Lords Sitting of 19 June 2002

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

Convention on the Future of Europe
Lord Wallace of Saltaireasked Her Majesty's Government:
When, and how, they intend to report to the House on developments in the Convention on the Future of Europe which is now preparing for the intergovernmental conference proposed for 2003–04.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, the Government will inform Parliament whenever there are significant developments to report on the Future of Europe Convention. My right honourable friend the Minister for Europe appeared before your Lordships' European Union Select Committee on 30th April and answered questions about the convention. He has undertaken to report further to the committee on 9th July after the Seville European Council meeting.
The Government also welcome the recent agreement to establish a Standing Committee where the parliamentary representatives to the convention will report developments back to Parliament.
Lord Wallace of Saltaire: My Lords, I thank the Minister for her confirmation of the development of a Standing Committee. Does the noble Baroness recognise that the Laeken declaration committed us to making sure that this time there is a process, of which the convention is intended to be a part, which will contribute to,
"more democracy and transparency in the European Union … in order for the debate to be broadly based and involve all citizens"?
Does she further recognise that the Government have made a great point in the preparation for the convention of involving national Parliaments more fully in the process? Does she accept that in recent months Ministers have made more speeches on this subject in other countries than in Britain? That seems rather odd. Furthermore, ideas have been floated within the Government, as I understand it, in papers circulated within the convention which have not yet been reported to this Parliament. Would it be better not to wait until significant developments have taken place but to involve the British Parliament and, through us, a wider public, as this process proceeds?
Baroness Symons of Vernham Dean: My Lords, I am hound to say to the noble Lord, Lord Wallace of Saltaire, that that is exactly what is happening. We do not necessarily fulfil the mandate of inclusivity and
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democracy by more ministerial speeches, but by giving Parliament the opportunity to be included in the process. That is exactly what the arrangements for the Standing Committee will allow.
Next Monday, your Lordships will have the opportunity, as I understand it, to vote on whether or not your Lordships are content with those arrangements. But it will be possible for all Members of your Lordships' House to participate in the Standing Committee. Those with varied views in the House will have the opportunity not only to hear the parliamentary report back but to contribute to the debate. That is in addition to involving a wider public through the civic forum contacts and other means.
Lord Howell of Guildford: My Lords., the 30th April meeting of the European Union Committee was with the delegates to the convention and not with the Minister, Mr Hain. Surely, the broader question is that huge issues are being shaped at this convention, including the idea of a basic treaty to underpin the existing Rome treaties; the idea of a president of the Council; the incorporation of a new system of human rights legislation to rival the existing one: and other major issues which affect the future of our democracy. Should not your Lordships with their vast experience in European affairs have a constant and interactive input and not just an occasional commentary once every two months?
There should be adequate opportunity for full involvement in the unfolding work of this commission. The European Union Committee does excellent work, but its occasional hearings and reports do not provide us with enough frequency in the matter. The Minister must address that point seriously.
Baroness Symons of Vernham Dean: My Lords, there were two meetings, one on 16th April and one on 30th April. I am sorry if I transposed the interlocutors. I hope that the measures put before Parliament will afford a real opportunity for what the noble Lord, Lord Howell, described as constant interactivity.
I have made clear to the House that we are willing to consider other means of having further discussions and to draw upon what is, I freely acknowledge, the considerable wisdom that this House can bring to bear on these issues. A number of working groups have been set up with British participants. Your Lordships will be interested to know that, for example, my noble friend Lady Scotland will participate in a working group on the Charter of Fundamental Rights; the noble Lord, Lord Maclennan, on one dealing with the EU legal personality; and my noble friend Lord Tomlinson on one relating to complementary competencies. Many opportunities are available for noble Lords to bring to bear their considerable wisdom on this issue.
Lord Judd: My Lords, following the question of the noble Lord, Lord Howell, with its reference to human rights, does my noble friend agree that implications will emerge from this convention for other European institutions, such as the Council of Europe? Will the Government take an early opportunity to give some guidance on how they see the future interrelationship between any changes in the European Union, its structure and its proceedings, with the continuing role of the Council of Europe?
Baroness Symons of Vernham Dean: My Lords, that is an important point. I take delivery of it from my noble friend Lord Judd. I shall certainly draw it to the attention of my right honourable friend the Minister for Europe and to my noble friend Lady Scotland in her important role on these issues.
Lord Pearson of Rannoch: My Lords, can the Minister enlighten the House as to what the Government see as the point of the European Union? If she cannot do so in the time available, can she say whether this convention is likely to recommend any repatriation of powers to the nation states? And if not, why not?
Baroness Symons of Vernham Dean: My Lords, one of the points is the considerable pleasure it gives your Lordships to hear the views of the noble Lord on these issues. He quite rightly never fails to avail himself of the opportunity. I remind him that he now has a further opportunity to enlighten Members of another place on these issues. I hope that the noble Lord will be able to take those future opportunities. He will have noted, as other noble Lords will have noted, that one of the issues to be considered by the convention is what powers may be repatriated to home Parliaments. I am sure that the noble Lord will have his usual robust views on that subject.
Earl Russell: My Lords, does the Minister agree that we regularly hear from the noble Lord, Lord Pearson of Rannoch, and others both the demand that the European Union be made more democratically accountable and the demand that it be less federal? Does she further agree that those demands are mutually exclusive? Will she endeavour to discover which of them they really mean?
Baroness Symons of Vernham Dean: My Lords, that is indeed an interesting point. I am not entirely sure that those demands are necessarily mutually exclusive. It is possible to be more democratic and less federal but, if I may say so, that is a much wider question than the Question on the Order Paper and would take us a considerable time to debate.

