather have a prescriptive amendment on bullying than anything else. I say this to make quite sure that people have not forgotten my acerbic approach to these matters. I would like to ask my noble friend with regard to Amendment No. 185C in particular—because this is immensely important and it is an amendment I strongly support—whether she could clarify, in this context, what is meant by,
"to secure that annual targets are set".

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I take what she said to mean that not merely should targets be set in the sense of objectives—in other words, this is what we are going to do apropos truancy—but implicit in that is "this is what we shall do to achieve those ends".
In economics we always distinguish means from ends and we use the word "targets" just to mean ends and therefore we would not include in that the concept of means. However, my noble friend has interpreted this to mean both means and ends. Therefore can she confirm that the Secretary of State has in mind that the school
et al should say, "this is our objective; we assume the objective to be 100 per cent. attendance unless there is some extraordinarily good reason for children not being present, and this is how we intend it should happen". Is my interpretation of this amendment correct?
4.30 p.m.
Baroness Blackstone: I thank my noble friend for the acid comment. As my noble friend Lord Whitty has already said, we shall look again at bullying to see whether there is a sensible way in which we could put something on the face of the Bill.
In regard to reaching particular targets, this amendment is designed for those schools that have significantly below average attendance records and where the Government feel that something should be done. It would be common sense that where a school is asked to specify its targets for a particular goal it would need have to have some idea as to how it could reach that goal. It would be pointless if the school, including its governing body and head teacher, were only required to publish the target and did not have to spend some time indicating how it was going to get there.
Lord Swinfen: On that particular paragraph, I wonder whether it is wise to specify "day pupils". I know that there may not be many boarding pupils in local education authority schools, but what would be the position if there was a boarding pupil who failed to turn up for instruction, even though present in the school, without due cause? It may be an abstruse point, but it could mean that the school had no authority to chase him up and make certain that he had to attend lessons.
Baroness Blatch: Perhaps the noble Baroness would pick up my noble friend's point and mine at the same time. In Amendment No. 185C the Government have completely missed the target itself. The distinction between authorised and non-authorised needs to be understood. There are some schools which authorise, rather casually, absences from school. Sadly, in some cases, particularly where children are not easily dealt with in a classroom, it is easier to find some way of authorising their absence than not.
It seems to me that there are a number of important points. One is total absences from school. The noble Lord, Lord Peston, made a very important point. How many children are not in school on any given day? Then one looks for reasons why they are not there. The authorised absences need to be looked at because the policy for authorised absences between one school and
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another can give an interesting picture of the way in which a school either deals with authorising absences with rigour, or does not. Some schools are very strict about authorising absences and some are not. It seems to me that a picture can be drawn from that.
Secondly, on unauthorised absences, in Amendment No. 185C we are putting the onus on the governing body to do something about unauthorised absences. I believe that the teachers in our classrooms are pretty busy people and frequently the only thing that they can do about unauthorised absences is to do home visits, to see where the children are, and to liaise with the police and social services. Often these children are roaming around the streets, standing on street corners and getting up to no good.
If the family have not given reasons why they are out of school, and the school has not given them permission to be out of school, then we are talking about a difficult group of people. If you have a school where a head teacher and the teachers are highly committed to good education, and want their children to be in school, the fact that they are not there may well be beyond their control, not within it.
Here we are putting the onus on the governors for getting those figures down and getting the number of unauthorised absences down. It seems to me that there must be some case for putting that onus on families. Why is it that their children are not in school? If they are not in school it is difficult for the school to act in loco parentis for those children. There needs to be some recognition and understanding that the school and the school teachers cannot do this alone. It seems to me to be grossly unfair to use legislation to put an obligation on the schools to cope and to control unauthorised absences.
When we were in office I had a lot to do with exposing this issue. That is a prerequisite for knowing what is going on in schools. What are the numbers of children who are not in school on any given day? We should have two columns, one for those who are authorised and one for those who are not authorised. At the outset I made the point that LEAs and Ofsted should be as interested in the policy for authorising absences as they are for the incidents of unauthorised absences, and schools may not be the ones to blame. It would be quite wrong to put that onus on the schools.
I am decidedly unhappy with Amendment No. 185C because I believe the Government are missing a target and are putting an onus on schools where they may have no control.
Lord Peston: I was slightly puzzled by what the noble Baroness, Lady Blatch, said. Surely the law still holds that during the period of compulsory schooling the parents do have a responsibility. Secondly, I should have thought the one great merit of Amendment No. 185C is, to use her word, exposure. What this amendment does is precisely what she seems to think is important. I am puzzled by why she is critical of it. It seems to me that it says very much more than before, and that the Secretary of State wants this matter exposed. To echo my noble friend, she did not say, in

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indicating that schools would wish to intervene here, that that means that parents no longer have any responsibility or will not have a part to play.
If I may say so, I thought the noble Baroness, Lady Blatch, was slightly unfair to the Government on this occasion, which is why I said earlier that I warmly support this amendment.
Baroness Blatch: The responsibility for children attending school must rest with parents. It cannot be the responsibility of schools to see that children leave their homes and arrive at school. They may go somewhere else on the way. If they check in for assembly and then disappear, which is another form of skipping school, they are technically in school. They are there for registration and then disappear for the rest of the day, perhaps roaming the streets, they are not recorded technically as unauthorised absences but as attending school. So there are problems.
My first point is that I agree with the noble Lord, Lord Peston, that that responsibility must lie with the parents. Secondly, as far as exposure is concerned, that is already done. The system at the moment requires schools to register attendance in school, authorised absences and unauthorised absences. We know the picture. The picture is there for the DfEE and for the local education authority. The third problem is that the Government have chosen to put the responsibility on the governors and the school for unauthorised absences.
I am simply saying that much of the responsibility for unauthorised absences will be parents who do not take enough care that their children not only leave home for school, but, in fact, arrive at school. Why should it be a legal obligation on the part of the school to get that figure down? Some of the measures are very practical, but they are measures for which the school teachers simply do not have time; that is, home visits, finding out why the child is not in school and liaising with the police. They need outside help. That is what I thought education welfare officers were about. It is important that the obligation is as much on them as on the governors of the school.
Baroness Seccombe: I support my noble friend Lady Blatch. I also draw the Committee's attention to the situation where parents are brought to court because their child is not attending school. I am horrified at the length of time that seems to pass in that process. Usually by the time the parents appear in court there have been about four terms when the attendance of the child has been absolutely abysmal—two or three times a week, if that, for half days.
Lord Peston: I do not wish to prolong this discussion, but there is nothing between us on the subject of parents. Even if there were, the law is the law when it comes to the parents' responsibility for the child attending school. I do not see that this amendment in any way detracts from that.
I have two thoughts on this. One is that I make sure that my child is at school. I believe that getting the child into school is approximately where my responsibility ends, for that day at least. I find it hard to believe that the teachers do not have some in loco parentis responsibility. I assume
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that this amendment is about that. I assume it is to re-enforce the school's role without undermining the parents' role. Perhaps my noble friend will say that that is a misinterpretation, but that is certainly how I read it, which is why I support it.
I hope that both noble Baronesses agree that one task of the teachers is to make the pupils feel that it is worth while going to school. I am not saying that most unauthorised absences are connected with the fact that children think that school is a waste of time—I hope that is not the case—but a reasonable policy objective is making the school an attractive place. The main point of the amendment is not to undermine the parents but to encourage them, while accepting an explicit role for the school. For the last time, I support the amendment.
Baroness Blatch: I hope that this is the last time that I shall come back on a point. I would rather come down more heavily on the responsibility of parents and toughen and strengthen the law on forcing parents to see that their children attend school. I am concerned that a school serving a tough area in which there is a high incidence of absence will be deemed a "baddie" because that is how it will appear in the tables. The opposite will be the case in the leafy lanes where the co-operation of parents is at a high level. In those areas, without any effort on the part of teachers, children will arrive in school and stay there for the whole day.
Where there is a high level of unauthorised absences, the Bill's provision is misplaced in putting the onus on the school and the governors to reduce that level. The responsibility for getting children into school must be with the parents, who must ensure that they stay there. Once at school, loco parentis comes into play; it is the responsibility of the school to keep them there.
Baroness Blackstone: The noble Lord, Lord Swinfen, is right in saying that there are few state boarding schools. They do not have to keep attendance registers for their boarders because it is assumed that pupils are in school. They are in total loco parentis. I expect any kind of boarding school, whether independent or state, immediately to follow up a child who is absent.
I turn to the questions raised by the noble Baroness, Lady Blatch. I am grateful for the support I received from my noble friend Lord Peston because I, too, am puzzled by the way in which she has attacked the amendment. I had thought that it would be widely welcomed and accepted. Of course parents have the prime responsibility: of course the onus must be on parents; and of course the Government entirely recognise that. As she rightly said, some schools have a more difficult problem than others in grappling with truancy. But the amendment is basically about truancy; in other words, non-authorised absences. I accept that perhaps some schools are abusing the system of authorised absences and allowing children to be away when they should be at school. We shall want to examine that and seek evidence of such authorised absences being granted by schools.
I entirely accept that this is not a matter only for schools. It is also a matter for the education welfare service, which has a prime responsibility for following up children who are not attending schools. However, it is

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important that the schools liaise closely with the education welfare service, the police, and other social services. Some schools are better at doing that than others. That is what the amendment is about. It seeks to ensure that the schools which are not tackling truancy satisfactorily should try to improve their record.
However, the Government must take into account the social conditions in which the school operates. It would be unfair to schools not to do so. The Government will take it into account.
I say to the noble Baroness, Lady Seccombe, that my right honourable friend the Home Secretary is concerned with the way in which the juvenile court procedures operate and is trying to reduce the time which some cases take. Indeed, in the Crime and Disorder Bill the Government are introducing parenting orders for school attendance offences and will give magistrates more flexibility in dealing with them.
I hope that in the light of my response to those questions, the Committee will accept the Government's strong commitment to trying to improve attendance at all schools. I commend the amendment to the Committee.
On Question, amendment agreed to.
4.45 p.m.
Baroness Blackstone Baroness Blackstone moved Amendment No. 185B:
Page 48, line 30, at end insert—
("(2A) This subsection applies where—

(a) a warning notice has been given in accordance with section 15(2) referring to the safety of pupils or staff at the school being threatened by a breakdown of discipline at the school,

(b) the governing body have failed to comply, or secure compliance, with the notice to the authority's satisfaction within the compliance period, and

(c) the authority have given reasonable notice in writing to the governing body that they propose to exercise their powers under subsection (1) of this section (whether or not in conjunction with exercising their powers under either or both of sections 16 and 17);

and a notice under paragraph (c) of this subsection may be combined with a notice under section 15(1)(c).").
On Question, amendment agreed to.
Clause 61, as amended, agreed to.
Baroness Blackstone Baroness Blackstone moved Amendment No. 185C:
After Clause 61, insert the following new clause—
("School attendance targets
SCHOOL ATTENDANCE TARGETS
—(1) Regulations may make provision for and in connection with—

(a) requiring, or

(b) enabling the Secretary of State to require,

governing bodies of maintained schools to secure that annual targets are set for reducing the level of unauthorised absences on the part of relevant day pupils at their schools.
(2) Regulations under this section may, in particular, make provision—

(a) for the Secretary of State to impose such a requirement on the governing body of a maintained school where—

(i) the specified condition is for the time being satisfied in relation to the school, and

(ii) he considers it appropriate to impose the requirement;

(b) for such a requirement to be imposed by the Secretary of State in such manner, and for such period, as may he specified in or determined in accordance with the regulations;

(c) for the Secretary of State, where he considers it appropriate to do so, to exempt the governing body of a maintained school, in relation to any school year, from a requirement imposed by virtue of subsection (1)(a) or (b).

(3) For the purposes of subsection (2)(a)(i) the specified condition is for the time being satisfied in relation to a maintained school if in the previous school year the level of unauthorised absences on the part of relevant day pupils at the school (as determined in accordance with the regulations) exceeded such level as may for that year be specified in or determined in accordance with the regulations.
(4) In this section—
"relevant day pupil" means a pupil registered at a maintained school who is of compulsory school age and is not a boarder;
"unauthorised absence", in relation to such a pupil, means any occasion on which the pupil is recorded as absent without authority pursuant to regulations under section 434 of the Education Act 1996 (registration of pupils).").
On Question, amendment agreed to.
Lord Haskell: My Lords, I beg to move that the House do now resume to hear the Statements.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Dounreay Nuclear Reprocessing Plant
4.47 p.m.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer to a Private Notice Question which is being asked in another place on the Dounreay nuclear processing plant.
"Dounreay has played a significant role in the development of the nuclear industry in the United Kingdom. The experimental fast reactor at Dounreay, built in the 1950s, was followed by the prototype fast reactor. Both aimed to show that fast reactor technology could be harnessed to generate electricity on a commercial scale. Last Friday, I informed the House, in response to a Question from my honourable friend the Member for Kirkcaldy, that the Government had accepted advice from the United Kingdom Atomic Energy Authority Board that Dounreay should accept no new contracts for commercial reprocessing work. This decision will allow the UKAEA to refocus on the management of existing liabilities, by far the majority of which have arisen from the UKAEA' s own government-funded nuclear reactor development programme on the Dounreay site. I must stress that these liabilities already exist and so must be dealt with.

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No amount of wishful thinking will make them simply go away. Subject to obtaining the necessary consents from the independent regulators—the Nuclear Installations Inspectorate and the Scottish Environment Protection Agency—I expect the UKAEA to continue to reprocess the existing spent fuel liabilities, the majority of which have come from the reactors which actually operated at Dounreay. It will also reprocess material from existing committed legally binding commercial contracts and the small amount of material from Georgia. I have been advised by UKAEA that it expects to have completed all of this reprocessing work by 2006. After that the work of decommissioning the reprocessor will take place.
"Perhaps I can remind the House that the Dounreay site was set up to undertake work on the development of fast breeder reactor technology. Although its work on this programme was a technical success, it was decided to stop funding in 1988 when it became clear that there was no prospect of the technology fully living up to its economic potential. The development programme finally stopped in 1994 when the last reactor was switched off. Dounreay produces no electricity. Consequently, the focus of activity at the site has shifted inevitably to decommissioning those reactors and Dounreay's main mission has been to complete decommissioning of the facilities on the site. The concern now is to ensure that we pass on to future generations a safe environment.
"We are deeply committed to caring for the environment and to taking action to deal safely with the difficult legacy from past operations at Dounreay. We want the focus now to be on decommissioning the plant and securing the site at Dounreay. Subject to satisfying the strict safety and environmental requirements of the independent industry regulators, commercial reprocessing was accepted as a way of offsetting some of the costs of decommissioning and waste management at Dounreay. As the UKAE has itself recently concluded, as a result of surveying the international market, further commercial reprocessing would not be economic. Giving up this sort of work is the next step in achieving its main goal, which is refocusing the site to ensure safe and cost-effective clean-up.
"I know that the right honourable Member for Caithness, Sutherland and Easter Ross shares my concern about the impact this decision will have on jobs at Dounreay. I have been assured by Dounreay's operators, the UKAE, that it does not expect to see any significant short-term loss of jobs, as the staff currently working on reprocessing will be redeployed on other nuclear decommissioning and radioactive waste management work.
"In March I announced the Government's decision to retrieve the waste from the Dounreay shaft, which will provide work for several decades. Completing the clean-up of the site will take over 100 years. The process of decommissioning will become the business of Dounreay."
My Lords, that concludes the Statement.
4.51 p.m.
Lord Mackay of Ardbrecknish: My Lords, I thank the noble Lord, Lord Clinton-Davis, for repeating an important Statement on an issue which has been before this House and the other place and which has featured in the media for a number of weeks.
I wholeheartedly agree with the introductory sentence that Dounreay has played a significant role in the development of the nuclear industry in the United Kingdom. Undoubtedly it has and undoubtedly, if the fast breeder reactor system had proved to be economically viable, the work done at Dounreay would have given this country a leading world role in relation to fast breeder reactors; but it was not to be.
Does the noble Lord agree that the nuclear industry in general has proved to be a very important part of the Scottish economy? In terms of jobs, there are some 4,000 in Scotland in the nuclear industry, and a very large amount of electricity is produced for Scottish consumers. The noble Lord can perhaps remind me; I cannot remember whether it is 40 per cent. or 60 per cent. It is, however, significant. That electricity is produced safely and efficiently at Hunterston and Torness, with a little produced still at Chapelcross.
Those of us who supported the nuclear industry have occasionally had our problems in giving that support. One problem has been a distinct muddle and occasional lack of openness in the industry itself. That has not helped those of us who have been prepared to defend the industry, and perhaps particularly so at Dounreay. A second problem has often been the campaigning, at the taxpayers' expense, of nuclear-free committees in almost every Labour local authority. If the Minister wants me to believe that he is a supporter of nuclear energy I hope he will do something about his own party's ambivalent attitude in that regard.
Is the noble Lord aware that I welcome the assurances in the Statement about the jobs on the site? I fully appreciate that the decommissioning will take some time and that a lot of jobs will be involved over that time. Can he give any assurance that the skills obtained in this decommissioning will be used world-wide, putting us in a position where we can help other countries, commercially, of course, to decommission their plants?
The noble Lord will need no reminding of the exchange that took place between us on 21st May this year. I wonder if he regrets accusing me of going overboard on some of the assertions I made? When the noble Lord answered me that day, did he know that the Atomic Energy Authority had already decided to end commercial reprocessing at Dounreay? If he did not know, why did he not know? Even more recently, when the Prime Minister answered a Question last Wednesday in the other place with a robust defence of Dounreay and a vigorous attack on Mr. Alex Salmond—not normally my favourite person—did the Prime Minister know that the Atomic Energy Authority had decided that Dounreay was not a safe place for any more commercial reprocessing? If he did not know, why did he not know?
May I now have an answer to the questions I asked on 21st May? I see in the Statement that it is hoped that the reprocessing of the material on site will be

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completed by 2006. I therefore presume people will know the answers to my questions. When does the noble Lord think Dounreay will regain its reprocessing permissions for both irradiated and non-irradiated materials? How much will it cost? Will it be months or will it be years? Will it be more or less than £200 million, for example? There must be some idea of the timescale and the costs, if an assurance can be given in the Statement that the job will be completed in 2006. I really do wonder if the noble Lord and his right honourable friend the Prime Minister might like to reconsider the ringing statement they made that Dounreay was the safest place on earth to take the Georgian nuclear material?
4.55 p.m.
Lord Ezra: My Lords, I too thank the noble Lord, Lord Clinton-Davis, for repeating the Statement on this important issue. I am glad that the noble Lord, Lord Mackay, paid tribute to all those who worked at Dounreay on the development of the fast-breeder reactor. I had the opportunity of visiting the site some years ago and was most impressed with the technology.
Although we have given up any further development in that area, can the noble Lord advise us what other countries are doing'? I believe that the French and the Japanese are continuing with their fast-breeder programmes. Or is this whole process being given up world-wide? If it is to be continued elsewhere, no doubt the skills that we have obtained could be put to good use.
On the question of reprocessing on the limited basis now anticipated, I pose a similar question to that asked by the noble Lord, Lord Mackay, on the cost of improving the reprocessing plant in order to obtain the necessary approvals. The impression given is that commercial reprocessing has been given up because of the uncertainty of the market and also the cost of bringing the reprocessing plant up to a satisfactory standard. However, would this not have to be done anyway in order to reprocess the remaining material that has to be handled there? If so, would the Government he reconsidering commercial reprocessing?
It is clear from the Government's Statement that there will be a large number involved in continuing employment on the site. The reprocessing will take until the year 2006 and many decades beyond that for decommissioning. Would it not be desirable, however, for the Government also to be contemplating some other high technology operations in the area in order to offer alternative jobs to those who might have to leave or wish to leave so that the great skill accumulated at Dounreay shall not be lost?
4.58 p.m.
Lord Clinton-Davis: My Lords, I thank both noble Lords for the questions they have posed. I want particularly to thank the noble Lord, Lord Mackay, for supporting the first sentence of the Statement, which is most generous of him. Of course he is right in saying that the nuclear industry has played an important part in the Scottish economy. I cannot give him the exact
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breakdown in terms of percentages for which he asked. On the question of criticism of the industry, he will know more about that than I because the last government were dealing with that industry for 18 years. He says that there was muddle and lack of openness in the industry. I think there was a lack of openness in the last government's activities vis-à-vis that industry. One of our criticisms, and, I think, a justifiable criticism, is that the idea of transparency was not upheld. That, as he rightly says, has blighted the industry. I believe that the last government were complicit in that.
As to using the skills which may be accumulated in terms of decommissioning on a more general and world-wide scale, a point taken up also by the noble Lord, Lord Ezra, I agree entirely that that seems a proposition which needs to be investigated carefully. If those skills can be utilised in that way, so much the better. Certainly, decommissioning is not a matter that simply affects this country.
The noble Lord asks whether I regret saying that he had gone overboard. Not a bit of it. It is such an uncharacteristic function of the noble Lord that it has remained embedded in my mind. There is no call for an apology on my part because we were talking about something rather different from that which we are discussing today.
The noble Lord was significantly more emollient in his questions today. He asked when Dounreay will regain the necessary permissions. I dealt with that on the last occasion and I have nothing to add. I cannot put a term on it. The noble Lord was then suggesting that it was years and years away. We have had an opportunity to look more closely into the situation. It may be as long as two years but I do not wish to provide a categoric answer because one does not know what will be the outcome of those investigations.
The noble Lord asks how much it will cost. At this stage, I cannot indicate that. I shall look further into the matter. It is not an issue with which I am as familiar as I should like to be, or as I am with all the other matters which fall within my immediate remit.
The noble Lord asks whether we were aware of the economic decision leading to the action we have taken. That was announced at the end of last week. It was not a matter of which the Prime Minister, my honourable friend John Battle or I were aware. It is an economic decision and not a matter of safety. That was made very clear during the questioning which arose on the last occasion.
I have not been able to give an assessment of the costs involved but I should add that the Government are committed to providing funds to bring Dounreay up to standard in order to allow the discharge of all existing liabilities. Contrary to what was asserted by the noble Lord, the Government stated that the Georgian material would be stored safely at Dounreay. The press said that Dounreay was the safest place in the world for nuclear material. Nothing was said to that effect by the Prime Minister or any other Minister. It is important to recognise the responsibilities that we have for ensuring that non-proliferation, safety and all the other issues which I mentioned on that occasion are adhered to.

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The noble Lord, Lord Ezra, asked what other countries are doing. In other words, he asked whether they are facing similar problems. I am not sure whether it is an entire parallel but my recollection is that the French Government announced that the installation known as Super Phénix, quite close to the border with Switzerland, was being decommissioned. That was about six or seven months ago. However, I cannot provide any further information in response to that question.
I am sure that the point the noble Lord made about employment will be taken into account by my right honourable friend the Secretary of State for Scotland. As the noble Lord rightly said, there does not appear to be a risk of any significant unemployment arising over the course of the next several years until the year 2006. A great deal of work must be done in that regard. I thank the noble Lord for drawing attention to something which may be worrying for the local community. I hope that what I have said will give some reassurance.
5.5 p.m.
Lord Jenkins of Putney: My Lords, listening to the quiet tones of this debate, is it not the case that one would hardly realise that an environmental disaster of enormous magnitude has taken place? Effort has been put into this project over the years and the ultimate result of that effort is that it will take 100 years to get rid of its consequences.
That is not only happening here; it is happening also in other parts of the world. I started with the view that while nuclear weapons were wholly undesirable, nuclear energy had possibilities. Is it not the case that voices more authoritative than mine are now saying that this is a dead end and that it is time it was brought to an end? Finally, will the Government spend even half the time and effort that has been spent on nuclear energy on wind and wave projects? They are more likely to be successful in spending money on that rather than encouraging further disasters of this sort.
Lord Clinton-Davis: My Lords, I recognise that my noble friend has deeply committed views on this issue. However, I do not go along with his suggestion that this is an environmental disaster of unprecedented magnitude. It is a state of affairs which must be dealt with. There is no point in wishing away the whole situation. The problem exists and must be dealt with. You cannot just throw the key into the sea and hope that the whole problem will disappear.
As regards other forms of energy, my noble friend will understand that we shall shortly be making a statement on the energy review. I hope that he will wait to hear what we must say about wind and wave in that context.
Lord Gray of Contin: My Lords, will the Minister accept that this is an occasion when great tribute should be paid to all those who have participated in the engineering feats of Dounreay over the past 40 years? The people of Caithness and the Highlands of Scotland
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accepted and welcomed Dounreay and put their trust in what it could achieve. It achieved a great deal. Those people have every right to hope that the Government will do all they can to alleviate the sorrow and tragedy of such a wonderful venture having to come to an end.
Will the Minister agree that it is a simple fact, proved over the years, that generation by nuclear power has been an enormous success? It now accounts for a very high percentage of generation in this country, particularly in Scotland. However successful alternative sources of energy may be, it will be a long time before they can come anywhere near producing the amount of electricity which nuclear energy is presently affording us.
Finally, will the Minister do everything possible to try to ensure that, after the year 2006, alternative arrangements are made to keep in the Highlands the high-tech personnel who have made their homes there? That is essential for them, as they are now in the middle of their careers and it may not be too easy for them to move. It is also important that such talents should be kept in an area such as the Highlands of Scotland.
Lord Clinton-Davis: My Lords, I shall deal, first, with the noble Lord's last question. Only last Wednesday AEA Technology announced the construction of a lithium battery plant which will involve some 300 employees. That is good news. As I indicated, I do not believe that there is a serious problem of unemployment looming in the near future. Should that forecast be incorrect, I know that my right honourable friend would certainly turn his attention swiftly to it. However, I do not want to get into a position where people become over anxious about a situation which is unlikely to arise.
The noble Lord is right to talk about the engineering feats over the past 40 years and the contribution made. However, that lies somewhat uneasily with what his noble friend Lord Mackay said about the lack of openness with which the previous government were faced. Of course, mistakes have been made, but that does not adversely affect the contribution made by loyal employees operating with great skill and ability. It is right that I should pay that tribute to those concerned from this Dispatch Box.
Lord Howie of Troon: My Lords, did my noble friend the Minister notice the uncharacteristic red herring which the noble Lord, Lord Mackay, introduced to the debate when referring to the material brought from Georgia? Will my noble friend confirm that the amount of material brought from Georgia is not much bigger than the water jug which his noble friend on the Front Bench has just picked up? Indeed, such an insignificant quantity is of no danger to anyone, unless one were to eat it.
Lord Clinton-Davis: My Lords, my noble friend is quite right; indeed, it is not even as big as the red herring mentioned by the noble Lord opposite.
Lord Selkirk of Douglas: My Lords, is the Minister aware that I met a group from Dounreay in Glasgow at

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the weekend? Is he also aware that the primary concern of those who work there is that there is an immense amount of expertise within Dounreay? It is very much hoped that the Minister can give an extremely positive assertion to the effect that the best use will be made of that expertise in the interests of the safety of the world's environment in the years to come.
Lord Clinton-Davis: My Lords, I have already given my assent to the proposition advanced by the noble Lord, Lord Ezra, which said the same thing but in rather different words.
Lord Taylor of Gryfe: My Lords, I am sure my noble friend the Minister will appreciate that the assurance that he has just given and that given to the noble Lord, Lord Ezra, are extremely welcome. Anyone who knows the area will be aware of what an exciting development Dounreay has been. It has transformed the whole social and cultural life in what would otherwise he a very remote and somewhat bleak area. Therefore, the assurances that my noble friend has given about there being no immediate job reductions should be emphasised.
Perhaps I may also point out to my noble friend the Minister that the Highlands and Islands Development Board exists in that part of the country with a specific remit to encourage new industry and diversify. Therefore, can my noble friend confirm that the HIDB will be fully consulted as regards any arrangements which are being made for diversification?
Lord Clinton-Davis: My Lords, I am grateful for the support that my noble friend has given. I can give him an assurance that the HIDB will be fully consulted and involved in the decisions which are being taken.
Lord Ewing of Kirkford: My Lords, bearing in mind that the announcement of the closure of Dounreay was made towards the end of last week, perhaps my noble friend the Minister will give me the opportunity today to complete the historical picture of why Dounreay was there in the first place. Does my noble friend the Minister recall the movement called "Atoms for Peace", which was the forerunner to the Campaign for Nuclear Disarmament? The former campaign for peace was designed to harness atomic power for peaceful purposes to produce cheaper electricity for the benefit of the people. Is my noble friend aware that the "Atoms for Peace" campaign was particularly strong in Scotland because the Scottish people wanted to play a central role in the development of this new technology? Will my noble friend accept that it is only right and proper that we should place on the record of today's exchanges our tribute to those pioneers who gave the people of Scotland that opportunity, which they grasped with both hands?
Lord Clinton-Davis: My Lords, my noble friend speaks with great authority on the matter and I accept the assertions that he makes. However, I take issue with him on one aspect; namely, the suggestion he made that there has been a decision to close Dounreay. That is not
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really accurate. We have not made a decision to shut Dounreay. Indeed, that assertion was made in the other place by the right honourable gentleman, the shadow Secretary of State. That would be impossible. Quite simply, there are many nuclear liabilities on the site which are the difficult legacy of its nuclear power development work. They must be managed responsibly. This Government are committed to providing the right amount of money to ensure that that happens. Therefore, I would make a slight variation to the conclusion drawn by my noble friend.
Lord Campbell of Croy: My Lords, as a footnote to what he has already said, will the Minister add the following point: the Highlands and Islands Development Board has been mentioned, but it ceased to exist a few years ago? Therefore, the body which ought to be referred to in this context is its successor; namely, Highlands and Islands Enterprise.
Lord Clinton-Davis: My Lords, I am much obliged to the noble Lord for that information. Indeed, I gratefully receive it and plead total ignorance of the situation to which he alluded. As on many previous occasions, I am grateful to the noble Lord for his assistance. It is difficult to co-operate with and enjoin the support of an organisation which has ceased to exist.
Lord Desai: My Lords, not being a Scotsman. I shall not become involved in tributes concerning Dounreay. However, despite what my noble friend Lord Ewing said, does my noble friend the Minister agree that nuclear power has not proved to be economically viable; in other words, it has not met the market test? We must apply that test, apart from bearing in mind the other factors mentioned by my noble friend Lord Jenkins. Can the Government now publish an estimate of how much it has cost us in the search for cheaper power through nuclear energy, which was itself a novel idea? It would be most helpful if we could know the total cost involved to the nation. Indeed, we could learn from that and, when dealing with such technological miracles in the future—like biotechnology—we would know that going down that path is not always a solution to all problems.
Lord Clinton-Davis: My Lords, my noble friend has gone slightly too far. I am aware that he is not in fact Scottish; neither am I. As far as concerns the question regarding how much the whole enterprise of seeking to apply a nuclear power has cost, I suggest to my noble friend that he tables a Question in that respect. In that way, the whole House would benefit from such information rather than my writing to him, which would mean that only he and I would be privy to it. My noble friend is right to say that the market test is appropriate. However, I do not believe that I can add anything useful to what I have already said. I hope that my noble friend takes that piece of advice.
Lord Mackay of Ardbrecknish: My Lords, on a point of clarification, I understood that the noble Lord said clearly that the material from Georgia—I accept

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that it is a small amount—would be stored at Dounreay. How does that fit with the Answer the Minister gave to a Starred Question on 21st May when he said that the,
"unirradiated highly enriched uranium will be processed into targets for production of medical isotopes"?—[Official Report, 21/5/98; col. 1761.]
Either it goes into storage or it is to be processed, it cannot be both.
Lord Clinton-Davis: My Lords, it is going into storage for the immediate future. What happens to it after that will depend on receiving the appropriate sanctions from the various authorities concerned. I thought I had made that perfectly clear.

Millennium Computer Compliance
5.20 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I shall repeat a Statement which has been made in another place by the Chancellor of the Duchy of Lancaster on tackling the year 2000 date change problem within central government and the wider public sector. The Statement is as follows:
"With permission, I should like to make a Statement reviewing progress on tackling the millennium computer problem within central government and the wider public sector.
"Since my previous report to the House on 3rd March, I have conducted a further round of inquiries of government departments and their agencies and I am now also able to give a picture of progress in the wider public sector. I am arranging for the completed questionnaires received from departments in May and summaries of them and their reports on wider public sector bodies to be placed in the Libraries of the House and published on the Internet.
"Overall, departments' plans have remained stable since the March review and very little change in scope has been found necessary. We can now identify target dates for business critical systems. Most of the returns show progress in correcting business critical IT systems. A few show dates uncomfortably close to the end of 1999, though they do not involve organisations that provide services direct to the public. The overall target dates and the completion dates for non-critical systems have moved by a larger margin. There are still cases where testing seems to have started without a sufficiently defined strategy and some plans still contain too little information about embedded systems and telecommunication systems. I am following up these issues with the departments concerned.
"The majority of returns have shown little or no change in the overall cost estimates. Departments are now firming up their estimates and while some previously small estimates may have increased significantly, the overall costs have increased only slightly—now £402 million, compared with
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£393 million in the previous round. Departments expect to meet these costs from their existing IT budgets and only a minority of returns indicated that it has been necessary to reallocate funds from other budgets. We do not expect operational budgets to be affected.
"A majority of the returns indicated that departments and agencies feel they have adequate skills to undertake the work, although there is a heavy reliance on outsourcing and consultants. Although about a third of returns stated that shortages of skilled staff could impact on their year 2000 programmes, none of the departments reports significant loss of skilled staff due to the millennium problem, and where skilled staff turnover is normally high, there appears to be no difficulty in recruiting new staff. Most of the organisations reporting difficulties generally are small agencies but the Ministry of Defence and the Northern Ireland Office also reported that difficulties were being encountered in some areas.
"The returns highlight that a number of departments and agencies are still experiencing difficulties in securing responses from IT suppliers about product compliance. I am asking all departments and agencies to continue to press for this information.
"The returns indicate that many of the major departments have conducted a full risk assessment and have developed business continuity plans. This is a critical issue for all departments, and Ministers and I will be monitoring this closely.
"My right honourable friend the Secretary of State for Northern Ireland has asked me to report on the position there. Baseline plans for the Northern Ireland Office and the Northern Ireland departments were published in December 1997. The current quarterly monitoring process shows that departments are making good progress and remain on course to meet the deadline of 31st December 1998 for the conversion and testing of systems, although a small number will not be ready until early 1999.
"In response to the concerns expressed in this House, the Prime Minister has extended the remit of the Ministerial Group on the Millennium Date Change, which I chair, to include the wider public sector. It is, of course, the responsibility of the chief executives of these quangos, authorities and trusts to take effective and timely action in relation to the date change problem so as to ensure that there is no material disruption to the services which they provide and that appropriate contingency plans are in place.
"Nevertheless, it is a matter of concern to this House that the public sector as a whole continues to operate effectively after the date change and the ministerial group will take a close interest in the progress being made there. Ministers have been in touch for some time with key organisations which they sponsor to emphasise the importance of tackling the date change problem and to help with advice and support. I have asked them to report on these organisations and I have placed a summary of their

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responses in the Libraries of the House and on the Internet. I am also encouraging all non-departmental public bodies, organisations and other bodies in the wider public sector to publish their plans for millennium compliance.
"The quality of the responses varies. They show that all the organisations covered are aware of the problem and are taking action, but there is clearly still a long way to go before we have a complete picture. Some of these organisations are small and the century date change has few if any implications for them. But others are critical to ensuring a satisfactory continuation of key public services over the millennium, such as the National Health Service and local authorities and they will need to re-assure the public that they will be able to do so. The National Audit Office report published last month stated that the framework for managing the remedial process in the National Health Service is in place but that tight control is needed to ensure success. I welcome the National Health Service Executive's statement that the millennium date change problem is its top non-clinical priority and I expect other wider public sector bodies also to treat this as a priority matter. There is not a great deal of time left to put systems in place if progress has so far been slow.
"Ministers and I will be paying particular attention to monitoring progress in these key areas and reporting to the House regularly. The best way to reassure us all is for the bodies themselves to keep the public informed of their plans.
"The importance of the year 2000 issue is also widely recognised in the European Union. At the meeting of EU Ministers for Public Administration at Lancaster House on 20th May, Ministers agreed to review progress at the next meeting in Vienna and to exchange information on the action that governments were taking to help ensure continuity of operations in public and private sectors. They invited me to take the lead and I have today started the process by sending the UK's contribution to this exercise to my European colleagues.
"A new team has been formed within the Cabinet Office reporting to me and the President of the Board of Trade. This 'Year 2000 Team' has strengthened arrangements to drive forward action on the date change, both within government and through working with Action 2000 in the private sector. The reports we have so far show that the message is certainly getting across and provide some reassurances that action is being taken. They equally show that we cannot afford to let up the pressure and that we still need to monitor progress closely. This I will certainly do and continue to report to the House on a quarterly basis."
My Lords, that concludes the Statement.
5.28 p.m.
Lord Lucas: My Lords, I am grateful to the noble Lord for repeating that Statement. I am certain in my own mind that he is millennium compliant. I run on a
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rather older operating system and I await anxiously the update which the noble Lord and his colleagues have promised. However, that raises other matters.
The Statement, as made, gives me great cause for concern. It seems to me to show symptoms of overoptimism, a lack of critical awareness of the problem, a general acceptance of slippage and unsatisfactoriness, and no feeling of urgency or commitment to the process. The Government let our plans and preparations for dealing with the millennium bug lapse when they came into office and they still are not up to speed. I would have hoped by now that they would both have realised the magnitude of the problem which they face and also begun to understand what the symptoms of the Civil Service in failure mode are. This Statement shows them full-blown. It is a cause for much concern that the Government do not seem to realise that.
Let us take a short look at the schedule provided by the Government. I have only a couple of small pieces of paper compared with the great wodge of papers with which they will provide us. Even in that information there are major causes for concern. I refer to little things such as the British Embassy in Fairyland which presumably believes it will be millennium compliant in the year 2000. March 2000 is the date by which the Foreign Office thinks it will be able to bring its systems up to date.
The matter that causes me concern beyond any other is the approach of the Ministry of Defence. It is the largest of the ministries and has the largest problem in this area. Its target date is December 1999 for its business-critical and embedded systems. Are we to expect that our nuclear warheads will decide at the millennium that the world no longer exists, and make their own contribution to it? It is an awesome thought that the Government should even begin to consider such a deadline acceptable, let alone practical.
Local authorities are reported to be at varying stages of readiness. Given what we know of local authorities, that is not exactly comforting. It is said of the Department of Health and its various allies and offshoots that they will either have everything done by September 1999 or have effective contingency plans in place. Already the Government are anticipating failure in the National Health Service. What, in the context of an over-stretched, under-staffed service such as the NHS are we to anticipate by way of "effective contingency plans" if the operating systems of a hospital suddenly close down at midnight on 31st December or even earlier? I cannot see how the Government can calmly contemplate the concept of contingency plans coming into operation and think that acceptable in regard to the way in which the NHS is going forward.
The deadline for compliance in the nuclear industry is set at March 1999. Who is ever going to admit to that deadline slipping? How are the Government ever going to be told by civil servants or those who report to them: "No, we are worried about that. It looks like September", or, "It may be that we shan't make December". The Government will not know what is happening in that sort of area until it is far too late to do anything about it.

