School Standards and Framework Bill

HL Deb 08 June 1998 vol 590 cc778-866

House again in Committee.

Clause 66 [Duty to secure due provision of religious education]:

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 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 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 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 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 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—

1. (a) in accordance with any provisions of the trust deed relating to the school, or
2. (b) where—

1. (i) provision for that purpose is not made by such a deed, and
2. (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 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 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 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.

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 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 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 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—

1. (a) enjoyed or incurred by the governing body in connection with the use of the land, and
2. (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—

1. (a) enjoyed or incurred by any such trustees in connection with the use of the land, and
2. (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—

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

1. (a) prepared a statement in writing—
1. (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
2. (ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and
2. (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—

1. (a) prepared a statement in writing—
1. (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
2. (ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and
2. (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 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 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—

1. (a) prepared a statement in writing—
1. (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
2. (ii) indicating that the expenditure was being treated by them as expenditure of a capital nature; and
789
2. (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—

1. ("(i) the local education authority, or
2. (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—

1. (a) to execute any such instrument under the Land Registration Acts 1925 to 1986,
2. (b) to deliver any such certificate under those Acts, and
3. (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 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 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—

1. (a) paragraph 4 or 7 of Schedule 21 or any corresponding provision of regulations under paragraph 10 of Schedule 2,
2. (b) paragraph 4(2), 5(4), 6(2)(b), 7(2) or 8(2)(b) of Schedule 22, or
3. (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—

1. (a) it is stamped with the duty to which it would be liable but for that subsection, or
791
2. (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 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 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 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 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 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 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 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.

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 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 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 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 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 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 moved Amendment No. 209A:

Page 59, line 17, after ("(1)") insert—

1. ("(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;
2. (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 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 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 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 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

1. (a) to express a preference as to the school and
2. (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 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 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.

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 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 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 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 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 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 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.

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 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 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 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 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.

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?

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 moved Amendment No. 212A:

Page 63, line 38, leave out subsection (8) and insert—

("(8) Regulations may make provision—

1. (a) specifying matters to which any consultation required by subsection (2) is, or is not, to relate;
2. (b) as to the manner in which, and the time by which, any such consultation is to be carried out;
3. (c) as to the manner in which, and the time by which, any notification required by this section is to be given;
4. (d) specifying matters which are, or are not, to constitute major changes in circumstances for the purposes of subsection (5)(b);
5. (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;
6. (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);
7. (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 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 moved Amendment No. 213A:

Page 64, line 15, at end insert—

("(1A) Where

1. (a) admission arrangements have been determined by an admission authority under section 84(4), but
2. (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.

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 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 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 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 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)—

1. (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

1. (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 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 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.

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 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 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. 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 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 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 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 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 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 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.

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 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 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 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 moved Amendments Nos. 217 to 219:

Page 195, line 41, at end insert—

("(6A) If—

1. (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
2. (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—

1. (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
2. (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: 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 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—

1. (a) such of the arrangements made by the authority in pursuance of subsection (1) as the authority may determine; and
2. (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.

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 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—

1. (a) dies, or
2. (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—

1. (a) dies, or
2. (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 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—

1. (a) paragraph 1 as it applies by virtue of paragraph 3A, or
2. (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 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 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—

1. (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
2. (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 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 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 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 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 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 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 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 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, 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 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 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 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.

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 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 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 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 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 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".

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 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.

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 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 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 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 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 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.