Road Works: Disruption
2.43 p.m.
Lord Geddesasked Her Majesty's Government:
Whether, within the framework of fines and lane rental schemes, local authorities and highways authorities should be required to pay costs in proportion to the disruption caused to road users by their actions.
Lord McIntosh of Haringey: My Lords, we have appointed consultants, Halcrow, to monitor the effect of both the lane rental and charging for overrunning schemes on the level of disruption caused to road users by works on the highway and to assess the extent and cost of that disruption. That information will help to inform decisions on the future of the two schemes and at what level any charges for overrunning and lane rental should be set in future.
Lord Geddes: My Lords, I am encouraged by the presence of such quantity and quality on the Benches of the Lords Spiritual. Is not the Minister's reply deficient on the point of the Question, which is that local authorities and highways authorities should bear their share of the cost? Does the Minister agree with the statistic that more than 50 per cent of holes in the road, to quote my noble friend Lord Peyton, are caused by such local and highways authorities? Should they not pay their whack, to put it in the vulgar?
Lord McIntosh of Haringey: My Lords, local authorities and highways authorities should certainly exercise the same restraint and co-ordination as that required of public utilities to minimise the disruption of road works. But of course, if we start to fine local authorities and highways authorities, the money comes into one pocket and out of the other, so to speak. I am not sure that that is a worthwhile activity. However, last July we introduced a statutory code of practice for highways authorities on maintenance management and we are conscious of the need for them to exercise restraint.
Lord Peyton of Yeovil: My Lords, my noble friend is to be congratulated on having elicited from the Minister a better Answer than we have received for a long time on this subject. Will the Minister deploy his considerable intellect and eloquence to persuade the highways authorities—in which I include the Mayor of London and his team—that roads are for movement and that the duty of highways authorities and the rest of them is to facilitate movement, not to interrupt it or to make it impossible?
Lord McIntosh of Haringey: My Lords, I fear this Greek in particular when he comes bearing compliments of that kind. Yes, of course roads are for movement, but roads are also the conduits for water, gas, electricity and telecommunications. Whether or not they are dug up—but especially when they are—they have to be mended from time to time to be made