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I do not yet know the content of the raft of information that the Government will show us. I hope that the individual returns will allow us to see that departments are making progress. The Statement contains no example or hope to indicate that factual information will enable us to see that progress is being made. We are promised ministerial monitoring. But mere deadlines set at March and June 1999 cannot be monitored. There will have to be intermediate targets. I hope the noble Lord will confirm that there is a series of intermediate milestones that are being met. I hope that the noble Lord will confirm in future Statements that the Government will report on the meeting of those milestones, rather than offer woolly statements such as, "We think we shall get it done by June 1999", which is so far away that they can "factor in" any catch-up procedure that they might imagine without facing the reality; namely, that deadlines are slipping and completion may not occur.
The Statement suggests that the total cost of the exercise is £400 million. Will the noble Lord confirm that the actual total cost is in the order of £3 billion when the National Health Service, local authorities and other public bodies are taken into account? Will he also confirm that the Government intend fully to fund that cost, and in particular not expect the National Health Service to meet its immense liabilities out of its existing resources? The Statement indicates that some departments are falling behind and many are having trouble with suppliers not responding to their requests. Will the Government information to be placed in the Library indicate which departments are falling behind and which suppliers are not responding? If not, will the Government make that information available to us?
The overall concern is that the deadlines that have been accepted and adopted by this Government are far too late. They are March and June 1999 for critical systems, and September 1999 for embedded systems. There is no way in which those deadlines can slip and still allow the Government or anyone else time to deal with the problems that will result. It is essential that the Government tighten up on those deadlines and get matters completed considerably faster. It is essential that they start to put in place some plans for disaster control.
It is clear that some major system somewhere will fail at the millennium. Let us imagine what would happen if the national grid went down. It would not exactly delight people or help them celebrate the millennium. It may be that civil servants and Ministers rest comfortable in the thought that they will hold a good party for the millennium but will not book flights anywhere because it might not be safe. It is time for them to accept their responsibilities and make sure that the millennium works well for all of us. That includes setting out plans and arrangements to deal with the disasters that will occur and making sure that they have the minimum impact. This problem will not go away. It is a problem that we shall all have to face up to when the time comes. We look to the Government to take the matter far more seriously in the remaining few months before these pigeons all come home to roost.
5.35 p.m.
Lord Razzall: My Lords, I, too, wish to thank the Government for repeating in this chamber the Statement made in another place. I am not sure that I entirely agree with the tone of some of the following remarks. However, this is clearly an important issue, as the Government rightly recognise. In the brief time available, I wish to ask the Minister a number of detailed questions and two of a more general nature.
The noble Lord, Lord Lucas, pointed out that on page 2 of the Statement there is a clear reference to the fact that the Ministry of Defence and the Northern Ireland Office are having difficulties in dealing with the issues and, in particular, in recruiting the required number of skilled staff. Bearing in mind the significant issues of timing to which the noble Lord referred, is the Minister in a position to give any indication as to what steps are being taken by those two ministries to deal with those difficulties? As we all know, the recruitment of skilled staff is a significant problem in the IT area in both the private and public sectors. It is slightly bland simply to say that those two key ministries are having difficulties recruiting staff. We should like to know what steps the Government, and those ministries in particular, are taking to remedy that defect.
Secondly, the Statement indicates that departments and agencies are still experiencing difficulties in securing responses from IT suppliers in relation to product compliance. That has been a perennial complaint. Will the Minister confirm that a major reason is that particularly in relation to older systems, where an IT supplier has bought in products from a third party supplier, often the IT supplier is not in a position to provide an answer as to whether or not the system is millennium compliant? That problem will not go away. Will the Minister confirm that this is not merely a case of suppliers saying that they are not prepared to provide the information; in many cases they are not in a position to know. That will clearly present a problem in both the public and the private sector.
My third more detailed point seeking amplification on the Statement is this. Considerable weight is given to the importance of non-departmental public bodies. We are all aware of the importance of the non-departmental public bodies, quangos or whatever one wishes to call them, as an interface between the Government and the population. The obvious reference is to the National Health Service and local authorities, but there are many other such bodies.
As a former member of a local authority, I have no doubt whatsoever that this is not only a question of how the problem is dealt with; it is a question of whether or not resources are available in those bodies to deal with it. I should welcome confirmation from the Minister, without going into the necessary judo or wrestling that goes on between government budget-setters and those bodies each year, that the necessary resources will be made available, if necessary, by the Government to ensure that non-departmental public bodies are in a position to deal with this problem. There will be no point in the Government saying in the year 2000: "Of course, it was nothing to do with us. The Chancellor

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always said that he would stay within the spending limits set by the previous government and therefore we were not prepared to make any more money available to those bodies to enable the problem to be dealt with".
Those are my three specific questions on the Statement. Perhaps I may make two points of a wider nature. The Statement obviously covers only the operation of the problem, the prospective solutions to the problem and action taken by the Government towards solving it in the public sector. But, as we all know, there is still a significant problem in the private sector. Even in these days of new Labour, presumably the Government do not take the view that the private sector is nothing to do with them. I should be grateful for the Minister's confirmation that, in the Government's view, the private sector is taking adequate action to ensure that products and buildings will be millennium-compliant in time.
I should like to expand a little on a point made by the noble Lord, Lord Lucas. We tend to assume that the millennium bug is all about whether our British Gas bill will turn up on time; whether business as we know it will come to a stop; or, dare I say it, whether the noble Baroness, Lady Rendell, cannot finish her latest novel because her PC has crashed. It will not only be about that, of course; it will be about such questions as whether our air traffic control systems work satisfactorily and whether people will feel safe travelling on planes on 1st January 2000; what will happen to our weather satellites; whether GCHQ's supply of information will come to a standstill as a result of a millennium failure. The Government could perhaps give a more explicit assurance that they are satisfied that those items which are significant for the safety of the individual and of the Realm will be dealt with in time. As an aside, I suspect that the example of the national grid was a bad one, if the experience in New York 10 years ago is anything to go by.
5.45 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for their responses to the Statement. Perhaps I may say first to the noble Lord, Lord Lucas, that I am far from being millennium-compliant. My real-time clock is okay, but I have had to do various things to my BIOS clock, and there are still swathes of software on which no corrective action has been taken. The noble Lord is too kind to me in that respect. The liveware is still going.
I was taken aback to some extent by the tone of the noble Lord's observations, which contrasted with those of Mr. John Redwood, in another place, who described the Statement as being truthful rather than, as the noble Lord, Lord Lucas, said, over-optimistic. The noble Lord spoke about our having let previous government action lapse. That simply is not true. The previous government action, which I have studied in some detail, involved the setting in place of CITU and the CCTA and preliminary action on the central government sector. Even at that time, under the previous government, it involved a deadline for compliance of January 1999, with a compliance date for financial systems of April 1999 at the Government's financial year-end. The noble
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Lord complained about 1999 deadlines, hut they were already in place under his government before we came into power. Immediately, on 21st May last year, the Chancellor of the Duchy of Lancaster wrote to all departments seeking much wider information than that which had been requested by the previous government. That has been followed up, as is evidenced by the Statement, by action in the wider public sector, in the National Health Service, local authorities and NDPBs.
In response to the point made by the noble Lord, Lord Razzall, we recognise, and have always recognised, that the private sector is the Government's concern. Action 2000, which is controlled by the Cabinet committee MISC 4 chaired by the President of the Board of Trade, is specifically designed for that purpose, although I hope it will be agreed that our approach has not been one of bullying the private sector but of trying to help it. I shall return to some of those issues in a moment.
The noble Lord, Lord Lucas, referred to departments—in particular, the Foreign Office and the Ministry of Defence—where the deadlines are later than they should be in 1999. I agree with him. I do not believe that those deadlines should be allowed to approach so closely to the millennium date when they cannot be changed without there being dangers in the slippage. There is a list of examples in the documentation of slippage of more than three months in those dates. The individual returns, which are available in the Library—I can give the noble Lord a copy now if he would like one—recognise the danger of slippage and set that out department by department. They also set out intermediate targets, which are what the noble Lord asked for. There are departments that will have to do a good deal better than they have reported to us. However, we are not just requiring them to report; we are taking action to ensure that their work is speeded up. That is why we have set up the special team within the Office of Public Service for that purpose.
I think the noble Lord is a little unfair about the National Health Service. The National Audit Office report, published on 15th May, says, as is said in the Statement, that the framework for managing the remedial process is in place. I accept that that is only the first point, but I do not think that that is a reason for panic about the National Health Service. Later this month we shall be able to publish a management paper, produced by the Audit Commission, which covers the National Health Service and local authorities and goes beyond an analysis of the scope of the problem to giving practical help to individual National Health Service Trusts and to individual local authorities, with a series of do's and dont's of testing, case studies and so on. I agree with the noble Lord, Lord Razzall, that the key to this is to avoid overlap and to make sure that the lessons that are learned by the lead authorities are rapidly made available to other authorities.
The noble Lord, Lord Lucas, asked me about the £400 million, rising to £3 billion. These are different figures. The £400 million applies to central government departments and agencies; the up to £3 billion figure, which the Prime Minister gave on 30th March, is the figure for the wider public sector. I do not claim that any of these figures are accurate; there is no way in

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which they can be. Estimates from individual, large private companies show how much those companies vary one from another and in total.
The noble Lord asked me whether we would fully fund all of these costs or whether they would be met from existing resources. The Statement made clear that in the bulk of cases the costs will be met from existing IT resources and that in fewer than one-fifth of cases will public authorities and departments have to raid money from other budget heads. We are not fully funding them; no, they will be fully funded from within existing budgets.
The theme of the noble Lord's comment was that the deadlines are too late. I do not take that view. Where they are late, as they sometimes are, we will do something about it. But our theme must be help rather than bullying.
The noble Lord, Lord Razzall, asked about staff shortages in the Ministry of Defence and the Northern Ireland Office in particular. Both those departments are using outside consultants and bringing in contract programming skills for these purposes. Indeed, the Ministry of Defence is bringing in programmers from outside this country. I have no doubt that it has the security elements well in hand.
The noble Lord talked of the difficulty of obtaining information from IT suppliers and referred to the problems which suppliers themselves face in analysing older equipment. That is right. There is a run on people who are skilled in Basic, and Cobol from 15 or 20 years ago. However, in general, for most of the public sector, first, all our purchases have been millennium compliant since September 1996 and, secondly, over the period of time we are considering, the normal replacement cycle will deal with the majority, though not all, of those problems.
I believe I answered the other questions of the noble Lord, Lord Razzall, out of turn. If I have not, I shall write to him.
5.51 p.m.
The Earl of Balfour: My Lords, perhaps I can ask one question. As a Minister, can the noble Lord, Lord McIntosh, consider the problem of where mistakes are made in a computer. We all realise that it is easy to feed in the wrong number. But it appears to me, from all my research, that only the most senior management personnel are permitted to correct even a number such as a date or a reference.
For example, it took me two-and-a-half years to obtain the correct field numbers for my farm in Scotland. That resulted in part of the set-aside subsidy not being paid to me, though it was no fault of mine. A mistake in council tax takes around six months to correct and, from what I can gather, at the present time only the most senior management personnel can alter a mistake even though it may be something as simple as a reference number. That makes life extremely difficult
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and perhaps some less senior people may be permitted to make those alterations in view of the problems that may arise at the millennium.
Lord McIntosh of Haringey: My Lords, I am sorry to hear of the difficulties the noble Earl is facing. He is describing defects of management rather than of information technology systems.
Lord Ponsonby of Shulbrede: My Lords, I pick up the point raised by the noble Lord, Lord Lucas, relating to the question of defence, particularly defence in an international forum. My noble friend will be aware that I am a delegate to the Western European Union. My fellow delegates and I questioned the authorities within the WEU regarding what other countries in the organisation are doing to meet the problems of the millennium bug. We have not so far been treated with any seriousness by the officials who answered us and that is of great concern.
My question to my noble friend concerns what our Government are doing to raise the matter of the millennium bug within the international defence forums, particularly within NATO. The consequences of our NATO allies not addressing the issue with the seriousness with which our Government are addressing it can hardly be exaggerated. I shall be grateful to know whether the Government have any systematic approach to raising the issue.
Lord McIntosh of Haringey: One of the most disturbing aspects for me of the Statement I repeated is not so much that we are falling behind, but that we are ahead of other people. It means that other countries are less advanced than we are.
When the Chancellor of the Duchy of Lancaster raised this matter on 20th May, as I said in the Statement, he found that a number of other countries are significantly behind in their arrangements. Indeed, it is fair to say that only the Netherlands is at or beyond our level of preparedness. My noble friend is therefore correct.
In relation to weapons systems there are two kinds of failure. One is the kind which would make the systems go off unexpectedly and the other is one which would stop them from working altogether. I rather like the second kind of failure.
Baroness O'Cathain: My Lords, it is good that we are having a report on this matter on a quarterly basis and I thank the Government for that. However, the Minister said that the Government are concerned about suppliers. Is there any merit in putting deadlines on suppliers so that we will know the full scale of the problem in time? The Statement did not have anything in that regard but I hope that deadlines have been fixed.
Also, an awful lot of scaremongering is taking place in relation to planes falling out of the sky in the millennium. From the point of general public comfort, is there any statement that the Minister can make in that regard to stop once and for all that scaremongering? People are becoming increasingly concerned.

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I should like the Minister's response to a further suggestion. Every large organisation is currently doing precisely the same thing that government departments are doing. I spoke about this in another country to a company linked in with a company on whose board I serve. The other company was carrying out its own research in a specific area of responsibility and I asked why it could not tell people in London what it was doing.
Bringing that experience to bear—this is a true situation—in the area of government, is there any merit in trying to get together the experts in, for instance, major FTSE companies and asking what are the areas in which they believe they have had a significant breakthrough and whether they are prepared to share the experience? It is not simply a government problem; it is a national problem, a world problem. We must try to harness all the brains to deal with it. I fear that there is a lot of, "not invented here" going on and a lot of multiplication of effort, not just duplication. I shall be grateful for the Minister's comments.
Lord McIntosh of Haringey: My Lords, I am not in the position of being able to say that planes will not fall out of the sky or that one's microwave oven in the kitchen will not work. The noble Baroness is right to say that what government departments are finding is strictly comparable to what other kinds of big business are finding. In other words, they are finding that some of the problems they anticipated are easier to solve than it was thought they would be and some are considerably more difficult. I do not believe that we have yet come to the end of that process. It would be premature of me to seek to give comfort to ordinary people because my conviction is that, if something can go wrong, it will go wrong.
On the issue of getting together the best brains, the noble Baroness has a point. The Cabinet committees and ministerial sub-groups have not only set up this team in the Cabinet Office, but they are also bringing in outside advisers who attend these meetings. We will be able to announce names later this month. I am sure that they will take seriously the suggestion made by the noble Baroness in relation to bringing together experts from other countries and other sectors.
Lord Wise: My Lords, perhaps I can ask one question of the Minister relating to small businesses. As he knows, a number of suppliers are offering products allegedly giving solutions to the problem of the year 2000. I should perhaps declare an interest in that I am involved with one of those companies.
The prices and the efficacy of the products vary enormously, as do the attendant consultancy services. It is a difficult task for small businesses to judge and assess the quality and value for money of these products. Can the noble Lord tell me of any plans that the Government may have to provide small businesses with an approved list of the products and the suppliers?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Wise, raises an important point. He is quite right in saying that it is not within the resources of small
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and medium-sized businesses to deal with the millennium date change. That can only be done with outside help. As he knows from the talks we have had, we are keen to make the suppliers of services to those businesses known to the people in government who are responsible. Access was provided in the case which the noble Lord referred to me. We take very seriously the need for outside consultancy for smaller firms. We shall certainly think very hard about the suggestion he makes of providing some kind of evaluation of the services that they provide.

School Standards and Framework Bill
6 p.m.
House again in Committee.
Clause 62 [Power of head teacher to exclude pupils]:
Baroness David Baroness David moved Amendment No. 186:
Page 48, line 35, at end insert—
("() No pupil may be permanently excluded from a maintained school unless—

(a) all reasonable steps have been taken by the school to avoid excluding the pupil; and

(b) the head teacher is satisfied that allowing the pupil to remain in the school would be seriously detrimental to the education or welfare of the pupil, or to that of others at the school.").

The noble Baroness said: Amendment No. 186 is the first of 18 amendments in this large group, and of those amendments Amendments Nos. 186 to 188 and Amendments Nos. 194 and 235 are mine. As regards Amendment No. 186, I hope that the noble Lord, Lord Pilkington, has read paragraph (b) which states,
"the head teacher is satisfied that allowing the pupil to remain in the school would be seriously detrimental to the education or welfare of the pupil, or to that of others at the school".
That answers the worry that the noble Lord had about an earlier amendment. Perhaps I may remind the Minister that this amendment was tabled by the Labour Party Front Bench in relation to the (now) Education Act 1997. It was also tabled by it in 1993 and, presumably, it was in favour of the sentence therein.
We have yet to encounter a head teacher or governor who has any objection to the grounds themselves. These are widely held to be a correct description of the circumstances when a pupil may—arguably, should—be permanently excluded.
The proposed grounds, already in DfEE circular 10/94, have two limbs. The first limb—that the school should have taken reasonable steps to avoid the exclusion—could be usefully developed in regulations or guidance, in terms of what steps are reasonable. However, the word "reasonable" ensures that where there is a genuine emergency, such as a violent assault, a pupil may be excluded straight away.
The second limb—that unless excluded, the pupil's behaviour would be seriously detrimental to the pupil's or others' education or welfare,—would prevent the exclusion of pupils for routine, very minor disciplinary misdemeanours.
We believe that it is the key to obtaining the "step change" in exclusions desired by the Prime Minister because it fetters schools' massive powers in this area while at the same time introducing a clear, legal baseline which should operate for the benefit of all. All parties would, finally, be reading the same script and allegations of a system which unfairly discriminates against teachers, governors or LEAs, black children or looked-after children, or whatever, should be put to rest.
My next amendment is Amendment No. 187. However well schools organise themselves and however well LEAs work in support of them, inevitably there will be times when pupils have to be excluded for the safety of other pupils and the staff at the school. The challenge for the legislation is to ensure that, for pupils who are excluded, they are out of school for as short a time as possible and that during that time there is as much educational continuity as possible.
The 45-day total over the year of the fixed-term exclusions brought in by the Education Act 1997 will be confirmed by the regulations in this Bill. If it is not amended, this limit will come into effect this September. The 45-day total is too long. If the days were all allocated within one term it could mean that a child would miss nearly a whole term of education in one fell swoop. We wish to see the 15-day limit over one term re-introduced, combined with greater clarity about the provision of work during that period.
Amendment No. 188 aims to improve school responsibilities in relation to fixed-term exclusions. The Children's Consortium on Education, which is responsible for this amendment, believes that a clear distinction should be made between permanent and fixed-term exclusions which we believe should revert to their common name of "suspension". The grounds for a fixed-term exclusion can, we argue, be much wider than those for a permanent exclusion, including "automatic" suspensions; for example, for possession of a weapon or drugs. However, this amendment ensures that schools do not suspend children just to get a break from them and that they take appropriate steps when suspension occurs.
The consortium would also argue that the 45-day limit imposed by the Education Act 1997 reverts to a 15-day limit. The Truancy and School Exclusion report from the Social Exclusion Unit, emphasises the importance of reintegrating an excluded child into school and the lack of alternative education provision offered to them. That appears in paragraphs 2.21 and 2.22 of the report. This reintegration is difficult enough after a five-day exclusion. A week is a long time to a child. After a total of 45 days in a school year—or missing two and a bit months of school—it becomes almost impossible. Those who receive education otherwise—an estimated 25,000 according to the Social Exclusion Unit—receive only 10 per cent. of full education.
Under this amendment the head teacher is placed under a general duty to take steps to get a suspended pupil back into school as soon as possible. Two specific steps are mentioned: to make sure that any special educational needs of the pupil have been identified and
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to have a meeting with all the relevant people to agree causes and solutions. All of these steps were supported by the conclusions of the Ofsted Report on exclusions from secondary schools and the Truancy and School Exclusion report from the Social Exclusion Unit. This amendment was tabled by the Government when they were in opposition in 1996–97. It was very useful that the school exclusion report came out before we had to discuss these clauses in the Bill. I very much hope that attention will be paid by the Government to this very good report.
The terms of Amendment No. 194 have not yet been considered by the Government, either now or when in opposition. They are to ensure that unpopular schools are not forced to take all the excluded pupils in the area because the popular schools are full and therefore can resist any direction to admit a pupil. The excluded pupil filling the vacated place would have to satisfy any admissions criteria relating to academic ability or religious affiliation attached to the place, but not ones relating to attitude, aptitude or catchment area. This revolving-door policy would allow pupils to begin again at another school while protecting the unpopular schools from becoming the obvious place for all problem pupils and pupils with problems. That is especially true now that we know the majority of excluded children have unmet learning difficulties.
The amendment might be unpopular with some schools; for example, those who use exclusions as a backdoor method for selection. That should be offset by the gains to other schools.
An indirect, but important, consequence of this amendment, should be to concentrate the minds of schools before excluding a pupil because it might mean that they get someone worse. If accepted, Clause 88 might need some consequential amendment. We would argue that Clause 79 could, but does not have to be, abandoned since any need for it would be obviated. The "two strikes and you're out" measures which ensure that no single school is forced to admit all of the difficult pupils already excluded from other schools would become redundant. This amendment would support an LEA's obligation to provide an excluded pupil with a full-time and appropriate education as recommended by the Social Exclusion Unit in its recent report.
The proposed clause requires that parents and pupils agree to the placement in order to comply with the statutory principle of parental preference and the pragmatic principle of pupil co-operation. It is an important point that excluded pupils are looked after properly and reinstated as soon as possible. The longer they are out of school the less easily they will be able to reintegrate into the education system.
Finally, Amendment No. 235 is designed to secure that excluded pupils and others out of school such as sick children are entitled to full-time education. There is no disagreement that excluded pupils need full-time education—if anything, they need more than other pupils. The fact that they are not provided with full-time education is a matter of resources, not principle. Out-of-school education does not have to conform to the national curriculum. One can include activities such as

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work experience, which may well be very good for children. Failure to make this provision places parents in the invidious position of being in breach of their legal duty to secure their children's full-time education. I beg to move.
Baroness Byford: I speak to three amendments in this grouping. I apologise to Members of the Committee. Earlier I was wrong to assume that they would be run together. It was a newcomer's error. I should like to speak to Amendments Nos. 187A, 194A and 197A, all of which are part of the same group. Amendment No. 187A deals with the whole question of exclusion. It proposes that after a period of more than three days parents should have a right of appeal. If their child is excluded for a shorter period that is perhaps unnecessary. The amendment seeks to define an acceptable period. If a child is excluded for half a day or a day to trigger the whole process is unreasonable. My amendment suggests that the provision should be activated after a period of more than three days.
Amendments Nos. 194A and 197A deal with the length of time that the exclusions are in process before the end of the appeal procedure. The noble Baroness, Lady David, and I seek to ensure that in this day and age of instant communication children go back to school as quickly as possible. I believe that it is sensible to reduce the period in the Bill to two weeks. That is the purpose of these two consequential amendments. The intention is to get children back into the class. One of the difficulties is that until the appeal is heard very often the child cannot be moved to another school and dealt with in an ongoing manner.
Lord Archer of Sandwell: I should like to speak briefly to Amendment No. 223 which is part of the present group. Once again, one of my amendments has been propelled involuntarily into a group to which it is totally unrelated. With the leave of the Committee, I propose to speak to it when we reach Amendment No. 195 and defer comment upon it until then. At the risk of repeating the obvious, that in no way diminishes my support for what has been said by my noble friend.
6.15 p.m.
Lord Swinfen: Amendment No. 235 is in my name. The noble Baroness, Lady David, has spoken ably to this amendment. Amendment No. 235 seeks to ensure that pupils who are excluded are given full-time education. It is the parents who have the responsibility to ensure that their children have full-time education, not schooling. I do not suggest that the parents should necessarily be responsible for providing the education but it is important that the child is educated. If the child is excluded and allowed to do nothing the child's behaviour will become worse. The child will be idle. The Committee will be familiar with the old saying that the Devil makes work for idle hands. A child needs to be educated and kept interested in his education. If the child is not interested in his or her education he or she will not pay attention and will not learn.
Normally, children will be excluded because their behaviour is below standard. That may well be because of special educational needs, possibly because they are
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so bright that they are far ahead of the rest of the class and become bored; others because they have difficulty in learning and cannot keep up or do not understand. They also need special attention. It may also be the case that they cannot see the blackboard and their sight needs to be looked after. All of those matters need to be considered. But if one is to produce children who grow up into responsible members of society one must ensure that even if they are excluded from school they are given full-time education so that they can feel worthwhile individuals in themselves and receive training to make them useful and responsible members of society; otherwise, they will end up as hoodlums.
Lord Elton: I briefly endorse what has just been said by my noble friend Lord Swinfen. I do so on the basis of seven years' experience as a teacher in a secondary school, two of them in a comprehensive school with 1,500 boys on a slum clearance estate. The availability of exclusion when I was teaching at that school would have been enormously tempting. My task would have been a great deal simpler had I been able to disembarrass myself of certain people whose names and voices are still clearly imprinted upon my memory. But that would have been a dereliction of duty. I believe that the amendment moved by the noble Baroness is a minimum requirement that the Government can refuse only on the grounds that the requirement already exists elsewhere in another form.
I should like to emphasise to the Committee that first temporary and then permanent exclusion is a slippery slope down which disaffected children slide into an area in which they are almost universally tempted into some form of criminality. I chair a charity, the Divert Trust, which introduces adult mentors who are paired up with children who are on the edge of exclusion or who are in exclusion. Its aim is to reduce juvenile crime. The most predictable area of juvenile crime is among children who are excluded from school and given nothing whatever to do or a little to do without supervision; in other words, they are subjected to an intensification of the circumstances which led to their misbehaviour in the first place. Their position is made worse and not better. This is an expensive activity, but I can assure Members of the Committee that if children are not formally taken in hand at that stage with care the expense to the state and the institutions to deal with criminals will be hugely greater.
The Lord Bishop of Ripon: I too rise in support of the amendment spoken to by the noble Lord, Lord Swinfen. The Committee is considering exclusion in terms of the protection of the school or perhaps the punishment of the individual. But I believe that there may be occasions when the young person needs the kind of support that can be given by a pupil referral unit which perhaps the school is unable to give. Often youngsters with behavioural problems come from difficult home backgrounds and will require the kind of individual support that is simply not available in a large class.
My experience of pupil referral units is that they do good work with such youngsters because, of course, they work with much smaller groups of young people.

745
I have seen both local authority referral units and private ones. In both cases it is possible to work with young people at a level which is simply not possible in a school and, moreover, to work in such a way that it is possible for them to be fed back into mainstream provision. I am thinking primarily of primary school children. I would entirely endorse the point made by the noble Lord, Lord Elton, that intervention at that level and in that sort of case can not only give immense support to young people but is in the end a much less costly way of going about it.
Baroness Blackstone: In responding to the amendments moved by my noble friend Lady David and the noble Baroness, Lady Byford, I am also speaking to a group of government amendments which I hope will provide reassurance for those who have spoken on this group.
Perhaps I can say this to my noble and learned friend Lord Archer. I am sorry that for some reason on the groupings the amendment that he has @referred to, Amendment No. 223, was listed with this group. On the groupings that I have we intended it to be grouped with the other amendments on Schedule 18. He is absolutely right, that is the correct place for it.
I understand the intention behind these amendments, which is to reduce the number of children who are excluded from school every year. I have an enormous amount of sympathy with that intention and agree with a great deal of what has already been said. The Government are very much committed to the same goal. However, they do not consider that these amendments are the best way to achieve that.
Beginning with Amendment No. 186, I recognise the wording of this amendment as advice taken from the department's own guidance on exclusion. While most schools follow this guidance carefully and use permanent exclusion only as a last resort—which, of course, is what they should do—and in response to the most serious incidents, it is clear that a minority of schools choose to ignore our guidance. That is why we have tabled amendments—to require all those involved in the exclusion process to have regard to the Secretary of State's guidance. That was in the earlier group, Amendment No. 193C.
The revised guidance will continue to place emphasis on the need for permanent exclusions to be used only as a last resort and when the child's continuing presence in the school would be seriously detrimental to the welfare or education of others in the school. However, unlike primary legislation, the detailed guidance can be used to recognise that there may sometimes be exceptions to this general rule.
Acceptance of Amendment No. 186 could make it unlawful for a school permanently to exclude a pupil with no previous record of poor discipline who mounted a serious physical attack on a teacher, as it might be argued that such an exclusion was not a "last resort". It is important that schools are able to respond with a permanent exclusion to one-off incidents of behaviour
746
that may be very damaging to others in the school. I therefore think that it would be better to use statutory guidance to tackle the problem that this amendment highlights.
Moving on to Amendment No. 187. I should reassure noble Lords that the Government are well aware of concerns within this place about the provisions introduced by the Education Act 1997 to allow schools to exclude a pupil for up to 45 days in a school year rather than the current limit of 15 days in a school term. The changes will come into force this September and the revised limits on fixed period exclusions are replicated in this Bill.
The changes to the time limits were introduced, with cross-party support, in response to concern from head teachers that 15 days was not long enough to prepare the pupil to be reintegrated into school, and that schools were having to resort to permanent exclusion when a longer fixed term exclusion would have been much more appropriate. The I5-day limit is seen as a particular problem where support from social workers or educational psychologists, for example, is needed to ensure successful reintegration.
I know that there is concern that some schools may abuse this new flexibility, leaving children out of school for several weeks at a time with no proper education. But it cannot be right to abandon a provision which, when used appropriately should help reduce the incidence of permanent exclusion simply because of fears that not all schools will use the provision properly. Instead, we need to establish an exclusions process which includes enough safeguards to ensure that schools use longer fixed period exclusions only where appropriate. We therefore believe that the Bill contains the necessary checks to ensure that exclusions of more than the current limit of 15 days are used only where these are absolutely necessary to avoid a permanent exclusion.
Turning to Amendment No. 188, I should like to reassure noble Lords that there is no need for a regulation-making power to help ensure that a child who is excluded for a fixed period returns to school as quickly as possible. Clause 63(1)(a) requires the head teacher to tell the relevant person, normally the parent, the length of the exclusion at the point at which the pupil is excluded. We will use guidance to make absolutely clear to head teachers that fixed period exclusions should not normally be for more than a few days, and also to encourage meetings between teachers, parents and the pupil where a child persistently misbehaves.
As with the other amendments in this group, I have sympathy with the intention behind Amendment No. 194. The amendment would force schools which have permanently excluded a pupil to give first priority when filling that place to a pupil excluded from another school.
Unfortunately, however, the proposal is not without its disadvantages. First among these is that it would appear to "reward" an excluded child with a place at a popular oversubscribed school, ahead of well behaved children who were on the waiting list. Instead we intend

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to use other incentives, such as changes to the financial arrangements and the way in which performance tables are calculated, to give schools extra incentives to avoid exclusion and to admit pupils excluded from other schools.
I sympathise strongly with the intention behind Amendment No. 235. As noble Lords know, many children who are permanently excluded from school currently receive little education, often only a few hours a week. Some children do not have any education arranged for them at all for several months. As the noble Lord, Lord Elton, rightly pointed out, this is an appalling situation. These children will not only suffer educationally in the period out of school, but will also have great difficulty re-integrating into school, as well as being likely to get into trouble with the law.
Following the report Truancy and School Exclusion from the Social Exclusion Unit, it is now government policy for all children excluded from school to receive an appropriate full-time education by the year 2001, and I welcome the support for this from my noble friend and from the noble Lord, Lord Swinfen.
In May of this year, the Social Exclusion Unit report recommended how we can make a step change in the levels of truancy and exclusion. We are pledged to reduce levels of truancy and exclusion by one third by 2002 and we are taking a whole range of steps to achieve that. We recognise, however, that there will always be some children, I am afraid to say, who are excluded from school. An important part of our strategy is therefore to ensure that those pupils' needs are properly catered for while they are out of school. We have therefore agreed to stipulate in statutory guidance that "full-time and appropriate education" be provided for every child who is excluded for more than three weeks. This will be quite a difficult recommendation to meet. It will take some LEAs quite a while to reach the starting blocks.
We are, of course, aware that arranging education out of school for a mixed bag of schools is expensive. Extending that provision will certainly have financial implications. These are being considered as part of the comprehensive spending review. It will take a little time to achieve the significant improvements that I think we all agree are needed to current provision, but I expect there to be a full timetable for all excluded children by no later than 2001.
I do, however, understand and fully support the aim of the amendment. I am still, however, doubtful that an amendment of this kind is necessary. It does not have the effect of requiring full-time education for excluded pupils. An amendment to require that cannot be made to Section 19 of the Education Act 1996, as that section applies to all children who are not in school, not just those who have been excluded; including, for example, sick children. It would also not be advisable to apply a rather narrow legal meaning of "education" to that particular set of children. Many of the children, particularly the older ones, are seriously disaffected. They will respond to something out of the ordinary to re-engage in mainstream society and education. An increased emphasis on personal and social development,
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counselling, possibly placement in a further education college for an older child, or with a voluntary provider, can all be valuable activities for an excluded child. Clearly, nobody would want to see any of such activities in any way restricted by an over-narrow legal framework.
The department's statutory guidance will explain in detail the kind of provision that might not easily be defined as "education". It will be much easier to explain that in statutory guidance than to set it out in law. We intend to issue the guidance later this year, after wide consultation with local education authorities and others. We have already informed LEAs that they should be moving towards a full timetable for every child, with a clear focus on reintegration into mainstream schooling wherever possible. The guidance will expand on that. As I have indicated, we expect that to be delivered by 2001.
I now turn to a group of amendments concerned with the arrangements for a parent to appeal against the permanent exclusion of his or her child. In some cases, for example training of appeal panel members and the presence of observers at the hearing, similar considerations apply in relation to both admissions and exclusions appeals.
Amendment No. 187A is intended to remove the parent's right to make representations against exclusions of three days or fewer. The Bill as drafted requires the governors to hold a meeting to which the parents are invited only in the case of exclusions of more than five days. For shorter exclusions the governing body may decide to receive written representations only, and perhaps consider them termly at an ordinary meeting.
The Government consider that that approach places a minimal burden on governors while allowing them to keep under review the head teacher's use of short fixed period exclusions.
Amendments Nos. 194A and 197A are intended to reduce the amount of time that excluded pupils are out of school and not learning. I am entirely in accord with the desire of the noble Baroness to speed up the appeals process as much as possible. Indeed, the Bill as currently drafted explicitly requires the LEA to have regard to the desirability of securing that an appeal is heard without delay.
Where parents are sure that they wish to appeal against a permanent exclusion there is nothing to stop them doing so immediately. In some cases, however, parents will wish to seek advice from others before reaching a decision as to whether to appeal. The Government consider that reducing the time limit from 15 to 10 school days might place too much pressure on parents when they are making that important decision.
I turn to Amendment No. 197A. We have already set LEAs a challenging timetable for setting up panels to hear appeals against permanent exclusions. While we would, of course, encourage those panels to hear their appeals as quickly as possible, we do not believe that it would be practicable to reduce the timetable any further in every case. In the light of what I have said, I hope that the noble Baroness, Lady Byford, will feel able not to move her amendments.

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I turn now to the government amendments. I shall speak to Amendments Nos. 198A, 222A, 222B, 223A and 226A. The amendments respond to concerns raised by my noble and learned friend Lord Archer who fears that too large a number of observers can be intimidating for parents and that a restriction on observers would emphasise the independence of the appeal.
The amendments restrict the right of observers at admission and exclusion appeals at appeals hearings relating to children permanently excluded from two or more schools. Under our amendments, a member of the authority or, in the case of admission appeals, a governor of the school concerned, will only be allowed to observe an appeal hearing where the appeal panel so directs. That would allow the appeal panel to hear representations from the parties involved and come to a decision on whether observers should be allowed. We expect the provisions in the Bill to be supported by guidance on the role of observers in the proposed code of practice.
We have also tabled a technical amendment (Amendment No. 223A) to ensure that the right of a single Council on Tribunals member to observe an appeal hearing is worded in the same way in the separate schedules relating to admissions appeals and to exclusion appeals. These amendments do not affect the right of members of the Council on Tribunals to observe an appeal hearing.
Government Amendments Nos. 196A, 219B and 219C concern the arrangements for hearing appeals against decisions on exclusions and admissions. They are necessary to cover those, I hope, rare occasions when a member of the appeal panel is taken ill or dies during the course of the consideration of the appeal. The amendments apply only to panels with five members. They allow the panel to continue its consideration of an appeal provided that three or more members of the panel remain, and the panel continues to include at least one lay member and at least one member with knowledge or experience in education or who is a parent of a registered pupil at a school.
These amendments will reduce the number of instances where the untimely death or illness of a panel member delays the conclusion of an appeal or, particularly in the case of multiple admission appeals, requires the relevant authority to reconstitute the panel and rehear cases. Such a delay to the outcome of an appeal hearing is not in the best interests of the children concerned.
Finally, Amendment No. 198B removes from the primary legislation details of the factors that must be taken into account by an appeal panel when deciding whether to direct that a permanently excluded pupil be reinstated. As we intend to replicate those provisions in new guidance, to which appeal panels will be required to have regard, that level of detail is more appropriately covered in guidance.
Baroness Maddock: My Lords, I thank the Minister for her reassuring words about how the Government view the education of children who are, as it were,
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thrown out of school. I know my honourable friends from the Liberal Democrat Benches raised that issue in another place. They, too, will be pleased to hear what the Minister said today.
I cast my mind back some, perhaps 10, years. I could not help thinking that many authorities dealt rather more effectively with excluded children than we may do today. I found it distressing to note that it may be a couple of years before we return all over the country to some of the best practice that happened in local authorities in the past.
It is not easy, because it is not cheap to deal with the education of excluded children. The terrible mess that we have got into over this can be put down partly to the fact that school budgets have been cut over the years. This is the area that has been cut in the past. Many children have created many problems with a great deal of extra expense for us in other areas of our daily lives. It is a sad reflection on what has happened to education in recent years.
I strongly believe it is because of the cuts that local authorities were forced to make that these types of children did not receive the education and help that they required when they could not be maintained within schools. It is quite clear that some of the practices that operated years ago were very effective, and it would be nice if we could get back to that situation sooner than the year 2001. I urge the Minister to press for these things to be done sooner if that is possible, in which case we should all be very pleased.
Baroness Blatch: I should like to endorse that point and then return to something that the Minister said when speaking to these amendments: namely, that full-time education would be guaranteed for all children who are excluded over a certain period. Of course it would be costly—those are the words of the Minister—and these matters will be considered by the comprehensive spending review. We do not yet know what that review will throw up? We do not know whether it will throw up billions of pounds or something less. Nor do we know the priorities for spending that money when it comes on stream. My question is very specific and I think it is important. The policy is actually fixed in concrete and a date has been set for it. Therefore, can the noble Baroness say that, whatever amount comes out of the comprehensive spending review and whatever may be the share for education, this particular policy will pre-empt any savings? In other words, the money will be found and will be given to LEAs to meet their obligations in order to deliver quite specifically this pledge by the year 2001.
Baroness Blackstone: I am very grateful to the noble Baroness, Lady Maddock, for her comments. She is absolutely right that 10 or 15 years ago nothing like the number of children were being excluded from schools as is currently the case. This Government are determined to bring these numbers down. I agree that it is rather disappointing that it will take a little while but, frankly, we have to be realistic. She is of course right to say that school budgets were cut in the past and this particular area was not perhaps given the priority that it should have had.

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Of course the noble Baroness, Lady Blatch, is right: I cannot give a guarantee as to what the comprehensive spending review will throw up, and any help that she can give me in this area in negotiating with the Treasury will be welcome. This is of course a very high priority area, because, if we do not solve the problem, there will be a large number of uneducated or semi-educated young people who in the end will not be employable, quite apart from the fact that they may well get into serious trouble with the law.
Baroness Blatch: I am afraid that the noble Baroness has missed my point. I do not think there will be a large number of uneducated people, because in law there will be a very specific obligation on local authorities to deliver. They will not have any choice. There is no flexibility built in here. If 2001 is the year by which every child who has been excluded in the particular circumstances set out in the Bill must be provided with full-time education, and if the money does not come from the comprehensive spending review, it will be pre-empted money from the local authorities.
I am simply saying that if the money is not thrown up by the comprehensive spending review or if the allocation is not made by the Treasury via the Department for Education from the spending review, does that mean that local education authorities will have their own expenditure pre-empted in order to fulfil their legal obligation under the Bill by the year 2001?
Baroness Blackstone: I think that perhaps the noble Baroness should be a bit more confident about what I have said. The Social Exclusion Unit has reported on this. This is an area to which the Government are totally committed, and somehow or other the money will be found. I am absolutely convinced that this is a very high priority and it is an area where the government of which the noble Baroness was a member signally failed. We were left with very large numbers of exclusions, compared with earlier years, and young people were not being adequately supported.
Baroness Blatch: I am very grateful to the noble Baroness because she has given me the answer that I wanted: that the money will be found from somewhere. I thank her.
6.45 p.m.
Baroness David: There have been quite a number of contributions to this group of amendments and I would like to thank the noble Lords, Lord Swinfen and Lord Elton, for the support that they have given. It is very good to hear others with teaching experience speaking about this particular area. I am also grateful to the right reverend Prelate, who commented on Amendment No. 235. I certainly agree with him that referral units are necessary and are often extremely good. My worry was that quite often pupils were not sent to them and so those children were not receiving the education they should have been receiving. Whether this is work experience or a place in a referral unit does not really matter. If they are excluded from school, we want them to be somewhere, getting some sort of education.
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I was very cheered by what my noble friend said about Amendment No. 235. I accept that my amendment may be technically incorrect, but it is encouraging to hear that the Government are taking very seriously the point that children should have proper full-time education if they are excluded. Like the noble Baroness, Lady Maddock, I am sorry that we cannot be sure of it happening until the year 2001, but after all that will be a great improvement on what is happening now. We hope to move towards that provision so that all children receive full-time education if they are excluded—a move that may have to be made by degrees. I should like to have my noble friend's reassurance about that.
I think that my noble friend had a certain sympathy for my other amendments. However, I shall have to read her objections to Amendment No. 186, which I shall do very carefully. I was rather surprised by the response to Amendment No. 187 and also to the amendments put by the noble Baroness, Lady Byford, that 15 days is too short a time to reintegrate pupils. I should not have thought that was the case, but I suppose I must take it that it is. It seems to me that steps should be taken immediately a child is excluded. Perhaps we could make progress with this situation which, as my noble friend said, really got much worse under the previous government.
The Minister is relying a great deal on guidance. Guidance, as we discussed earlier, is all right but it does not have to be regarded; and that, I think, is the worry about her response to some of the amendments I moved. I will read what she has said and, if need be, I will come back at a later stage. I was particularly pleased with my noble friend's response to Amendment No. 235, which is very important indeed. I am grateful to her for that. In the meantime I beg leave to withdraw Amendment No. 186.
Amendment, by leave, withdrawn.
[Amendment No. 187 not moved.]
Clause 62 agreed to.
Clause 63 [Exclusion of pupils: duty to inform parents, etc.]:
Baroness Byford Baroness Byford had given notice of her intention to move Amendment No. 187A:
Page 49, line 6, at end insert—
("() Where the exclusion referred to in subsection (1) above is for a period of more than three school days, the head teacher shall, in addition to the matters referred to in that subsection, inform the relevant person—").
The noble Baroness said: I thank the Minister for her response. As I said at the beginning, the whole purpose of this group of amendments is to speed up some of the processes that are laid down in the Bill. I think all those who have spoken are very aware that we do not wish to have children excluded from schools, or to have them excluded for as short a time as possible. However, I am grateful to the noble Baroness for her response. Perhaps I might also say to the noble Baroness, Lady David, that I am a little disappointed that we cannot speed up the appeals committee; the review. I also will read Hansard.
[Amendment No. 187A not moved.]
Clause 63 agreed to.
[Amendment No. 188 not moved.]
Clause 64 [Functions of governing body in relation to excluded pupils]:
[Amendment No. 189 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 189A and 189B:
Page 49, line 40, leave out from ("representations") to end of line 41 and insert ("about the exclusion made to the governing body—

(i) by the relevant person in pursuance of section 63(1)(c) or (2)(b), or

(ii) by the local education authority;").