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passable for everything from horse-drawn vehicles to motor cars. I am afraid that that means that there will continue to be disruption of the highways.
Baroness Hamwee: My Lords—
Lord Pearson of Rannoch: My Lords—
Baroness Hamwee: My Lords, I am sure that there is time for both of us. Does the Minister agree that local authorities would be among the first to welcome any scheme that will reduce the disruption caused to the travelling public—I include those who travel by public transport as well as drivers? Do the Government have any proposals to extend the trials currently under way beyond their present areas? I am sure that the whole community, especially the business community, would welcome that.
Lord McIntosh of Haringey: My Lords, the problem is that the New Roads and Street Works Act 1991 was not sufficiently specific. It did not provide incentives for co-ordination; it did not provide incentives for people to talk to each other when they plan to dig up the roads; it did not even provide disincentives for their not knowing where their cables, pipes and so on lay beneath the roads. So we have had to introduce additional regulations to try to make it work. In addition to trying to encourage co-ordination, we plan penalties for lack of co-ordination, and that is what over-running charges and lane rental are. I hope that every Member of the House will support that, because that is the only way that it will be made to work.
As for extensions beyond Camden and Middlesbrough, which are the two pilot areas, I agree that that is desirable. Seven local authorities expressed an interest in taking part in the pilot but, for various reasons, the other five were ineligible. But I am sure that the offer is still open.
Viscount Astor: My Lords, does the Minister agree that the person responsible for increasing congestion during the past few weeks is the Mayor of London? He has so far changed the setting on 338 sets of traffic lights. Will the Minister condemn the proposal to extend that to another 51 sets of traffic lights, which will make traffic flow in London worse? Do the Government believe that the mayor's congestion charging plan for London will increase traffic flow or make it worse throughout Greater London?
Lord McIntosh of Haringey: My Lords, I prefer to confine my answers to the Question on the Order Paper.
Lord Pearson of Rannoch: My Lords, who was the Martian who took the decision a week ago to cordon off 300 acres of London because of a burst water main in front of the Rubens Hotel in Buckingham Palace Road and insisted that no work should be done on it over the weekend? The whole area—indeed, the whole
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of London—is entirely fouled up because of this incident. Have the Government any idea of the cost to the national economy of that Martian's decision?
Lord McIntosh of Haringey: My Lords, I do not know any Martians so I am a little handicapped. I am sure that the noble Lord, Lord Pearson, has a valid complaint. I shall make inquiries and write to him about it if it is the responsibility of the Government.
Lord Brougham and Vaux: My Lords, can the Minister tell the House how much these consultants will cost the taxpayer?
Lord McIntosh of Haringey: No, my Lords. It is a very significant piece of work. It will extend over a period until March 2004. It covers both over-running and lane rental experiments and involves a substantial exercise in estimating and assessing the extent of the cost of disruption. As the noble Lord, Lord Brougham and Vaux, will know, that is not an easy question to resolve. I do not know the figure. I shall write to him about it.

Bermuda
2.51 p.m.
Baroness Hooperasked Her Majesty's Government:
Whether it is their intention to convene a constitutional conference in order to consider the proposed reforms to Bermuda's electoral system.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, there are no plans at the moment for a constitutional conference. As I stated in my written reply of 24th July last year to the noble Lord, Lord Waddington, we do not propose to reach a judgment on the case for a further process until we have received the report of the Constituency Boundaries Commission, which is due in a few weeks.
Baroness Hooper: My Lords, I welcome the Minister's response that some action may be expected in the near future as a result of the report. In view of the United Kingdom Government's role as the guardian of the democratic rights of the people of Bermuda, can she give a further assurance that Bermuda will be treated in the same way as other Overseas Territories, notably Gibraltar, and other Commonwealth countries, notably New Zealand and the Bahamas, where constitutional changes were adopted only after referendums or other similar mechanisms were used?
Baroness Amos: My Lords, I hope I made clear in my original Answer that a constitutional conference has not been ruled out. But neither has it been ruled in. We have said in relation to this process that after the boundaries commission has reported, and after there has been an opportunity to discuss that report in Bermuda, that information will be fed into the British

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Government. We will look at it; we will look at the reactions to the report; and we will make a decision at that time. It would be inappropriate for me to make any commitment before we have been through that process.
Lord Waddington: My Lords, the Minister will appreciate that, for obvious reasons and because of the job I had there, I have no wish to comment on the proposals for constitutional change put forward by the Bermuda Government. But does not a point of general importance emerge? Is it not correct that there was a constitutional conference in 1966 when constitutional change was in the wind, and another constitutional conference in 1979 when constitutional change was in the wind? It would have cost the Foreign Office nothing if it had allowed a constitutional conference right at the beginning of this exercise. Had there been a constitutional conference, would it not have gone some way towards disarming criticisms from people who fear that if there is no constitutional conference this time round a precedent will be set which might be relied on in years to come when very much more important constitutional change is in the wind?
Baroness Amos: My Lords, the noble Lord, Lord Waddington, is right—there were constitutional conferences in 1966 and 1979. There has been a process of consultation. Four consultation meetings have been held across the island and a wide cross-section of the community participated in those meetings. We have not ruled in or ruled out the possibility of a constitutional conference but, on the basis of the commitment to constitutional change made by the Government of Bermuda in their 1998 election manifesto, we thought that this was the most appropriate way to go. We will look at local reactions; we will look at the outcome of the boundaries commission report; and we will then make a decision on the next steps.
Baroness Sharples: My Lords, is the Minister aware that I have recently returned from a few weeks in Bermuda having not been there for many years? Is she further aware that a great deal of concern has been expressed by many people to whom I spoke about the situation that faces them?
Baroness Amos: My Lords, I was not aware that the noble Baroness was recently in Bermuda. I am aware that concerns have been expressed. In fact a decision to put this matter to Order in Council was challenged by judicial review and overturned. As I said to the noble Lord, Lord Waddington, there have been opportunities for consultation. We will look at the responses to that consultation process, the debate in the national assembly and the recommendations of the boundaries commission. I repeat, no decision has been
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made. A constitutional conference has been neither ruled in nor out. Our minds remain open on this matter.
Lord Shutt of Greetland: My Lords, bearing in mind that the largest constituency in Bermuda is underrepresented by 33 per cent and that the smallest is overrepresented by 42 per cent, does the boundaries commission have the power to look at other kinds of electoral systems, including a proportional multimember system, where the number of members is less likely to get out of kilter than under the present first-past-the-post, double-member system?
Baroness Amos: My Lords, why am I not surprised at the tone of the noble Lord's question? There are currently 20 two-member constituencies in Bermuda. The boundaries commission is looking at a variety of systems which would deliver no more than a maximum of 40 members for the assembly. I have no idea at this point what its recommendations will be, but as soon as we receive the report and are able to make it public, I shall of course send it to the noble Lord.
Lord Howell of Guildford: My Lords, is it not a wise general principle when dealing with constitutional change to stick rigidly to the established procedures and to ensure all-party support? Does not that principle apply as much here as in Bermuda?
Baroness Amos: My Lords, perhaps I have not made myself clear in the answers that I have given. There have been a number of instances of constitutional changes in our Overseas Territories—albeit some not as fundamental as this—where there has not been a constitutional conference or a referendum. It is important that there is a degree of agreement about the next steps. That is why we decided to consult, to have the boundaries commission look at the situation, to see what is the reaction of Bermudians to the proposals, and then to make a decision. As I have said a number of times, we have not ruled one process in or out. Our minds remain open on this matter.

Crime Statistics
2.59 p.m.
Viscount Astorasked Her Majesty's Government:
How they respond to the latest indications that crime is rising and detection rates are falling.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, national statistics on levels of crime will be published on 12th July. They will include the British Crime Survey and recorded crime statistics. Crime has fallen by 21 per cent since 1997 according to the 2001 British Crime Survey, which reflects victims' direct experience of crime. The Government's response to crime includes having the highest number ever of police officers in England and Wales and halving the time it takes to deal with persistent young