Page 49, line 42, leave out ("the relevant person") and insert ("each of the following, namely—

(i) the relevant person, and

(ii) an officer of the local education authority nominated by the authority,").

On Question, amendments agreed to.
[Amendments Nos. 190 to 191A not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 192:
Page 50, line 10, at end insert ("and the grounds on which it is based").
The noble and learned Lord said: It may be convenient for the Committee to discuss Amendment No. 193 with this amendment. Earlier my noble friend Lord Whitty spoke to Amendment No. 193A and it may be convenient to discuss that with this grouping.
These amendments address a narrow point, but they seek to introduce a requirement which is at the very foundation of natural justice. This part of the Bill, as we know, deals with exclusions. It is a difficult enough subject in all conscience. The Council on Tribunals has found it necessary, in successive annual reports, to criticise the provisions which previously existed. I welcome the Government seeking, in this Bill, to address some of those problems.
I hope that the omissions that these amendments seek to rectify were simply because it was intended to deal with the matter subsequently in regulations, but I believe that it is of sufficient importance to appear on the face of the Bill.
Clause 63(1)(b) says that, where the head teacher decides to exclude a pupil, he must inform the parents or other relevant person of the reasons for the exclusion. Quite right, too. It would be monstrous if a child were excluded and those concerned were not told the reasons. When the governing body is informed of the exclusion, it is under a duty to decide whether to uphold the exclusion or to order reinstatement. Yet the Bill imposes no obligation to give the reasons why the governing body agrees or disagrees with the head teacher.
One would have thought, in any event, that those most concerned were entitled to know the reasons for an exclusion and what subsequently happened about it. The case goes further. If there is an appeal, the matter may have to be considered by an appeal panel. The appeal is specifically stated to be against the decision of
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the governing body—not, the Committee will observe, against the initial decision of the head teacher to exclude. Is the appeal panel not to have the advantage of knowing the reasons for the decision against which it is hearing an appeal? So far, I believe that my noble friends agree with me, as my noble friend Lady Blackstone has set down Amendment No. 193A and my noble friend Lord Whitty has spoken in support of it.
I am grateful to my noble friends for taking note of my amendments and conceding 50 per cent. of them. I am bound to say that that is a higher response rate from the Front Bench than Back Benchers have been accustomed to in the past.
Amendment No. 193A would require the governing body to tell parents or other relevant persons the reasons for upholding the decision to exclude a pupil, if they uphold it. My gratitude to my noble friend Lady Blackstone is augmented by the fact that she took the trouble of writing to me to explain what she proposed to do. I hope it will not appear churlish, in the light of such generosity, if I point out that it meets only half of my amendments. I was proposing that the governors should be required, if conversely they overturn the decision of the head teacher and direct that the pupil should be reinstated, to tell the head teacher the reasons for their conclusion.
Earlier we heard from the noble Lord, Lord Pilkington, of the concerns of the staff at the possible return of a pupil who has been excluded. It is a matter of great concern if a thoroughly disruptive pupil is permitted to return to the school, notwithstanding the decision of the head teacher to exclude him. No doubt, there will be occasions when parents and child will demonstrate an element of triumphalism: "There you are, you see, we were treated unjustly".
Surely the governors could be required to say that they were not persuaded that the allegations against the pupil were true; that they think there may be room for a mistake; or that they think there was an over-reaction and they agree that the complaint was justified, but they think that the child could be offered counselling and, in the light of that, could be given one more chance.
It would be important for everyone to know the governors' reasons. The staff would have to live with the decision. There have been occasions when, in the case of an exclusion panel, the staff have been so far affronted by a decision to reinstate a child that they have discussed strike action. I am sure that my noble friends will agree that it is of the greatest importance that all the decisions provided for in this part of the Bill, at every stage, should carry authority and be accepted.
While I thank my noble friends for their generous response to my amendments, I hope that they will feel able to extend their response one stage further. I beg to move.
Lord Whitty: As my noble and learned friend said, it probably would have been more convenient if the government amendment were considered here. I shall refer to it in my remarks. These amendments concern circumstances in which the governing body must give

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reasons for its decisions on exclusions. I am grateful to my noble and learnd friend and the Council on Tribunals for bringing this to our attention.
As currently drafted, the Bill requires governors to notify parents of their decision, but the governors do not have to give reasons. The government amendment, as I have said, rectifies that omission to the extent that it requires the governing body to set out a statement of its reasons for upholding a permanent exclusion when notifying the parents of the outcome of its consideration of the case.
My noble and learned friend's amendments go further than that in two respects. They place a requirement on the governing body to give the parents reasons for upholding a decision to exclude a pupil for a fixed period, as well as permanently, and requires the governing body to give reasons when it is directing reinstatement—in other words, overturning the initial judgment as my noble and learned friend has just mentioned.
We do not consider it necessary to put this on the face of the Bill. While it is clearly the practice for the governing body to give reasons for all its decisions, and in practice it is inconceivable that the governors would not tell the head teacher why they had overturned an exclusion, the reason this is dealt with on the face of the Bill is because it is only in the case of a decision to exclude permanently that there is a statutory right of appeal for the parent. That is why we have tabled just this one amendment to the schedule. However, we intend to cover the other aspects of notification in the guidance, to which governing bodies and others will legally be required to have regard. In practice, it would be inconceivable that the guidance and practice of governing bodies would not require them, for example, to tell the head teachers why they had overturned an exclusion.
On the understanding that those points would be covered by guidance, and that the main point as to whether there is a statutory right of appeal is dealt with by the government amendment, I hope my noble and learned friend will feel able to withdraw his amendment.
Lord Archer of Sandwell: Of course, I am grateful to my noble friend for meeting me perhaps a little over half way. He has persuaded me that he has gone a little over the dividing line. I am grateful for that.
As for providing an appeal when a child is excluded for a fixed period, I say at once that that was an oversight. I drafted my amendment in something of a hurry, late at night, and I had forgotten that that would be a consequence. That is not what was in my mind. However, it seems to me that if the governors reinstate a child whom the headteacher has purported to exclude he is entitled to know why. Although in 999 cases out of a 1,000 they would tell the head teacher why they disagree, sometimes relations are strained or the school is unhappy. Sometimes governors are unreasonable, but not for the most part. Why not provide for such circumstances? I can see no reason.
My noble friend says that the issue will be dealt with in guidance. We have already had several exchanges about the status of the guidance. I would much rather
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provision appeared on the face of the Bill, but at this stage and in view of what my noble friend was kind enough to say, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
[Amendment No. 193 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 193A and 193B:
Page 50, line 19, at end insert—
("(ia) the reasons for the decision,").
Page 50, line 38, leave out ("section 65") and insert ("sections 65 and (Exclusion of pupils: guidance)").
On Question, amendments agreed to.
Clause 64, as amended, agreed to.
Clause 65 agreed to.
Baroness Blackstone Baroness Blackstone moved Amendment No. 193C:
After Clause 65, insert the following new clause—
EXCLUSION OF PUPILS: GUIDANCE
(".—(1) This section applies to any functions of—

(a) the head teacher or the governing body of a maintained school,

(b) a local education authority, or

(c) an appeal panel constituted in accordance with paragraph 2 of Schedule 18,

conferred by or under any of sections 62 to 65 and Schedule 18.
(2) In discharging any such function, such a person or body shall have regard to any guidance given from time to time by the Secretary of State.").
On Question, amendment agreed to.
[Amendment No. 194 not moved.]
Schedule 18 [Appeals against exclusion of pupils]:
[Amendment No. 194A not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 195:
Page 176, line 27, at end insert—
("() The panel shall be chaired by a barrister or solicitor of at least 5 years' standing or by a person having a 5–year qualification (construed in accordance with section 71 of the Courts and Legal Services Act 1990).").
The noble and learned Lord said: The Committee may find it convenient if we also discuss Amendments Nos. 196, 197, 220, 221 and 223. Perhaps your Lordships will permit me to reverse the order of my amendments and speak first to Amendment No. 196. It is easier to argue from the general to the particular.
Amendment No. 196 virtually speaks for itself. Being a member of an appeal panel is not the same as attending a committee meeting, although one sometimes meets members of local education authorities who believe that it is. It is concerned with a judicial process. It is concerned with ensuring that the parents or other relevant persons are given a proper opportunity to state their case and that the head teacher, the governing body, the LEA and everyone concerned shall know the case which they have to meet and be given a fair chance to answer it. It is concerned with identifying the issues

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which fall to be decided. The Bill now helps to clarify these issues. But I have visited exclusion panels which failed to keep separate the question whether the conduct complained of took place and the question of whether if it did take place exclusion was the appropriate reaction. The friend who assists the parent or relevant person is not always a skilled advocate. I once heard a well-meaning friend of the appellant say to a panel, "I ask you to believe the boy when he says that the incident never happened and I suggest that he has learnt his lesson and you should give him another chance".
Being a member of a panel is concerned with procedural rights, some of them now underpinned by the Human Rights Act. If those who are members of the panel are to address all those tasks so as to do justice they need to be trained. Perhaps I may say in passing that Amendment No. 220 addresses the same question in relation to admission appeals.
The problem is that there is no one system of panels with a national authority or a national president. There are more than 600 LEAs or other governing bodies. Some of them address the question of training in a serious and responsible way. Some are less conscious of the need. My noble friend may know that last year the Council on Tribunals distributed a questionnaire among all the LEAs in this country in respect of the provisions they made for training. The results were most enlightening. Some LEAs reported that they worked very hard at training. At the other end of the scale were those who said that they did not see the need and did nothing. Right off the scale were those who did not take the trouble to reply. But most interesting of all were the substantial number who said, "We would like to do better, but we are not sure how to go about it. Can you please advise us?".
The Tribunal's Committee of the Judicial Studies Board earlier this year invited a number of people to a course on training for trainers. Some LEAs responded. I believe that some would have attended the course but were unable to do so because the LEAs concerned felt unable to provide the slender resources involved. That is going to require serious commitment by the department together with the tribunals committee.
I can speak for the Council on Tribunals, which has only its advice to offer but which will be happy to provide that. I should be grateful to hear from my noble friend about the department's thinking on this whole problem.
I turn to Amendment No. 195. Of all the concerns which the Council on Tribunals has on the Bill this is probably the most serious. It has appeared in a whole succession of the council's annual reports. An appeal to determine whether a child should be permanently excluded from his or her school is perhaps the nearest analogy to penal proceedings among statutory hearings. The panel needs to establish whether the complaint is well founded and, if so, whether exclusion is the appropriate reaction. Again, the parents and the child have a series of procedural rights, some of them underpinned by the Human Rights Act. Equally, it is
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essential that the head teacher and staff shall have the opportunity of putting their case, together with the governors and the LEA.
All those belong among the occupational concerns of the lawyer. I have heard exclusion appeals chaired by people without legal training. Some were conducted impeccably and I was convinced that justice was done. In others, I have seen mistakes which called aloud for judicial review. My noble friend Lady David mentioned Professor Neville Harris, to whom I ventured to advert last week for showing us some of the provisional conclusions from the research which he is currently carrying out with Miss Karen Eaton. They have observed more than 40 exclusion appeals in eight different centres and received answers to questionnaires from nearly 300 parents, more than 100 panel members, more than 100 head teachers, 60 school governors and more than half of all the LEAs in the country. They conclude that a lawyer chairman would help to reinforce the independence of the panel and would be more effective in giving reasons.
Chairing a judicial hearing is not like chairing a committee meeting. I do not suggest that the special skills called for can never be found in a lay person. I say that they are more likely to be found among lawyers. Sometimes there is a qualified lawyer from the executive department of the local council to guide the chairman, but there is no guarantee of that. Even if there is, the situation is not similar to that in a magistrates' court where not only is there an experienced and qualified clerk, but also an experienced magistrate in the chair. Here, panel members may sit very infrequently or have little experience of sitting at all, let alone of taking the chair.
I have a feeling of déjàa vu. A few weeks ago, we had this debate in relation to social security appeal tribunals during our proceedings on the Social Security Bill. On that occasion, the Government listened and took note and Ministers were persuaded. I cannot believe that my noble friend is less disposed to listen than her colleagues in government.
Turning to Amendment No. 197, this amendment again addresses a problem which members of the Council on Tribunals have encountered in the course of their visits to exclusion panels. It is important that whoever is to chair the panel should know well in advance that he or she will be in the chair. The chairman must have in mind what to say to the parties about the order of proceedings, whom to invite to speak first, whom to invite to ask questions, the order of submissions in summing up—all that. It is usually sensible for the chairman to go through the papers with the clerk or legal adviser prior to the hearing.
When that is said, it is hardly likely to provoke disagreement; but it does not always happen. We have encountered occasions where, when the panel is assembled at five minutes to two for a two o'clock hearing, the panel members proceed to choose who is to take the chair. My amendment is designed to ensure that someone shall be nominated well in advance of the hearing. If Amendment No. 195 is accepted, it will be obvious who is to chair the hearing; but I tabled

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Amendment No. 197 as a fall-back position since it addresses a separate problem. Amendment No. 221 addresses the same point in relation to admission appeals.
Finally, turning to Amendment No. 223, this amendment addresses a provision which is found for the first time in this Bill. Paragraph 12 of Schedule 24, dealing with admission appeals, provides that a member of the governing body of the school may attend as of right as an observer. In the case of an appeal under paragraph 2 of the schedule, that is, an appeal against arrangements made by the governing body, I assume the governing body will probably attend anyway as a party to the hearing. Where the appeal is under paragraph 1, however, that is, an arrangement made by the LEA, I appreciate the governing body may have no statutory right to be present.
What troubles the Council on Tribunals is, where parents are confronted by a room full of people, they may be less relaxed and less able to state their case than where there are fewer people present. It was that which prompted me to table my amendment. Although I appreciated that one cannot always exclude an observer from the governors, a compromise was possibly to let it depend upon the consent of the appellants. My noble friend has produced an alternative arrangement and it is one which I think I accept. For that reason I do not propose to pursue this amendment further.
After that group, I can say, as I think one of Mark Twain's characters said, "I couldn't set out such a string as that if I never got to glory". I beg to move Amendment No. 195.
Lord Dormand of Easington: I wonder whether my noble and learned friend could help a non-legal person like myself on two matters which arise on Amendment No. 195? I see that "five years" is mentioned on two occasions, so there must be some significance in that. I believe three years would be adequate for this purpose, that is to say, chairing a panel. Nor do I have the faintest idea what Section 71 of the Courts and Legal Services Act 1990 means, although perhaps your Lordships are all very familiar with it.
A second, perhaps more important, question is whether my noble and learned friend can tell me, from his long and very esteemed experience in the legal profession, what would be the supply of barristers or solicitors with that qualification or standing. The last thing the Minister would want is a delay in settling some of these matters.
7.15 p.m.
Lord Archer of Sandwell: As to the first matter which my noble friend raised, we had to have some criterion of who would be a qualified lawyer for this purpose. I settled on someone who would be entitled to appear in one of the higher courts, but I would not go to the stake on that. If someone were to say a three-year qualification was sufficient, I would be easily persuaded.
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As to whether there will be a sufficient supply of lawyers, that is a matter which has troubled us and it may be one of the matters which is troubling the department. Normally it ought not to be difficult for a local education authority to find a local solicitor who is able to give one afternoon of his time for an appeal of this kind. There are not a very large number of appeals; they are not happening every day, as my noble friend knows. I cannot believe that there is great difficulty in obtaining someone with suitable qualifications; but I await to hear what my noble friend says about this before forming a definite conclusion.
Lord Swinfen: I would support the noble and learned Lord's group of amendments. It is quite obvious that these appeal panels should be run properly. Throughout this section of the Bill, however, we have been hearing of a great many people who are excluded—excluded probably because they have special education needs. I can see nothing on the face of the Bill that says the panel has to have among its members anyone with expertise and knowledge on special education needs. I would have thought that the process of excluding a pupil is the first stage in making certain that the pupil's education is carried on in a satisfactory manner elsewhere or, if the appeal against exclusion is granted, in that school.
We have been told that 20 per cent. of pupils in schools may have special education needs and that a high proportion of that group become excluded. I believe that there should therefore be provision within the Bill for a member of the panel having expertise in special education needs.
Lord Tope: May I start with a point of agreement with the noble and learned Lord, Lord Archer, on the importance of training. Probably all of us would accept that in important work like this it is vital that people should be properly trained to understand the issues and the process. To that extent I would agree with Amendment No. 196 although, were it to be pursued, I would suggest that the time for the training is after the appointment but before the members sit on the panel. In practice, that is usually the more appropriate time. It is certainly the case in local authorities, which train councillors after they become councillors but before they undertake the duties for which they are specifically trained.
That leads me on to my next point, which is where I begin to have considerable difficulty with what is being proposed here. Local authorities have a huge number of appeal panels of one sort or another, whether dealing with housing benefit, council tax review or a range of matters under social services, many of which are at least as difficult as school exclusions and quite often dealing with the same people. Local education departments have a range of appeal panels on school allocations, and so on. A principle of all of those panels, which from my understanding of Schedule 18 is repeated here, is that they are essentially lay panels, are advised by professional officers and should certainly include professional legal advice. Having proper access to proper advice for what is essentially a lay panel is

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very different from appointing a lawyer to the panel or to chair the panel. Were one to be doing that, one would produce a wholly different aspect of local authority work generally.
I do not think anyone, even the Council of Tribunals, would suggest that every local authority appeal panel, of whatever nature, of whatever title, should necessarily be chaired by a lawyer. If they were to be chairing a body like this, there are certainly other bodies within a local authority, particularly within social services, which would find such chairing necessary. That is wrong and unnecessary. The proper role is that laid down in the schedule for a lay panel, to be properly trained as a lay panel but to be advised by professional advisers, whether they be lawyers, people with expertise and experience in education and, in particular, special education. That is the correct nature of the panel.
I have one final semi-serious point to make. The schedule provides for local authorities to fix the level of remuneration. There has already been some question as to whether we should find lawyers with three years' or five years' experience. My experience of local authority remuneration leads me to believe that no lawyer with any experience will be prepared to act for that sort of money.
That is a semi-serious point. Much more serious is the fact that I believe that Amendment No. 195 changes significantly the nature of this panel and other panels which are operated by local authorities. I believe that that is unnecessary and regrettable.
Baroness Blackstone: I shall deal first with Amendment No. 195 to which my noble and learned friend attached quite a lot of importance. Clearly, the permanent exclusion of pupils has an enormous effect on their lives and those making such decisions need to have the skills necessary to judge whether permanent exclusion is appropriate.
However, as my noble friend Lord Dormand implied, it is extremely important also that the appeal panel members are able to meet at short notice and have the flexibility to meet at a time which is convenient to the parents and those other parties who are entitled to attend the hearing.
We consider that introducing a requirement that the chairman be legally qualified may make it difficult to convene a hearing within the strict time limit which applies in exclusion cases. However, it may help my noble and learned friend if I say that we shall use guidance to emphasise the importance of having a suitably qualified chairman and to emphasise that a legal qualification will often be an advantage. I accept, however, what the noble Lord, Lord Tope, said that lay panels of this sort can and should be able to obtain professional legal advice when they need it. I accept also that it may sometimes be rather expensive if all those panels—and there are approximately 1,200 per year—are to be chaired by legally qualified chairmen who may require rather higher fees than lay chairmen.
I should say to the noble Lord, Lord Swinfen, that ideally we want people with a whole range of expertise, and certainly that must include someone who has a
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knowledge of education. There may be occasions when it is particularly appropriate to have on those panels someone who has experience of special educational needs and not just education generally. But that will not be necessary in relation to all 1,200 panels which sit. Therefore, I do not believe that it is sensible to include that provision on the face of the Bill. However, I note what the noble Lord said and accept the spirit of it.
I turn now to Amendments Nos. 196 and 220. We recognise the importance of training for appeal panel members and agree that they must be very clear about their roles and responsibilities. Under provisions in the Bill, LEAs and governing bodies will be required to have regard to guidance contained in the statutory code of practice on admissions. Guidance in the code will cover the constitution and procedures to be followed by admission appeals panels. We shall of course consult our partners in education on the draft code and the new guidance on exclusions. The Council on Tribunals will be one of the bodies which the Secretary of State consults.
We expect the guidance on both admissions and exclusions to stress the importance of training for panel members and to say that LEAs and other admission authorities should ensure that members have had that training before they serve. We know from the council's own research that there is already a great deal of good practice on training but we acknowledge that there are probably areas for improvement. We hope to draw on existing good practice and make improvements where necessary.
My officials are working closely with the Judicial Studies Board to take forward work in that area. The board's recent course on tribunal skills was extremely well attended by education appeal members. Almost half the places went to educational panel members funded by my department. We have earmarked funding to look at the training for admission appeals panels and we are discussing with the Judicial Studies Board how best we should address the training needs of panel members. That may be through regional training events which my department will organise or through the development of a training module to be used by LEAs and governing bodies.
The initiatives that we are taking and the money that we are putting into training for panel members demonstrates the importance that we attach to it. We believe that that is a better approach than more statutory requirements on the face of the Bill.
Similarly, Amendments Nos. 197 and 221 would have the effect of requiring LEAs or governing bodies to nominate the person to be the chairman of an appeals panel which hears both exclusion and admissions appeals. The Government plan to use guidance to cover the appointment of certain panel members to act as chairmen. That will state that in the case of exclusion appeals the LEA should appoint the chairman and in the case of admission appeals the appointment should be made by the admissions authority.
I turn now to Amendment No. 223. The Government very much sympathise with the intention behind this amendment. We know that the Council on Tribunals is

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concerned that too large a number of observers can be intimidating. But in the light of those concerns, as I have said already, I have tabled and moved a number of amendments which would restrict the right of observers. I hope that my noble and learned friend will accept that that has been done and that that is adequate.
We considered whether the attendance of LEA or governing body observers should be limited to cases where the parties agree. However, we concluded that it may not be in the interests of justice to give a party an absolute right of veto. I hope that in view of those government amendments, my noble and learned friend will not wish to pursue his amendments.
Lord Archer of Sandwell: One and two-halves out of four is not a bad score. I am quite grateful to my noble friend.
I take the point which my noble friend the Minister and my noble friend Lord Dormand made on Amendment No. 195 that a lawyer may not always be available at short notice. However, my experience is that there are not that large a number of appeals against exclusions in any particular locality. I agree that there may be a different problem in relation to admissions appeals at certain times of the year. I take that point.
I take the point also about resources made by the noble Lord, Lord Tope, and my noble friend. For those pragmatic reasons, I do not wish to press this matter, certainly at this stage. That does not mean that I accept the objection in principle of the noble Lord, Lord Tope.
The fact that there are other local authority panels which are normally not chaired by a lawyer does not seem to me very persuasive for two reasons. First, most of the panels which he mentioned are for quite different purposes and operate in a very different way.
7.30 p.m.
Lord Tope: I accept that I referred to such matters as council tax and housing benefit review. Of course, I would accept that if that was what the noble and learned Lord had in mind. However, without actually mentioning them by name, I alluded to quite a few panels within the area of social services. I said that quite often they would be dealing with the same child and the same sort of issues. I suggest that they are at least as difficult, as important and as complex as those dealing with exclusions. Indeed, child abuse cases have been mentioned in this context. I have sat on some of these panels. They are both most difficult and heart rending. I do not wish to suggest that they are in any way less important to the future of the child than an exclusion panel.
Lord Archer of Sandwell: I do not suggest that they are not difficult, that they are not heart rending, and that they are not of great importance to the future of the child. However, I believe that a case conference is a rather different kind of proceeding, but this may not be the moment to debate that aspect of the matter. The other point that the noble Lord made was to say that because you cannot do it for everyone you should not do it for anyone. Similarly, I am not sure that that is a terribly good argument. Nevertheless, it is not something that I intend to pursue tonight.
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I totally agree with the point made by the noble Lord, Lord Swinfen. In a suitable case—that is, a case where it is appropriate—there should be a member on the board who has experience and expertise in the matter of special educational needs. The Council on Tribunals has actually gone further. It has suggested that the sensible way to deal with exclusions would normally be to allow a special educational needs tribunal to deal with them. That would ensure that there was a legal chairman. Therefore, I go along with a great deal of what the noble Lord said, but I shall not pursue Amendment No. 195 any further.
As regards Amendment No. 196, I am grateful for what my noble friend the Minister said about a statutory code of practice and about guidance that emphasises the need for training. I am also grateful for her undertaking that the Council on Tribunals will be fully consulted when the training arrangements are put in place. Of course work with the Judicial Studies Board, funded by the department, is of great importance. I cannot really ask for more than that, except to say that there is no obvious reason why this provision should not be on the face of the Bill, but I do not seek to insist upon it.
I turn now to Amendment No. 197. As what I wanted to see on the face of the Bill will be the subject of guidance, I shall not take the matter any further. Similarly, my noble friend the Minister has virtually met the point that I was trying to make by way of Amendment No. 223. I am grateful to my noble friend for her very generous response. In the circumstances, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 196 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 196A:
Page 177, line 3, at end insert—
("() Where, at any time after an appeal panel consisting of five members have begun to consider an appeal, any of the members—

(a) dies, or

(b) becomes unable through illness to continue as a member,

the panel may continue with their consideration and determination of the appeal so long as the number of the remaining members is not less than three and the requirements of sub-paragraph (3) are satisfied.").
On Question, amendment agreed to.
[Amendments Nos. 197, 197A and 198 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 198A and 198B:
Page 178, line 23, at beginning insert ("if the panel so direct,").
Page 178, leave out lines 30 to 40.
On Question, amendments agreed to.
[Amendments Nos. 199 and 200 not moved.]
Schedule 18, as amended, agreed to.
Lord Haskel: I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Savings
7.34 p.m.
Lord Patten Lord Patten rose to ask Her Majesty's Government what progress they are making in developing their policies to promote savings.
The noble Lord said: My Lords, I am very glad to have the opportunity to question the Government in this short debate as I am most concerned at their apparent failures in some key areas of the promotion of saving in this country. In doing so, I should declare my interest at Charterhouse plc., now a wholly-owned subsidiary of CCF (Credit Commercial de France).
Generally, since the last general election the Government's handling of the economy has been sound. It may surprise some noble Lords to hear that remark. However, I have never been one to oppose for the sake of opposing, but perhaps that is because I spent 18 years in the other place on the Government Benches, or supporting them, so I did not get into the habit. Nevertheless, I may learn it in this House. It is not surprising that, by and large, the Government's handling of the economy has been sound, as their economic policies have the soundest possible foundations based on their economic inheritance from the last Conservative administration and the three that preceded it.
Indeed, it seems to me very lacking in generosity and uncharacteristic on the part of the right honourable gentleman the Chancellor of the Exchequer never to have recognised explicitly—at least as far as I know from the record—the great inheritance he received from my right honourable friend Mr. Kenneth Clarke, one of the greatest post-war Chancellors. Where is the recognition? For that matter, where are the 364 economists who, early in the 1980s, signed that infamous round- robin letter condemning Tory prudence and Tory privatisation, the policy which is now a world economic orthodoxy? I am glad to be able to tell the House that, in my view, no one has been more orthodox than new Labour in its adoption of so many old Tory economic policies. I congratulate it.
Upon such foundations the Government can now afford to be radical in areas where the previous Conservative Government did not have that opportunity or chose not to be radical. I give two examples. The first is national savings; the second is capital gains tax. Both areas are in urgent need of reform as the Government develop their policies to promote savings and a rational approach to savings.
The late right honourable gentleman Mr. J. Enoch Powell was surely absolutely right when, in his book, Saving in a Free Society, published in 1960—in my view a classic work—he wrote,
"that National Savings have now remarkably little connections with saving".
One can hear that political thinker saying those words. I am told that his birthday falls on 16th June; indeed, that may well be national political thinkers' day in future years. But if what J. Enoch Powell wrote in 1960 was true, how much more is it the case in 1998?
The idea that national savings somehow equal the meritorious activities of the thrifty and the deserving poor accumulating some savings via self-denial, has not been a reality since the inter-war years. I must tell the House that I believe that national savings are now redundant. They do not help the poor any more; neither do they help the Treasury in any significant way in funding the public sector borrowing requirement. There are much better instruments available for doing so, as the noble Lord on the Government Front Bench knows. Nor, as distinguished economists such as Mr. Richard Jeffery have argued, is it necessary any longer for the Treasury to use national savings as a policy tool, by making the rates so attractive as to soak up loose money. The Treasury now recognises that this will not affect liquidity in any way; rather it simply moves money around the chess board from one sort of savings to another.
There is a myriad of ways of saving. National savings are expensive to administer. Ministers have been good enough to give me figures showing that in the financial year just ended the running costs of national savings amounted to what seems the huge sum of £175 million a year, including a Civil Service pay bill of about £80 million. Just imagine what the right honourable gentleman the Chancellor of the Exchequer could do with such a sum, scratching around as he is at the moment, in his comprehensive spending review, to try to save much smaller sums of money here, there and everywhere.
National savings are an archaic hangover. They are redundant. They should be allowed to wither on the vine and be scrapped. Talking of scrapping, why do not the Government allow the private sector to scrap over these funds and in so doing save the taxpayer £175 million per year—all that money being spent in the past year to raise for the Government just £1 billion which is the predicted yield in the year 1998–99?
The same goes for capital gains tax. It is never too late to say sorry. I am sorry that it was a Conservative Government who introduced that tax in the dying days of the 1959–64 administration. I believe that capital gains tax is wrong in principle. It is applied to money which has already been taxed at least once and which will probably be taxed again at a later stage via inheritance tax. I believe also that capital gains tax is wrong in practice. The £1.1 billion it raised in the past year would be multiplied many times over if the disincentives to saving and re-investment inherent in it were to be removed and the money left to cascade through the system.
Noble Lords will remember that back in the early 1980s old Labour used to look askance at Tory Chancellors cutting the top rate of personal income tax. But one has to consider the huge bonus that has been produced for the Treasury. The money has multiplied time after time. It has produced buoyant revenues that will allow the Chancellor shortly to run the economy at a surplus. New Labour should not look askance at the opportunities presented to carry off exactly the same trick as regards capital gains tax for the benefit of the national good.
I have recognised previously that the Government have a strong mandate for reform. They have clear objectives on investment and growth. They now need to recognise the golden opportunity that the reduction and eventual abolition of capital gains tax would give to mobilise savings and thus encourage longer term and higher risk investment. The Government do not seem to realise that the high headline rate of capital gains tax has acted as a positive disincentive for investors and managers thinking of investing not only their effort but also their savings in higher risk businesses. We need to mobilise those savings by engendering a virtuous cycle of saving, subsequent risk taking, subsequent wealth creation, and then the re-investment of success.
We all have our sources. It is not just Labour spin doctors who have their sources. I am told by my sources that the right honourable gentleman the Prime Minister has some private sympathy with the views I have just expressed. I have been told that the right honourable gentleman the Prime Minister regards capital gains tax as a "political" tax which is wrong but difficult to remove because of the politics of envy that might be engendered. I hope that the right honourable gentleman the Prime Minister and his right honourable friend the Chancellor of the Exchequer and others in the Administration will take a long, hard, radical look at capital gains tax in the interests of sustained economic growth via investment. Radical measures are needed. I look forward with interest to hearing the speeches that are to follow. I look forward with the greatest interest of all to hearing the speech of the noble Lord, Lord McIntosh, who is to reply to the debate and who is of course a well known radical.
7.44 p.m.
Lord Lucas: My Lords, I am extremely grateful to my noble friend Lord Patten for his most illuminating speech. The noble Lord, Lord Patten, has the great advantage over me of knowing what he is talking about. He is thus able to make suggestions. I shall confine myself to asking the Minister some questions.
I am interested in where the Government find themselves in their internal debate on savings and to what extent they have developed opinions as to where they should be going. What are their feelings on flexibility? Most of the discussions we have had in previous debates have related to what one might call fixed saving, such as pensions and building up money for old age to pay for possible illness in old age. These are savings that people generally do not have recourse to at an earlier stage. Someone can fall seriously ill and still not have recourse to money that he or she has tucked away for a pension fund. Their child may need a large amount of money to help him or her over a problem, but his parents cannot dig into their pension fund. Money that they have put aside in that way is allocated to just one liability, that of old age. However, the person in question may not attain old age.
To my mind there are clear disadvantages in focusing too heavily on fixed investment, not least the matter of the poverty trap. As this Government and others improve the benefits available to people who have not saved, it becomes harder and harder to compensate
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people who have made the effort to save, particularly those at the lower levels of income. They may have deprived themselves and their families of much good in their lifetimes but may not benefit from that in the end.
I hope that when the Government talk of encouraging savings they will focus on savings that are more flexible even if they are long-term savings, and that they will allow at least some part of them to be released when more immediate problems threaten. In a way that is a form of saving which has an additional benefit for the economy in that such savings are likely to be spent when the economy is in recession and at a time when it is generally helpful for savings to be spent. That is something the Government do in such circumstances. However, savings which are put aside for the long term stay locked up and contribute nothing to initiate the required recovery.
With that theme in mind, I am interested in what role the Government envisage for using savings in economic control. Let us suppose we find ourselves in a post-monetary union world. Many of the levers which the Government have traditionally used to control the economy will no longer apply. Do the Government envisage some measure of control over the flow of savings as the kind of lever they are likely to want to use? Is compulsion on the agenda therefore? Are we still looking at a system where in order to increase the level of saving the Government intend to exercise some degree of compulsion? Do the Government recognise that any form of compulsion inevitably implies some form of guarantee? You cannot compel people to do things without taking responsibility for the outcome. If you compel people to save, you are saying as a government that that saving will be safe; its terms will be fair; and the whole process will be a relatively simple one which will not result in the saver making many mistakes due to not understanding what is going on.
I hope that the noble Lord, Lord McIntosh has been briefed on these points. It is difficult to know whether that is the case with these wide debates. Does the noble Lord agree with me that the way to approach that kind of problem is the way a commercial company would approach it; that is, to concentrate on a single fund, to have it managed by a number of managers to spread the risk and to allow access to the market and expertise, but to get away from a whole multiplicity of different investment schemes and to find oneself looking—if one is compelled to invest—at a single investment fund?
That could have many advantages. It would cost a great deal less than a more complicated system, particularly one involving advertising and marketing. It would offer a great deal in terms of safety, and potentially a much better long-term return, because the fund would be cash-positive in the short and the long term. Investment mangers could therefore invest far more heavily in equities and take a far greater degree of risk with concomitant return than they could if a more laissez-faire strategy were pursued of allowing people to save in whichever way they want.
The whole question of saving, as my noble friend said, is of central importance to the future of the country. There is a great deal to be said for helping

769
people to take risks. It is an approach that we are not good at in this country. Many aspects of our national and financial character have biased us against it. There has been a general feeling that those who have failed in business should not be trusted in business again. The problem does not affect those who set out with new ventures in America. One of the great reasons for their success is that those who have learnt through their failure are allowed the opportunity to succeed in the end.
If we examine the biases in the Pensions Act that we put in place, and in other pieces of legislation, we see that many creeping pieces of legislation on the side have made it much more difficult for institutional fund managers and others to take a risk. It has been difficult for them to take the chance that the return will be greater if they invest in young businesses and new businesses, compared with the safety of investing in the old established companies, knowing that at least the return will not cause heartache under the Pensions Act, or some criticism, and being picked up on in terms of short-term performance. I greatly look forward to the Government's reply.
7.52 p.m.
Baroness Macleod of Borve: My Lords, I intervene in the debate as the one woman who is prepared to take on the men on possibly a slightly different footing from the approach that one has been used to. Women are just as good at planning and saving as men.
I congratulate my noble friend Lord Patten on his speech; and also the noble Lord, Lord Lucas, whom I have known for many years and whose expertise in this field I have admired. When we were in government, we all followed him because he was so helpful. I wish to thank my noble friend Lord Patten for providing the opportunity for this debate. It will be short because one or two noble Lords have had to remove their names from the list of speakers.
The Government are rightly encouraging people to save. Apart from anything else, it would save the Treasury from having to rob Peter to pay Paul. However, I wish to emphasise the real difficulty that women of my generation all too often encounter.
There are 3 million widows in this country, and over 500 women are left without their partner every day. I declare an interest as an office holder of the National Association of Widows. Many of my widows are war widows. Unless they were very lucky, they are left without anyone to help them plan for the future, let alone save for themselves and possibly their children. This debate is about saving. However, one has to plan in order to save.
Those of use who fought in the war, and are proud to have done so, are now "past our sell by date". We find it difficult to get employment to help us to save. How awful those advertisements are which state, "Only those under 50 need apply". As we know, living expenses increase every year—sometimes every day. We are grateful for the pension awarded to war widows, but wish there were more in the Treasury kitty to help those who are younger than we are.
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My noble friend Lord Lucas referred to illness. Illness can come upon us at any time in our lives. It can come upon our children, or their husbands if they are lucky enough to have a husband, or upon the whole family. Very often, there are no savings in the bank or at the Post Office. There may be some savings behind a counter—which as I understand it is becoming more and more difficult to cope with. Having to queue up to have money handed over is demeaning in the worst possible way.
We are told to go out to work in order to save, and to plan in that way. But jobs of any sort are not easy to find. If you cannot work, you certainly cannot save. I look forward to hearing the remarks of the noble Lord, Lord McIntosh, as to how those who are older can save enough to help their grandchildren and their children if they are so minded. We all want to pass on money or goods of various sorts in order to help our children. That is very difficult when one has no money with which to do it.
I am lucky enough to work hard for several charities. I almost long to pass round the hat now for some of those charities. They need help with saving, as we all do. I look forward to hearing my noble friends speak. This is an important debate. Perhaps some ideas will emerge from the debate to help people plan their savings in future.
7.58 p.m.
Lord Taverne: My Lords, it is a great pleasure to follow the noble Baroness. She made a very important point; namely, the ways in which the Government help individual savers are not necessarily a matter of grand economic policy but are of importance to individuals, to those who need the savings for later life and to improve the quality of their lives. They are the ones most affected by the changes that are made to savings regimes. I do not intend to go into great detail in this debate. I want to follow the noble Lord, Lord Patten, whose Question we all welcome, in approaching the matter with a rather broad brush. I assure the noble Lord who will reply that I shall not put any questions to him.
The difficulty is that one can never know what effect particular changes in savings regimes will have on the pattern of savings. One cannot accurately predict patterns of consumption and one never knows how the patterns of savings will change if new incentives are provided for a particular form of savings.
I wish to look at the Budget changes in a rather broad perspective. I start with a piece of personal history—now almost ancient history. Just over 25 years ago I launched the Institute for Fiscal Studies. At that time, after a period in the Treasury, I was struck by the mess that the tax system was in. Like Topsy, it just grew, and that is almost inevitable given the nature of our parliamentary procedures. No one seemed to look at the tax system as a whole or at the way in which one tax affects other taxes. There has always been a tendency for a multiplication of exemptions in a way which has neither rhyme nor reason. There would be a special allowance at one stage for the blind but no allowance