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offenders from arrest to sentence. More needs to be done to increase yet further the number of police officers and to reform the criminal justice system.
Viscount Astor: My Lords, I thank the noble and learned Lord for being able to answer my Question. What is his response to the statement by Sir John Stevens, the Metropolitan Police Commissioner, calling for all the crime-fighting agencies to work together—and his implied criticism that in some cases not all the agencies are co-operating as they should be? What are the Government's plans to improve the situation?
Lord Falconer of Thoroton: My Lords, it is extremely important that all of those organisations do work together. Equally, it is extremely important that the independence of the judiciary and the prosecutors should be preserved. Arrangements have been in place since 1997 to ensure that both at national and at local level there are good co-ordinating arrangements between the relevant agencies. Those arrangements have brought about co-ordination where it did not previously exist.
Lord Dholakia: My Lords, whichever way he permutes the crime figures, does the noble and learned Lord accept that recent research indicates that in a number of police authorities crime is on the increase? Will he further accept that, now, fear of crime is much greater than crime itself? How does he expect the Prime Minister to fulfil his promise that street crime will be reduced by September?
Lord Falconer of Thoroton: Yes, my Lords, early returns from certain police forces indicate that in some areas crime may be going up. We shall have to wait until 12th July to see whether it affects the overall figures. Fear of crime is an important issue, which we need to address by having an effective police force and an effective criminal justice system. So far as concerns the Prime Minister's street crime initiative, what has happened—picking up on the point made by the noble Viscount, Lord Astor—is that the agencies have all been working together with the priority of bearing down on street crime.
Lord Corbett of Castle Vale: My Lords, can my noble and learned friend explain why the 43 separate police forces in England find it either impossible or inconvenient to collect crime statistics on the same basis? In other words, 10 crimes in one force area turn out to be either 15 or five in two others. Does my noble and learned friend also accept that there is no correlation between the number of police officers and detection rates?
Lord Falconer of Thoroton: My Lords, in response to the last point, detection rates do vary, and it does not necessarily depend on the number of police officers. As to the first question, of course it would be much more
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convenient if all police forces recorded crimes on exactly the same basis. I hope that that is the direction in which we are travelling.
Baroness Gardner of Parkes: My Lords, is juvenile crime recorded separately? I regularly read of people being too young to be brought before the courts. Will that be reflected in the statistics; and is any thought being given to dealing with the problem?
Lord Falconer of Thoroton: Yes, my Lords, juvenile crime is recorded separately and that will be reflected in the statistics. Juvenile crime is a problem that affects many communities—particularly deprived communities—and many say that it is their number one concern. We have regarded it as a priority. As I said in my original Answer, we have halved the time that it takes from arrest to disposal of a case in relation to persistent young offenders. Delays in the criminal justice system are very undermining.
Lord Maclennan of Rogart: My Lords, will the noble and learned Lord take this opportunity to clarify the Government's intention as regards making evidence of prior convictions available to juries? The matter was left unclear when he talked to Mr Jeremy Paxman last night.
Lord Falconer of Thoroton: My Lords, when I spoke to Mr Jeremy Paxman, I indicated that a White Paper would be produced on 17th July in which a number of issues will be considered, including that raised by the noble Lord. It would be wrong for me to indicate—as I did not do yesterday—what the White Paper will say in relation to the issue.
Lord Campbell of Croy: My Lords, are the reports correct that much street crime involves the theft of mobile telephones? If so, are the Government in touch with the manufacturers so that they can make the necessary modifications to reduce those thefts?
Lord Falconer of Thoroton: My Lords, I am not sure what the statistics indicate, but there are strong indications that mobile phones are one of the major targets in street crime. Yes, much can be done by the manufacturers making the value of the theft of a mobile phone very little indeed.
Lord Campbell-Savours: My Lords, is it not true that the legislation that will be dealt with by this House tomorrow will have a huge effect on the crime statistics?
Lord Falconer of Thoroton: My Lords, I am afraid that my noble friend has got me there; I do not know to which particular Bill he is referring.
Lord Campbell-Savours: My Lords, the Bill dealing with mobile telephones.
Lord Falconer of Thoroton: Yes, my Lords, it will.
Lord Waddington: My Lords, can the noble and learned Lord tell us why Jeremy Paxman is so polite to him and so rude to others? The information might come in quite useful.
Lord Falconer of Thoroton: My Lords, I am unable to answer that question.
Lord Renton: My Lords, do the Government have specific proposals for reducing juvenile crime?
Lord Falconer of Thoroton: My Lords, the increase in the number of police officers will reduce crime. In

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addition, we believe that the changes to the criminal justice system, speeding up the process in relation to persistent young offenders, will have an effect on juvenile crime.
Lord Avebury: My Lords, referring to the question asked by the noble Baroness, Lady Gardner of Parkes, do the National Crime Statistics record offences committed by under-age children who cannot be charged in the courts? If not, should not some separate means be found of collecting information about the crimes that are committed by very young people, which appear to be on the increase?
Lord Falconer of Thoroton: My Lords, I do not know the answer to that question. If the person committing an offence is below the age of criminal responsibility, I imagine that it is not recorded in crime statistics. I shall check on that and write to the noble Lord.

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

Business of the House: Debates, 20th June
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That leave be given tomorrow to the Baroness David to advance her Motion for an humble Address to before the Committee stage of the Industrial and Provident Societies Bill.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Education Bill
3.7 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Clause 23 [Federations of schools]:
Baroness Blatchmoved Amendment No. 46:
Page 14, line 25, after "government" insert "including members representing—

(i) parents at each school,

(ii) teachers at each school, and

(iii) such other categories as may be appropriate, given the religious or other character of each school within the federation"

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The noble Baroness said: My Lords, perhaps I may begin by putting a technical question to the Minister. If I ask it at the start of our debates, that will allow more time for an answer to be sought. Would a school that was a company under the companies proposals in the Bill, or a school that had formed part of a company, be allowed to join a federation of schools where the others in the federation were not part of that company or companies? Would the governing body of the federation become the new shareholder of the company; and would those governors who were the governors of the federation have to assume all the responsibilities of being company directors?
As has been stated in previous debates, schools may collaborate, co-ordinate, even confederate. It is agreed that there is much that they can do together. All the advantages mentioned by the Minister when arguing in support of these clauses can be achieved without formal federation under a single governing body.
The sovereignty of each school is affected by these proposals. There are bound to be occasions when a single governing body will take a decision which it deems to be in the interest of the group of schools that it represents, but it may not seem quite like that to an individual school in the group. Therefore, a confederate arrangement whereby schools retain their sovereignty through their own governing body, representing their own parents, staff and community, would allow for greater flexibility.
There is nothing to stop schools coming together in an alliance with one or more schools to achieve a more educationally effective or even a more economically effective service. They could designate governors and/or staff to form joint committees for particular projects. To use the European Union jargon, the pertinent phrase here is "variable geometry".
To have a single governing body for all purposes really is turning the clock back. We all remember the bad old days when one governing body represented large numbers of schools. We certainly do not wish to return to that situation. It is only a matter of months since the Government themselves argued that a school should have a governing body.
A school that over time became unhappy about the single governing body proposed in the Bill would have to go through a process to leave the federation. Under confederation there would be far more freedom and schools would retain autonomy where it mattered to them and—here is the great bonus—they would not need yet more regulations dealing with dissolution, continuity arrangements when a school joins or leaves the group, transitional arrangements, the transfer of property, rights and liabilities procedures and—the sting in the tail as always—any other matter considered appropriate by the Secretary of State.
Amendment No. 46 has been tabled in the event that we are unsuccessful in securing support for taking Clause 23 out of the Bill, or in the event of Amendment No. 49 not proving successful. If a school relinquishes its governing body in order to pool governance under a single governing body for a group of schools, it is important that parents and staff of the school should