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for the deaf, and it all depended on what a particular parliamentarian put forward, and occasionally on the softness of heart of Treasury Ministers.
The reputation of the Institute for Fiscal Studies was made by the setting up of the Meade Committee, the aim of which was to look at the tax system as a whole. The report of that committee is still influential today; it is regularly quoted. People go back to it as the original source for ideas on tax reforms. It was a very effective committee because it had a brilliant chairman, the great and wonderful Professor Meade, who subsequently won the Nobel prize—though not for his work on tax. I recruited for the committee three rather bright young economists. One was John Flemming, who later became the chief economist at the Bank of England; the second was Mervyn King, who was also connected with the Bank of England; and the third was John Kay, then a very young and bright economist, who has now also established a considerable reputation.
The committee recommended an expenditure tax—not an extension of VAT but an exemption of savings from income tax. Savings were to be exempt; income and savings funded were to be exempt; but when savings were realised, the proceeds would be taxable. Many economists still very much favour that system. It has one great advantage, apart from its intrinsic merits; that is, it goes very much with the political grain. There is always pressure from parliamentarians to create exemptions. Exemptions can be created for particular forms of savings but, provided the proceeds are taxed, a coherent system can emerge. Indeed, that is the way in which a number of reforms have gone. Another advantage of the system would be that all savings would be treated alike. Savings would be neutral in influencing people's choice of the assets they would select, which in itself would improve economic efficiency.
The present system is still anomalous. I looked at the IFS green budget recently: there is a system for pensions; a system for TESSAs and PEPs—and now there are to be ISAs; a system for owner-occupied houses; a system for life assurance; and a system for stocks and shares. But there is a trend towards a certain uniformity of the treatment of savings, and a number of the reforming Chancellors have encouraged that trend. They also go the other way, because they are looking for new sources of revenue, preferably hidden sources. The noble Lord, Lord Lawson, was a very distinguished Chancellor who was very interested in tax reform. He moved towards a rationalisation of the system, but in fact he also moved the other way and looked at a hidden source; namely, insurance policies. The present Chancellor has also moved in the general direction, which I think is to be encouraged, but he, too, has looked for hidden sources and has decided to impose a hidden tax on pension funds, which is going in quite the wrong direction. Private pensions were at least a good, classical pattern: exempt when contributions are made and the income taxed, with one anomaly, which is the lump sum. If the Chancellor had wanted to be rational about pensions, he should have started to phase out the tax-free lump sum, but instead he went the wrong way.
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This process is also consistent with the phasing out of SERPS and the substitution of private pension contributions, which I feel should be compulsory pension contributions, free of tax when the contributions are made. It would almost certainly increase savings among lower income groups more effectively than any other single measure.
What was striking before the Budget was the different treatment of the savings of the better-off who invest in PEPs and TESSAs compared with the savings of those who invest in building societies or liquid bank deposits. That is why I think that, on the whole, ISAs are to be welcomed. They are complicated, but they are a step in the right direction because they will help individuals on lower incomes, even if one does not know exactly what effect they will have. The system of ISAs is not quite an expenditure tax regime; it is not quite the exemption of contributions from income tax and taxation of benefits; it is not the EET but the TEE regime, contributions out of taxed income and then exemptions at the next two stages. At least there is now a certain consistency. It was right to encourage the inclusion of those who could not afford to keep their savings in any account for a long time. Low income families, particularly those with children, need liquid accounts, drawing on them for their varied needs and being unable to put money away for a long period. I am glad that the Chancellor has lifted the cap which he had previously proposed which would have created many difficulties. People will have a wider choice.
On the whole, the Chancellor is proceeding in the right direction. One does not know what the effect will be over time. It is likely that the effect will be beneficial, although, if the Chancellor is really interested in increasing savings for their future among the lower paid or those with lower incomes, I think he must bite the bullet and accept that the single most important measure will be the introduction of compulsory, privately funded pension schemes to replace SERPS.
8.6 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had a short but interesting debate, and we are grateful to my noble friend Lord Patten for introducing it. A number of issues have been raised and in my seven minutes I hope to range across them.
In introducing the debate, my noble friend discussed two matters—capital gains tax and national savings. I think my noble friend knows that, towards the end of our term of office, we were thinking of phasing out capital gains tax, for the very reasons he mentioned: it was a disincentive to save and a disincentive to reinvest. That is perhaps a conclusion that the present Government may come to at some stage; certainly I think we ought to be looking to it for the future.
My noble friend described national savings as redundant and wanted the system to be privatised. I have news for him. If he had been here on the Thursday when we adjourned for the Whitsun Recess he would have heard an interesting exchange between the noble Lord, Lord McIntosh, and myself, in a House even emptier than it is today, in which the Government began the

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process of privatisation in a contracting out order for national savings. I cannot resist suggesting to my noble friend that he should study that.
My noble friend will know from his membership of the other place that the Labour Party was not very keen on contracting out of services. It certainly was not very keen on the deregulation Act; indeed, it was going to abolish it when it came into office. Instead, the Labour Government decided to use the Act on the question of national savings, despite the fact that as recently as January 1997 a Labour Party press release described any kind of contracting out of national savings as privatisation. Perhaps my noble friend and I can delight in the fact that the Labour Party has now decided that privatisation is a good thing. The contracting out—or partnership, as I think the Government prefer to call it—is 95 per cent.:5 per cent. One of the trade unions, which probably used to be a great friend of the Labour Party, did not think that that split described a partnership but sounded much more like a total shift of national savings to the private sector.
My noble friend highlighted the costs of running the national savings scheme. The private sector's view is that, of the 4,000 jobs currently in national savings, 1,500 are simply not needed. Perhaps, therefore, the Government are beginning to listen to the kind of philosophy my noble friend and I backed over many years.
My noble friend Lord Lucas discussed a number of interesting issues, one of which was the relationship between high returns and high risks. The reality is that the new ISAs cannot be significantly different from bank accounts or building society accounts where, if we put in our money and leave it there with certain provisos—for example, we want high performance; we will only withdraw once or twice a year or with 90 days' notice and so forth—we will receive a higher return than if we put the money into a day-by-day account. If the ISAs are to be day-by-day accounts they will not be able to give the kind of high return that the Government probably want.
My noble friend Lady Macleod of Borve made an important point in relation to savings for women, in particular war widows. I could probably finish my seven minutes discussing those matters. I made no secret previously from this Box, even when I answered from the government side, that I felt there was huge merit in younger war widows receiving their pensions for life. I hope that when the MoD looks at pensions—not at social security—it will go down that road.
The noble Lord, Lord Taverne, and I concluded that the debate would end up in the same kind of way. We are both interested in pensions—he perhaps more lucratively than me. We addressed a number of conferences together. What puzzles me about the Government's attitude is that they have separated pensions and savings. I would have put pensions first, but we are still waiting to see what pension ideas are going to come forward and, returning to savings, still waiting to see what the ISA benchmark will look like.
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As my noble friend Lord Lucas said, a high performance in the equity element of ISAs is inevitably associated with high management charges. That is inevitable. There are those who think we can go to tracker funds. That is fine, provided there is a rising market. What happens to tracker funds in a falling market? They have never been tested in a falling market.
What if, as inevitably will be the case, the non-benchmarked ISAs perform better than the benchmarked ISAs? Will the Government attempt to bring in regulations to tie the hands of the non-benchmarked ISAs so that they come nearer to the benchmarked? The real problem in relation to benchmarking is that the Government will look as though they have authorised benchmarked ISAs. Savers will see them as safe or guaranteed. They will buy that benchmark and if the benchmark provides a lower return than non-benchmarks, as it inevitably will, they may feel that they have been robbed and decide that they have been misled by the Government. Therefore, I say to the Minister that he must watch out on benchmarking as it could easily be a difficult thing for people to understand and deal with.
I conclude with the point that I made to the noble Lord, Lord Taverne. The most important saving that people can do is in relation to their pensions. The Government have put the cart before the horse. I do not know what they are going to do to make pensions more attractive than savings. I see what they have done for savings. What are they going to do for pensions? They have already taken away one of the tax advantages. Pensions were once exempt when money was put in; exempt while the money grew and taxed when it came out. The Government have removed that second exemption. Their abolition of ACT on pensions means that £5 billion more—the noble Lord will expect me to say this—will be taken out of pension funds by the Government in the future and that means £5 billion less for the people who put their money into pensions. It is inevitable. The Government must therefore be extremely careful in relation to pensions.
The Government must try to introduce a pensions package which is more attractive than the savings packages and encourages people to invest in their pensions. That is the most important thing a government can do for ordinary people—those who do not have the kind of pension funds that many of us possess. They need our help and encouragement so that they can enjoy the security in old age that only pension savings will bring, not ordinary savings.
8.15 p.m.
Lord McIntosh of Haringey: My Lords, the Government too are grateful to the noble Lord, Lord Patten, for introducing this short and amazingly wideranging debate. I am not sure whether he was setting a trap for me. He described the Government's achievements as resulting from sound economic policies. I thought, "That sounds fine; we can start from there". Then at the end he described me as being a well-known radical. That sounds to me as though he is

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seeking to distance me from government policies and to tempt me to unorthodoxy and instant dismissal. I shall resist that temptation.
Let us remember that just 10 years ago this country was enjoying what was claimed to be an economic miracle. Tax revenues were rolling in; house prices were rising; consumer confidence was high and the then Chancellor. Nigel Lawson, capped it all with a giveaway Budget of tax reductions and plans to increase government spending as a proportion of GDP. But look what happened to that miracle—it all went bust. Those policies resulted in a disastrous boom-bust cycle.
When we talk about the inheritance of previous governments—I do not doubt the justice of some of the points made by the noble Lord, Lord Patten—let us record over a longer period the number of boom-bust periods in the 18 years of Conservative rule. Let us record also our determination to avoid that rollercoaster of macro-economic instability which discouraged long-term saving and investment and damaged both business and individuals. Instead we are determined to create the right environment in which individuals and businesses will be encouraged to save and invest for the long term with confidence. That is the starting point of our attitude to savings—to ensure economic stability.
Too often in the past an individual's hard-earned savings have been eroded by hard-earned inflation. That is why, within days of taking office, we gave the Bank of England operational responsibility for setting interest rates. We recognised that a new monetary framework was necessary to achieve low and stable inflation—the essential bedrock on which people will be encouraged to save and invest. That framework ensures that interest rates are set on the basis of the long-term needs of the economy, not short-term political considerations.
Similarly, we recognise the importance of sound public finances to create the right environment for individuals and businesses to plan ahead. That is why we are introducing a statutory code for fiscal stability and why we set out a five-year deficit reduction plan which brought public finances back to a sustainable footing which we are determined to lock in. That framework will ensure that fiscal policy, like monetary policy, is set with Britain's long-term interest in mind. The introduction of the fiscal framework will not only create a more stable macro-economic environment, but it will also have the effect of improving the Government's own saving position. For the economy as a whole it is the nation's savings—the sum of private and public sector savings—that matter for economic growth. The Budget shows that we are well on course to meet the Government's two strict fiscal policy rules. Over the past year the fiscal stance has been tightened by around 2.5 per cent. of national income. That will feed directly into the nation's savings through lower government borrowing.
In that context, I did not find the radical suggestions of the noble Lord, Lord Patten, in relation to capital gains tax at all attractive. Of course, capital gains tax raises around £1 billion a year. It must surely be right in principle to tax capital gains; to maintain some measure of equity between taxation of income and
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taxation of gains. But the abolition of capital gains tax, or even its partial abolition, to which the noble Lord, Lord Mackay, referred, would bring us straight back to the situation that I remember very well in my early days in business when lawyers and accountants spent vast amounts of time and money finding ways to convert income into capital gains in order to benefit from lower capital gains tax rates. That would happen if we abolished the concordance between income tax and capital gains tax and, still more, if we followed the more radical proposals of the noble Lord, Lord Patten, to abolish capital gains tax altogether.
If we did that the loss to the Revenue would be many billions of pounds rather than the £1 billion which capital gains tax raises at the moment. In passing he referred to inheritance tax. Clearly, the level of that tax has to be set to stop the kind of evasion that was all too common under previous régimes. The Government's fiscal policy and their probity are direct ways in which they can increase overall savings, encourage better balanced growth and support monetary policy.
I was puzzled by some of the things that the noble Lord, Lord Lucas, said at this point. He talked about the need to have more flexible and more liquid long-term savings. We do not see it that way. As the noble Lord, Lord Taverne, said, we see a fundamental difference between long-term, locked-in savings, which is what pensions are, and liquid savings for the shorter term. It is very dangerous to confuse them or to try to get them to meet because they are serving different purposes. Both are important in building up a good savings ratio, just as low government borrowing is important for building up a good national savings ratio. But our economic policy must be to encourage saving and not—and I come back to the noble Lord, Lord Lucas—to think of savings as a means of economic control. I found that a very strange concept indeed. Our tax and regulatory regime encourages and supports long-term saving and investment.
I crossed out of my speech the passage about tax credits and pensions believing that no one was going to raise those subjects, but I underestimated the noble Lord, Lord Mackay. The abolition of tax credits last year removed the artificial tax bias that encouraged companies to pay dividends rather than retain and reinvest profits. The reform will improve the climate for long-term business investment. This Government have helped businesses by reducing corporation tax, and it is now the lowest in any major EU economy. They are committed to keeping it at that level, or below, for the life of this parliament. I do not take any lessons about the abolition of dual dividend relief.
A number of noble Lords said that pensions are more important than short-term savings. I hope I have made clear our view that both are essential. The fact that we have brought forward our proposals for individual savings accounts before we have concluded our discussions on stakeholder pensions does not mean that we are any less keen on improving the pension régime.
But I have to remind the House that it was a Conservative Government which in effect destroyed the SERPS régime in the 1980s by eroding benefits

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dramatically so that they were based only on the average of 20 years rather than the three best years, and by making them more uneconomic by encouraging opting out into less suitable private schemes with the disastrous effect that we all know.
If we are appraising radical measures, what sort of government are they that, within a month of their inevitable removal from office after five years, produce a proposal, as the Conservative Government did in March last year, which would have imposed taxation on the payments into pension funds and removed taxation on the receipts? That was a huge change in inter-generational equity without any sort of consideration or discussion whatever. If by any chance they had won the election, we would have been stuck with that.
I am not going to anticipate the conclusions that we come to about compulsion. As the noble Lords, Lord Lucas and Lord Mackay, already recognise, the compulsion of stakeholder pensions is a fundamental issue which we have to resolve. I remind them, however, that we already have a substantial compulsory pension element in national insurance contributions.
In addition to long-term pensions, we want to provide other incentives to save, not only to ensure security in retirement, but to encourage savings more widely. It is a scandal that half the adult population has less than £200 in liquid savings and half of them have no savings at all. Our aim is to spread the savings habit to many more people and to get those who currently have only modest savings to save more.
In saying that, I do not underestimate the difficulties that the noble Baroness, Lady Macleod, raised for women, widows and war widows in particular. Characteristically, she has hit on the most important and most difficult areas of policy which we are having to address. That is the balance between social security expenditure and what people can do for themselves. That is the fundamental issue of social policy in our time.
We are determined to reduce dependency with our welfare-to-work policy; policies for reducing, when we can, the lower income tax rate to 10 per cent.; and increased child benefit in real terms. With all these measures we are seeking to encourage people to get back into work and to discourage them from the kind of dependency which the noble Baroness recognises is so demoralising and which denies people hope and control of their own future.
In view of the time, I shall cut out what I was going to say about individual savings accounts. We published a consultation paper at the end of last year. That has had an effect on the final version which we have agreed and which will begin next April. I appreciate the difficulties that noble Lords have identified, but I point out that the difficulties they identified in November and December last year have largely been dealt with in the final scheme.
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I must say a word about national savings since the noble Lord, Lord Patten, gave considerable emphasis to them and since he was reminded by the noble Lord, Lord Mackay, of our debate just before Whitsun. However, I believe he is addressing his remarks to the wrong "McIntosh". The noble Viscount, Lord Mackintosh of Halifax, is the grandson of the founder of national savings. Perhaps he would put up a strong defence of his grandfather's brainchild.
We recognise that national savings have to move with the times and that they have to provide a good return to individual savers as well as to the Government. They bring in £1 billion a year, which is not to be rejected lightly. As the noble Lord, Lord Mackay, reminded the House, national savings will now have its operational activities contracted out which should improve its efficiency.
I do not have time to deal further with the private sector promotion of savings, which is enormously important to the Government, but, together with the economic stability that I mentioned earlier and the Government's tax strategy, what I have described represents the building blocks of our policy to promote savings.
Lord Haskel: My Lords, I beg to move that the House do now adjourn during pleasure for five minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.30 to 8.35 p.m.]

School Standards and Framework Bill
House again in Committee.
Clause 66 [Duty to secure due provision of religious education]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 200A:
Page 51, line 35, leave out ("to be provided at the school") and insert (", or may be, required to be provided at the school in accordance with Schedule 19 (or, as the case may be, each such religion or religious denomination)").
The noble Lord said: In rising to move Amendment No. 200A I should like to speak also to Amendments Nos. 255B, 256A, 257A, 257B, 257D and 257H. Amendment No. 200A is a technical amendment. Clause 66 provides for an order to designate foundation and voluntary schools with a religious character in the new framework and to state what that religious character is, of whatever faith. There are already some joint Church of England/Methodist and joint Church of England/Catholic schools and there could be more joint faith schools in future. It follows therefore that we need to allow for this is in the order designating schools with a religious character, which is the purpose of the words in brackets at the end of the amendment. The amendment also tidies up the wording to reflect the fact that, in line with the position established since the 1944 Act, under Schedule 19 a voluntary controlled or foundation

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school is required to provide religious education in accordance with the tenets of the Church which provides the school only if parents request it; otherwise, it can provide the locally agreed syllabus RE.
The amendments to Clause 130 are also technical amendments. They clarify three points in relation to Clause 66 and the associated order designating schools with a religious character. First, they adjust the definitions of schools which are Church in Wales, Church of England and Roman Catholic schools so that those definitions are linked to the schools which are designated under the Clause 66 procedures as being associated with the relevant Church. They also take into account the amendment to Clause 66 by which the order designating schools with a religious character can specify more than one religion or religious denomination in the case of such joint faith or joint denomination schools. Secondly, they allow for references to schools with a religious character to apply to either or both of the faiths or denominations concerned in the case of such joint faith or joint denomination schools. Thirdly, they ensure that wherever the Bill assigns a power or function to "the appropriate Diocesan authority" those references also can be read as applying to either or both of the diocesan authorities for joint C of E/RC schools. The amendments to Clause 131 are also technical. They merely insert a cross-reference to a definition in the index clause. These amendments have all been agreed with the Churches. I commend them to the House.
On Question, amendment agreed to.
Clause 66, as amended, agreed to.
Schedule 19 agreed to.
Clause 67 [Requirements relating to collective worship]:
Lord Tope Lord Tope moved Amendment No. 201:
Page 51, line 42, leave out ("all pupils") and insert ("each pupil")
The noble Lord said: I rise to move Amendment No. 201 which stands in my name. I recall on Thursday that the noble Lord, Lord Lucas, described one of his amendments as a grammatical quibble. I think that to some extent this amendment falls into the same category but perhaps with a slightly more serious point.
As the clause is drafted at the moment it could certainly be taken to mean—although I do not think it does—that all pupils must take part in the same act of collective worship, and that may be practically impossible in many schools. Quite a number of schools these days do not have sufficient space for all pupils to be in the same act of worship in the same place at the same time, which I suspect is not the intention here anyway. My amendment simply seeks to make it a little clearer that we mean each pupil must take part in an act of collective worship, though not necessarily the same one. I beg to move.
Lord McIntosh of Haringey: I must confess that I had not thought of that interpretation. Rather than give the lengthy description of why it would not
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materially alter the meaning of the clause or the related schedule, I think I would rather take the noble Lord's point away and think about it between now and Report. That cannot possibly do any harm, can it?
In this group we also have Government Amendments Nos. 201A and 201B. If the Committee would allow me, I should like to speak to them now. They are introduced in place of one from the right reverend Prelate the Bishop of Ripon which he has since withdrawn. I am most grateful to him for doing so. The wording, which is slightly different from the original, has been agreed by the Churches. The right reverend Prelate has been good enough to write to my noble friend Lady Blackstone to explain that he has to be out of the Committee at this time but that he supports the amendments which are on the Order Paper.
The amendment to Clause 67 is straightforward and consequential on the more significant amendment to Schedule 20. It simply changes the description of the contents of Schedule 20 to accommodate the amendment to that Schedule. The purpose of the substantive amendment—that is, Amendment No. 201B—is to make the Bill more explicit about the nature of collective worship in foundation schools with a religious character, and in voluntary schools.
Under current legislation, and in this Bill as originally drafted, the governing body of such a school is responsible for collective worship arrangements after discussion with the head teacher. Those arrangements must be in accordance with any provisions of the school's trust deed. This amendment confirms those requirements, but also adds a further provision in respect of foundation and voluntary schools with a religious character.
In cases where provision for collective worship is not made by a trust deed, then the worship in those schools is to be "in accordance with the tenets or practices of the religion or religious denomination" specified in the order referred to in Clause 66(4).
The Church of England assures us that this will not cause problems, or indeed significant changes, in any of their schools: the purpose is simply to clarify the existing law. I commend these amendments to the Committee.
Lord Tope: I think this is the nearest I have come to a victory on this Bill. I am almost tempted to press it to the vote and actually secure the victory, @but I shall not. Given the assurances from the Minister that he will look seriously at this important grammatical point, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 201A:
Page 52, line 11, leave out from ("worship") to end of line 13.
On Question, amendment agreed to.
Clause 67, as amended, agreed to.
Schedule 20 [Collective worship]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 201B:
Page 183, line 8, at end insert—
("Nature of collective worship in foundation schools with a religious character and voluntary schools
In the case of a foundation school which has a religious character or a voluntary school, the required collective worship shall be—

(a) in accordance with any provisions of the trust deed relating to the school, or

(b) where—

(i) provision for that purpose is not made by such a deed, and

(ii) the school has a religious character,

in accordance with the tenets and practices of the religion or religious denomination specified in relation to the school under section 66(4).").
On Question, amendment agreed to.
Schedule 20, as amended, agreed to. Clause 68 to 70 agreed to.
[Amendment Nos. 202 and 203 had been withdrawn from the Marshalled List.]
Clause 71 [Transfer of land on appointed day]:
Lord Whitty Lord Whitty moved Amendment No. 203A:
Page 55, line 35, after ("land") insert ("and certain rights and liabilities").
The noble Lord said: I beg to move Amendment No. 203A and to speak to the rather large batch of other amendments included within this group. I have written to the noble Baroness and to the noble Lord, Lord Tope; and also to the noble Lord, Lord Lucas, who has actually received it on this occasion.
These are all relatively technical amendments. The first two amendments, Amendments Nos. 203A and 203B, relate to Clause 71 and Schedule 21. They relate to the provisions dealing with the transfer of land in respect of former grant maintained or grant maintained special schools which become foundation, community or voluntary schools on the appointed day.
The White Paper said that the premises of a community school would be owned by the LEA and that foundation and voluntary schools would own their own premises. The Government have since acknowledged that trying to achieve complete consistency of ownership for voluntary and foundation schools would create too much turbulence and that the guiding principle to be adopted under the new framework should simply be that schools should continue to hold what they now have. These amendments follow that principle. The rest of the amendments relate to Schedule 22. That schedule contains detailed and complex provisions designed to safeguard public fund investment in foundation, voluntary and foundation special schools. Most of the amendments are technical. Others are to address concerns expressed by the Churches, and others are to bring the discontinuance arrangements for community schools into line with those for other maintained schools. I shall try quickly to explain the purposes of these groups of amendments.
Amendments Nos. 203E, 203F, 205A and 205C address concerns expressed by the Churches about arrangements for LEA compensation where property, which has either been provided or enhanced by LEAs, is sold. These amendments will require LEAs to record capital expenditure investment in order to qualify for compensation and will also make explicit provision that trustee or governing body investment should be taken into account when determining the level of compensation.
Baroness Blatch: Will the noble Lord give way? I cannot find an Amendment No. 205C. I can find an Amendment No. 205A.
Lord Whitty: I apologise. It should be Amendment No. 206C. Amendment No. 206C applies in that group.
The next group of amendments—Amendments Nos. 203C, 206K, 206L, 206M, 206N, 206P and 206Q—extend the coverage of the discontinuance provisions within Schedule 22 to include schools in the community sector and also provide that these provisions bite when the governing body is dissolved rather than when the school closes.
Amendments Nos. 203D, 206F, 206G, 206R, 206AC and 206AF give the Secretary of State the option to decide whether land held by a governing body of a closing school should be transferred to another school. Normally such land would pass to the local education authority but where the school's closure follows a reorganisation, and the school is replaced by another school on those existing premises, it would be sensible to allow the direct transfer of land to the new governing body. Where land is transferred to another school in this way, these amendments ensure that its future disposal is subject to the normal disposal rules.
Amendments Nos. 203G, 206D, 206E, 206H and 206J are technical amendments to the general disposal provisions which will ensure that they are consistent, clear provisions devoid of duplication.
The next batch of amendments is a fairly lengthy batch from Amendments Nos. 206S to 206W which again relate to the school discontinuance provisions. These amendments will ensure that when a school closes any land held by the governing body, and any governing body rights and liabilities, are re-assigned or dealt with appropriately when the governing body is dissolved.
Amendment No. 206X is a technical amendment which places a duty on schools that hold registered land to meet the requirements of the Land Registration Acts and regulations when they transfer land under the provisions of the schedule. The amendment makes provision also for the construction of agreements to which the governing body was a party.
The final group of amendments (Amendment Nos. 206Y, 206Z, 206AA to Amendment No. 206AE) comprises technical amendments which extend provisions dealing with the disposal of any property under this schedule to include the termination of a tenancy of premises leased for the purposes of a school. They provide also that any compensation payable by a landlord to the tenant school must be regarded as

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proceeds of sale and be dealt with as such under the provisions of this schedule. I hope that that explains the amendments. They do not alter in any sense the substance of the Bill. I hope therefore that the Committee can accept them.
Baroness Blatch: I have some questions for the noble Lord. I do not know who wrote his notes because the amendments do not tally with those that we were given in the letter. The letter is not complete because the noble Lord has included a large number of amendments which are not part of the technical explanation.
On the amendments that we have had explained to us, perhaps I may query, first, Amendments Nos. 203A and 203B. They relate to Clause 71 which introduces Schedule 21. It makes provision for land to transfer from one body to another. That is where there has been an arrangement between one school and another. I wonder whether that is not an elaborate way of dealing with the issue. Why not leave the arrangements with protection for the second school? For example, does the LEA have the power—it is important to know this—having taken on the responsibility, for seeing that the arrangement continues between two schools, to vary that arrangement or disturb it in some way?
I turn now to Amendments Nos. 203D, 206F, 206G, and 206AC which relate to providing the Secretary of State with an option to direct that land owned by the governing body of a closing foundation, voluntary, or foundation special school be transferred to a new or an existing school where the closure is linked to statutory proposals. Is that irrespective of ownership?
Amendment No. 203G, as I understand it, brings trustee disposals into line with those of governing body or foundation body disposals. It is the arrangement under which an LEA may be entitled to compensation for any investment in school premises. What is being done? Who will be the arbiter to determine those matters? I know of many examples where it is not clear from where the money came. For example, capital moneys that went to some grant-maintained schools were enhanced by help in kind, money from the governing body, moneys raised locally, and sometimes by money from local authorities, the local community or some form of private finance. Were the premises to be disposed of it might be difficult to separate out where the ownership lay in terms of input. Some of these arrangements are informal and some are formal. It would be helpful to know how that would work or who would be the arbiter.
Amendments Nos. 206D and 206E clarify, as I understand from the Government, the provisions under which the Secretary of State may, again, direct. There are a great many powers here for the Secretary of State. In this case, he may direct school trustees to pay a local authority all or part of the sale proceeds from the disposal of any school premises which were acquired or enhanced by grant-maintained school funding grant arrangements. As grant-maintained schools return to the fold, at what point could that be triggered? Is it intended
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that where a grant-maintained school has had a transaction the LEA could ask for repayment on its return to foundation school status? What about a grant-maintained school that may have received a capital sum which has been re-cycled into enhanced provision for the school? Again, what protection would there be for that? What would be the liabilities for the school and its governing body?
Amendment No. 206R gives the Secretary of State, again, the option to direct that the property of a closing school should transfer to the governing body of another school or schools. How will that work? Is the property in private trust protected? Again, how will that policy work in relation to the work of the organisation committees and any decisions that flow from the organisation committees? Amendment No. 206U, again, contains another power to direct. The explanation we have had on that is acceptable.
Amendment No. 206V is, again, an amendment that clarifies paragraph 7 arrangements for property held on trust by the governing body when a school is closed, and the governing body is dissolved. The explanatory notes say that if there are no school trustees, the governing body may transfer the property to any other person who must then use the property for maintained-school education. What if that land has a covenant on it which provides that after educational use it should be used for a specific purpose in the event of closure?
Finally, Amendments Nos. 206Y, 206Z, 206AA, 206AB, 206AC, 206AD and 206AE form a different cluster from the one described by the noble Lord, Lord Whitty. I am told that these amendments ensure that the disposal of any property under the schedule includes the termination of a tenancy of premises leased for the purpose of a school. This looks a little like compulsory acquisition, because the provision goes on to say that any reference to sale proceeds should include compensation that a landlord may pay to the school tenant for quitting the premises. Again, I should like to be certain that there is no element of coercion in that.
Lord Lucas: To give the noble Lord, Lord Whitty, a further pause, I shall not add to the list of questions on this group of amendments. When we come to the acceptance or otherwise of this group of amendments in the course of going through the Marshalled List, we shall come across Amendment No. 206B. I am sure that the noble Lord will remember that I have an outstanding question on that amendment, which is why paragraph 1(3)(a) of Schedule 22 is not included in the list of exemptions. I shall wish to address that amendment when we reach it, if we have not already dealt with it in the course of the reply of the noble Lord, Lord Whitty.
Lord Whitty: I can reply to at least some of those points. We shall need to check Hansard to see whether I have covered them all. In relation to Amendments Nos. 203A and 203B, the noble Baroness asks whether the LEA could effectively take charge of the transfers. The answer is that it could not—not in the legal sense that she means—because it needs to have the agreement of the other school. Therefore these provisions between two schools are required.

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Amendments Nos. 206D and 206E relate to capital receipts. The noble Baroness has not quite taken the point here. The provision does not relate to the transfer into foundation status, or any other status; it relates to when a school closes. If she understands that, this amendment is clearer.
Amendment No. 206AA comes towards the end of the group. I think that it is the one to which the noble Baroness referred. It relates to the proceeds from a landlord effectively buying off a tenancy. It is not intended that there should be any coercive element behind that provision. It will simply be where the landlord effectively pays the school to vacate the premises which will be part of the school's assets which might need to be returned in those circumstances.
Amendment No. 206R relates to the property of a closing school being transferred to the governing body of another school rather than to the LEA. It does not affect private trusts, so I am advised, which I think was the point behind the noble Baroness's question. Regarding Amendment No. 206V, this relates to the noble Baroness's questions on the situation where there were effectively covenants or restrictions on the use of that land. In all cases, rights and liabilities to the land go with the land and therefore if there are liabilities or covenants governing the future use of that land, this will not override them. Those covenants will be part of the transfer.
I have missed Amendment No. 203D, contained in the second group to which the noble Baroness, Lady Blatch, referred. These relate to the Secretary of State's option to direct that land owned by the governing body of a closing foundation should be transferred to either a new or an existing school. The amendment relates to land owned by the governing body; it does not relate to the situation where the land or premises are owned by the trustees. I think that was part of the point behind the remarks of the noble Baroness.
The noble Lord, Lord Lucas, referred to Amendment No. 206B, I think. I believe I am aware of the point to which he is referring and I think we will probably have to return to it. It is not effectively covered by the advice I currently have.
Lord Lucas: I agree that it is not in the batch that we are talking about but I thought it would be kind if I were to give the noble Lord notice of a point that was going to hit him before we reached the next group of amendments.
Lord Whitty: As always, I am deeply indebted to the noble Lord, Lord Lucas, for his kindness. I hope that with that explanation the Committee can accept these amendments.
Baroness Blatch: I wish to come back on two points. The noble Lord said that Amendment No. 203D referred to land owned by the governing body, but the amendment goes on to refer to a closing foundation, a voluntary or a foundation special school. I want to be absolutely certain that if the governing body is the
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owner, the governing body can be the owner of a voluntary or a foundation school and the moneys do not belong to the Government for the Secretary of State to direct. The point of my question, irrespective of ownership, was that the governing body is not necessarily an LEA-type governing body, as stated in the Explanatory Note.
On Amendment No. 206R, the noble Lord missed one of my questions. I am grateful for the answer on the other point that I raised that trustee property would be protected. How does the policy interrelate with the work of organisational committees and the decisions that flow from the organisational committees?
Lord Whitty: Amendment No. 206R relates to the provisions about whether it merges as a result of a decision by a school organisation committee, as in future it normally would, or if there were some other reasons for closure. I am not sure that the particular consequence of a school organisation committee decision alters the provisions of the clause. If the noble Baroness wishes to explain the circumstances further, I will come back on that.
In relation to Amendment No. 203D and so on, we are talking about where the governing body owns the premises rather than some trustee body. That relates to all types of school listed in the clause—a foundation, a voluntary or a foundation special school. Where a private trustee owns the land or the premises then it is clearly a different situation.
Baroness Blatch: I take it that if it was owned by a body other than an LEA or state provider the Secretary of State would not have a power to direct. The actual point I am getting to is that I want to be absolutely certain that he would direct only in the case of properties that belong either to an LEA, a public body or a state-controlled body. The noble Lord has not referred to Amendment No. 203G where, as I say, you can have a single project, particularly in a grant-maintained school, accepting help in kind, which is costed and which includes money raised by parents, by the community, or sometimes by the local authority, and certainly sometimes by private finance, all inside one project. If that arts centre, say, is sold off and it has been built in that way, with some initial capital from the LEA, does the whole thing become requisitioned by the LEA?
Lord Whitty: As I understand the clause—I will clarify it further in writing—we are talking of money and provision in kind from the LEA and that does not relate to money from other sources. However, I think I had better clarify that in writing to the noble Baroness. On Amendment No. 203G I beg the noble Baroness's pardon. I have forgotten her point on the amendment. Perhaps she will remind me.
Baroness Blatch: This amendment really refers to a situation with a great mixture of financial input. It refers to a single project and, where that is the subject of a disposal, who would be the arbiter, what its value was

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and where the receipts of that value should reside, and who decides what is a genuine capital receipt to the people in the area who subscribed to it.
Lord Whitty: I think I had better write to the noble Baroness. I suspect that at the end of the day the arbiter, if there is a dispute, will be the courts.
On Question, amendment agreed to.
Clause 71, as amended, agreed to.
Schedule 21 [Transfers of land on appointed day]:
Lord Whitty Lord Whitty moved Amendment No. 203B:
Page 185, line 26, at end insert—
("Transfer of rights to use land
8A.—(1) Where paragraph 4, 5, 6 or 7 applies to an existing school and any land held by a person or body other than the governing body of the school was, immediately before the appointed day, used for the purposes of the school, any rights or liabilities—

(a) enjoyed or incurred by the governing body in connection with the use of the land, and

(b) subsisting immediately before the appointed day,

shall on that day be transferred to, and by virtue of this Act vest in, the local education authority (in a case to which paragraph 4 or 7 applies) or the foundation body (in a case to which paragraph 5 or 6 applies).
(2) Where paragraph 4 or 7 applies to an existing school and any land held by a person or body other than any trustees who hold any land for the purposes of the school was, immediately before the appointed day, used for the purposes of the school, any rights or liabilities—

(a) enjoyed or incurred by any such trustees in connection with the use of the land, and

(b) subsisting immediately before the appointed day,

shall on that day be transferred to, and vest in, the local education authority in accordance with a transfer agreement.
(3) Nothing in this paragraph applies in relation to land to which paragraph 4, 5, 6 or 7 applies.
(4) In this paragraph—
"existing school" has the meaning given by paragraph 4, 5, 6 or 7, as the case may be;
"transfer agreement" means an agreement—

(i) made for the purposes of sub-paragraph (2) between the local education authority and the trustees mentioned in that sub-paragraph, and

(ii) providing for the rights or liabilities in question to be transferred to, and vest in, the authority on the appointed day, whether or not in consideration of the payment by the authority of such amount as may be agreed between the parties.").

The noble Lord said: I beg to move this amendment formally.
On Question, amendment agreed to.
Schedule 21, as amended, agreed to.
Clause 72 [Foundation, voluntary and foundation special schools: disposal of land and discontinuance]:
Lord Whitty Lord Whitty moved Amendment No. 203C:
Page 55, line 41, leave out ("such") and insert ("maintained").
On Question, amendment agreed to.
Clause 72, as amended, agreed to.
Schedule 22 [Foundation, voluntary and foundation special schools: Disposal of land and discontinuance]:
Lord Whitty Lord Whitty moved Amendments Nos. 203D to 203G:
Page 186, line 25, after (" 6") insert ("or paragraph 5(4)(c) of this Schedule").
Page 187, line 3, at end insert—
("(5) Sub-paragraph (1)(e) shall not apply in the case of any expenditure incurred on or after the appointed day unless the authority—

(a) prepared a statement in writing—

(i) containing details of the amount of the expenditure, the acquisition or works funded (or to be funded) by such expenditure, and the total cost (or estimated total cost) of that acquisition or those works, and

(ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and

(b) sent a copy of the statement to the governing body either before, or no later than 12 months after, the expenditure was incurred.").

Page 187, line 30, at end insert—
("(5) Sub-paragraph (1)(e) shall not apply in the case of any expenditure incurred on or after the appointed day unless the authority—

(a) prepared a statement in writing—

(i) containing details of the amount of the expenditure, the acquisition or works funded (or to be funded) by such expenditure, and the total cost (or estimated total cost) of that acquisition or those works, and

(ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and

(b) sent a copy of the statement to the foundation body either before, or no later than 12 months after, the expenditure was incurred.").

Page 187, line 37, leave out ("enhanced in value") and insert ("acquired, or enhanced in value,").
On Question, amendments agreed to.
[Amendments Nos. 204 and 205 had been withdrawn from the Marshalled List.]
Lord Whitty Lord Whitty moved Amendment No. 205A:
Page 188, line 22, after ("authority") insert (", the trustees or the governing body of the school").
On Question, amendment agreed to.
[Amendment No. 206 had been withdrawn from the Marshalled List.]
Lord Whitty Lord Whitty moved Amendments Nos. 206C to 206AF:
Page 188, line 30, at end insert—
("(5A) Sub-paragraph (1)(b) shall not apply in the case of any expenditure unless the authority—

(a) prepared a statement in writing—

(i) containing details of the amount of the expenditure, the acquisition or works funded (or to be funded) by such expenditure, and the total cost (or estimated total cost) of that acquisition or those works, and

(ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and

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(b) sent a copy of the statement to the trustees either before, or no later than 12 months after, the expenditure was incurred.").

Page 188, line 48, after ("authority") insert ("either").
Page 188, line 48, at end insert ("as he determines to be just").
Page 190, line 7, leave out ("either or both") and insert ("one or more").
Page 190, line 12, at end insert ("; and
(c) in a case where the discontinuance of the school is connected with proposals under section 27 or 30 or paragraph 5 of Schedule 7 to establish, or to make a prescribed alteration to, any other school or schools, require the land or any part of the land to be transferred to the governing body of such maintained school or the temporary governing body of such new school as he may specify.").
Page 190, leave out lines 22 to 28.
Page 191, leave out lines 7 to 13.
Page 191, leave out lines 16 to 19 and insert—
("7.—(1) This paragraph applies in connection with the dissolution of the governing body of a maintained school by virtue of paragraph 4 of Schedule 10.").
Page 191, line 20, leave out ("this paragraph applies") and insert ("a governing body are so dissolved").
Page 191, line 21, leave out ("of the school").
Page 191, line 23, after ("liabilities") insert ("(including rights and liabilities in relation to staff)").
Page 191, line 24, leave out ("discontinuance date") and insert ("date of dissolution").
Page 191, line 26, after ("shall") insert ("on the date of dissolution").
Page 191, line 26, leave out (", the local education authority on the discontinuance date") and insert—

("(i) the local education authority, or

(ii) one or more of the following, namely the governing body of a maintained school and the temporary governing body of a new school, if the Secretary of State so directs before the date of dissolution").