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be represented. If a school has a distinct character, for example a faith school and/or a specialist school—I include here a special educational needs school—that dimension should also be represented on the federal governing body.
Once again we are attempting to secure the same aims and objectives as the Government. However, we believe that the proposals as set out in the Bill are more, not less, inhibiting. I believe that my amendments, and Amendment No. 49 in the name of the noble Baroness, Lady Sharp, offer greater flexibility and greater protection for schools and their interests. I beg to move.
The Lord Bishop of Blackburn: My Lords, I rise to speak to Amendment No. 47, which is included in the group of amendments that we are discussing and which deals with a rather specific point within the purport of this group of amendments.
I believe that some of my noble friends thought that I went rather over the top in Committee as regards my support for the federation of schools. I continue to be an enthusiastic supporter, as does the Board of Education of the Church of England, of which I am the chair. We see our role as one of encouraging schools to see the advantages of federation in terms of improving the quality of the educational experience of pupils and reducing the workload of teachers and governing bodies, not least in parts of the country where it is difficult on occasion to find and to attract suitably qualified people to act as governors.
But that said, we see the federation of schools as contributing substantially to the promotion of social inclusion—a matter which has occupied your Lordships' House on a number of occasions. It is possible that, within diverse communities, a Muslim school for example might be encouraged to join a federation with an Anglican school and two or three local community schools. That would be a good example of community coherence and I imagine that the Government would want to support wholeheartedly such developments. That is all the more reason why federations of schools should allow the ethos of each individual school to remain intact. As I understand it, that is part of the purpose of Amendment No. 46 of the noble Baroness, Lady Blatch. Religious and diocesan authorities will have that concern particularly in mind. I understand from my helpful meeting with the Minister since the Committee stage that the Government share that intention.
Since these matters were debated in Committee, I have had helpful discussions with the Minister and her officials which have helped to allay some of our concerns, but, I have to say, not all of them—hence the tabling of Amendment No. 47 this afternoon. Our concern continues that only voluntary-aided schools seem to have been considered and nothing has been said about voluntary-controlled schools whose individual religious characters are important to the Church of England and not least to our rural parishes where a large number of those controlled schools are
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to be found and are seen as playing a great part in those local communities to the satisfaction of both the Church and the local community.
Arrangements have been identified with regard to staffing individual schools that make provision for the appointment of a head but not for a proportion of the other staff where joint staff appointments are to be made. That is a matter of continuing concern to us. I refer to an appeal where there is disagreement over an instrument which, of course, is made to the Secretary of State, but there is no indication so far as we can discover of the principles on which the Secretary of State might decide such a case.
I refer to an exit strategy that leaves the final decision with the governing body of the federated schools without any process of appeal at all as far as we can see. Therefore, until those matters are resolved, it is necessary to press for an absolute veto for diocesan authorities and, in the case of Muslim, Jewish, Sikh or other religious schools that might be encouraged into federations, for those who appoint the foundation governors to have such a veto. The existence of such a veto in law is not something I would prefer but it might encourage more religious authorities and their schools to explore the possibility of federation—to which I am anxious to lend full support—with all the advantages that I have outlined. Therefore, I hope that the Minister will hear this continuing concern and will be able to help me a little further when she replies to the amendments.
3.15 p.m.
Baroness Sharp of Guildford: My Lords, when we discussed this issue in Committee I made it clear that we on these Benches had great reservations about the concept of federation. Subsection (3)(a) of Clause 23 states clearly,
"Where any schools are federated by virtue of this section, they shall—
(a) have a single governing body constituted under a single instrument of government".
As the noble Baroness, Lady Blatch, mentioned, in the 1960s and the early 1970s there were groups of schools under large single managing boards., as they were called in those days. Those were bad old days. It has been extraordinarily good for schools to develop their own individual governing boards and to use them as a means of linking into the community.
We have been somewhat reassured in our discussions with the Minister, partly because in those discussions it became clear that it is entirely up to each individual board to decide whether or not to go forward with the matter. We are aware that on occasion boards of school governors can be under the influence of heads and heads may want to adopt this measure rather more than others do. However, the decision would be taken by the governing board. Some infant and junior schools share the same school campus and it might be a good idea for them to have a single board. However, we were worried about groups of schools coming together, and being encouraged to come together, as clusters, but actually