Page 191, line 29, after ("land") insert ("or other property").
Page 191, line 29, after ("transfer") insert ("or payment").
Page 191, line 33, at beginning insert ("unless the Secretary of State otherwise directs by order made before the date of dissolution,").
Page 191, line 34, at end insert—
("(3A) Subject to sub-paragraph (3B), a governing body who are to be dissolved as mentioned in sub-paragraph (1) may transfer any land or other property which is held by them on trust for the purposes of the school to any person to hold such land or other property on trust for purposes connected with the provision of education in maintained schools.
(3B) Sub-paragraph (3A) does not apply to any land or other property so held by the governing body of a foundation, voluntary or foundation special school where any other persons also hold any property on trust for the purposes of the school; and any such land or other property shall on the date of dissolution be transferred to, and by virtue of this Act vest in, those persons.
(3C) If any doubt or dispute arises as to the persons to whom any land or other property within sub-paragraph (3B) falls to be transferred under that sub-paragraph, it shall be treated as falling to be so transferred to such persons as the Secretary of State thinks proper.").
Page 191, leave out lines 35 to 38.
Page 192, line 13, at end insert—
("8A.—(1) Where a transfer under paragraph 1(3)(a), 2(3)(a), 4(2), 5(4)(a) or (c), 6(2)(b) or 8(2)(b) of this Schedule relates to registered land, it shall be the duty of the transferor—
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(a) to execute any such instrument under the Land Registration Acts 1925 to 1986,

(b) to deliver any such certificate under those Acts, and

(c) to do such other things under those Acts,

as he would be required to execute, deliver or do in the case of a transfer by agreement between the transferor and the transferee.
(2) Paragraphs 6 to 8 of Schedule 10 to the Education Reform Act 1988 (construction of agreements) shall apply in relation to transfers under paragraph 7 of this Schedule as they apply in relation to transfers to which that Schedule applies.").
Page 192, line 17, at end insert ("; and
(ii) in the case of any premises held under a tenancy to which Part II of the Landlord and Tenant Act 1954 ("the 1954 Act") applies, the termination of that tenancy under that Part of that Act").
Page 192, line 20, leave out ("or compensation").
Page 192, line 21, after ("rent;") insert—
("(ia) any compensation for the disposal, including any compensation paid by the landlord on the quitting of any premises within paragraph (b)(ii) by the governing body, foundation body or trustees (whether or not the compensation is required to be paid by section 37 of the 1954 Act (compensation where order for new tenancy precluded on certain grounds));").
Page 192, line 23, at end insert ("or compensation").
Page 192, line 23, at end insert—
("(d) "new school" has the meaning given by section 69(3).").
Page 192, leave out lines 24 to 34.
Page 192, line 35, leave out ("sub-paragraph (2)") and insert ("paragraphs (b)(ii) and (c)(ia) of sub-paragraph (1)").
Page 192, line 51, at end insert—
("() In paragraph 1(1) references, in relation to the governing body of a foundation, voluntary or foundation special school, to any land being acquired in a particular way include references to the land being acquired in that way by the temporary governing body for the school.").
On Question, amendments agreed to.
Schedule 22, as amended, agreed to.
Clause 73 agreed to.
Clause 74 [Rating of maintained schools]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 206A:
Page 57, line 12, leave out subsection (2).
On Question, amendment agreed to.
Clause 74, as amended, agreed to.
Baroness Blackstone Baroness Blackstone moved Amendment No. 206B:
After Clause 74, insert the following new clause—
("Stump duty
STAMP DUTY
.—(1) Subject to subsection (2), stamp duty shall not be chargeable in respect of any transfer to a local authority under any of the following provisions, namely—

(a) paragraph 4 or 7 of Schedule 21 or any corresponding provision of regulations under paragraph 10 of Schedule 2,

(b) paragraph 4(2), 5(4), 6(2)(b), 7(2) or 8(2)(b) of Schedule 22, or

(c) any regulations under paragraph 4 of Schedule 8.

(2) No instrument (other than a statutory instrument) made or executed under or in pursuance of any of the provisions mentioned in subsection (1) shall be treated as duly stamped unless—

(a) it is stamped with the duty to which it would be liable but for that subsection, or

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(b) it has, in accordance with section 12 of the Stamp Act 1891, been stamped with a particular stamp denoting that it is not chargeable with any duty or that it has been duly stamped.

(3) In subsection (1) any reference to a transfer under any provision or regulations mentioned in that subsection shall be read as a reference to a transfer under that provision or those regulations taken with section 198 of, and Schedule 10 to, the Education Reform Act 1988 if those provisions of that Act apply to the transfer by virtue of any provision of this Act or that Act.").
The noble Baroness said: I beg to move.
Lord Lucas: This is the amendment about which I warned the noble Lord, Lord Whitty. When this amendment fell to be discussed I left the noble Lord, Lord Whitty, with a question to which I have not yet had an answer. This clause sets out a number of exemptions from stamp duty, principally when they are not already exempt because of the charitable status of foundation schools or other similar schools. It seems to me that the transfers envisaged in paragraph 1(3)(a) were of an exactly similar nature to those which were being exempted by this amendment, but had not been included in this amendment. I would be grateful to have now an explanation of why they have been left out.
Lord Whitty: I apologise to the noble Lord for not covering the point. If the Committee will permit, I shall pass on to him detailed information. The advice which has just arrived indicates that the exemption is only for compulsory transfers and not for voluntary transfers. If the noble Lord requires further information I shall write to him.
Lord Lucas: Indeed, but the first word of paragraph 1(3)(a) is "required". If that is voluntary it is a new use of the word and one which is strange to me. Perhaps it is another example of the strange English employed by those who write Bills, but I doubt it. It seems to me that there is a lack of voluntariness about the word "required". I am happy to wait for the noble Lord to write to me.
On Question, amendment agreed to.
Clause 75 agreed to.
Clause 76 [Application of employment law during financial delegation]:
Lord Lucas Lord Lucas moved Amendment No. 207:
Page 57, line 38, leave out ("or expedient").
The noble Lord said: I beg to move Amendment No. 207 and I shall also speak to Amendment No. 208. Principally, I am interested to hear from the Minister what use they intend to make of the powers in Clauses 76 and 77. The particular point that I am making in these amendments is that I find it unsatisfactory that when dealing with such important issues as employment law and the trust deed or instrument constituting a school, the Secretary of State has powers to make amendments when he finds it expedient. I understand why it might be necessary to have such powers when it is necessary, but it does not seem to me that either of these areas of law or deed are
792
such as should be tampered with merely because it is the easiest way to do it rather than because it is necessary. I beg to move.
9.15 p.m.
Lord Whitty: The provision in Clause 76, which essentially rolls forward the current arrangements, has remained more or less unchanged since its introduction in the 1988 Education Reform Act. Its purpose is to give the Secretary of State the means to ensure that governing bodies are accountable under employment law for those employment functions they carry out in relation to school staff whose employer is the local education authority. The removal of the word "expedient" would curtail the scope of the Secretary of State for deciding what is appropriate to make sure that governors are properly accountable for their employment functions. I do not consider that it is either necessary or appropriate to alter this provision.
It is important to retain the scope for the Secretary of State to make modifications that he considers necessary. It allows him to make modifications which, although they may not be strictly necessary in a tightly defined interpretation of the word, may be expedient for reasons which make good sense. For example, it is not strictly necessary for the Secretary of State to modify the requirement in the Employment Rights Act for the employer to provide an employee with a statement of the written reasons for dismissal. In such circumstances, the LEA could provide this to the employee after asking the governing body what the reasons are. It is not strictly necessary to modify this element of employment law, but it is expedient to do so because it makes administrative sense for the governing body to set out its reasons for dismissal directly to the employee. The inclusion of the word "expedient" simply allows the Secretary of State to adopt a common sense approach to this function.
As regards Clause 77, similar arguments apply. It primarily deals with circumstances where there is conflict between the terms of a school's trust deed and statutory requirements. The provisions in the clause are not new. Existing legislation contains similar powers. The trust deed might, for example, include provisions about membership of the governing body which were incompatible with the requirements for the legal category to which the school has been allocated. In these circumstances, an efficient mechanism for modifying the trust deed is needed. The Secretary of State would modify the school's trust deed to bring it into line with the relevant requirement. But, before doing so, he would consult the school's governing body, its trustees and the appropriate diocesan body where relevant.
Amendment No. 208 seeks to remove the words "or expedient". But by its nature, the clause is designed to deal with circumstances which are difficult to foresee. There are around 8,000 schools with trust deeds and the terms of these trust deeds vary considerably from school to school. Governing bodies are required to run schools in accordance with any trust deed, subject to any statutory provision. There may be circumstances in which it would not actually be impossible for them to comply with both the trust deed and the statutory

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requirements, but it would be very difficult for them to do so. In these circumstances, it would be expedient rather than necessary for the Secretary of State to modify the trust deed.
The words "or expedient" would allow the Secretary of State to respond more flexibly to requests from governing bodies or trustees. The modifications they ask for might not be strictly necessary, but might be helpful to the school. Removal of that would prevent the Secretary of State from acting in the interests of schools or, alternatively, they would have to seek modifications through the more laborious mechanism provided by charity law. For example, the trustees of a voluntary aided school may state that six specified different and separate bodies must appoint the foundation governors. That could be accommodated within statutory requirements, so it is not necessary to change, but everyone concerned with the school might regard it as over-complicated. In those circumstances, the Secretary of State could use his powers under the "or expedient" provision to ensure that those changes could be made; otherwise, they would have to apply to the Charity Commissioners to alter the terms of the trust deed.
I hope that with those explanations we can keep the existing provisions relating to "or expedient" in the two clauses. I ask the noble Lord to withdraw his amendment.
Lord Lucas: I am grateful to the noble Lord for that explanation, which is exactly what I had hoped for. These are wide powers as drafted. I accept the noble Lord's explanation of how they will be limited in use. I am also grateful to him for his suggestion that anything we put into law must necessarily be good and regarded as such. I hope that he will apply that principle more widely. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 76 agreed to.
Clause 77 [Modification of trust deeds]:
[Amendment No. 208 not moved.]
Clause 77 agreed to.
Clause 78 [Modification of provisions making governors of foundation or voluntary school ex officio trustees]:
Baroness Blackstone Baroness Blackstone moved Amendment No. 208A:
Page 58, line 30, leave out ("and those appointed by the local education authority") and insert (", those appointed by the local education authority and any co-opted governor nominated by a minor authority").
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 79 [Code of Practice]:
Baroness Blatch Baroness Blatch moved Amendment No. 208B:
Page 59, line 4, at end insert—
("() The code shall require that educational criteria must have priority in determining the admission arrangements of schools.").
The noble Baroness said: We come now to a part of the Bill the effect of which will impact on every school and on every category of school in the land. There are
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therefore two things I wish to say at the outset. First, to put on record the importance of this part of the Bill and the important practical consequences of the way in which it will work; second, what an outrage it is that we do not see a draft of the admissions code of practice.
It is alleged, and it is even claimed that someone close to the DfEE was overheard to say, that "Whatever happens, do not let the code of practice out in draft while the Bill is being discussed in the House. It will only give rise to even wider debate". The even wider debate is one which we should be having in relation to the department's intention for devising and composing a code of practice we ought to be able to see in draft.
I feel as strongly about that as did the noble Lord, Lord McIntosh about a code of practice on a previous Bill, when the Opposition quite rightly refused to move on with the Bill unless Members had the code of practice in their hands while they discussed a very important aspect of a Bill.
Lord McIntosh of Haringey: Quite accurate, my Lords. We tried to refuse to move on but we were in a minority, as we still are in this House, and we failed.
Baroness Blatch: Let me remind the noble Lord that he did not fail. The noble Lord will know that the code of practice was produced for a stage of the Bill and it was in people's hands. It was not only in the hands of Members of this House but also in the hands of people outside this House, with interested groups. Before this Bill has completed its passage through the House, both on Report and at Third Reading, I am making yet another plea that we have a draft of the code of practice in the hands of Members while we discuss this important issue.
The issues which will flow from the code of practice cover very important matters such as parental preferences; the admissions arrangements which will be overseen by admissions authorities and a definition of who they will be; the objections to the adjudicator—we have talked a lot about the adjudicator and the absolute powers of the adjudicator—and the way in which it will impact on schools which have a religious aspect to their foundation; publication of admissions; the fixing of admissions numbers; appeal arrangements and the powers to direct, which are very considerable, to admit children to specified schools; to give directions under Section 91 and, of course, the way it will impact on nursery provision.
I cannot say too strongly just how important I believe Part III of the Bill is. I want to underpin all that will flow from the Bill. I am sure that whichever Minister replies to this amendment will ask why one should put on the face of the Bill that "educational criteria must have priority in determining the admission arrangements of schools". I am too old a hand in both local and national government to know that it is not always educational criteria which motivate changes of admissions policy. It can be money. It can be the state of buildings. It can be philosophical objections to types of education; the existence of sixth forms or the reorganisation of sixth forms. It can impact on selection and the selection policy. It can impact on so many

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things. I believe that this House should have as a paramount consideration—and that does not in any way diminish the importance of considering costs—that even where a decision is to be made it should first be measured in terms of whether it is an educationally sound idea, an educationally sound policy, ahead of the other issues of cost. If a policy is to be propounded under the code and exercised by a local authority and costs are allowed to override educational considerations, we should have no part of that. For those reasons, I wish to have that provision on the face of the Bill.
I ask to be reminded about the code of practice. I understand that in the Bill it is dealt with under the negative resolution procedure. I wish to be certain that this code will come before the House under the affirmative procedure. I believe that I have already secured that but I should like confirmation of it. If I have not secured that, I apologise in advance for the omission and I shall attend to that matter on Report. However, my memory tells me that I may have covered that matter already. I beg to move.
Lord McIntosh of Haringey: I start by echoing what the noble Baroness said about the importance of this part of the Bill. As she rightly says, admission policies affect all children in all types of school. Over the years, they have caused more agony and anguish for parents, children and those running our schools than almost any other single issue.
The code of practice to which the noble Baroness referred, which is the subject matter of Clause 79, reflects our approach to managing diversity in admissions through advice, co-operation and adjudication rather than through conflict, as has happened too often in the past. The advice in the code will not be a dogmatic, centralised view on what every school's admission policy should be. It is designed to give practical advice on a range of admission issues and on the new legislation. That advice will be drawn up only after discussion and consultation with our education partners and a draft will be laid before both Houses.
The Select Committee on Delegated Powers and Deregulation endorsed our approach in the Bill to the statutory basis that we are giving to the code. Its focus will be on working to achieve fair and objective admission arrangements. We shall start the discussion and consultation process shortly.
Ministers have said in another place that we shall be issuing interim guidance on admissions before a draft code is produced. We shall first consult on a draft of that interim guidance. That interim guidance will be an important document. Not only will it give advice on the arrangements for the operation of the next admissions round where practicable, but it will foreshadow the new admissions framework under the Bill. That will enable everyone to prepare for the new arrangements in timely fashion, subject to Parliament's approval. The consultation on the interim guidance will also start discussion on the content of the draft code.
I stress that we shall be fully involving interested parties when preparing the draft code before issuing it for further consultation and eventually laying it before both Houses.
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The noble Baroness raised the point about timing. We shall consult shortly on the draft interim guidance, certainly in good time for that draft to be available to your Lordships' House on Report. We shall then produce a draft code for consultation in the early autumn and shall seek to lay the draft code before both Houses early in the new parliamentary Session. We anticipate that it will be published early next year. I confirm that, as the noble Baroness suspected, the Select Committee on Delegated Powers and Deregulation is content with that method of parliamentary scrutiny.
I turn to Amendment No. 208B which we are now debating. The Bill requires us to consult fully on what should be included in the code of practice and for a draft of the code to be laid before both Houses. The Select Committee on Delegated Powers and Deregulation thought that those provisions were entirely appropriate.
It is not our intention to pre-empt public consultation or any scrutiny by Parliament by stating on the face of the Bill, as this amendment would demand, the specific criteria which the code should or should not say take priority. The purpose of the Bill is to support improved standards in all schools. We agree that educational issues should be considered above other issues when making decisions about the provision of education. That might be in school place planning or in the drawing up of educational development plans.
Our aim is for all children to benefit from the improved educational standards that we are seeking at all schools. But we are today debating the arrangements for admitting children to those schools. Admission authorities should choose the criteria that best serve the parents and children. The noble Baroness mentioned a number of non-educational criteria which I believe she acknowledged were appropriate; for example, she talked about money, about costs, about the state of buildings and about selection policy. She also made a philosophical point which I did not fully understand. However, there are other criteria which are not strictly educational. I have in mind the popular criterion of sibling links which many schools give, or the impact of priority for local children. Further, many Church schools give priority to children from a particular faith or denomination. We support the right of such schools to continue to give priority to children of a particular denomination and have built appropriate safeguards into the Bill.
The noble Baroness, Lady Blatch, will know that the Bill as a whole is devoted to the raising of educational standards. I can assure her that the admissions framework, including the code of practice, will support that objective. On the basis that I have been able to give the noble Baroness the assurance, without pre-empting what the code of practice will say, that education issues should be considered above others, I hope that she will find it appropriate to withdraw her amendment.
9.30 p.m.
Baroness Blatch: I am not happy with the Minister's reply. The noble Lord said that we will have draft interim guidance, but I do not believe that he said what it will cover in terms of how it will differ from the

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information to be covered by the draft code of practice; in other words, is the draft interim guidance something akin to a draft code of practice? If it is not, what is the distinction and what will it cover? As for timing, it is as I suspected all along; namely, that we are not going to see the draft code of practice until well beyond the turn of the year. Of course, my private information suggested that we would not see it and that we would not see it for the good reason that it would give rise to wider debate.
The Minister said that the scrutiny committee was content with the situation. However, that is only the scrutiny committee. What I want to know—and the noble Lord did not answer my question—is whether the code of practice will come before this Chamber under the affirmative resolution procedure? If not, whatever the scrutiny committee may find, I want to know this information for my own purposes. I believe that it should be put before both Houses under that procedure.
The Minister said that he saw no reason why it should not be on the face of the Bill. Between now and the Report stage, I may well return to the words used by the noble Lord when he talked about the importance of discussing legislation on the face of the Bill, which is in nature skeletal and framework legislation and which then paves the way, for example, for more detailed codes of practice. There is also the importance of having details of the Government's intentions in the hands of Members as they discuss such matters on the Floor of the Chamber. I believe that the argument for me is as strong on this Bill as it was for the noble Lord on the other legislation.
The Minister referred to issues regarding admissions policy which are non-educational. He mentioned money, cost, which amounts to the same thing, and sixth forms. When I was working in local government and went through the painful process of reorganising or even closing schools, I personally made a commitment on every single occasion. My commitment was always this: if, at the end of the day, the alternative provision offered to any child was not at least comparable to the education that he or she was receiving—or, indeed, better than the education that he or she was receiving—then, whatever the cost benefits of the changes, we should not proceed with them. On the basis of that, every time we entered into a reorganisation as regards money and/or costs (if that was the initial motivating factor) we always made it a paramount consideration that, first and foremost, the decision should be educationally sound. If it then produced a cost benefit, so much the better.
The Minister said that he did not understand the philosophical point that I made. I can tell the noble Lord that a number of local authorities across the country do not believe in school based sixth forms. Sometimes great pressure is applied by further education colleges in this regard. Understandably they believe that if it were not for school based sixth forms, sixth form education could be arranged more effectively in an educational sense and more cost effectively. As we all know, the unit cost of a sixth form place is rather greater than the unit cost of a sixth former being educated in
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further education. It is conceivable that within an organisation plan there could be reorganisation of sixth form provision for acceptable reasons and, to some people, unacceptable reasons. It is important to keep at the forefront of people's minds that educational considerations should supersede some philosophical objection or whim, or an objection on the ground of cost.
The noble Lord also referred to popular schools, sibling links and faith denominational links. However, in each of those cases there is an educational argument. Schools are popular because of their high educational standards. People want places at those schools. As regards sibling links, it is quite obvious to those of us who have more than one child that having them settled in the same school—if that is what we wish—results in a better educational output because the family and the children in it are settled. However, that is not always the case. Some families benefit from having siblings in different schools. That is part of the facility afforded to parents. As regards faith denominations, that matter is very much tied up with education. It is an educational consideration. I do not regard popular schools, sibling links or faith denominations as being outside the remit of my amendment. The noble Lord did not think it was necessary to include the provision on the face of the Bill. He dismissed some of the points that I made. I profoundly disagree with his view. I believe the provision should be included on the face of the Bill.
On Question, amendment negatived.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 209:
Page 59, line 7, at end insert—
("() The code may include guidelines to show how children who may have special educational needs, and children for whom a statement of special educational needs is maintained under section 324 of the Education Act 1996, shall not be disadvantaged in admissions arrangements.").
The noble Baroness said: Amendment No. 209 is linked to Amendments Nos. 213, 215 and 229. They all concern admissions policies and how they affect children with special educational needs. Amendment No. 209 seeks to include in Clause 79 the phrase,
"The code may include guidelines to show how children who may have special educational needs, and children for whom a statement of special educational needs is maintained…shall not be disadvantaged in admissions arrangements".
If the amendment were accepted, all the people listed in Clause 79(1) who are involved with admissions policies would be obliged to consider how their policies did not disadvantage children with special educational needs. We seek assurances that children with special educational needs will have their problems addressed in the proposed code of practice. We also seek to ensure that a mechanism for monitoring admissions will be established.
I believe that earlier in the discussion on this Bill it has been mentioned that in the past couple of years since the issue of circular 6/96 there has been much evidence to show that parents of children with special educational needs are being turned away with comments such as, "Why do you not try a school which is better equipped

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to deal with the kind of difficulty your child has?" Those who have special needs but have not yet received statements are told, "Go and get a statement, or an assistant, and we might be able to admit you". In other words, there is unquantified but nevertheless considerable evidence that schools are becoming more reluctant to admit children with special educational needs.
Therefore this amendment to Clause 79 is designed to provide the Minister with an opportunity to assure us that these matters will be addressed in the code of practice on admissions. I beg to move.
Baroness Darcy de Knayth: I give my wholehearted support to this amendment. It sounds very important and valuable.
Lord McIntosh of Haringey: I am grateful to the noble Baroness for explaining the amendment. Indeed, I am grateful to her for the wording. It is a very probing type of amendment, if I may put it that way. It says that the code "may" include guidelines, rather than insisting that it should include guidelines.
As the noble Baroness will be aware from our debate on the previous amendment, the guidelines, although statutory in the sense that the rationale behind them is set out on the face of the Bill, are extremely local and flexible in many of the ways in which they operate. They are not intended as the be-all and end-all of admissions decisions. There is no such thing. There is no philosopher's stone in this matter. The amendment would allow the code of practice on admissions to give guidance on the admission of pupils with special educational needs, so that they will not be disadvantaged. We fully support the sentiment behind the amendment. However, it is not necessary, as I am sure the noble Baroness knows.
Turning first to those children with statements of special educational needs, in those cases strong safeguards are already provided by existing legislation. Parents have a right to be consulted throughout the process of statutory assessment, and may then specify the school that they wish to see named in the statement. Naming a school in a statement overrides all other admissions criteria: the admission authority is under a duty to admit the child to the school. However, we shall consider carefully with special educational needs groups what might helpfully be said in the code around the admission of children with statements.
For those children who have special educational needs but do not have a statement, we have given a commitment in our Green Paper, Excellence for all children, that the proposed statutory code of practice on admissions will make it clear that children with special educational needs but without statements cannot be treated any less favourably than other applicants.
Those pupils with special educational needs but without statements will be subject to the same admission arrangements as all other pupils attending mainstream schools. Before finalising those arrangements, admission authorities will be required to consult on the arrangements they propose and, where there is
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disagreement over a school's admission arrangements, the matter may be referred to the adjudicator. The code of practice will offer guidance to admission authorities and the adjudicator, among others, in carrying out these functions.
Let me also say that the Bill requires the Secretary of State to consult on the draft of the code of practice and provides for the draft code to be placed before both Houses of Parliament. On that point, perhaps I may respond to a matter raised by the noble Baroness, Lady Blatch, in her closing remarks on the previous amendment. It is proposed that the code of practice should be presented to Parliament under the negative procedures and the Delegated Powers and Deregulation Committee has agreed with that view. On that basis, I hope the noble Baroness will agree that her amendment is unnecessary and will feel able to withdraw it.
Baroness Thomas of Walliswood: On the question of a provision on the face of the Bill in regard to pupils with special educational needs, we await further elucidation on what, if anything, has come out of meetings which I understand the noble Lord, Lord Rix, who is not in his place, may have had with the Department for Education.
I maintain that there is a need to get that interest firmly on the face of the Bill. I can see that this may not be the right place to do it, and I am sure that this is not the right time to press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Baroness Blackstone Baroness Blackstone moved Amendment No. 209A:
Page 59, line 17, after ("(1)") insert—

("(a) make separate provision (by means of separate codes of practice) in relation to different functions under this Chapter of the bodies and persons mentioned in that subsection;

(b)")

The noble Baroness said: In moving Amendment No. 209A, I speak also to Amendments Nos. 209B, 211A and 211B. Amendments Nos. 209A and 209B would allow the Secretary of State to make separate provision, by way of separate codes of practice, for different admission functions. We need this flexibility to allow the Secretary of State to issue a separate code of practice on admission appeals. Guidance covering admission appeals might need to be quite detailed and specific, as can be seen from the present informal code on appeals, which is widely valued. Including this degree of detail on one topic would unbalance a single code, particularly for admission authorities and areas where appeals are not such an issue. Amendment No. 209B needs to be included as a consequence of Amendment No. 209A. It provides for references to the "code" or admissions functions to include references to any separate code or the functions to which it relates.
Amendments Nos. 211A and 211B are tidying up amendments, designed to correct and clarify the intentions of the Bill where two or more schools enter into co-ordinated admission arrangements. Amendment

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No. 211A corrects the drafting of the Bill. As presently drafted, the Bill would allow for maintained schools to be involved in co-ordinated admission arrangements only where they make their own admission arrangements. This would preclude community schools—except those which had delegated authority from their LEA to make their own admission arrangements—from joining a co-ordinated scheme, which would clearly be undesirable. The amendment ensures that Clause 81(6) could apply to any maintained school.
Amendment No. 211B ensures that, as now, expressions of parental preference are dealt with in accordance with the co-ordinated admission arrangements. Where schools are in co-ordinated admission arrangements, approved by the Secretary of State, these arrangements may take precedence over the duty on admission authorities to comply with any expressions of parental preference as set out in Clause 81(1) and (2). The present draft of the Bill does not make this clear, as it does not include a direct reference to Clause 81(2) with regard to meeting expressed parental preferences. I beg to move.
Lord Lucas: Amendment No. 210 and Clause 79 stand part are grouped with these amendments. I shall await the Government's opinion on Amendment No. 210; I simply wish to find out what they intend to do with regard to that suggestion. My purpose in giving notice of my intention to oppose the Question that Clause 79 stand part of the Bill was simply to allow a decent debate on the clause. I think we have had that debate and I shall therefore not oppose the Question.
Co-ordinated admission arrangements clearly override parental preferences to a certain extent. I should like to know from the noble Baroness what kind of co-ordinated admissions arrangements the Government approve of. What kinds of arrangements will receive the Secretary of State's blessing and what kinds will not? Are we looking at any change of policy here? I should be grateful for a restatement of how the Government see that working and the ways in which schools might look constructively to develop these policies or be aware of the fact that they should not be thinking along those lines because the Government will not let them get away with it.
Baroness Maddock: In drawing up the draft code of guidance on admissions, what reference will the Government have to environmental issues? One of the big problems when children go out of area to school is transport and the number of cars which end up sitting outside schools. If schools are to get together on their admission policies, there may be something they could do between them, perhaps to get school buses going together, if nothing else. We have heard that the Minister for Transport is looking at how we can reduce the number of cars on our roads. In recent years the number of cars turning up outside school gates has definitely increased.
I do not pretend that the solution is easy and I am not expecting an answer which says that it is. However, I hope that, in drawing up this code of guidance, that
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will be something at which the Government will look to see whether anything sensible can be done to reduce the amount of extra transport generated these days outside schools.
Lord Lucas: Perhaps I can just stick a pin into a Liberal Democrat obsessional matter. Out-of-area admissions in many cases reduce the need for transport because the major school in a neighbouring local authority may be a good deal closer than the school in one's own local authority area. That is a subject to which we will come later when I suspect I shall have some good long arguments with the Liberal Democrat Benches.
Baroness Maddock: I felt that I made my point in a non-confrontational way. It is a serious issue and that was the way I intended to make the point. We do not want to get into a "ding dong" about it; that would not be helpful. We are trying to make sure, where we can—I do not dispute what the noble Lord said; his point is absolutely right—that the matter is considered, and that is why I phrased my comments in the way that I did.
Baroness Blackstone: I do not want to intervene in the little spat taking place between the Conservative and the Liberal Democrat Benches. Perhaps I can begin with Amendment No. 210. I can assure the noble Lord, Lord Lucas, that, in line with the duty in the clause, the Secretary of State will consult widely on the draft code and copies will be made available to any member of the general public upon request. For those reasons it is not necessary to place the requirement on the face of the Bill and I hope that, in the light of that, the noble Lord will consider not moving his amendment.
On the issue of co-ordinated admission arrangements, the Government will want to listen, during the consultation period, to any proposals that come forward. I suspect again that they will not be dissimilar to what exists already—the noble Lord asked that question; however, it will depend on proposals put to the Secretary of State by admission authorities. The Government will be looking particularly to simplify admission arrangements and to ensure that parents hold any one offer of a place.
We come to the issue raised by the noble Baroness, Lady Maddock. I am sympathetic in many ways to her point. I wish more children could walk to school or go by bicycle. I know that there are issues of safety and security, especially in big cities. But the noble Baroness is absolutely right that the school run is now blocking up many of our urban roads at certain times of the day. If we can find ways to reduce the amount of moving around, that is something we will consider. We will look carefully at any proposals that take into account those environmental factors.
On Question, amendment agreed to.
Baroness Blackstone Baroness Blackstone moved Amendment No. 209B:
Page 59, line 19, leave out from ("code"") to end of line 20 and insert ("or to functions under this Chapter shall have effect, in relation to any such separate code of practice, as references to that code or to functions under this Chapter to which it relates (as the case may be).").
On Question, amendment agreed to.
Clause 79, as amended, agreed to.
Clause 80 [Making and approval of code of practice]:
[Amendment No. 210 not moved.]
Clause 80 agreed to.
Clause 81 [Parental preferences]:
Baroness Byford Baroness Byford moved Amendment No. 210A:
Page 60, line 44, at end insert—
("(3A) Each local education authority shall record the number of cases where the duty imposed by subsection (2) does not apply for the reason referred to in paragraph (a) of subsection (3).").
The noble Baroness said: This clause deals with parental preferences. It requires that a local authority,
"shall make arrangements for enabling the parent of a child

(a) to express a preference as to the school and

(b) to give reasons for [that] preference".

My amendment requires,
"Each local education authority shall record",
that parental choice—in other words, the parents' first choice—and this information should be made public.
At a time when the Government are committed to raising standards in schools and pursuing the course that good schools will be able to expand, it seems logical that we should have some way of judging what is and what is not a good school, but not just in terms of the school itself but as regards the choice so that parents would wish to send their children to that particular school. As we have heard in earlier debates, parental choice will vary. Their judgment may be swayed by academic achievement or by the league tables which are now published; it may be by the specialism that a particular school offers. There may also be a religious character to the school or that the parents wish to consider the ethos and moral culture for which the school is renowned. We have had that in our earlier discussions on this Bill. It may well be an indication that siblings have a bearing on the matter.
At the moment there is no place in the Bill where the parents' choice, particularly their first choice, is recorded in any way. Parents may well ask how they are to know what is a good school if they are not interested in just academic achievement. My amendment seeks to give parents another indicator by which to judge the school. The fact that the list will be published school by school within the local education authority would be an added value for parents. I would like to see this measure included in the Bill.
I move this amendment and, if this amendment is accepted, I move also Amendments Nos. 214A and 215A.
Lord McIntosh of Haringey: The grouping is for the convenience of the Committee. The noble Baroness can
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move Amendment No. 210A. She has spoken to the others, but she cannot move more than one amendment at a time.
Baroness Byford: I thank the Minister for that assistance. I am happy to speak to just Amendment No. 210A.
Baroness Blackstone: It is perfectly appropriate for the noble Baroness to speak to the other amendments in the group, but she cannot move more than one, the first in the group.
Baroness Byford: I thank the Minister for helping me out on this occasion. I have spoken to Amendment No. 210A and as a consequence I would like to include Amendments Nos. 214A and 215A because of the consequences they have for the clause. I ask the Minister to consider the first preference of parents. I also ask the Minister to consider also the parents who are not successful in their first choice. They should be included in some form of table as league tables already exist for academic achievement. I beg to move.
Baroness Maddock: I rise to speak to two other amendments in this group; namely, Amendments Nos. 213 and 215. My noble friend Lady Thomas of Walliswood has already mentioned them. We would like to have these amendments on the face of the Bill as regards children with special educational needs. The first is an amendment to Clause 87. It seeks a mechanism which will enable local education authorities to monitor admissions. They need to be able to monitor whether schools are systematically admitting more or fewer children with special educational needs than a fair proportion of their intake would suggest. This information would be very helpful in informing discussions with schools in the particular area of admissions. The amendment to Clause 87 is designed to provide a mechanism to ensure that information is made available by community, foundation and voluntary schools.
The other amendment to Clause 84 is designed to ensure that information about how admission policies have been working over the previous year informs the consultation on the determination or variation of admission arrangements. It is designed to ensure that permitted forms of selection do not include any forms of selection that may discriminate on the grounds of disability. Tonight the Committee has considered a whole series of amendments relating to admission of this very special group of children. We have heard examples of possible discrimination. These amendments are designed to ensure that no child is refused admission to a school on the ground of disability or special educational needs.
Baroness Blatch: I support my noble friend's amendment. I also support the points raised by the noble Baroness, Lady Maddock. I believe that the recording of preferences will underpin the information that the Government require to support two policies. The first is the expansion of popular schools. This will provide a

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great deal of information as to where parents are voting with their feet. The second deals with the importance of showing up those schools that are not being supported by parents. That will also give the Government the opportunity to focus attention on those schools. I was interested in one aspect of the class size pledge. It appeared likely that a good deal of the money for the class size pledge in terms of supporting preferences, which is what my noble friend seeks to have counted, would end up going to over-subscribed as opposed to under-subscribed schools. That is an interesting side issue which flows from that policy.
Referring to the matter raised by the noble Baroness, Lady Maddock, it is ironic that the only classes that will be allowed to bust the class size pledge and go to 31, 32, 33, or whatever the figure may be, are those that accept children with special needs. A guarantee is required that if a child with special needs is not to be turned away an attempt must be made to make extra provision to support a teacher who not only has a class of 30 but children in excess of that number who make particular demands on that teacher. That should not take place at the expense of either the teacher and/or the child. I am concerned about many hundreds, or possibly thousands, of schools in rural areas where it is not possible, certainly in the short term, to find extra classrooms because there is no room on the site for them and yet a child in a particular locality may want a place as a special needs child in a school. How can that preference be met?
This point is linked not only to the point raised by my noble friend in moving her amendment but to a debate on a previous amendment. Will the code of practice address the whole issue of parental preferences and codify the class size pledge that the application of that policy will not result in the sending of a child an unreasonable distance—this is all to do with admissions policy—or to a poorer performing school, or placing a child in a higher age group in a junior school, or not allowing a class other than in special needs cases to go over 30? Will the capital costs be met? Will it not only sustain the level of parental preferences but, as the honourable gentleman in another place makes clear in the background document, enhance parental preferences and place that local authorities under an obligation to see that they are enhanced? I believe that the recording of parental preferences is one way to hold this policy to account to make sure that it delivers what is intended by the Government. On those grounds I believe that the Government should support my noble friend's amendment.
Baroness Blackstone: I begin with Amendments Nos. 210A, 214A and 215A. These amendments would place express duties on the face of the Bill requiring local authorities to keep a record of each parental preference which is refused under paragraph (a) of Clause 81(3)—the "prejudice ground"—and on authorities and governing bodies to publish the number of such refusals in a year. Paragraph (a) is capable of covering a range of types of "prejudice" that can occur, but these will not normally arise unless the number of places in the particular school is oversubscribed.
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Of course a parent must be given a right of appeal in such a case, but sufficient records will already exist for that purpose.
As to publication, we agree that knowing various levels of oversubscription at a school may be of considerable value to parents in judging the realistic options they have when applying for a school place. Indeed, departmental advice in the past has suggested that schools and LEAs might publish such information.
However, this is a matter which the Government do not think belongs on the face of the Bill. It would be unwieldy to include precise details to be published—important though they may be—in primary legislation. Instead, Clause 87 already enables details of this kind to be set out in regulations.
To require all LEAs and governing bodies to record and publish these details seems a trifle overbureaucratic. Published details are already quite lengthy and we do not believe that this is something that should be made compulsory.
I would, however, be very happy to give a commitment to the noble Baroness, Lady Byford, that we shall carefully consider what the code might say about voluntarily publishing additional details such as the levels of oversubscription and about the ways parents may best assess the realistic options that they have.
Perhaps I could say to the noble Baroness, Lady Blatch, on the code of practice that, yes, of course, it will address the issue of parental preferences. I confirm what my honourable friend the Minister for School Standards has already said: we intend, with the class size pledge, not just to sustain current levels of parental preference but to enhance them. That is something that the Government made clear when we were discussing the class size clauses in the Bill.
I turn to Amendments Nos. 203 and 205 and say to the noble Baroness, Lady Maddock, that I am sympathetic to the intention behind these amendments. I now understand that their aim is to ensure that children with disabilities and special educational needs are not discriminated against, by establishing a mechanism which would enable LEAs to monitor admission arrangements and identify whether schools are taking their responsibilities towards children with special educational needs—including those with disabilities—seriously. That is extremely important.
Perhaps at this point I could also say to the noble Baroness, Lady Blatch, that she is absolutely right: if a child has a statement, the school must give the support that goes with that statement; so if a child with special educational needs is additional to the class size ceiling of 30, he or she would need to have the additional resources.
Baroness Blatch: That facility was already in place under the previous government: where a child is formally statemented, the provisions follow the child. I am talking about a child with special needs who falls short of being formally statemented. But if that child is guaranteed a place in a school where the class size pledge can be busted, then it is important to recognise

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two things: first, that the class size has been exceeded; and, secondly, that there is an extra burden on the teacher in the classroom.
Baroness Blackstone: I was just about to come to that point. Of course the noble Baroness is right. I could not agree with her more. If a child with special educational needs has been taken into an infant class, which means that the number goes over 30, for the period of time that that class is over 30 and the child is in the class, the additional resources must be provided.
I shall return to the amendments tabled by the noble Baroness. The new admissions framework is designed to allow consultation by all admission authorities in an area through a forum on one another's admission arrangements for the forthcoming admissions round. That is to allow for constructive debate, I hope, leading to local agreement on those arrangements, with the right of referral to the adjudicator where that cannot be reached. LEAs and governing bodies will be required to publish information about the current admission arrangements for all schools to help inform parents considering which schools to apply for.
We have previously stated our commitment to ensure that school admission arrangements do not allow children with special educational needs, including those with a disability, to be discriminated against. Monitoring arrangements will be important to ensure that, in practice, children with special educational needs, but without statements, are treated no less favourably than their peers. It is right that such mechanisms should be put in place, but we must ensure that we put in place considered arrangements which will provide us with the right information.
I assure the Committee that we are considering the issue in the light of the responses to the SEN Green Paper. Although it is premature to include specific legislation at this stage, I can give an undertaking that in working up our proposals for taking forward our policies on inclusion we shall take careful account of the issue raised by the amendment. In view of that, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Byford: I thank the Minister for that reply. I am encouraged by her response that she might be looking for voluntary inclusion for schools or the LEA to indicate first preference, but she referred also to it becoming cumbersome and over bureaucratic. I assume—perhaps the Minister will correct me—that that information is already to hand and that the LEAs and the schools will know at this stage how many people have applied for that school as first preference. Perhaps she can answer that point.
Secondly, is it the Minister's intention to put these requirements into regulations or guidelines if they are not to be in the Bill? Perhaps the Minister would like to respond.
Baroness Blackstone: I do not believe that the LEA will have all that information. It will have to ask the schools to record carefully every application made to them, including applications that may eventually come
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to nothing. They would then have to send it to the LEA. I do not want to suggest that the Government are not sympathetic to what lies behind the amendments. It is helpful for parents to have some idea about which are the over-subscribed schools. I suspect that in most LEAs they will have a good idea. Such information is normally in the public domain. The over-subscribed schools are known.
When I was speaking earlier, I said that I was happy to give a commitment to the noble Baroness that we will consider carefully what the code might say about voluntarily publishing additional details, such as levels of over-subscription, and how parents might best assess their realistic options. I hope that that answer helps.
Perhaps I may tell the noble Baroness, Lady Blatch, that I am now informed that unless a child has a statement that child will not be admitted as the 31st, 32nd, 33rd or 34th child. It is only in those cases where a child has a statement that the class size ceiling of 30 will be lifted. In other cases that would not happen. I think that what I said earlier may have been slightly misleading.
10.15 p.m.
Baroness Maddock: I thank the noble Baroness for her reply. I think that time will tell and we will have to see what comes forward later on. However, I do not intend to press the amendments.
Baroness Blatch: Before the noble Baroness sits down, can I press her a little further? Is she saying that a child with special needs who falls short of being formally statemented and who would be the 31st child in a school which cannot be physically expanded because there is no room, would be sent off to another school even though the school, the governors, the head teacher and the parents in that local community are entirely happy for the child to be taken into that school as the 31st child?
Baroness Blackstone: We are going over ground that we have already covered at great length in the debates that took place on the class-size clauses of the Bill. I do not think it is terribly helpful to have them again on a completely different part of the Bill. We will be able to come back to all these matters on Report. The Government's class size pledge is one that they regard as extremely important. If this was a village school where the child would be required to travel some distance, I made clear when we were discussing the class-size parts of the Bill that the child would be taken in. However, if it is an urban school then we are sticking to our pledge that we do not think that the standards of our infant schools can be raised with the very large class sizes we have had in recent years.
Baroness Blatch: I personally take offence at the remark just made by the noble Baroness. This is an admissions issue and we are talking about admissions policies. The very fact that the class size pledge is a separate issue in the Bill is one thing, but it impacts very much on whether the admissions code of practice is to take into and subsume the pledge covered in

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Clauses 1 to 4. If it does not, then it is not going to be delivered if the local authority is not obliged, through the code of practice, to deliver it. That will be the mechanism. So I make no apologies for raising the matter. The noble Baroness, in the circumstances I have described, in one answer said no, the child could not be accepted because the class size pledge cannot be exceeded. Then, in the second answer, the noble Baroness said that if it meant going a reasonable distance the child could be accepted. The particular scenario I painted was one where the child would in fact make a 31st child. I shall reflect on what the noble Baroness said, but those two answers are inconsistent. However, the whole subject is entirely pertinent to the admissions policy set out in Clauses 79, 80 and 81.
Baroness Byford: If I may return to my amendment, it would have been immensely helpful to all of us debating in the Chamber tonight if a code of practice had been available. It is rather a shame that we shall have to wait until next year before it will come into being. However, having said that and having listened to the Minister's response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 211 had been withdrawn from the Marshalled List.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 211A and 211B:
Page 61, line 11, leave out ("made by") and insert ("for").
Page 61, line 16, after ("shall") insert ("(despite anything in subsection (2))").
The noble Baroness said: I beg to move these two amendments together formally. I have already spoken to them.
On Question, amendments agreed to.
On Question, Whether Clause 81, as amended, shall stand part of the Bill?
Lord Lucas: I signalled my intention to oppose the clause as an opportunity for the Minister to elucidate how she sees under the new regime the two opposing and irreconcilable forces of parental choice and what the schools want being dealt with and, so far as possible, reconciled. The noble Baroness will know of enough examples of how schools and local authorities use preferences to fight for what they want and how parents use preferences to try to lever things their way to enable me not to have to go into great detail. I would prefer to listen to the Minister and then seek clarification if I feel a matter has not been covered.
Baroness Blackstone: The clause is a straightforward restatement of the existing parental preference provisions currently set out in Section 411 of the Education Act 1996. That Act consolidated existing legislation, as I suspect the noble Lord knows—the right for parents to say which school they would prefer their child to attend and the duty on LEAs and schools to comply with that preference, unless any of the specified
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relief supply has, of course, been enshrined in legislation right back since 1980 and was the cornerstone of the noble Lord's party's parental choice policy.
In a nutshell, the clause consolidates all existing provisions relating to parental preference. It incorporates two changes introduced by the previous government in the Education Act 1997. The first relates to twice excluded pupils and makes clear that the duties to comply with the parents' preference is to supply it in such cases.
The second prevents partially selective schools from keeping selective places unfilled where demand for places at the school exceeds the places available and not enough applicants meet the selective criteria.
We have, of course, now agreed some minor technical amendments to subsection (6). These clarify the procedures whereby two or more schools may enter into an agreement to co-ordinate their respective admissions timetables and procedures for that agreement to be approved by the Secretary of State. His approval can give schools added flexibility over meeting parents' preferences.
The noble Lord, Lord Lucas, is interested in the interaction of the provisions on parental preference and the new admissions framework. I hope I can reassure him and the Committee that the new admissions framework will safeguard the right that parents have enjoyed since 1980 to have a say in the school placement of their child. This clause carries forward that right, together with the duty on school admission authorities to comply with parental preference, unless they can show that this would prejudice efficient education or efficient use of resources, or in the case of selective or religious schools that applicants do not meet any selective or religious criteria. This means that normally, if a school has space, eligible pupils must be admitted. I hope that helps the noble Lord.
Lord Lucas: Yes, that will satisfy me for the moment. We shall come back to any conflicts that attitude might create under later sections.
Clause 81, as amended, agreed to.
Clauses 82 and 83 agreed to.
Clause 84 [Procedure for determining admission arrangements]:
Lord Lucas Lord Lucas moved Amendment No. 211C:
Page 62, line 38, at end insert—
(" (1A) The admission arrangements shall, in respect of any admissions made otherwise than under the provisions of sections 86, 94 and 95, give an over-riding preference to children who are resident in a designated area and whose parents have expressed a preference for the school in accordance with section 81.
(1B) In this section "designated area" means a geographical area determined by the admissions authority.
(1C) A designated area may include parts of the areas covered by more than one local education authority.
(1D) More than one school may include the same geographical area in its designated area.").
The noble Lord said: I beg to move Amendment No. 211 C and to speak at the same time to Amendments Nos. 211D, 211E, 213BA and 214.
Amendment No. 211C introduces the question of how admission arrangements are to interlock. I have chosen to set out in this model something which will be familiar, and that is designated areas or the idea that schools should have a particular area which they are supposed to serve. This is going back into history, but my reason for putting it in this amendment is that it appears to have been revived by this Government in the context of further education, that is if the trade rag FE Now! is to be believed. The FEFC has decided that FE colleges should have local catchment areas and that colleges should not be funded for students which they bring in from outside those catchment areas. That is taking the concept of catchment areas a long way and certainly further than I would intend to in this clause.
I do not pretend to have any particular attachment to the ideas that I have set out here. I merely wanted to take an idea, see how far it would run and use it to elucidate what the Government's plans were for ensuring, or going as far as they can to ensure, that there are not gaps in the provision which individual children fall through. In other words, every child has a right to attend a school which is sensibly located and has a sensible provision according to where they live and what their abilities are. I shall be interested to hear how the Government intend to achieve that.
Amendment No. 211D is intended to allow the Government to elucidate how subsection (3), paragraphs (a) and (b), are intended to work. What kind of area less than an LEA is the Government contemplating? What kind of regulations and opportunities are they thinking of putting in place? How do they see them working?
Amendment No. 211E is similarly probing. It is intended to discover how the arrangements between a local education authority, an admissions authority and the adjudicator will work. What will be the restrictions on the adjudicator? What terms of reference will he have to work to in contemplating the kind of admission arrangements which the admissions authority will have to set out? What allowance should be made for the capriciousness or agenda which the adjudicator will bring to it?
Amendment No. 213BA is merely the adjunct to Amendment No. 211C, which reflects the ideas set out in terms of the instructions which the adjudicator may receive. Amendment No. 214 suggests that the adjudicator will also need to be given instructions as to how he should regard the need of schools which have a religious character to maintain that in respect of their admissions policies. I beg to move.
Lord McIntosh of Haringey: I am grateful to the noble Lord, Lord Lucas, for explaining his amendments. I appreciate that they form a coherent whole, even though it is an investigative whole. Amendments Nos. 211C and 211D would require the admissions authority to draw up areas and give priority in allocating school places to parents who live within those areas and to express a preference over and above out-of-area parents, except where the school operates special religious or selective arrangements.
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Amendment No. 211E would prevent an admissions authority from being able to vary its admission arrangements during a school year, even following a major change of circumstance. Amendment No. 213BA would also require the adjudicator in making decisions to have regard to children being resident in the designated area of the most convenient local area schools and to have regard to the whole country being divided into areas.
Amendment No. 214 to Clause 86 refers to references made to the adjudicator by the school's governing body when the LEA does not agree to the school's proposed special arrangements. In prescribed cases covering denominational or religious criteria, the adjudicator must forward the reference to the Secretary of State for him to determine.
The noble Lord, Lord Lucas, raised this interesting and complicated debate about the link between geography and meeting parental preference. In speaking to the previous group of amendments he sought to see how the Government would resolve the conflict, as he put it, between parental choice and what schools want. We will never resolve that conflict. It is not even as though there were a simple question of parental choice, because different parental choices may be in conflict and different requirements of schools may be in conflict. That is why we have this enormously complicated section of the Bill, which is complicated even without setting out on the face of the Bill the contents of the code of practice.
These are issues where the best will sometimes be the enemy of the good and where the best for one person will sometimes be to the detriment of another. I admire enormously the principles on which the noble Baroness, Lady Blatch, dealt with admission policies when she was in local government, if she got through her time in local government and achieved what she said she achieved. I believe she said that, whenever there was an allocation to be made other than to the first parental choice, the alternative would be—perhaps I may finish my understanding of what she said and, if I am wrong, then she can correct me—at least as good in educational terms as that which would have been achieved by the first choice.
10.30 p.m.
Baroness Blatch: The noble Lord did get it wrong. I was talking about reorganisation policies. I was talking about closing schools, merging schools, changing the nature of schools, where children, as a result of those changes, had to be given an alternative provision. In every single case cost was not the prime factor; rather, it was the soundness of the alternative educational provision, which had to be at least comparable, if not better.
Lord McIntosh of Haringey: I am grateful for that and apologise for misinterpreting her. I think that is a special case of the more general difficulties which will face all educationists, all parents and all children.
I have a lot of sympathy with parents who want to send their children to the local school or to one with established transport links. I also appreciate the very real

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disappointment faced by parents who are unable to gain a place at their preferred local school and whose children can face a longer journey to a school which was not their first preference.
The amendments in the name of the noble Lord, Lord Lucas, however, swing the balance too far the other way. Whether they swing it quite so far as his description of the policies of the Further Education Funding Council I do not quite know. I have not had an opportunity to investigate that. I am behind on my reading of FE, so I will have to reserve my position on it. The present position is that admission authorities can define catchment areas within and across local education authority boundaries, and give priority to parents living within that area who express a preference. It must be wrong to require them to do so, however, and so not allow them to choose any other equally valid criteria in determining applications. Many reasonable criteria are used, including sibling links and medical or social reasons. The noble Baroness, Lady Blatch, would call those educational reasons. Does she also call the issues of catchment area educational reasons, which are to have priority? I should not tempt her, should I?
Many parents choose schools other than their local school. The principle of parental preference does not necessarily mean choice of a local school, but giving all parents the best chance of getting a place for their child at the school of their choice, regardless of why they made that choice.
I welcome the opportunity to explain the proposed definition of areas in the legislation. Admission authorities will be required to consult with others in the particular area. The code will say that that should happen through a forum. The Secretary of State may make regulations to prescribe the extent of those areas, whether they simply cover the area of a local education authority or are more or less extensive, and so allow consultation across local education authority boundaries. Regulations on which we will be consulting will define our approach to these areas.
The obvious examples, as the noble Lord, Lord Lucas, will recognise, are with the growth of unitary authorities within the areas of counties and sometimes in the middle of counties, as for example with Milton Keynes or Leicester City, where it would be a nonsense, given the previous situation of a single local education authority, to have two local education authorities acting at arm's length and not co-operating.
Amendment No. 211E would mean that an admission authority would not be able to vary its admission arrangements during the course of the school year following a major change of circumstances, even if it would sensible or desirable for it to do so to help meet local parental preference. That cannot be right. But there must be safeguards where admission authorities change their criteria or procedures. That is why the subsections in the Bill require the involvement of an adjudicator.
Finally, I turn to Amendment No. 214. Clause 86 is in the Bill in order to preserve the rights of denominational schools to make special admission arrangements to
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maintain their character. It both carries over the similar right from the Education Act 1996 and meshes it with the new framework as a whole.
I have referred already to the effect of the amendment, which relates to references made to the adjudicator by the school's governing body when the LEA does not agree to the school's proposed special arrangements. The adjudicator may have regard to whatever matters are relevant and must have regard to the guidance in the admissions code. I hear what the noble Lord said and will take into account his remarks in considering the detail of the code.
I repeat my gratitude to the noble Lord for raising those issues. As I said before, without claiming that the Government have found the philosopher's stone which will satisfy all parental demands and all school needs, I hope the noble Lord will recognise that his amendments would give undue predominance to one particular factor, possibly at the expense of others, and will not press his amendment to a Division.
Baroness Blatch: I find it difficult to take issue with what the noble Lord has just said about parental preference. The idea that any government in office can meet that 100 per cent. is fanciful and cannot be done.
However, this Government have pledged to enhance it, to make it better; and to improve on the present level of parental preference. I wish to continue to press the Government on ways in which they intend to do that. It seems to me that there is a confusion. We have organisational committees, local education authorities, the operational duties of the adjudicator, parents making their preference and schools having a wish as to what they want to do. We have both LEAs and schools which are admission authorities. In particular, as I understand it, the foundation schools will be their own admission authorities. I do not know the extent to which they can be overruled. For example—and it is a question that I have not posed before in the context of this issue—I do not know whether an organisation committee can initiate organisational proposals which impact on admission policies. The matter would be passed on to the adjudicator only if somebody on the organisation committee did not agree. But can an organisation committee initiate proposals which would impact on admission policies and parental preference?
At the end of the day, where does power lie? Does it lie with the Secretary of State, the local education authorities or the organisation committees and the adjudicator system? It is quite difficult to know where parents stand who are making the preference, where the power lies in order to meet it and what mechanisms the Government will put in place to make sure that the level of parental preference is in fact enhanced under the new arrangements.
Lord McIntosh of Haringey: It would be confusing if we returned to the school organisation committees. We are not dealing with those at the moment. We are dealing with admission procedures. Therefore, we are dealing with admission authorities, local education authorities, which are sometimes admission authorities, and admission forums which bring together those

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education admission authorities which need to be brought together in order to make parental choice meaningful.
The noble Baroness is quite right to say that by having foundation schools and some voluntary schools as admission authorities in their own right, whereas the local education authority is the admission authority for community schools, there is the possibility of confusion. But by bringing them together in admission forums, we provide the coherent whole which parents need in order to understand the situation in their own area. Parents are represented on the governing bodies of those schools which are themselves admission authorities and they have their say in the activities of LEAs. Therefore, at all stages, they are represented and have an influence; indeed, at any stage, they have the power to express their views to the admissions forums.
The other complication which the noble Baroness recognises is that for some parents there is not a natural area in which they find themselves. That is the problem with the phrase, "designated area", which is used in the amendment of the noble Lord, Lord Lucas. Under those circumstances, the admissions forums could be overlapping; in other words, a parent could be in the area of two admissions forums. I believe that it will work out all right, provided that we understand that the parents' and the child's needs are at the forefront of such considerations. The organisation will have to adapt itself to meet those needs.
Baroness Blatch: I am grateful to the Minister for his reply. But my point is: where does the power lie? In the case of a foundation school which is its own admissions authority, can it be over-ruled by any other part of the process?
Lord McIntosh of Haringey: In a situation of conflict which cannot be reconciled, the bulk of the reconciliation will be in adherence to the code of practice. That will be a statutory code of practice as set out under Clause 79 of the Bill. The code will make clear the relative importance of all the factors which have to be taken into consideration. When that is not possible and the conflict cannot be resolved, it will be the responsibility of an adjudicator. In the end the buck has to stop somewhere. That is where it stops.
Lord Tope: I, too, am grateful to the noble Lord, Lord Lucas, for raising the issue. I am not certain that the amendment is necessarily the right answer but I am equally certain that I do not have the right one. I was pleased to hear the Minister say that he believes it will all work out all right in the end. I very much hope that he is right, because this issue is extremely important in those LEA areas—and I simply use that as a geographical description—which are particularly affected by the provision.
In his response the Minister referred to the new unitary authorities which are new LEAs and which sometimes find themselves in the middle and at other times on the edge of the existing LEAs—the counties. This is not a new problem for those who have been LEAs in major conurbations, especially in London but
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also in some of the metropolitan areas. The effects of what is usually called the "Greenwich judgment" have been considerable. Parents do not understand why their children cannot have preference over children who live, as they would see it, in a very different area; for example, another borough in another LEA area. That is the case at present.
I have no wish whatever to exclude children from wherever they may come; indeed, they are more than welcome to any LEA school. However, what the noble Lord, Lord Lucas, is talking about in his amendment is: who has the "over-riding preference"? It is a difficult problem to resolve. The simple answer is to say, "Get rid of the Greenwich judgment", but I believe that the issue is more complex. Even though I and my party would support the removal of that judgment, it is a difficult and complex issue. I wait with interest to hear how the Government will solve it.
We have just been through local council elections. In my area—and my area was not alone in this—I have to say that all three political parties pledged themselves to campaign to their last breath to reverse the Greenwich judgment, such was the strength of feeling on the issue. As the Labour Party and the Conservative Party in my borough have campaigned for it, and as we, of course, said that we agreed, I wait to hear how the other parties are going to solve the problem. I am sure that we will he able to reach agreement with them on that point.
I am sorry to make this issue appear less serious than it is. I can only repeat that for many parents this is a serious concern. Speaking as the leader of a council, this is the issue on which I encounter the strongest feelings. People do not understand why their child cannot be admitted to a school a few hundred yards from their home, and yet a child from another local authority area miles away, often not in London at all is admitted. That child may live in Surrey or even Sussex. The schools in our area are so good, they even attract pupils who live in Brighton. I acknowledge that is a tribute to the schools concerned, but it is no consolation to the parent who attends my Saturday surgery and asks, "Why cannot my child be admitted to that school?" That is the issue to which this Government have to find the answer.
10.45 p.m.
Lord Lucas: I am grateful to the noble Lord, Lord McIntosh, for the answers which he gave me. I am also extremely grateful to the noble Lord, Lord Tope, for such a clear exposition of the problems which occur round the boundaries of local education authorities, particularly successful ones such as that of the noble Lord.
The noble Lord, Lord McIntosh, referred to cross border fora. The noble Lord, Lord Tope, puts that kind of dreamy idea in context. We are not dealing with authorities which, generally, are rushing to co-operate with each other. A good deal of guidance may be required from the Government to tell them what they are supposed to do. They are not supposed to allow their citizens to get up in arms to repel boarders from Surbiton, Kingston, or wherever the neighbouring authority may be. They are supposed to co-operate to arrive at a pattern of provision which suits a larger, more coherent area than individual London boroughs.

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However, these problems also occur out in the provinces. I can think of corners of Dorset with a big Hampshire conurbation a mile away with a big, successful secondary school. The Dorset village just across the border may contain a thousand or two thousand people and have a decent primary school, but the Dorset secondary school is 10 miles away in the other direction. It is sensible to deal with cross border provision. But without guidance, encouragement and direction from this Government directed at solving the kind of problems which, as the noble Lord, Lord Tope, correctly says, many people get worked up about, we are all at sea. If this is all in the code of practice, it merely illustrates why we need to have that in front of us before Report stage with enough definition and coherence to enable us to understand how the Government are approaching the matter to make sure that this Bill which we are being asked to pass gives the necessary powers and has the necessary characteristics to deal with this problem, which is not unsolvable but which requires a degree of effort and coherence on the part of the Government to solve.
I hope the Government will take the opportunity to read FE Now! between now and Report stage, which states,
"A new funding condition included in the 1998/99 Funding Guidance for Colleges says that 'the Council may not wish its funds to be used by an institution … to develop provision outside its local catchment area' … the Council may refuse to pay the college its grant unless it agrees not to take students from outside this area".
That is a draconian and extraordinary provision. I would like to have the Government's reaction as to whether it is a direction which they approve the FEFC taking. If they do, to what extent do they propose to allow local education authorities to proceed in a similar direction as regards the schools under their charge? I do not require an answer from the noble Lord, Lord McIntosh, now unless he wishes to give one.
Lord McIntosh of Haringey: In the context of the School Standards and Framework Bill I do not think it would be appropriate for me to write to him about the policies of the Further Education Funding Council. If he wishes to raise that issue separately, he is free to do so.
Lord Lucas: I am merely using the quoted policy of the FEFC, which is after all a government organ, as an example of policy promulgated by this Government in asking the Government whether this is the policy the Government wish to import, or would be prepared to see imported, into the way local education authorities deal with their schools. Would they be happy to see this policy of the FEFC imported into the way in which the noble Lord, Lord Tope, deals with the schools under his command—in other words, if they start taking pupils from outside they will not be funded? That would be an effective answer to the problems of the noble Lord, Lord Tope. It is one that the Government are apparently allowing elsewhere in the education system. I do not require an answer for further education, but I want to know in the context of this Bill whether that approach, which is clearly part of the Government's policy for education, is one that they see as allowable for schools; and if not, why not?
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The Greenwich judgment causes some interesting anomalies in all areas. I ran across its effect the other day in the outskirts of Newcastle, where the children in the suburbs there have effectively taken over the local Northumberland secondary school, and people in the outlying villages stretching miles into the hinterland now have nowhere to go and have enormous cross-country bus trips. It is a problem that has to be dealt with sensibly and, I hope, by some co-operation and coherent thought. If the noble Lord, Lord McIntosh, is able to provide us with some more of that today I shall be delighted. Otherwise, I look forward to the code of practice.
Lord McIntosh of Haringey: The noble Lord tempts me to my feet again. I thought I had made it clear that the code of practice will do its best to resolve all of those problems, but that it will not in practice be possible to do so in all circumstances. That is why, in responding earlier to the noble Baroness, Lady Blatch, I made it clear that, failing agreement, which we hope will be achieved in nearly all cases, there must be reliance on the adjudicator. I cannot wave a magic wand for the noble Lord, Lord Lucas, any more than I can for the noble Baroness, Lady Blatch.
Lord Lucas: Subject to the noble Lord, Lord Tope, feeling that he has heard all that he hopes to hear this evening—or at least, all that he has reason to hope to hear this evening—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 211D, 211E and 212 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 212A:
Page 63, line 38, leave out subsection (8) and insert—
("(8) Regulations may make provision—

(a) specifying matters to which any consultation required by subsection (2) is, or is not, to relate;

(b) as to the manner in which, and the time by which, any such consultation is to be carried out;

(c) as to the manner in which, and the time by which, any notification required by this section is to be given;

(d) specifying matters which are, or are not, to constitute major changes in circumstances for the purposes of subsection (5)(b);

(e) authorising an admission authority, where they have in accordance with subsection (4) determined the admission arrangements which are to apply for a particular school year, to vary those arrangements to such extent or in such circumstances as may be prescribed;

(f) for the application of the requirements of subsections (5) and (6) to variations proposed to be made by virtue of paragraph (e), or to any prescribed description of such variations, as if they were variations proposed to be made under subsection (5);

(g) as to such other matters connected with the procedure for determining or varying admission arrangements under this section as the Secretary of State considers appropriate.").

The noble Lord said: It may be more convenient if I speak to Amendments Nos. 212B and 212C when the noble Baroness, Lady Blatch, has moved them. I am grateful to the noble Baroness for not moving Amendment No. 212, which would simply have removed subsection (8) of Clause 84.
This amendment rewrites subsection (8), we hope giving effect to the views of the Delegated Powers Scrutiny Committee. The committee asked us to be more precise about the effect of the regulations.
What we are saying in Amendment No. 212A is that the regulations should determine which matters may or may not be consulted on; set out how consultation is to be carried out, including the timescale; set out how notification is to be given, including the timescale; define "a major change in circumstances" in subsection (5)(b), which would necessitate a variation in a school year of admission arrangements; set out the circumstances under which admission arrangements may be varied in the school year, and the extent to which they may be varied; require the adjudicator's approval for varied admission arrangements; and finally, provide for other matters relating to the procedure for determining or varying admission arrangements as the Secretary of State considers appropriate.
This amendment puts more detail onto the face of the Bill about what subsequent regulations made under this clause may cover in respect of the procedures for admission authorities to follow when determining or varying their admission arrangements. The Delegated Powers Scrutiny Committee has asked us to clarify the intentions behind Clause 84(8), and we are glad to do that in this amendment.
We believe it is right that regulations—not primary legislation—should cover the details of the procedure which an admission authority must follow when first determining its admission arrangements or subsequently varying them. It would not be appropriate for this level of detailed information to be included in primary legislation. As this is a brand new procedure, as part of our new admissions framework, it is right that we have the flexibility to make any necessary adjustments to regulations, rather than primary legislation, in the light of experience of the operation of the new framework. I beg to move.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): I should tell the Committee that, if this amendment is agreed to, Amendments Nos. 212B to 213 inclusive will be pre-empted.
Baroness Blatch: My Amendments No. 212B and 212C were my way of dealing with the recommendations in the report of the scrutiny committee. I prefer my own way because, with the Government's Amendment No. 212A, we end up with the Secretary of State still having open-ended powers, as set out in paragraph (g). Under the original wording in Clause 84(8) there is power to vary admission arrangements,
"as the Secretary of State thinks fit".
In paragraph(g) of the amendment, it is,
"as the Secretary of State thinks appropriate".
Nevertheless, the Secretary of State is given powers to vary admission arrangements.
It would not be of concern if these provisions were on the face of the Bill if it were not for organisation committees and the adjudicator. The noble Lord is
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irritated by any return to the subject of organisation committees and adjudicators, but it is not possible to discuss this matter without thinking about the role of that new body and the powers that will be wielded by the adjudicator. At the end of the day, they will be inextricably linked in the mechanistic delivery of the code of practice. It will be the organisation committees that will deliberate over these issues.
A moment ago the noble Lord was upset that my noble friend Lord Lucas brought in the FEFC. In fact, the FEFC will be one of the groups sitting around the table in the organisation committee contributing to decisions, if they are made at organisation committee level, about school provision which affects admission policies.
I was pleased to have clarification from the noble Lord that at the end of the day a foundation school, with its own power as an admission authority, can be overruled by the deliberations of an organisation committee and the adjudicator. That is what the noble Lord said. If matters cannot be resolved at the local level by the organisation committee, it goes to the adjudicator, and, as the noble Lord rightly said, at the end of the day somebody has to make the decision. I would prefer it to be the admission authority—where the LEA is the admission authority, the LEA; and, where it is a foundation school, that foundation school. The context for the amendments is very important because we have this new phenomenon built into the Bill and the way in which the admissions code of practice will be delivered. I think that the noble Lord's Amendment No. 212A and my amendments are straightforward alternatives. I shall not press my amendments this evening, but I may well return at Report stage with a similar amendment to the open-ended power in paragraph (g).
On Question, amendment agreed to.
[Amendments Nos. 212B, to 213 not moved.]
Clause 84, as amended, agreed to.
11 p.m.
Clause 85 [Reference of objections to adjudicator or Secretary of State]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 213A:
Page 64, line 15, at end insert—
("(1A) Where

(a) admission arrangements have been determined by an admission authority under section 84(4), but

(b) any parent of a prescribed description wishes to make an objection about those arrangements, and

the objection falls within any description of objections prescribed for the purposes of this paragraph, that person may refer the objection to the adjudicator.").
The noble Lord said: In moving Amendment No. 213A, I shall speak also to Amendments Nos. 213B to 213G. I hope that these amendments will be welcomed because they give the parent a right to object direct to the adjudicator in certain circumstances.
Perhaps I can say to the noble Baroness, Lady Blatch, that I hope I never either feel or express irritation. I certainly did not express any irritation about references to the adjudicator because, though the adjudicator is a long-stop, he is an important part of the new admissions procedures. I was merely somewhat puzzled when on occasion the noble Baroness referred to the school organisation committees when I thought we were concerned with admission authorities.
In Wales—I say this safely in the absence of the noble Lord, Lord Elis-Thomas—objections will go direct to the Secretary of State, in effect, the National Assembly for Wales from May 1999.
The principal amendment giving effect to this intention is Amendment No. 213A. The subsequent amendments are consequential and bring parents' objections within the existing framework governing consideration of objections by the adjudicator or the Secretary of State. I shall leave out Wales from now on to simplify matters.
We were prompted to bring forward this amendment by the situation in Wandsworth where almost all secondary schools have selective admission arrangements of some sort, contrary to the wishes of many parents. There is concern that the Bill does not at the moment provide for a situation where parents in an area are unhappy with the arrangements that an admission authority is proposing to adopt, but other admission authorities may be content and so would not object. Without this amendment the adjudicator would not be able to consider the issue and parents' concerns would not be addressed.
We will be setting out in regulations those arrangements against which parents will have a right to object. At present we envisage that this will apply only to partial selection. But regulations allow us the flexibility to respond in the event of parents raising other major issues of concern where they have significant local impact. We certainly do not envisage bringing routine matters—such as the way an individual school prioritises its over-subscription criteria or the date by which admissions have to be submitted—within the scope of the regulations.
We will also be defining in regulations the term "parent" for the purposes of this provision. The general definition—someone who has parental responsibility for a child or who has care of it—is obviously too wide for these purposes. We do not want parents in Cumbria to be able to object to admission arrangements in Devon, for example. And we will be specifying the conditions that will have to be met before the adjudicator has to consider parents' objections. It is arguable, for instance, that admission arrangements are not causing problems if only one or a very few parents in an area object.
These amendments provide an important safeguard for parents. I hope that they will be welcomed.
Baroness Blatch: I apologise to the noble Lord if I used the word "irritation". I should not have done so.
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I remember clearly the noble Lord saying that we do not want to return to the whole subject of organisational committees and I heard a discernible voice from my right on the Liberal Democrat Benches saying "Hear, hear!". All I am saying is that we cannot discuss these issues in this context without thinking about organisational committees and the working of the adjudicator. However, I am sorry if I used the word wrongly. The noble Lord is not usually irritable; he is usually extremely accommodating across the Dispatch Box.
In a spirit of conciliation, as the noble Lord is so concerned about parents in these amendments and is giving them a right to object to the adjudicator, will he not go one step further? Will he give the same parents, where they are dissatisfied, an opportunity to appeal against the adjudicator's decision, not on purely procedural grounds—that is the only way in which they can appeal in court to prove that there has been a breach of the way in which the adjudicator has procedurally arrived at the decision—but to appeal as they would have done to the Secretary of State if the Secretary of State had made a decision, for example, about a school closure, a merger or some form of reorganisation? If the noble Lord uses arguments to say that the parents have a right to object when they are unhappy I also believe that when they are unhappy they have right to appeal to the adjudicator.
Lord McIntosh of Haringey: Without in the slightest degree feeling or expressing irritation, the issue of whether there should be an appeal from the adjudicator to the Secretary of State is a theme which, shall we say, runs through a number of parts of the Bill, including this part. Therefore, it is entirely legitimate for the noble Baroness to raise it. The answer will be, as it has been in all cases, that the adjudicator is an independent person, appointed, of course, by the Secretary of State on a part-time sessional basis. It is our firm intention that we should refrain from the centralising tendency of having ultimate appeals back to the Secretary of State so that in the end we are departing from the whole theme of the Bill, which is local decision-making. The idea of an adjudicator is because we know that in certain limited circumstances local decision-making will come to an impasse. Therefore, there must be something behind it. But to go beyond that to reinstate the role of the Secretary of State would be entirely wrong.
Lord Lucas: I should be grateful if the noble Lord, Lord McIntosh, could confirm or deny the impression that I am arriving at as to how this whole arrangement will work. It seems to me that various people will be charged with putting together the policies—the schools, the local education authority, the FEFC, local Churches, and so on—and they will interact with various other bodies which I shall refrain from mentioning. The Government are saying that those bodies must jolly well sit down and work it out together and arrive at a co-operative solution; if not, off it goes to the adjudicator. Am I right in saying that the adjudicator will be a totally unknown quantity

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to these parties, that he will not be given any bias in the guidance which the Government are thinking of giving him, and that there will be nothing in the guidance under Clause 79 to say, "You have to give priority to this, that or the other party to this discussion priority"; but rather, "You sit down, you look at everything, you arrive at a reasonable decision and you have no restraints on you as to on which side of the argument you come down"? In other words, will it be for all parties an unknown process rather than being something which one party will come to believe favours its case?
Lord McIntosh of Haringey: The adjudicator will have to act in accordance with the code of practice in exactly the same way as the other local participants in the admission process. Therefore, in that sense, whether or not the adjudicator is personally known to any of the participants is something I cannot anticipate. But I can say that he will be working to the same rules.
Baroness Blatch: The noble Lord keeps using the code of practice as a kind of backstop that the adjudicator will act in accordance with. Under the way the provision is placed in the Bill the adjudicator is obliged under the law to have regard to the code of practice. The adjudicator can dismiss the advice of the code of practice. As long as procedurally the adjudicator can prove that in coming to a decision he had regard to the code of practice but, nevertheless, on balance he reached a view that was inconsistent with the code of practice, it is perfectly all right. It is a procedural matter only and it is only about statutorily having to have regard. That is all that needs to be proved in a court of law.
Lord McIntosh of Haringey: The noble Baroness is right in saying that he has to have regard to it. But the only way in which, under those circumstances, he is going to do something which is in conflict with the code of practice—which to me is inconceivable anyway—is if the code of practice turns out in the end to be inapplicable to the local circumstances on which the adjudicator is being required to adjudicate. That is what "having regard" means.
Lord Lucas: I was a little unclear in what I said to the noble Lord. I know that I am not going to hear what will be in the code of practice. Can the Minister give some indication of what sort of things will be in it as far as the adjudicator is concerned? Is he going to be told that there is a menu for him with particular attitudes and ideas that he will have to bear in mind, or will he simply say that he has to act fairly and take all sides into account? In other words, in the code of practice is he to be given a set of biases or will he be allowed a reasonable man's free rein?
Lord McIntosh of Haringey: I do not know. The noble Lord and I will know in good time before Report stage when the interim guidance is published.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 213B:
Page 64, line 16, leave out ("such a reference") and insert ("a reference under subsection (1) or (1A)").
On Question, amendment agreed to.
[Amendment No. 213BA not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 213C to 213G:
Page 64, line 25, after ("(1)") insert ("or (1A)").
Page 64, line 36, leave out ("the bodies whom they consulted under section 84(2)") and insert ("persons by whom an objection about those arrangements may be made under subsection (1) or (1A)").
Page 64, line 43, at end insert ("or (1 A) or the adjudicator or the Secretary of State is required to determine an objection referred to him under subsection (1A)").
Page 64, line 46, leave out ("that subsection") and insert ("subsection (I) or (1A)").
Page 65, line 5, after ("(1)") insert ("or (1A)").
On Question, amendments agreed to.
Clause 85, as amended, agreed to.
Clause 86 [Special arrangements to preserve religious character of foundation or voluntary aided school]:
[Amendment No. 214 not moved.]
Clause 86 agreed to.
Clause 87 [Publication of information about admissions]:
[Amendments Nos. 214A to 215A not moved.]
Clause 87 agreed to.
11.15 p.m.
Baroness Darcy de Knayth Baroness Darcy de Knayth moved Amendment No. 216:
After Clause 87, insert the following new clause—
EDUCATION OF CHILDREN WITH SPECIAL NEEDS IN MAINSTREAM SCHOOLS
(" .—(1) The Education Act 1996 shall be amended as follows.
(2) In section 316 (children with special educational needs normally to be educated in mainstream schools)—

(a) for subsection (1) there shall be substituted—

"(1) Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a school shall secure that the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent and the needs and ascertainable wishes of the child."; and

(b) subsection (2) shall be omitted.").

The noble Baroness said: With this amendment we return to children with special educational needs, but perhaps with a slightly broader brush approach than with the amendments we have just been discussing. Here we are talking only about children with statements. I hope that the Committee will bear with me because this amendment need a little explanation. It seeks to ensure that children with statements of special educational needs are educated in mainstream schools provided that that is in accordance with the parents' wishes and the needs and ascertainable wishes of the child.
The amendment removes some of the conditions of efficiency first introduced in the Education Act 1981, now embodied in Section 316 of the 1996 Act, which for 17 years has provided legal loopholes for LEAs reluctant to include children with statements in mainstream schools. The noble Baroness, Lady Young, was the Minister in charge of the 1981 Act. She has said that had she been able to stay she would have spoken in support of this amendment and I am very grateful for that.
The conditions that the amendment removes are that the LEA has a duty to offer mainstream education provided that that is compatible with the efficient education of the other children and the efficient use of resources. The amendment retains the condition of being compatible with the child's own educational need and the proviso, introduced in 1993, that it must be compatible with the parents' wishes. The amendment brings a welcome first-time mention of the ascertainable wishes of the child.
It is important to stress that this amendment removes the conditions of efficiency only from the general duty of LEAs to provide a mainstream education for a child with a statement. When it comes to a parent expressing a preference for a particular school, the conditions about the efficient education of other pupils and the efficient use of resources, which is in Schedule 27 to the 1996 Act, (page 414, subsection 3(3)) still apply and also to the change of name school which is on page 416 of the schedule.
In other words, if this amendment is accepted, in the case of a parent seeking a mainstream placement for a child with a statement, the LEA has a duty to place the child in some mainstream school. The LEA does not have to place the child in the particular school of the parents' choice if it does not fulfil the efficiency criteria. The LEA only has to place the child in some suitable mainstream school. There will be no compulsory placement in a special school, but equally there will be no automatic right to the preferred school either. For the parent who prefers a special school placement that choice is left intact.
Why is the amendment necessary? The Special Educational Consortium feels that it is needed to prepare the ground for implementing the Green Paper, Excellence for all Children, and to ensure that children with statements have the same opportunity of a mainstream education irrespective of where they live. In the Green Paper, the Government express a strong wish to see more pupils with special educational needs included in mainstream primary and secondary schools. The Government support the 1994 UNESCO Salamanca World Statement on Special Educational Needs which calls on all governments to adopt the principle of inclusive education unless there are compelling reasons for doing otherwise. That is stated on page 44 of the Green Paper, in the first paragraph of Chapter 4.
The consortium thinks that the amendment would send a clear signal of the Government's intentions to those LEAs which for 17 years have remained reluctant to offer an inclusive education to children with
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statements and that it would prompt LEAs to think in good time how they can provide mainstream places for all children with statements where that accords with the parents' wishes and the needs and ascertainable wishes of the child.
There is still a wide variation in the extent to which LEAs make provision in the mainstream or special schools. The Green Paper states on page 45, Chapter 4, paragraph 5, that out of the whole pupil population of an LEA, the number of pupils in special schools varies between 0.5 per cent. and 2 per cent. The consortium is particularly concerned about the unacceptable lengths some LEAs will go to to insist on special school placements against the parents' wishes. The consortium has documented evidence of families taken to court when they have chosen to educate the child at home rather than send him or her to a special school. Of course, most LEAs would not go to those lengths, but there are a number of children out of school throughout the country because their parents do not feel that special schools will meet their needs and there is nothing else on offer, yet some of those children have, after long periods out of school, gone on to do well in mainstream schools, perhaps in another LEA.
Probably more typical of the way LEAs behave is the example of Wandsworth. Although it certainly does not actively promote inclusion—indeed, it has a high proportion of its pupil population in special schools—parents have told the consortium that that LEA has accepted their clearly stated preference of a mainstream placement and has not tried to place their child in a special school against their wishes.
A substantial and increasing number of schools are committed to an inclusive approach. What comes across strongly is how all types of pupil benefit, for example, in terms of personal development or by having their special needs or problems identified early on because teachers have had the experience of teaching those with more severe learning difficulties. It is interesting that Newham, which is perhaps the best known and most often quoted of LEAs which successfully promote inclusion, has, at the same time as increasing the number of statemented children in the mainstream, seen a decrease in the number of pupils excluded from school. Newham schools are also among the most improved in the country. In the other place on 11th March, on Report, at col. 594 of Hansard, the Under-Secretary of State, Estelle Morris, said:
"The greatest asset of inclusion is that it benefits both groups of children".
Inclusion brings many benefits. The Government are firmly committed to more inclusion, but LEAs still vary enormously in their provision and commitment. This amendment would ensure that regardless of where they live, all parents and their children with statements would be able to choose, if they wished, for those children to be educated in a mainstream school. There would be no automatic right to a preferred school, but there would be a mainstream placement; and for those parents who preferred the special school placement, that choice would be respected. I hope that the Minister will look carefully at the amendment and in reply will agree to put something on the face of the Bill or at the very least

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to send an exceedingly strong signal to those reluctant LEAs that they must take better account of the wishes of parents who want their children with statements to have an inclusive education. I beg to move.
11.15 p.m.
Baroness David: I strongly support the amendment so ably moved by my noble friend. She has made very clear that what we want are better opportunities for all children to he educated in mainstream schools and to try to improve the actions of some LEAs which have not been totally supportive. It does not force parents to have their children educated in mainstream schools but gives them the opportunity to choose a special school if they so wish.
It is interesting to consider the different reactions of LEAs. If one goes back to the 1991 Act, there was then much discussion about integration. I remember it well because I took part in it. The Centre for Studies on Inclusive Education (CSIE) describes the approach as follows:
"Many ordinary schools 'integrate' disabled children by bringing them into their premises—on a full or part-time basis—but on the ordinary school's terms. The pupils can stay if they can benefit from what is already on offer, schools do not expect to change to accommodate and support diverse needs. Other children experience a warmer welcome and their place is more secure".
It is not of much use if they are taken in but the school is not really prepared to accommodate them. However, that attitude has changed. The CSIE has also stated:
"Inclusive education, by comparison, demands that a mainstream school considers all pupils in its area as fully belonging to the school and all of its varied activities. Each child has the same rights of access—each belongs and each is entitled to appropriate support to meet individual need … Inclusive education also demands that ordinary schools change their systems and structures for educating and socialising children and young people".
There is a significant and growing number of schools committed to an inclusive approach. Some of these schools are quoted as case studies in the Green Paper. The schools themselves speak of the benefits to all their pupils, not just the special needs pupils, of a more inclusive approach. In the case study of John Smeaton Community High School in Leeds the Green Paper says:
"The school's 1996 Ofsted report noted that the quality of teaching was a particular strength, with good planning and use of individualised teaching programmes to meet the needs of pupils with [special needs]. Such pupils were fully integrated into mainstream school life and lessons, and the personal development of all pupils was enhanced as a consequence of the diverse intake of the school".
It is of interest that pupils without special needs learn by having special needs children in their midst.
The National Foundation for Educational Research produced a paper on educational achievement in the London Borough of Newham. My noble friend Lady Darcy has quoted from it. It is important to note that at the same time that Newham has increased inclusion it has decreased exclusion and its schools are among the most improved in the country.
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I believe this to be a very important amendment. It seeks to improve on what now takes places but without being prescriptive about how that is achieved. I strongly support the amendment and hope that the Minister will, too.
Baroness Nicholson of Winterbourne: I rise to comment on this most interesting and constructive amendment. I perceive the reasoning behind it. I am aware of several special needs schools that accommodate children of five to 16 years of age, cover the four key stages and yet perhaps have only 25 or 32 children, costing £46,000 a year per child. My point is not the cost but the fact that, however comforting for parents or warm and friendly for the children that school may be, with that small number it cannot offer the educational provision of the national curriculum.
However, the amendment may not address fully a group of children about whom I have a concern. I refer to children with low incidence disability and with uneven distribution nationally. It is possible that if this amendment were passed it could do those children a disservice by excluding them, possibly inadvertently, from the best education on offer in the United Kingdom. Instead of supporting the amendment, my answer is to argue for fewer but better special schools, particularly for children with low incidence disability and with uneven national distribution and to regard them as a national resource that is not geographically bounded, as the noble Lord, Lord Lucas, argued strenuously this evening.
Earlier, in Amendment No. 209, the noble Baroness, Lady Thomas of Walliswood, talked of the admission of children with special needs to mainstream education. I fully support that. Normally, as is identified in Amendment No. 216, children with special needs in mainstream education sounds correct; it is a non-divisive approach. It is a proper inclusion of all our young people into the national education resource, the public sector, irrespective of background, ability, disability or any difference.
I am concerned that the amendment which is put forward in the best of faith by two of the people I admire most profoundly in this Chamber tilts the balance towards exclusion from special needs and might perhaps lead to an undesirable outcome.
I suggest that no parent can ever believe that their child is ordinary. Every child, their child, is special and unique. Each child's birthright is its own package of balance and challenges. I suggest that we must have special schools for extra special children, whether this is for the Yehudi Menuhin violinists or for children who present themselves and their carers with special challenges. I think that those children need specialist teachers and the most advanced technology of all because you need to have a critical mass of knowledge and experience to meet those children's challenge.
Take deafness, for example. Every year 450 profoundly deaf babies are born in the United Kingdom—a very small number—whose cases and needs I had the welcome opportunity to discuss on Friday last with the noble Lord, Lord Whitty. I thank

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the noble Lord for that excellent and helpful meeting. Take blindness—another small number. Both are acute sensory deprivations. In minor forms, between them they afflict most of the population at some point during their lives. But from birth I would argue that they interfere drastically unless curtailed by modem science and advancement and the best of teaching, with the acquisition of formal and informal education. Indeed, we can perceive that by looking at the outcomes where deaf and blind youngsters have to take jobs, if they can find them at all, at levels far below that which their talent would normally attain. Blind in Business, a small charity I used to chair, has instigated job covenants with business to try to achieve a higher goal.
Why not mainstream, therefore, as this amendment would suggest, for all those children? Because mainstream cannot offer the special provision and the pool of educational teaching talent which those children need in order to flourish. I can give examples. A very wealthy individual approached me recently asking for help with his small son, born profoundly deaf and unable to speak. I went to meet the boy. I took a long time speaking to his father, but two years later he transferred him from mainstream to special school.
All the wealth of Arabia, which had equipped the local public sector school with everything and more a thousand times over for that young boy, could not bring out his speech, his socialising, his capacity for that. He needed the very special teachers of a special deaf education school. His mainstream school, fully funded in every possible way that anyone could imagine, was unable to help because it did not have educational audiologists or speech and language therapists. If all that money could not do it, then special schools are, surely, badly needed.
Over and above the proper thrust for special needs children to be in mainstream education, we must recognise also that there are some forms of disability—the sensory disabilities are the two most obvious—which need what I can only define as a national resource, because the numbers are so small and the spread so uneven and so unforecastable that there has to be a better way of doing that than bringing those children into mainstream education.
If mainstream education were to have many of the provisions which the special needs schools have, then the children with lesser sensory deprivation could well be catered for. On deafness, for example, acoustic conditions and lighting, training for teachers, small class sizes, because of one-to-one teacher interaction with the children, and other improvements are badly needed to promote speech and language development. Classroom amplification aids are an example. Many things could be done. I believe that they will be done. I welcome the Bill and I welcome the amendment, but as of now I beg the Minister to turn down the amendment and to address the point that I put to him, that national resources, looked at in a special way—fewer, better, well-sized special schools, alongside and in co-ordination with better resourced mainstream schooling—would help all those children.
11.30 p.m.
Baroness Byford: I support the noble Baroness, Lady Darcy. I accept all that the noble Baroness, Lady Nicholson, said. I spoke earlier about classes and of the medical needs of some of the children within those classes. Unless I have misunderstood the amendment, my understanding is that it is the wish of the noble Baroness, Lady Darcy, to see as many children as possible who can cope in mainstream schooling, to be able to be part of it, but that parents should be able to have special provision for their children if they so choose. I should like that clarified, because that is my understanding. I appreciate all that the noble Baroness, Lady Nicholson, said, but that was my interpretation of the amendment.
Baroness Darcy de Knayth: That was a helpful question. Perhaps I may intervene, because I think that the noble Baroness, Lady Nicholson, misunderstood what I was getting at. I was not getting rid of special schools in any way. I accept all that she said. I applaud the achievement, for example, of the Mary Hare School for the Deaf, which has no rival. It is terrific. The only tilting of the balance that I was doing was ensuring an even approach by the LEAS in providing the possibility of mainstream education for the children with statements whose parents wanted it and for whose particular education need it would be suitable.
Baroness Blatch: It was the noble Baroness, Lady Warnock, who put a figure on the number of the children who the report believed were children with special needs. The figure was 20 per cent. About 2 per cent. of that 20 per cent. was deemed to have acute special needs. Then came everyone within the spectrum, from someone merely having difficulty learning to read within the classroom, demanding more of the teacher in the classroom than average, through to the most acute.
My experience of local authorities is that they are not awash with money. So they do not readily accept the expensive provision which special school provision often represents. On some occasions there is great tension when they believe that it is appropriate to place someone in a special school. Their great problem with that is funding.
I have a great deal of sympathy with the amendment. However, it throws up a number of questions. I looked through the Education Act 1993, Part III of which was dedicated to special needs. The 1993 Act built upon the 1981 Act. It is my understanding that the 1998 or the 1999 Bill, or whatever year it is, that will flow from the special needs paper will build on the 1993 Act, so that there is a continuing development relating to the provision for children with special needs. It has always been my view, whatever the provision is, that it should be appropriate to the needs of the child. Whatever the special needs of the child are, they should be met in the most appropriate way.
The question it throws up for me is one that I have discussed with the noble Baroness, Lady Darcy de Knayth, and that is the interaction between this amendment and what in fact is contained in the 1993 Act. That is that parental preference is given some

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paramountcy in the code of practice, for example, and at the tribunal, right from the LEA level, where the parental preference is made, and the mechanism is put in place for the parents to continue to challenge if they believe that their own child's needs are not being met in the most appropriate way.
My understanding has always been that where a preference can be met, and where the preference is consistent with the educational needs of the child, it shall be met. The tension that is thrown up only happens where the educational needs of the child are identified, and the parents make a preference which may, in fact, be inappropriate educationally. It would then be a requirement on the education authority to deem what is educationally appropriate, which may be out of sync, with the parents' preference. Of course, that is where the tribunal comes in and makes a judgment as to whether the local authority has done the right thing.
Where the parent makes a preference which is expensive for the local authority, and where the local authority can meet the educational needs of the child and the educational provision is at least comparable to that preferred by the parents, then it is possible for the local authority to presume in favour of the local authority provision and to stand judged about that when it comes to the tribunal. In other words, what still matters is the LEA meeting its obligation under the law to provide appropriate education for a child. I am not sure about the way in which this works.
One of the points that the noble Baroness, Lady Nicholson made is that there will always be a number of children with low incidence disabilities, and it is important to get a cohort of children that makes sense in terms of educational provision. Therefore, sometimes that can only be met as a national provision or a regional provision. It seems to me that there will always be the case for that.
If I read the amendment aright, the noble Baroness, Lady Darcy de Knayth, is trying to counter parents having a right to make a preference for a special school provision in the 1993 Act, with having equal rights for the parents to make a preference for mainstream school provision, as long as it is consistent with the educational needs of the child. I have no difficulty with presuming in favour of mainstream provision—and I think that is what this amendment is saying—as long as it is consistent with the parental wishes.
The Minister has to consider the interaction of this with the 1993 Act. He has to consider this amendment with the importance of providing appropriate education for the child, and in terms of it meeting parental preferences and getting away from what I have always thought to be unhelpful—an aggressive integrationist policy. At the end of the day it is a combination of what is right for the child and what is as close as possible to the wishes of the parent.
Lord Addington: I would like to make one or two comments on this amendment. When talking of special educational needs we often have this argument about the most appropriate type of education and the benefits of the sheltered environment as against greater integration.
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Everybody agrees that there is room for both. That has been established in this debate so far. The only real discussion is, is this particular amendment the right way of progressing towards a situation where both will be attainable for most people who will benefit from either one of them? It is a very difficult subject that we are making motions towards.
Sensory deprivation and problems of a sensory type of impairment are always going to be the most difficult type for integration across the board, because they affect the way in which you absorb information. My noble friend Lady Nicholson said that that was going to be one of the most difficult areas because the structure of lessons and learning is often difficult. That is in purely educational terms.
It is easier to integrate into classrooms pupils with movement impairment. However, there are so many variations on the themes that one cannot make hard cases either way. The amendment is probably the best attempt I have seen to square the circle. It does not achieve the objective and the refusal is purely on financial grounds. Can the noble Baroness tell us why? What exactly needs to be done? We have danced around the problem for long enough. Surely we should take this opportunity to try to correct it.
Lord Whitty: This has been an interesting debate. I thank the noble Baroness, Lady Darcy de Knayth, my noble friend Lady David and others who have put their name to the amendment for sharing their thinking with the department. It has helped our thinking to move on.
The noble Lord, Lord Addington, asked whether this was the right amendment for achieving objectives which, broadly speaking, we all share. I would argue that it is not the right amendment either technically or strategically. Technically speaking, as many noble Lords who know better than me the complexity of the law relating to special educational needs will be aware, the amendment seeks to change Section 316 of the Education Act 1996, which, as the noble Baroness, Lady Blatch, stated, re-enacts provisions which were in the 1993 Act and to some extent in the 1981 Act.
Section 316 seeks to secure that a child with a statement of SEN shall, if that is what the parents want, be educated in a mainstream school, subject to the LEA being absolved from meeting that general preference where to do so would not meet the child's needs or would be incompatible with the efficient education of other children or with the efficient use of resources. The amendment seeks to do away with the latter two conditions but not the first.
There is an interaction, however, between Section 316 and Schedule 27 to the Act. In fact, Schedule 27 comes first because the LEA proposing to issue a statement for a child with special educational needs must, under the provisions of that schedule, name the maintained school—mainstream or special—that is preferred by the parents unless the same three exemptions apply. Section 316 comes into play only where parents do not express a preference for a particular school or where their preference for one mainstream school is not being met. Section 316 provides that if the LEA is not obliged

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to name the school, for whatever reason, it should nevertheless name a mainstream school unless one of the three conditions applies in the sense that no mainstream school could be named.
The overall effect of the amendment would be to retain all three specific conditions which LEAs must consider when deciding whether a school should be named in a statement, but it would somewhat illogically remove some of the conditions which would be available for an LEA to pray in aid under Section 316 when not complying with a parental preference for a specific school under Schedule 27. That is the main technical reason why this is not the appropriate amendment, although there are other issues. While it is attractive, we should need to examine carefully the wider implications of the amendment's reference to securing the ascertainable wishes of the child, sympathetic though we are to taking more account of the views of children with SEN.
Moreover, there are strategic reasons why at this stage we would not wish to support the amendment. In our Green Paper on SEN we gave a commitment that we would strongly promote the inclusion of children with SEN in mainstream schools, as is the objective of this amendment. The issue of inclusion has already provoked far more comment than any other aspect of the Green Paper. The department has been carefully digesting those views. The great majority were in favour of a cautious move towards more inclusion; but they also indicated that there are some very real issues to be addressed, some of which were addressed by the noble Baroness, Lady Nicholson.
It is quite clear that some parents of pupils with SEN, either through experience or because of their own feelings, do not believe that their child's need can be properly met in a mainstream school. We accept that there are clearly some children for whom a national provision in fewer and better special schools would be more appropriate. It is also unfortunately true that other parents of pupils who do not have special needs fear that their increased inclusion would disrupt their own children's education. There are also teachers, worried about their ability to cope with pupils with a wider range of needs. All these responses need to be taken into account and indicate that we must move sensibly and sensitively.
The Government have in train two related courses of action to secure the objective which lies behind this amendment. The first is the SEN Green Paper itself, the consultation for which has been concluded, and the Government will put forward an action programme in the light of the responses, to be issued shortly after the Summer Recess. The second course of action which is also relevant to this is that the disability task force, chaired by my honourable friend the Parliamentary Under-Secretary of State for Employment, will, among other things, specifically review the present exclusion of education from the provisions of the Disability Discrimination Act.
I cannot prejudge the outcome of those two exercises. What I can say, and say unequivocally, is that they will result in a powerful programme to remove barriers to
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inclusion and that if we see a need to change legislative provisions such as those we are discussing today we shall do so. This is not in any way to dismiss the contribution of the noble Baroness, Lady Nicholson, who, both tonight and at a meeting we had last Friday, has expressed her view on these issues. She is clearly in favour of inclusion where appropriate; but a number of issues—the provision of speech and language therapy-associated links between the Department of Education and Employment and the Department of Health, and the need to look at the planning and provision of fewer but better schools for low-incidence disabilities, particularly sensory disabilities—are issues which we have discussed in the context of the SEN Green Paper and which we will be taking into account on the action programme we hope to put in place after the summer.
It may well be that we shall propose to Parliament measures which will have the same effect as the present amendment, but they will be part of a coherent overall package which will take account of all of these concerns. At that stage we will want to propose practical legislative arrangements for children with SEN—arrangements which will work and which will last. We do not consider that deciding to adopt this amendment in the Bill at this stage would help that situation. Piecemeal changes are no substitute for the full review on which the Government are now embarked.
Having said that there are both technical and strategic objections to this amendment, we do share the objective behind the amendment. I hope that the noble Baroness will recognise the very real commitment to move in the direction proposed. With that commitment from the Government I hope that the noble Baroness is prepared to withdraw her amendment, at this stage at least.
11.45 p.m.
Baroness Darcy de Knayth: I first of all thank all noble Lords who have spoken: the noble Baroness, Lady David, who, as she said, has been on this since 1981, as I have myself, as has the noble Baroness, Lady Young, who offered her support; the noble Baroness, Lady Byford, for her thoughtful question and support, and the noble Baroness, Lady Nicholson, for many of her remarks. I do appreciate and understand what she said, but I hope she has equally understood my reply. I thank the noble Baroness, Lady Blatch, for her question, her very serious consideration of this amendment and for her broad support. I welcome that very much indeed. I thank the noble Lord, Lord Addington, who as usual puts his finger unerringly on the matter. I am extremely pleased that he thinks it is the best attempt yet to square the circle, and I am very grateful for that.
I turn now to the response of the noble Lord, Lord Whitty. He is really refusing this amendment on two grounds—technical and strategic grounds. I may not have totally understood the technical grounds and I should like to read again what he said. I am not sure that he was right about that but I shall read very carefully what he said.
I found his strategic argument much more disappointing. I spent rather a long time trying to explain this issue and I did not get my point across very

835
well. Since 1981, we have been trying to pave the way for inclusion. I appreciate that we must wait to hear what the taskforce has to say and the replies to the Green Paper. However, it will not be possible to start implementing inclusion unless we get this straight and we have not done that since 1981. The noble Baroness, Lady Blatch, said that when she introduced the 1993 Act, she was trying to improve matters and sort this out.
That disappoints me enormously. The noble Lord, Lord Whitty, says that it will remove the barriers to inclusion and is part of a coherent, overall pattern which will demonstrate pure commitment. The Green Paper gives a very firm commitment as regards moving towards inclusion but if that is to be anything more than mere aspiration, the LEAs must be prepared to offer and be offering mainstream education throughout the country. I do not like the expression "a level playing field" and I have never used it before but I may have to on this occasion so that the Committee will know what I mean.
The noble Lord, Lord Whitty, knows that the noble Baroness, Lady David, and I were in communication with the department. I said that I would not divide on this amendment but I emphasised that I would like a very clear message from the Minister to those LEAs which are reluctant to respond. I am sure that the noble Lord, Lord Whitty, will realise that I mean no discourtesy to him: I do not feel that the message is very strong in any event but I feel that a ministerial message of encouragement to LEAs comes rather stronger when it is from the lips of the Minister herself. I understand that the Government do not feel like doing that at the moment.
Perhaps the noble Lord, Lord Whitty, will agree to discuss this matter before the next stage of the Bill. I do not ask the Government to pre-empt the Green Paper but could we not try to smooth the way towards offering an equal opportunity for children wherever they live?
Lord Whitty: I am happy to discuss further these matters with the noble Baroness, and I am sure that the department will be happy to do so. I would hope that as strong a message as possible was going from the department and from Ministers in general to those local authorities which are dilatory in even the most elementary preparations for providing for pupils with special needs. In that sense, the Government's commitment is clear.
The Government's final position will depend on their overall assessment of the response to the Green Paper. It would not be the Government's intention to propose changes to this legislation until we have that overall package, taking into account all the concerns, which it is intended to produce very early into the autumn.
Therefore, discussion would allow her to feed in her views and other views into that process and sharpen up that process. But I do not believe that there would be a very different position on Report, following those discussions. Let us have a look at the matter to see whether there is anything on which we could reach agreement before the next stage. However, I should not
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like to mislead the noble Baroness, because our strategic objection to the amendment is that we wish to wait until the autumn to put together the total package.
Baroness Darcy de Knayth: I thank the noble Lord for that. I appreciate that it may not be possible to change the legislation. I understand that. However, I believe that a firmer message could be given to pave the way. I should be very grateful for further discussions with the department. With that, I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 216A:
After Clause 87, insert the following new clause—
EFFECT OF ADMISSION ARRANGEMENTS ON SCHOOL TRANSPORT POLICY
(" . Each local education authority shall so order its school transport policy as to give practical effect to the admission arrangements of the maintained schools in its area.").
The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 241. These amendments are inconsistent and badly drafted. However, that does not matter because they are not for passing: they are for discussing. They cover two aspects of school transport policy. Perhaps I may deal first with Amendment No. 241. This refers back to the discussion we had on parental preference. As I said previously, one of the ways in which local authorities seek to curtail the use and the expression of "parental preference" is by limiting the school transport available to schools which parents might otherwise regard as alternatives. For example, if there are three good secondary schools in a county town, you can only get transport to one of them. That is all right if you are rich, have your own car and can zoom about on the school run that the Government say they wish to discourage. However, if you cannot afford that or your car is committed to work or other duties, you will be unable to take advantage of the parental preference which could easily be available if the local authority had the wish to provide it, together with a little imagination.
Amendment No. 216A touches on the rather more serious subject of school transport within the whole sphere of local admission arrangements. The current position is quite clear; namely, that transport policy is controlled by the LEA. That is an enormous strength. If you are in charge of the transport policy, you have a great ability to bend others to your will because you cannot easily indulge in admission polices that go against the school transport policy. Indeed, one can look back to counties which have denied their local grammar schools any form of transport in order to discourage children attending them. That is merely an expression and not—thank goodness—a common expression of the sort of power which control over the transport policy gives the local authority.
What I want to find out from the Minister is whether that is a power which will continue to be in the sole exercise of the local authority. Alternatively, will it become much more a part of the whole admissions

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procedure, with the local authority being under a duty to provide the transport that accords with the admissions authority to which it has been party? I beg to move.
Baroness Maddock: I am slightly disappointed with the noble Lord. I thought that I would be able to stand up and say how much I supported his intentions and, if these were his views, how surprised I was by his earlier intervention. However, I now understand that the noble Lord has slightly different views. He is more concerned with parental choice than actually trying to tie that up with anything environmental. Perhaps that is why he was so keen to attack me for wanting to be environmental earlier.
The noble Lord has a point but his reasons are very different from those I would support. We need to address the issue of how we can help people to get their children to school satisfactorily while not using cars so much. The proposed amendments would achieve that end, although I believe the noble Lord's prime aim is to secure choice. It is important for people to have choice, but the system sometimes works against people. Indeed, as the noble Lord said, sometimes it works very much against people who are trying to exercise choice.
I remember one case I had to deal with where a family moved into an area. The child could not go to the nearest school because it was full. The child had to go somewhere else. The parents had no means by which to get the child to school. There was no transport provided, and the parents were working. They managed, very imaginatively, to get around the difficulty, but we are talking about a real problem here.
I believe that we need to look at what has happened on the ground as regards admissions policies to see whether we can devise something that helps resolve some of the awkward situations that arise. However, as the noble Lord said, this is an amendment for discussion. He is right to say that some people's choice is severely limited because they cannot afford to get their children to school. The other advantage of school buses is that they result in fewer cars on the road. In that spirit, I am happy to contribute to this debate.
Midnight
Lord Whitty: I am afraid that the Government cannot support the amendment. Quite apart from any technical deficiencies, we consider that this area should be left in general to local authorities' discretion. The proposals as they stand would involve considerable expense and impose a new and continuing burden on LEAs.
LEAs have considerable discretion in this area. They must provide free transport to the nearest suitable school for those pupils of compulsory school age if the school is beyond statutory walking distance. In all other cases, however, it is for LEAs to decide whether or not free transport is necessary. But the term "necessary" is not defined in law; LEAs must act reasonably in this matter. They should consider each application on its individual merits, taking into account all relevant factors, in particular a parent's wish for his child to attend a school of the religion or denomination to which the parent adheres.
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Even in cases where free transport is not necessary, LEAs may help by paying all or part of a pupil's travelling expenses. The cost of this already in England alone amounts to some £380 million a year which is a not insignificant sum. The noble Lord's proposals would add to that significantly. The courts have made it clear that LEAs do not have a blanket duty to provide free transport to a school other than the nearest suitable one, whatever the distance. However, the courts have also held that LEAs must take account of the reasons for a parent's preference, although the preference is not the sole consideration.
The Government are reluctant to take away LEAs' discretion in these matters—a discretion which has been upheld by the courts. The law quite rightly gives LEAs a pretty wide scope for discretion so that a transport policy can meet local and individual needs. It is, in our view, a matter for each LEA to decide whether and how it exercises these powers and provides school transport in its area. Moreover, the amendment would lead to substantial additional transport costs and would take away the discretion that we wish to keep at local level.
The noble Lord will no doubt be disappointed in that response to his probing amendment. Nevertheless that is the position to which the Government adhere, and it is right that I should express it in those fairly uncompromising terms. In view of that, I hope the noble Lord will withdraw his amendment.
Baroness Thomas of Walliswood: It is late but I cannot let the matter go by. May we hope that once the transport White Paper has been published, its policies—which I hope will be good ones, if all the signals are correct—will be adopted not just by one ministry but by all ministries? The Minister quite rightly talked about costs. Anyone who has ever had anything to do with an education authority, particularly in a county area, is acutely aware of those costs. Nevertheless, we have to consider the £16 billion a year cost arising out of congestion on the roads. I hope that in the future a broader view will be taken of these costs in the context of an integrated transport policy. I do not expect the Minister to reply to that point as this is not his subject, but it is mine and I could not resist the temptation to make my point.
Lord Lucas: I am grateful for the support from the Liberal Democrat Benches. I find myself in agreement with certainly everything that the noble Baroness, Lady Maddock, said, and with much of what the noble Baroness, Lady Thomas, said. I did not, of course, find myself in agreement with much of what the noble Lord, Lord Whitty, said. But then much of what he said addressed parts of my amendment that were there purely for the sake of discussion. I am quite aware that the drafting of my amendment is deficient and would cost local authorities a quite unreasonable sum of money.
Nonetheless, the core argument remains to be confirmed. I hope that the noble Lord, Lord Whitty, will confirm that that is the truth; namely, that the local education authority will have control over transport policy, and will therefore effectively have a stranglehold on schools' admissions policies and on the school

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organisation plan—because whatever other people work into those by way of adjudicators, panels or committees, all a local authority has to do is to say, "Fine, but we are not going to provide the transport for that", and it wins. If that is the way in which the Government see this provision operating, I am grateful for the noble Lord, Lord Whitty, spelling it out so clearly. If it is not, I shall be grateful if he will say why not.
Lord Whitty: I thought I had said why not; and the "why not" has also been referred to in the courts. Local authorities have to act reasonably in refusing to provide transport in cases where parents have made a reasonable choice for their children. That requirement to act reasonably greatly constrains any local education authorities which attempt to use the non-provision of transport to sabotage parent choice. I believe that is what lies behind the noble Lord's amendment.
Perhaps I may respond briefly to the noble Baroness, Lady Thomas. Clearly, an overall move to the provision of greater public transport includes school transport, and all those social costs have to be borne in mind. I would add that a large proportion of the congestion costs caused by home-to-school individual transport are caused in areas which are below the statutory walking distance, let alone duplicating the provision of local authority transport which does exist.
Lord Lucas: Perhaps we should procure that all children have to run to school! I thank the noble Lord for his reply. We shall read it with great interest in Hansard. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 [Fixing admission numbers]:
Lord Lucas Lord Lucas moved Amendment No. 216B:
Page 67, line 44, at end insert—
("() Where a school is required to refrain from allocating places up to its full admissions number so that places are available for late admissions, the local education authority shall treat such unallocated places, for the purposes of funding the school, as if each two such places equalled one allocated place.").
The noble Lord said: I shall speak also to the Question whether Clause 88 shall stand part of the Bill.
We now turn to admission numbers. I believe I am right in saying that the admissions authorities will be free to raise admission numbers above the standard number, and that there is no provision for the local education authority having to agree that before it can be done.
Am I also right in thinking that, with that increase in admission numbers, the additional resources will flow on a per pupil basis; and that, however much the LEA may disagree about admission numbers or whatever arrangements are eventually arrived at by the adjudicator, it will be the local education authority which ends up with the bill and the responsibility? If there is anything that the noble Baroness can do to elucidate the working of this policy and say where under the new arrangements the responsibility will lie, I should be most grateful.
Amendment No. 216B addresses a practice of local education authorities in particular of saying, "Right, your admission number is 200, plus 20; the 200 is the number you are allowed to admit, the plus 20 represents the others that we can stuff into a school if they happen to turn up later—in other words, you must keep 20 places in your school free in case we have use for them later because that is convenient for ensuring that the system runs through the whole county". That means that a school must provide the resources and space for an additional 20 pupils and receive under LMS no remuneration for that.
This amendment asks the Government: first, is that a practice that they expect to continue; and, secondly, would they agree that, where such a practice is imposed, it should be reasonable for the local education authority to give the school some remuneration for keeping places open? I beg to move.
Baroness Blackstone: I shall first address the amendment put forward by the noble Lord, Lord Lucas, before turning to the question of why this clause should stand part of the Bill.
Admission authorities are not currently required to keep places empty for late admissions, nor will they be required to do so under the new arrangements. Where places are held open by schools for short periods, this does not result in any alteration of funding because that is calculated on the basis of pupils present at certain dates rather than pupil load over the year. However, if it does appear that there is a need to permit education authorities to adjust funding to recognise places held open, this would be a matter to be dealt with in the regulations to be made under Clause 46 governing the calculation of schools' budget shares. It would seem inappropriate to pre-empt the outcome of the current consultation on funding by writing a requirement of this kind into primary legislation. On the whole, the Government do not think it a good idea for places to be kept open. We would expect local education authorities and schools, where they are admission authorities, to fill their places where they can.
I turn now to the reasons why this clause should stand part of the Bill. The clause contains provisions for the fixing of admission numbers at maintained schools and gives effect to Schedule 23, which sets out arrangements for determining, reviewing and varying standard numbers at maintained schools. The clause largely reproduces the provisions existing under the Education Act 1996 but with important changes to enable LEAs to comply with the infant class size provisions set out in Clauses 1 to 4 within the time limits that we have set ourselves.
If we are to have a system for admitting pupils to schools which allows maximum parental choice, it is important to have a system for setting admission numbers in relation to the ability of the school to accommodate pupils. The standard number is the minimum number of pupils the school must admit, if asked to do so, in the normal admission age group. But admission authorities are free to set admission limits above this if they choose to do so—I believe that was one of the questions that the noble Lord, Lord Lucas

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asked—and they must then admit pupils to that level. However, they may not set an admission limit below the standard number. Again, the noble Lord asked about that. The clause provides a mechanism through which increases to the admission number may be proposed by the LEA or the governors where they are not the admission authority for the school. Where this is not agreed, the governors or LEA may apply for an increase in the standard number. That protects the interests of all those involved in the organisation of places.
It is clearly important that these arrangements should not in any way restrict the effective implementation of the class size policy. The clause therefore provides that admission authorities must not set an admission limit above the standard number if it would conflict with those class size limits. It further requires admission authorities to review the existing standard number and apply for a reduction where it is set at a level which would be incompatible with meeting class size limits. The clause also gives the Secretary of State the power to disapply the standard number for a transitional period while a review is being carried out and a reduction applied for. I hope that the noble Lord sees the purpose of having the clause as part of the Bill and that I have answered his questions.
Lord Lucas: All my questions but one have been answered. Is my understanding right that, if a school which is its own admission authority chooses to increase its admissions number, the LEA has no say in that and no ability to get that wound back down again? With that agreement by way of a nod, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 agreed to.
12.15 a.m.
Schedule 23 [Determination, variation and review of standard numbers]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 217 to 219:
Page 195, line 41, at end insert—
("(6A) If—

(a) by the end of such period as may be specified in or determined in accordance with regulations, the committee have not voted on the question whether to vary the standard number under sub-paragraph (1), and

(b) the body by whom the application was made request the committee to refer the application to the adjudicator,

they shall refer the application to the adjudicator.").
Page 195, line 42, leave out from ("If") to end of line 43 and insert ("the committee—

(a) have voted on any matter which (in accordance with regulations under paragraph 5 of Schedule 4) falls to be decided by them under sub-paragraph (1) by a unanimous decision, but

(b) have failed to reach such a decision on that matter,").

Page 195, line 45, at end insert ("(6A) or").
The noble Baroness said: With the leave of the Committee, I shall move Amendments Nos. 217 to 219 en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 23, as amended, agreed to.
Clause 89 [Appeal arrangements]:
The Deputy Chairman of Committees The Deputy Chairman of Committees: Before calling Amendment No. 219A, I draw the attention of the Committee to the fact that a revised list has been promulgated saying that Amendments Nos. 221B, 221C and 221D, which were on the original list as having been debated, have not been debated and will be debated along with Amendment No. 219A.
Baroness Blackstone Baroness Blackstone moved Amendment No. 219A:
Page 69, line 15, at end insert—
("(3A) A local education authority and the governing body or bodies of one or more foundation or voluntary aided schools maintained by the authority may make joint arrangements consisting of—

(a) such of the arrangements made by the authority in pursuance of subsection (1) as the authority may determine; and

(b) arrangements made by the governing body or bodies in pursuance of subsection (2).").

The noble Baroness said: In moving Amendment No. 219A, I shall speak also to Amendments Nos. 219D, 219E, 221A to 221E and 223B to 223D.
The Bill already allows two or more governing bodies of foundation or voluntary aided schools to make joint arrangements for enabling parents of a child to appeal against a decision refusing the child admission to a school.
The Local Government Association asked the Government to consider extending that provision so that LEAs too may make joint arrangements with governing bodies of voluntary aided and foundation schools if those bodies agree. The amendment to Clause 89 will allow LEAs and governing bodies of foundation and voluntary aided schools to make joint arrangements for appeals if they so wish.
As a result of the amendment to extend joint arrangements, it has been necessary to make a number of consequential amendments to Schedule 24 on the constitution and procedures for appeal panels. I beg to move.
Lord Lucas: I have two amendments in this group, Amendments Nos. 222 and 226. They both make the same point; that is, that at present the Bill provides that appeals should be heard in private except when the local education authority (with a few other possibilities) agrees otherwise. I am proposing in both cases that parents should be able to request that appeals be heard in public where they feel that that would best serve their case in the interests of justice.
Baroness Blackstone: The Bill currently provides for appeals to be heard in private unless directed otherwise by the body or bodies making the appeal arrangements. The provision in the Bill reflects the current provision in the Education Act 1996. We do not believe that it should be extended in the way suggested by the noble Lord, Lord Lucas.

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In exceptional cases we accept that a public hearing may be considered appropriate, but we believe that the decision should remain with the body making the appeal arrangements. That is because that body, in making the decision on whether or not to hold a public hearing, must have regard to any guidance given in the code of practice.
The statutory code of practice on admissions will give guidance on the operation and procedures for admission appeals, including on when a public meeting might be appropriate. We expect the code's formal guidance to give no less weight than the current informal guidance to the wishes of parents.
As in the current informal guidance, the guidance in the code is likely to advise the body concerned, before deciding whether to direct that the hearing should take place in public, to consider among other things the wishes of the parents and the effect that any publicity might have on the parties concerned (particularly pupils, parents, teachers and the schools themselves) during and after the hearing. As I have said before, LEAs and governing bodies must have regard to the guidance contained in the code before carrying out their functions. The code cannot of course give guidance on this matter to parents.
There is an additional problem with Amendment No. 226 which focuses on the small number of appeals which consider the admission of twice excluded pupils. In that type of appeal, the school governing body appeals against an LEA decision that a pupil should be admitted, rather than a parent appealing against a decision that their child should not be admitted. So parents are not in fact involved. It would be inappropriate to change Schedule 25 in the manner suggested. In the light of what I have said, I hope that the noble Lord will not move his amendments.
Lord Lucas: I am very grateful for that explanation. I shall certainly not move them.
On Question, amendment agreed to.
Clause 89, as amended, agreed to.
Schedule 24 [Admission appeals]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 219B to 219E:
Page 199, line 24, at end insert—
("() Where, at any time after an appeal panel consisting of five members have begun to consider an appeal, any of the members—

(a) dies, or

(b) becomes unable through illness to continue as a member,

the panel may continue with their consideration and determination of the appeal so long as the number of the remaining members is not less than three and the requirements of sub-paragraph (3) are satisfied.").
Page 200, line 12, at end insert—
("() Where, at any time after an appeal panel consisting of five members have begun to consider an appeal, any of the members—

(a) dies, or

(b) becomes unable through illness to continue as a member,

the panel may continue with their consideration and determination of the appeal so long as the number of the remaining members is not less than three and the requirements of sub-paragraph (3) are satisfied.").
Page 200, line 14, after ("if") insert—
("(a) (except in sub-paragraph (7))").
Page 200, line 16, after ("and") insert—
("(b) in sub-paragraph (7), any reference to the governing body of the school in question or to that school were a reference to any of those governing bodies or to any of those schools (as the case may be).
(2)").
On Question, amendments agreed to.
[Amendments Nos. 220 and 221 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 221A to 221E:
Page 200, line 17, at end insert
("Joint arrangements by local education authorities and governing bodies
3A.—(1) Where (by virtue of section 89(3A)) joint arrangements are made by a local education authority and the governing body or bodies of one or more schools, paragraph I shall apply in relation to those arrangements as it applies in relation to arrangements made by a local education authority under section 89(1), but as if in sub-paragraph (7) any reference to the governing body of the school in question or to that school were a reference to the governing body of any school to which the arrangements relate or to any such school (as the case may be).
(2) An appeal pursuant to such joint arrangements shall be to an appeal panel constituted in accordance with paragraph 1 as it so applies.").
Page 200, line 22, leave out ("paragraph 2 as it applies by virtue of paragraph 3)") and insert ("either of those paragraphs as it applies by virtue of paragraph 3 or 3A)").
Page 200, line 29, after ("1") insert ("(or in accordance with that paragraph as it applies by virtue of paragraph 3A)").
Page 200, line 49, at end insert—
("(2) Where any such panel is constituted in accordance with—

(a) paragraph 1 as it applies by virtue of paragraph 3A, or

(b) paragraph 2 as it applies by virtue of paragraph 3,

any liability arising under sub-paragraph (1) above shall be a joint and several liability of the bodies by whom the joint arrangements are made unless otherwise previously agreed in writing between those bodies.").
Page 201, line 25, leave out ("local education authority or governing body (or bodies)") and insert ("body or bodies").
On Question, amendments agreed to.
[Amendment No. 222 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 222A and 222B:
Page 201, line 28, at beginning insert ("if the panel so direct,").
Page 201, line 31, at beginning insert ("if the panel so direct,").
On Question, amendments agreed to.
[Amendment No. 223 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 223A to 223D:
Page 201, line 35, leave out ("a") and insert ("one").
Page 201, line 36, at end insert—
("(2) For the purposes of sub-paragraph (1), an appeal to an appeal panel constituted in accordance with paragraph 1 as it applies by virtue of paragraph 3A shall be treated—

(a) as an appeal to an appeal panel constituted in accordance with paragraph 1 if it relates to a community or voluntary controlled school; and

845

(b) as an appeal to an appeal panel constituted in accordance with paragraph 2 if it relates to a foundation or voluntary aided school.").

Page 201, line 47, at end insert—
("(2) For the purposes of sub-paragraph (1), an appeal to an appeal panel constituted in accordance with paragraph 1 as it applies by virtue of paragraph 3A shall be treated as an appeal to an appeal panel constituted in accordance with paragraph 2, if it relates to a foundation or voluntary aided school.").
Page 201, line 50, leave out ("local education authority or governing body (or bodies)") and insert ("body or bodies").
On Question, amendments agreed to.
[Amendments Nos. 224 and 225 not moved.]
Schedule 24, as amended, agreed to.
Clause 90 agreed to.
Schedule 25 [Children to whom section 82 applies: appeals by governing bodies]:
[Amendment No. 226 not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 226A:
Page 203, line 9, at the beginning insert ("if the panel so direct,").
On Question, amendment agreed to.
[Amendments Nos. 227 and 228 not moved.]
Schedule 25, as amended, agreed to.
Clauses 91 to 93 agreed to.
Clause 94 [General restriction on selection by ability or aptitude]:
Lord Lucas Lord Lucas moved Amendment No. 228A:
Page 72, line 3, at end insert—
("() any selection by ability conducted in connection with the admission of pupils to the school who have disabilities or special educational needs which the school is particularly equipped to accommodate;").
The noble Lord said: In moving this amendment I wish to speak at the same time to Amendment No. 230. These two amendments address completely different subjects. The first amendment is in response to seeing Amendment No. 229 on the Marshalled List. I thought, "Hey, wait a moment, you ought to allow schools to select people who have a particular disability, where schools have gone to great expense and trouble to put in place the facilities to deal with that disability". If a school is particularly equipped to deal with people in wheelchairs and neighbouring schools are not, it seems sensible that the school be allowed to select people who need wheelchair access so that the school's facilities may be taken advantage of. A school may also have particular facilities to deal with other forms of physical disability. That is what I am aiming at. I hope that the Minister will tell me that the amendment is entirely unnecessary because schools will be able to do that anyway.
Amendment No. 230 comes back to a chestnut which was roasted at great length in the other place. It is unsatisfactory that there should be a definition of "ability" in the Bill but not of "aptitude" when both words have similar weight and are used in ways which can be quite confusing if there is no accepted definition of aptitude. This amendment is my personal and, I hope, reasonably common sense definition of aptitude and
846
ability and the way in which they relate to each other. I hope that it proves acceptable to the Government. I beg to move.
Lord Tope: I speak briefly to Amendment No. 229, which is largely self-explanatory. Schools must not, as a policy, reject the applications of disabled pupils and require admissions systems to consider disabled children in an unbiased way. In a sense it is the flip side of the amendment that the noble Lord, Lord Lucas, has moved, which is a very sensible amendment. I feel sure that the Government will be able to support both amendments.
Lord Whitty: We are committed to the objectives of the noble Lords, Lord Lucas and Lord Tope. However, we do not consider that these amendments are necessary in certain circumstances. In more general terms, they also come within the strategic approach that we are adopting towards special educational needs. I can assure Members of the Committee that Clauses 94 to 98 do not in any sense undermine the existing legislation governing the assessment of children with special educational needs, including those with disabilities.
The Committee will know that the existing legislation provides strong safeguards for children with statements of SEN. Naming a school in a statement overrides all other admission criteria whatever the nature of the school. The admission authority, including that of a selective school, is under a duty to admit a child to a school. Therefore, in part these amendments are unnecessary in relation to children with statements.
On the broader issue, we have given a commitment under the Green Paper, and the consultative exercise which is under way on that paper, that we shall make it clear that all children with SEN cannot be treated any less favourably than other applicants. As I said in earlier debates, we are still drawing our conclusions from that consultation and we hope to issue a statement to that effect in the autumn. Meanwhile, we are spending substantially greater sums on school access than previously. In addition, as I mentioned, we are engaged in looking at the question of the relationship between disability legislation and education legislation.
Our aim is to ensure that any legislation works that protects over and above that which already exists for children with SEN and is within an overall and coherent programme for such needs. These amendments are not the way to achieve that and are partly unnecessary. They could only come into full effect if they were within the overall package which we intend to produce in the autumn. On that basis I hope that the noble Lords will feel able to withdraw the amendment.
As the noble Lord, Lord Lucas, said, Amendment No. 230 is entirely different. It is an attempt to play the lexicographer in this slightly complex area of distinguishing between ability and aptitude. As he said, it caused many debates in the other place. In fact, the distinction between the two has been enshrined in Education Acts since 1944. The previous government commissioned substantial research from the NFER on it. We believe that such matters, however gallant an attempt at definition, are best left to guidance and the code of practice. We can consult on this difficult matter

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which may apply differently in different specialist areas. All parties will have to have regard to the guidance and the code, but we would not be statutorily rigidly bound by a specific definition. We therefore prefer to deal with this definition in that manner. I have no doubt that I could provoke a lengthy debate, even at this hour of the night, on the distinction between "aptitude" and "ability", but I hope that in the circumstances the noble Lord will accept that this is not the best way of going about it and that our provision of guidance on the matter will, in practice, be more helpful.
Nevertheless, I thank the noble Lord for his attempt to help us and for his recognition that there is a distinction which, frankly, some of his colleagues failed to recognise at earlier stages.
Lord Lucas: I am grateful to the noble Lord and if, as he says, guidance is to be given on what "aptitude" means in particular cases, that seems to meet the requirements of the legislation quite nicely. However, I should be grateful if the noble Lord could point out to me which clause of the Bill gives the Secretary of State the power to issue guidance on this point.
Lord Whitty: I understand that that point will be covered in the code of practice on admissions and by the provisions on partial selection.
Lord Lucas: I look forward to the code with even greater enthusiasm. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Pilkington of Oxenford Lord Pilkington of Oxenford moved Amendment No. 228B:
Page 72, line 3, at end insert—
("() any selection by ability consequent upon section (Admission arrangements: selection procedure);").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 230A, 230B and 230C. Noble Lords will realise that these all deal with the old subject of selection by ability and seek to provide at least partial use of selection by ability, allowing governors to ballot parents, and so on.
I am not raising this matter to cause arid controversy at this late stage—or rather, at this early hour of the morning. I want to put before the Government certain research that shows that selection by ability can assist in bringing about an improvement in the overall standards of education. Traditionally, when comprehensive education was first introduced, it was argued—the argument has almost become written in tablets of stone—that the selective system benefits only the top 20 per cent. and disadvantages the rest. However, I suggest that recent research has shown that selection need not benefit only the top 20 per cent., but that it would also help all the others.
Perhaps I may give the Committee some statistics. In England, in local authority comprehensive schools, the percentage gaining five or more passes at grades A to C at GCSE is 39 per cent.; further examination reveals that the proportions are 47 per cent. for voluntary Church
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comprehensives; 49 per cent. for GM schools and 94 per cent. for grammar schools, whereas the surviving secondary moderns, relatively small in number, have a rate of 29 per cent., but do better than 700 comprehensive schools. In mathematics, the secondary moderns are ahead of 900 comprehensive schools.
Perhaps I may give another comparison. Northern Ireland has maintained a selective system with secondary modern schools and 52 per cent. of its secondary school pupils gain GCSE passes at grades A to C—that is, 10 per cent. better than the English comprehensive schools. I suggest that if the Government allowed some selection—or, more radically, followed Northern Ireland's example—that would improve our results similarly.
Perhaps I may give an analogy with what happens on the Continent. In Germany, which has a very selective system, with the Gymnasien taking 30 per cent. of the age range—as do Northern Ireland's grammar schools—the mathematical attainments of pupils in the lower half of the ability range are better by the equivalent of two years' schooling than the corresponding range for pupils in England. The problem is that England has become so obsessed with the ideology which has governed educational debate for the past 30 years that these facts are ignored. It is not true that only 20 per cent. of the ability range benefits if there is some form of selection. If one adds into the equation, as in the case of Germany, excellent technical schools, one can improve the position even further.
I very much doubt whether at this time in the morning the noble Baroness the Minister can be persuaded to change her mind given the fact that over the past 20 or 30 years she has held rather rigid positions on this point. I also hold fairly rigid positions. But these amendments ask the Government to give some thought to the research that has produced these results in deciding how, if standards are to be improved, the education system can be altered to achieve better performance. The Government do this when speaking of schools with special emphasis which will undoubtedly have to select by ability on the basis of modern languages, science, mathematics or whatever may be chosen. Therefore, my amendments do not go against government policy. Very shortly, in the following clauses to which my noble friend will speak, the Government move in my direction. Why not go the extra mile and improve the results and do as well as Northern Ireland? Then the Minister will have a place in history. I beg to move.
Lord Tope: I do not want to discourage the Minister from having a place in history, especially on a subject of this kind. I was slightly surprised to hear the noble Lord accuse the Government of having rigid views on the subject of selection. I could accuse the Government of holding anything but rigid views on selection. I intended to ask her to explain how old Labour had transformed into new Labour on this issue.
I listened to the noble Lord, Lord Pilkington, with great care. I too must join in the all-round confession of having held rigid views for rather more than 20 years. My LEA still has a selective system. It has a number

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of very good grammar schools and secondary modern schools. The Conservative administration 20 years ago decided that grammar and secondary modern schools would all be called high schools and it would be assumed that all were equal.
I would be interested to see the research to which the noble Lord has referred. It is late at night to try to understand these points. I understood the noble Lord to say that there were many secondary modern schools which had better results than comprehensive schools. But I did not understand—perhaps it was my shortcoming—how selection improved the standards of other schools. These days almost anything can be proved by research and statistics. I take my area as an example. We have a number of very good grammar schools which produce good results, not surprisingly. We also have a number of what may be called—but are not called—secondary modern schools with less good but still very satisfactory results. That reflects the nature of the area in which they are situated and many of the homes from which the children come. There is generally a higher level of attainment in a borough like ours than in many others. The relatively small number of grammar schools in this country, and by definition the rather larger number of secondary modern schools, are in areas of that kind. They tend to be in middle class areas (if I dare to use that term) of higher attainment. Therefore, they are likely to produce better results than, say, inner-city areas whose schools may be wholly comprehensive.
Lord Pilkington of Oxenford: Is the noble Lord entering sociological facts into the fact that Northern Ireland, with a totally selective system, faced with endemic civil war for the past 25 years, produces a 10 per cent. better result than England? Do you explain it there by sociological facts? Northern Ireland is not an affluent country in the same way as England. Those are facts.
Lord Tope: Parts of Northern Ireland are extremely affluent. Parts of it are not, I readily accept. I want to be wary of jumping to simplistic conclusions to prove a point. I might argue—though I do not particularly want to—that, for instance, denominational schools achieve better results. I suspect that generally that is true. That may well be just as much a factor in Northern Ireland as a system of selection. So I think we have to be rather wary of seeking to prove what we wish to prove through rather dubious and doubtful statistics stated to be research. I think that even in their new incarnation the Government are likely to reject these amendments. I would certainly wish to urge them to do so.
Lord Whitty: The noble Lord, Lord Tope, is quite right. I did not expect, at this time of night, to be looking in detail at educational and sociological research. However, I must make a few remarks on the introduction by the noble Lord, Lord Pilkington.
I do not believe that there is any comprehensive survey of total research which would prove that selection produces better results for those who are not
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selected. Indeed, both common sense and a large number of statistics indicate precisely the opposite. The very narrow base on which he based his comparison with the remaining secondary moderns and some comprehensives is clearly subject to the sociological difference to which the noble Lord, Lord Tope, has referred. While recognising his effective leadership of the London Borough of Sutton—
Baroness Blatch: I am grateful to the noble Lord. Would the noble Lord like to prove that the opposite is the case and that where selection exists, education is actually dragged down?
Lord Whitty: I think that there are a number of statistics which would prove that precisely, not all of which I have to hand tonight. However, if one looks at a couple of examples within what used to be regarded as the Tory heartland—I am not entirely sure where the Tory heartland now is—in Hampshire and Kent, Kent has a selective system whereas Hampshire is non-selective. Consistently, Hampshire has had a higher number of pupils gaining five or more GCSEs than Kent. I am not claiming that that proves that the same is true everywhere. But I believe that the majority of research studies would show that and not what the noble Lord, Lord Pilkington, is claiming.
In relation to secondary moderns, if I could just complete my sideways praise of Sutton, I do not think it has a lot to do with the noble Lord's leadership; it has to do with a different sociological basis. I do not think you prove anything by saying that secondary moderns in Sutton do slightly better than comprehensives in Tower Hamlets. I do not think that that is a relevant comparison.
As far as Northern Ireland is concerned, of course I come from Northern Ireland but I was hardly educated there. I was educated in England, but it is possible that it is the input at the earliest stages which is of higher quality rather than the added value in Northern Ireland. I would certainly subscribe to that theory.
I do not believe that the system of selection in Northern Ireland gives better results. I would caution the noble Lord. Lord Tope, in his praising of denominational schools in Northern Ireland. The social costs and the political costs of having an entirely divisive denominational system in Northern Ireland perhaps considerably outweigh any marginal improvement in the academic achievement. However, let us be frank about this—
Lord Tope: Would the Minister accept that I was not necessarily praising, or, for that matter, condemning denominational schools. I was simply saying that one could make just as reasonable an argument for saying that that was a reason for a higher level of attainment as the selective system. I entirely accept and agree with the general point the Minister makes.
Lord Whitty: I accept what the noble Lord says. However, we can go about this looking at the facts and figures and no doubt we can all draw our own conclusions. But the reality is that for most of this Bill,

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despite the occasional frissons between us, we have been examining the best ways in which we can achieve, broadly speaking, agreed aims within the context of the framework of the Bill as proposed.
We have diametrically opposed views in that area. The amendment is a full frontal attack on the provisions for selection in the Bill. It challenges directly the commitment we gave in the White Paper and before the election that we rule out any future new provision for selection on general ability. We have committed ourselves to no new selection. The amendments seek to allow any school to propose just that.
The new clause would put in place an entirely new mechanism for the reintroduction of selection and would allow a school to propose not just partial selection by ability, which we oppose, but total selection by ability—running completely counter to Clauses 99 to 102 on grammar schools.
Under this provision a grammar school which had been required to discontinue its selective arrangements following a parental ballot could re-introduce full selection by ability. We will not agree over the amendment, which would have a deeply destabilising effect upon schools, parents and children. It would allow ballots for the reintroduction of selection, engineered annually, thus distracting the schools from their main task of raising standards.
We are prepared to accept that existing arrangements should remain. We consider that the views of parents form an important element in the consideration of any proposed changes. That is why we propose ballots for the decisions on the removal of grammar schools' selective arrangements, and why we have introduced the amendment referred to earlier, to give parents a right to object to the adjudicator.
On the issue of new arrangements for selection by ability, we have already listened to parents. The feedback to the White Paper was totally welcoming. We do not wish to have an unnecessary battle over schools that already have partially selective arrangements unless the parents who feed into that school wish it. The amendment would sanction not just the continuation of existing arrangements but their substantial extension or modification. Clause 95 provides that schools wishing to benefit from preserving existing partial selection must not increase their proportion of selective admissions in any relevant age group, nor must they make any significant change in the basis of selections.
The amendments would turn that limited freedom to maintain existing partial selection into an unlimited ability to extend selection across the board. They would even allow schools which now select just a small proportion of their intake to turn themselves into what are effectively totally selective grammar schools by the back door. I am aware that Members opposite oppose that position, but these are, in effect, wrecking amendments to a significant part of the Bill's strategy. They would make a mockery of the Government's policies to expand educational choice and increase equal opportunities for all children. There is no way the Government can accept the amendments. They would
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bring back a great deal of the divisiveness that existed in the education system and would neglect majority interests.
I ask the mover of the amendment to withdraw it. I have no doubt that the noble Lord will tell us that he reserves the right to come back at a subsequent stage, but at this time of night, despite the fact that we have a pretty clear ideological and strategic conflict here, I hope the noble Lord will withdraw the amendment.
Lord Lucas: I confess I am disappointed but not surprised by what the noble Lord, Lord Whitty, said. I should have thought that the Government Front Bench on this Bill was a pretty good advertisement for selective education and a credit to the schools which educated them, all of which are great schools. I should be fascinated to have the statistics that the noble Lord, Lord Whitty, referred to. Perhaps he could drop me a note in the course of the next week or two on the relative performance of selective and non-selective education. I would much appreciate that. I am a great collector of such information.
You cannot say no to selection by ability. You get it anyway. People choose where they live and they will choose to live somewhere like the London Borough of Sutton because it has a good education system. This produces a disparity of performance which has nothing to do with the ability of the child, but which has to do with the ability of the parents to pay the price of the local houses, and to have the sort of job which allows them to live far from where they work.
In some ways it is unsatisfactory because you have to make the choice for all the children in your family, and you do not have the ability to choose, in every sense, a good unselective comprehensive school for a child who would be better suited to that. It is also unsatisfactory because it becomes a socially based selection rather than a purely academic selection.
The Government should be prepared to look at what happens in the private sector. There is, in the private sector, a good range of schools from the very academic to the extremely unacademic. Parents choose the sort of school which suits their child best. Of course, there are unacademic children who choose to go to academic schools because that is the sort of environment in which they flourish. By and large the majority of academic children do better in academic schools and the majority of non-academic children do better in rather broader schools. There are some academic children in particular who do much better in a broader environment than they do in the relatively narrow confines of a strongly academic school.
We need to look after the academic people. They are an important part of our strength as a nation. Even more than that, we need to look after the non-academic people because it is the non-academic who employs the academic. If one looks at the old boys and girls of the famous selective independent schools, you will see that it is remarkable how few great innovative people come out of the highly selective schools and how many come out of the less selective ones. We have to do our best to make sure that the people who are going to be

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our future Richard Bransons have the right environment in which to flourish, and that is not a school which is bent on academic success, but a school which is bent on a full, broad education. That is much easier to achieve if those who are really suited to an academic education are enabled to take their education elsewhere.
Lord Pilkington of Oxenford: I shall begin by casting an element of doubt into the love affair between the Liberal Democrats and the Government. I welcome the fact that the Government have become a little more pragmatic than was the case when they were last in power, in setting up schools of special excellence, which is going to involve selection by ability, even if it is only in French, Spanish and German. That is selection by ability, so that is a step in the right direction.
At this stage of the morning I certainly do not want to swap statistics, although I do think serious thought ought to be given by the Minister and the department to the situation in Holland, Germany, Switzerland and Austria, where certainly their selective systems, on many studies, have produced a better performance than we produce in England. One of the reasons for this Bill being introduced is that we are worried about standards. We must face the fact that, if the standards here are not good and the standards in schools in Germany and Holland are good, then some thought ought to be given to structures as well as to exhortation and organisation.
That said, I realise that the gap is still large, although, as I say, the Government spokesmen have come nearer us than would have been the case when I have debated this with some of their predecessors in other forums. When there is economy of scale, some schools can specialise in the more vocational elements of education and others in academic elements. When they have to do both it is an expensive operation.
I shall not dwell on this. I shall withdraw the amendment, but pragmatism is beginning to prevail, and even though the Liberal Democrats remain true to their distant past, I think the Government are gaining sense. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 229 and 230 not moved.]
Clause 94 agreed to.
[Amendment No. 230A not moved.]
Clause 95 [Permitted selection: pre-existing arrangements]:
[Amendments Nos. 230B and 230C not moved.]
On Question, Whether Clause 95 shall stand part of the Bill?
Lord Tope: I proposed the Motion so that we would have the opportunity for a lively and sparkling debate, whereby the Liberal Democrats could demonstrate that they have stood firm on the principles that they have held for many years, as was said by the noble Lord, Lord Pilkington. Furthermore, the Conservative Party could demonstrate the opposite and the Government
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could explain how old Labour has become new Labour and how the love affair between the Liberal Democrats and the Labour Party has come to a sudden end—again!
Perhaps at one o'clock in the morning we have debated the subject enough, but I wish to make one point. I was a little confused about what was said by the noble Lord, Lord Lucas. He spoke of Richard Branson and said that we need to have grammar schools in order that future Richard Bransons can flourish without interference from academically gifted pupils. I did not wholly follow the argument and I am certain I am not doing justice to it. Perhaps some of that is deliberate.
My concern always is not so much for the academically gifted, nor for those on whom we have rightly spent a lot of time tonight; for want of a better term, the more disadvantaged. My concern is for the vast majority of children who fall into neither category. As I listened to the noble Lord, Lord Lucas, I was concerned about the simple distinction between the academic and non-academic. Most children—most people—do not fit neatly into one or other category. The vast majority fall within a narrow range of ability, and we need to be concerned about such children.
The noble Baroness challenged the Minister, who did not take it up, to show how selection had dragged down standards of achievement. I would not want to take up that challenge, still less to use that expression, but I do not remember in recent years selection being reintroduced. I know of one or two former Conservative LEAs which thought they might like to do so and perhaps some have done. There is no broad-based research in this country to demonstrate the result one way or the other.
However, there is considerable experience of the reverse—where selection has been abolished in recent years and where standards have improved for the greater number of children and not deteriorated for the academically gifted who would have gone to grammar school. I believe, and there is sufficient evidence to demonstrate it, that where selection has been abolished there is a greater opportunity for children who would not have gone to grammar school. There are greater and stronger incentives to teaching staff, and a school which has a full range of ability is a better microcosm of the society in which those children will live. That is also an important point.
I do not wish to reopen a debate which we have rightly concluded, but I wish to ask about Amendment No. 230A and the reference to a ballot of parents. I imagine that what was intended was a ballot of parents at the school making the proposal. But a change to one school usually affects a number of other schools. If one were to have such a ballot it should take place among the parents and other interested parties. Indeed, prospective parents are often far more important than parents of children at the school because many will have left before a change has taken effect. When we discuss these issues we are always concerned, perhaps rightly, for the more gifted, the children at the grammar school or the prospective grammar school. We seldom have so much concern for those who are not in those schools and who do not have those advantages.

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It is too late at night for the lively and sparkling debate that I hoped for when I tabled this amendment, but I still make clear my opposition to this clause and hope that at least we will hear how old Labour has become new Labour.
1 a.m.
Baroness Blackstone: I am quite sure that the one thing I cannot do at this time of night is to sparkle. Indeed, I am a little nervous in replying, in that I am not sure how I will measure on the Richter scale of flexibility versus rigidity. At this stage I will certainly not try to engage in some of the arguments raised by the noble Lord, Lord Lucas.
I have listened carefully to the concerns expressed by the noble Lord, Lord Tope. I think that the Government's views on partial selection are now quite well known. All too often it has led to both controversy and confusion, and it certainly detracted from the wider goal of raising standards for all. Accordingly, it would have been open to the Government to introduce a Bill designed to bring an immediate end to all partial selection; but we have chosen not to do so because we do not believe such an approach would be in keeping with the spirit of the Bill, which seeks to promote local co-operation and agreement—something which in general the Liberal Democrat Party supports. We have to bear in mind that there may be some areas where existing partial selection is not causing problems and it may even command quite widespread local support. We want to allow for that possibility.
The approach that we have adopted squares with what we said in the White Paper. The key is that Clause 95 and the others relating to partial selection must be read in conjunction with the provisions in Clauses 84 and 85, which set out the detailed consultation requirements and the adjudicator's remit.
I am very grateful to the earlier suggestion of the noble Lord, Lord Pilkington. I think he implied that the Government are pragmatic about these matters. I accept that and I take it for the compliment I think it was meant to be. I believe that the Government are also realistic. They seek to give responsibility and freedom to those at local level to determine what works best in their area, set against a duty to consult each other and to have regard to an admissions code of practice. It is through working together that any problems arising from partial selection will be resolved.
Lord Tope: My Lords, I think this debate and the previous one have livened things up just a little bit at one o'clock in the morning. Clearly I will not press my opposition at this stage of the night.
Clause 95 agreed to.
Clause 96 [Permitted selection: pupil banding]:
Baroness Blatch Baroness Blatch moved Amendment No. 230D:
Page 73, line 7, after ("ability") insert (", or of any range of ability which shall be specified in the admission arrangements,").
The noble Baroness said: I rise to speak to Amendments Nos. 230D and 230E, which refer to banding and the Government's slightly muddled approach to selection. I also rise to comfort the noble
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Lord, Lord Tope; not to sparkle in his presence, but to offer some crumbs of comfort. I take issue with my noble friend on the Front Bench—I think for the first time—regarding the way in which I believe he was somewhat sanguine about the Government's policies. I think that old Labour is there in spades. If you cannot see that, then you see nothing.
It does not suit Mr Blair's image to get rid of ability in one fell swoop, so he does it in this way. He sets up a rigged balloting system to make sure that the grammar schools disappear off the face of the earth and follows that up with an admissions policy, the code of practice of which we will not see while we discuss this Bill because it will be hidden under wraps; that is, unless the spin doctors think it is advisable to leak it at some point. I doubt it. It is not a document they would want us to see ahead of discussing this Bill. What is not done by the rigged balloting system will be polished off by the admissions policy, when it is applied.
The truth is that selection will go and the Government intend that it should go. In the department there are at least two Ministers who are unreconstructed old Labour and there is a Prime Minister and at least one Minister in the department who have signed up to new Labour. Therefore, there is that presentational issue. The Government are saying that they are not really against selection. They are saying, "We are pragmatic. We shall keep what we have at the moment but not add to it". The truth is that it will not stay. What exists at present is very much under threat.
This is serious politics of envy. It is a dumbing-down, a levelling-down. It will take some time before its effect registers. We have seen a sustained attack on what works: assisted places to help young people from low income families, on Oxford and Cambridge, on grammar schools, on the autonomy of our GM-schools and now a sleight-of-hand attack on selection. Therefore, I am not the least bit impressed by what is taking place at present.
I say to the noble Lord, Lord Tope: "Watch this space". I agree that the Liberals would have been open and honest about this. They would have introduced a Bill which would have been unequivocal and which would have contained abolition clauses. However, I ask the noble Lord to have faith because he will get where he wants to be in policy terms by the measures in this Bill, although it may take a little longer.
The noble Baroness, Lady Blackstone, and the noble Lord, Lord Whitty, and their colleagues in the Labour Party are not prepared to take a look around the Continent to see what works. They are certainly not prepared to look at this country to see what works. We shall see a destruction of what works, and it is such a pity. We believe that it is right to be concerned for all children; that there are some children who are much better suited to a fast-stream, academic education. That is why we set up city technology colleges and specialist schools. There are children who will have aptitude and ability—and I use those words wholly interchangeably—to go to a school which specialises in languages, sciences, technology, the arts, history, geography or whatever it may be. We provide schools to ensure that that can happen.
The noble Lord, Lord Tope, asked for examples of where selection has been reintroduced. It has been reintroduced in our specialist schools. They are free to, and do, select children on the basis of an aptitude and/or ability in their particular specialism.
Before I left the department I approved a bilateral school. That was a school that was a secondary modern school in an area served by grammar schools. It wished to have one fast-stream grammar school entry. We believed it was worth doing. We were advised strongly by the officials in the department that it was inadvisable to give such approval on the grounds that it might fail and be embarrassing for Ministers. I took the view that approval should be given if the parents wanted it, the school believed it could deliver and the headmistress believed that she could offer education to girls—it was a girls' school—who were more suited to a fast-stream academic provision. It has been extremely successful and I am very proud to have done it. Had it failed, I should have still taken off my hat to a school which was innovative and wanted to try to do its best by the girls in that school.
I do not have any hang-ups about this. I have looked at the thesaurus and the dictionary. "Aptitude" always subsumes ability. Ability does not always necessarily subsume aptitude because you can have ability without an aptitude for a subject. But wherever the word "aptitude" is found in the dictionary, it subsumes ability. We are having a crazy debate about selecting children on the basis of aptitude and not on the basis of ability. Again, it is cowardly on the part of the Government. They are trying to say that they are modern but, on the other hand, they are almost a dinosaur in terms of what they are destroying in their path.
I do not believe that my noble friend Lord Lucas was being inconsistent. Indeed, he was trying to help the Government to make that distinction. He was trying to tease the Government out of their shell and persuade them to offer a proper distinction, which they have so far failed to do. We have read and re-read the debates which took place in another place. I do not believe that I have ever read a more unenlightened debate as to what it is that the Government are trying to do when they make a distinction between the two words. It is true to say that this is egalitarian. It is definitely where old Labour wants to be. All that is working in British education will now be sacrificed on the altar of egalitarianism. It is a great pity.
It may help the noble Baroness if I couple Amendment No. 231A with my amendments. Indeed, Amendments Nos. 231A and 230F deal with keeping testing. It seems to me to be bizarre. If specialist schools are allowed to select on the basis of their specialism, what on earth are they going to use for selection? They cannot interview or test. Therefore, they will have to rely on selective or perhaps objective approaches. Somewhere in the system someone will have to say, "We believe in this child's ability"; in other words, it will be a form of selection without being able, physically, to have the child before those concerned in order to challenge and to test whether or not there is an aptitude or an ability to cope with a curriculum which
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would offer a particular kind of education. It really is absurd. I make no apology for using strong language in that respect. Young people certainly need stretching and that applies especially to the most able children in our land. For a proportion of them, offering an academic education is the answer.
I take issue with the noble Lord, Lord Tope, on one point. In this Chamber we are seldom concerned about the other children; namely, those who are not selected for grammar schools. I do not stand guilty of that charge. My children went to a comprehensive school. They have done extremely well, so I make no criticism. I have always believed that what matters is how a school is run, how it is led, together with the competence and the quality of the staff. I have always thought that it is the most powerful brew to have supportive parents, receptive children and good and high quality staff. That seems to me to be most powerful brew. Indeed, whether it is a bilateral school, a comprehensive school, a grammar school, a specialist school, a city technology college, a voluntary-aided or voluntary-controlled school, it really does not matter if it is well run. What matters is having the full tapestry of provision. That means diversity and as wide a choice and opportunity as possible to enable children to receive the most appropriate education.
We pride ourselves on being concerned about children with special needs. I believe the noble Baroness, Lady Nicholson, talked earlier about the children who end up at the Menuhin School or the Chetham School in Manchester. That is one end of the spectrum of special needs. At the other end of the spectrum are the children who have a different kind of special need but which, nevertheless, is equally as important and must be met. It is seriously prejudiced and bigoted not to allow testing and to bar selection on the basis of having a child tested for ability and/or aptitude.
Amendment No. 230G, which is also tabled in my name, would take out the word "prescribed", while Amendment No. 230F would remove the reference to subsection (2) which would be removed by Amendment No. 321A. Amendment No. 230H would remove the pernicious subsection (1)(b) which, again, restricts the percentage of ability to 10 per cent. The provision is simply dumbing down.
I should like to think that we would have an opportunity to influence the thinking on this clause, but with the Leviathan of the majority in another place and the simple baying of the Back-Benchers on the Labour Benches, which was supported heartily and warmly by those on the Liberal Benches, I suspect that these schools are doomed: selection is doomed, grammar schools are doomed, autonomy for grant-maintained schools is doomed, assisted places are already doomed and Oxford and Cambridge are also doomed over time. I hope that the Ministers feel proud of their achievements. I beg to move.
1.15 a.m.
Lord Tope: The noble Baroness, Lady Blatch, began, as indeed did the Minister, by saying they were unable

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to sparkle at this time of night. I thought they sparkled remarkably. Indeed the noble Baroness, Lady Blatch, told me that I would feel encouraged by what she had to say. I felt enormously encouraged by much of what she had to say. If she is right, I cannot understand why the Government go to such extraordinary lengths to keep quiet about this. Nor have I heard the baying which she mentioned, but perhaps my hearing is selective.
The noble Lord, Lord Whitty, in our previous discussions on this Bill, has confessed, or has come close to confessing, to us that he is really Old Labour. I have long had a sneaky feeling that on this issue at least the Minister's head rules her heart. I hope that all the encouragement I have just received from the noble Baroness, Lady Blatch, is not to be dashed by the reply we are about to hear.
Lord Whitty: I am not sure how to reply to the noble Baroness, who ranged widely in her comments. I was not entirely sure which clauses she addressed. I shall have to consider how I respond to the noble Lord, Lord Tope. I had thought that the noble Baroness was speaking to Amendments Nos. 230D and E on banding. I do not recall that banding was referred to. However, I am prepared to accept that she has subsumed that in her general castigation of the policy and has addressed Amendment No. 230F and the related amendments.
I shall address briefly the issue of banding. The noble Baroness's amendment on banding uses the term in an entirely different sense to our understanding of it. We consider that it is not destructive of the comprehensive principle in that it aims to ensure that schools do not contain a disproportionate number of children from any one ability band. That was the approach taken by certain Old Labour authorities. We consider that, when used flexibly, it could enhance our new system. The form of banding that the noble Baroness proposes would allow a "creaming off" and therefore reintroduce selection by a different method. We cannot accept that form of banding.
As regards aptitude and ability, the transition from Old Labour to New Labour has been painful for many but also enlightening for many. We do not believe that education should be based on selection from above, selection by schools of parents and of children. But we do believe nowadays—even if we perhaps did not believe this clearly before—in diversity among schools and choice for parents within an essentially comprehensive framework. We recognise that some schools will specialise. We have provided partial selection to enable testing for aptitude for a certain proportion of children in particular subjects in which certain schools specialise.
However, that specialisation and that selection are subject to certain important conditions. The three most important are that selection by aptitude should apply to no more than 10 per cent; selection should be only for prescribed subjects—which the noble Baroness seeks to delete—and aptitude must not be used to cover what is really old Toryism; that is, selection by ability. The amendments before us in this group remove two of those
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vital safeguards. Amendment No. 230H removes the 10 per cent. ceiling, while Amendment No. 230G would remove the prescription of the subjects involved.
We would wish to confine our selection by aptitude in the sense of these clauses to the four subjects the Government have already identified; namely, music, technology, foreign languages and sport. These amendments would allow a school to name anything else as an area where aptitude could be tested and therefore reintroduce testing by what pretty much amounts to general ability. This would cut across our general approach in favour of comprehensive education and equality of opportunity for all children, and as far as possible equality of choice for all parents within a diverse but nevertheless essentially comprehensive school system.
The noble Baroness also referred to Amendment No. 231A. That amendment would remove the safeguard against extending aptitude into broad ability testing and selection on that basis. It would therefore allow aptitude to become a cover for selection by ability.
I hope that the noble Baroness's broad brush approach and my response have allowed us to deal with a fair number of the remaining amendments. There is obviously a clash of approach between us. The noble Baroness accuses us of destroying all that is good in education. I respond that we are providing the basis of an education system that will benefit all our children and not merely an élite which probably does not even amount to the 20 per cent. referred to earlier by noble Lords opposite. We believe that is the forward programme for education in this country.
Although we have enormous differences and I am sure the noble Baroness will wish to return to this matter on Report, at least for tonight perhaps we may move on to the few remaining groups, and then go home and return to these matters on Wednesday.
Baroness Blatch: Noble Lords opposite can be sure that I shall return to this matter. To help the noble Lord move on, I have subsumed Amendments Nos. 230D, 230E, 230F to 230H, and 231A. Those are the last of my amendments for tonight.
If this Bill is meant to represent a raising of standards in education in this country, I simply say, and make no apology for it, "God help us!"—because this Bill certainly does not do that. It destroys all that is good in British education. It really is the most destructive Bill I have ever come across.
To the noble Lord, Lord Tope, I simply say: do not be surprised about what I have said. The way in which this legislation is presented is destructive, but it has been "Blairited". It suits the Blair image to lull people into a false sense of security. It is his approach to middle England. What middle England does not know is what is behind the clauses in this Bill. That is not surprising: it is an incredibly difficult Bill to read. If, as the noble Lord says, believing in the pursuit of excellence and in appropriate education for children, including meeting the needs of the most able children in our land and providing for the least able, is "old Tory", if that is his criticism, I am very proud indeed to live and die as an "old Tory".

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I am glad to hear one phrase at least that the noble Lord used tonight, because it is true. It is the first time that it has been said in relation to this Bill in this place or another place—namely, that its content essentially amounts to comprehensive education. That is in fact what subsection (1)(b) on page 73 adds up to:
"no level of ability is substantially over-represented or substantially under-represented".
In other words, it is an absolutely pure comprehensive system. At least I am glad to witness the honesty of the description.
There is one other point that I must raise, however late the hour; namely, the hypocrisy of this Government. It is all right for Harriet Harman to choose a selective grammar school; it is all right for Tony Blair to choose the best school that he finds in London and to reject the schools in his own area; and it is all right for other members of the Cabinet. But is it not all right for the other citizens of this land. Why is it that they are to be denied the school of their choice? Miss Harman's child goes a very long distance to be educated at a grammar school. That is another policy in the Bill which we shall discuss on Wednesday. This is again sleight of hand. It does not suit the Government's image to say that grammar schools will be abolished, so they set up a rigged balloting system to make sure that, over time, that is exactly what will happen.
I find this one of the most depressing moments that I have had in this Chamber. When the Parliament of which I am a Member puts a seal on the Bill, I shall have been party to the demise of all that is good in British education. I am deeply ashamed of that. The only thing that allows me to go home with a clear conscience is the fact that I shall do my bit, as long as the Bill survives, to fight the Government in their prejudiced policies. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 230E not moved.]
On Question, Whether Clause 96 shall stand part of the Bill?
Lord Lucas: I have given notice of my intention to oppose this Question. I am puzzled as to what the noble Lord thinks the clause achieves for parents. In what way does this form of selection benefit parents or their children? How is the wording that appears in the clause designed to achieve that benefit? It seems such an inexact form of words. There is no absolute definition of what the bands should be. The bands are not in relation to anything definable but just in relation to the ever-changing sea of who the applicants may be in a particular year. One may find substantial proportions of one band subsumed by brothers and sisters and therefore those who are found to be in this band will suddenly have to live much closer to their school, if it is one of the schools that has an as-the-crow-flies rule, whereas children who fall in another band will be able to come from three or four times the distance. The clause will produce a very unpredictable pattern for parents. They
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will not be able to say: "We are likely to be able to get our children into this school because we live 200 yards away from it". Maybe that band will be full that year.
What procedures will be used to test the children? Will there be a nationally recognised test on which the results will be scored, or will different schools run their banding in different ways? Will there be any restriction on which parents are allowed to apply to a particular school? Could one find that particular bands are made up of parents who live a long distance away from the school, whereas other bands are made up of parents who live much closer?
As far as I can read it, a very confusing and unsatisfactory position for parents will be produced if a school adopts this formula for banding. I do not see that it will do parents or their children any good. I can see that it might generally be thought to be of mild convenience for a school to know roughly what proportion of children of what kind of abilities it will have in any particular year. But most schools survive without having that kind of arrangement, and do so very well. I cannot see that the mild convenience for the school is in any way worth the inconvenience for the parents.
Baroness Blackstone: The noble Lord, Lord Lucas, asked what the clause was about. It provides that banding—that is, the use of testing to ensure a representative spread of ability—will be a permitted form of selection. We made clear in the technical consultation document that such arrangements would be acceptable.
Banding was used extensively by the former ILEA. That may not commend it to the noble Lord, Lord Lucas, or to the noble Baroness, Lady Blatch, but it was widely accepted by parents and useful to pupils at that time. It was used from the late 1960s until the authority's abolition in 1990 to try to secure an even distribution of ability across its secondary schools. The aim was to ensure that schools did not contain a disproportionate number of children from one ability band. To this end, children were tested, usually in reading, in their final year at primary school and placed into one of three broad ability bands according to their results. Schools then admitted a set number of pupils into each band, typically in the proportions 25–50–25, taking into account parental preference. A number of inner-London boroughs have retained banding to the present day. Indeed, Hammersmith and Fulham, having abolished banding after the break-up of the ILEA, recently reintroduced it.
I say to the noble Lord and to the noble Baroness, Lady Blatch, that we are committed to the comprehensive principle. We believe that banding is compatible with that principle. I listened carefully to the points made by the noble Lord, Lord Lucas, and fully accept that banding may not be appropriate in all areas. We are certainly in the business of prescribing how the admission arrangements of comprehensive schools should best be organised. That must be a matter for local determination. The new admissions framework, as we have said on a number of occasions already today, is about local partnership and local agreement.

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We believe that it is right that the Bill should recognise that banding arrangements are working well in some areas and that other admission authorities should be free to consider whether they want to introduce such arrangements, if they believe that they fit their circumstances. That is entirely consistent with the overall aim to put in place an admissions framework based upon consultation and co-operation between partners at local level.
At the same time, we recognise that it is important to ensure that the freedom to introduce banding is not misused. In the past we have seen individual schools using proposals to introduce banding as an alternative to partial selection in order to recruit a higher proportion of high ability pupils. The clause contains a number of safeguards to ensure that, in future, banding cannot be used in such a way. For example, it provides that no level of ability is substantially over or under represented; that any tests will only be used to determine the ability band into which a specific child falls—it will not be open to schools to give priority for admission to those pupils who achieve the highest test scores within a specific band; and that the introduction of banding shall require the publication of statutory proposals under the regulations to be made under Clause 27.
Ultimately, of course, schools which band will be caught by the provision in Clause 81, preventing schools which are not wholly selective by high ability or aptitude from keeping places empty. I may not have convinced the noble Lord, Lord Lucas, about the usefulness of the clause, but it allows a well-tested system used in certain authorities to be continued if they wish.
Baroness Blatch: Perhaps I may ask the noble Baroness one question. If testing by interview is not allowed, and testing by examination is not allowed, then what kind of test will be used to establish the different ability levels that will be a balance of representation in a school that operates a banding system?
Baroness Blackstone: I have already answered that question. The normal test that is used is one of reading ability.
Lord Lucas: I am grateful for that explanation. I do not find myself convinced by it, but am nonetheless grateful for it.
Clause 96 agreed to.
Clause 97 [Permitted selection: aptitude for particular subjects]:
[Amendments Nos. 230F to 230H not moved.]
Lord Lucas Lord Lucas moved Amendment No. 231:
Page 73, line 40, at end insert ("or such greater percentage as may be prescribed").
The noble Lord said: This amendment asks a number of simple questions of the Government. First, why is 10 per cent. the right figure? Secondly, if the Government, as I suspect, plucked this figure out of history and the air would it not be a good idea if the
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Government gave themselves the power to adjust that figure, in the light of experience, without having to come back for primary legislation? I beg to move.
Lord Whitty: All I shall say at this time of night is that there is no point in our legislating for a reserve power which the Secretary of State has no intention of using. We consider that 10 per cent. strikes the right balance between promoting specialism in a school and safeguarding the interests of local children. We do not therefore believe the noble Lord's amendment to be necessary.
Lord Lucas: I will hold the noble Lord to those words. Nothing in the Bill shall include a power which the Secretary of State has no present intention of using. I shall look through the Bill carefully and hope to bring the noble Lord's words to his attention on several occasions on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 231A not moved.]
Baroness Blackstone Baroness Blackstone moved Amendment No. 231B:
Page 74, line 4, leave out subsection (4).
The noble Baroness said: I must apologise that due to an oversight this group of technical amendments has been tabled at a late stage. I hope they will provide helpful reassurance to those parents and others who have questioned whether the adjudicator will have the power to end existing partial selection by ability where an objection is made to him.
Although it has always been the case that the continuation of existing partial selection is covered by the provisions in Clauses 84 and 85 because admission arrangements providing for partial selection will be subject to annual consultation, Clause 98 presently refers only to the introduction, variation or abandonment of partial selection, and this may have given rise to doubts. We made it clear in the White Paper that the adjudicator, guided by the code of practice, would need to be empowered to end existing partial selection. These amendments dispel any doubts about his ability to do so. I beg to move.
Baroness Blatch: I have a very brief comment. On the basis of what the noble Baroness said, I feel entirely vindicated. It is the adjudicator who will eventually get rid of selection. He has the power. It is now made explicit. I rest my case.
On Question, amendment agreed to.
Clause 97, as amended, agreed to.
Clause 98 [Permitted selection: variation or abandonment etc. of arrangements]:
Baroness Blackstone Baroness Blackstone moved Amendments Nos. 231C and 231D:
Page 74, line 14, at beginning insert—
("(A1) In connection with the determination of a maintained school's admission arrangements for a particular school year, sections 84 and 85 shall, except to the specified extent, apply in relation to the making or abandonment by those arrangements of

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provision for any permitted form of selection by ability or aptitude as they apply in relation to the making or abandonment by those arrangements of provision for other matters.
(B1) In subsection (A 1) "the specified extent" means the extent to which those admission arrangements would effect an alteration in the provision made by the school's admission arrangements as respects any such form of selection (whether by introducing, varying or abandoning any such form of selection) which constitutes a prescribed alteration for the purposes of section 27.").
Page 74, line 18, leave out subsections (2) and (3).
On Question, amendments agreed to.
Clause 98, as amended, agreed to.
Lord McIntosh of Haringey: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Police (Northern Ireland) Bill
Reported from the Grand Committee without amendment.
House adjourned at twenty-two minutes before two o'clock.