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being forced under one governing board. It is for that reason that we put forward Amendment No. 49 which concerns confederation.
Provided that we reach agreement on the concept of confederations, we on these Benches are at the moment prepared to go along with the notion of federations. I am not on this occasion speaking strongly against federations.
Lord Peston: My Lords, I shared the fears of the noble Baroness, Lady Sharp, about federations, but in general my fears on that subject have been allayed, as I think that she said that hers have been. I should like to address my remarks to Amendment No. 47 in the name of the right reverend Prelate the Bishop of Blackburn. I shall not weary your Lordships with my views on religious schools. But given that we are going to have such schools—it is clear that my view is a minority view—it seems to me that the right reverend Prelate is entirely right in raising the matter that he raises. I have no idea what my noble friend the Minister will say, but I hope that she will respond positively to his request.
My only concern—I should be interested to hear what the right reverend Prelate says on this—is that I would have been slightly happier if his amendment had included, on the question of consent, an additional subsection saying that such consent should not be unreasonably withheld. Other than that, it seems to me that if we are to have such schools, exactly what the right reverend Prelate says is right. I would be most unhappy if the position remained that everyone involved with the school was in favour but, for example, the diocesan authority, on perhaps doctrinaire grounds—I hate to use that expression— simply said "No". Subject to "not unreasonably withheld", therefore, it seems to me that the right reverend Prelate is entirely right, and I hope that my noble friend the Minister can to some extent respond positively to his desires.
Lord Dearing: My Lords, having spoken on this clause on an earlier occasions. I understand the point made by the right reverend Prelate. He did not particularly emphasise the delicate position of those half of the Church of England schools that are voluntarily controlled, in which what I might call the foundation governors are a very small minority of the total. I understand why the right reverend Prelate has raised the point, but I am glad that he has raised it on behalf of all faiths. I agree with the point made by the noble Lord, Lord Peston.
I had anxieties at the earlier stage that the concept of federation left an only one governing body solution. I very much welcome the amendment tabled by the noble Baronesses, Lady Sharp and Lady Walmsley, on confederation. It seems to me to be a very sensible and fruitful way forward in many areas—for example, in solving the problem that may arise in sixth forms, or to maintain the individual schools, yet come together for
746
particular purposes. I should therefore be grateful if the Minister would anticipate the debate on Amendment No. 49.
Baroness Ashton of Upholland: My Lords, I hope that it will be convenient for me to address these amendments by first giving a brief explanation of how we see federated schools under a single governing body fitting into the wider picture—a point to which noble Lords have already partly alluded.
Our starting point is that federations should enable schools to work strategically together to promote greater collaboration for the purposes of improving standards. However, federation under a single governing body is not the only option. As noble Lords have said, there are already many ways in which schools can collaborate. Under the Bill, we propose to add to that range of options, but it will be for individual schools to decide how and in what form they want to collaborate. How schools decide to do that will greatly depend on what they wish to achieve, how closely they wish to work together, and the level of trust that the partner schools have in each other, particularly when they are considering federating under a single governing body.
At one end of the spectrum we have, for example, informal working and the development of joint curriculum initiatives that are already in place. Of course, such arrangements rely on professional staff coming together. Those arrangements work because people are committed to making them work. In Clause 29 of the Bill, we make provision for governing bodies to come together formally to take joint decisions, either through joint meetings of whole governing bodies or by setting up joint committees with delegated powers. That would allow governors to be involved in taking strategic decisions of mutual benefit to those schools and their pupils.
The amendment to consider confederation of schools, tabled by the noble Baroness, Lady Sharp, will be debated later today. I look forward to that debate. It seems to me that many schools may be inclined to consider the option of coming forward together in a formal way, while at the same time retaining their own individual governing bodies. I do not want to over-anticipate the debate. However, for the purposes of demonstrating the range of options, we want that spectrum of collaboration to provide a confederation option, with each school retaining its governing body, while ceding functions to an overarching strategic board. That is an option to which I am very attracted.
Clauses 23 and 24 allow for two or more schools formally to federate. For some schools, federation may be a step too far to contemplate, certainly initially. Some schools may want to put a toe in the water and first try a joint committee approach to see how working relationships develop. For those schools that want to slide gently in from the shallow side, a confederation arrangement may provide a useful halfway option on their way to deciding whether that is the route for them.

747
None of those arrangements needs to be written in tablets of stone for any school. A decision now to take one course does not pre-empt any school moving on at a later date, and no school will be forced to do anything that it does not want to do. Schools may want to move across the spectrum as relationships develop. The various options within this collaboration continuum will allow them to do that.
I know that the noble Baroness, Lady Blatch, argued strongly against the degrouping of schools when the School Standards and Framework Act was debated in 1998. Now that I have set the question of federation in a broader context, I hope that the noble Baroness may see the merit in making that option available to some schools.
I turn specifically to Amendment No. 46. The noble Baroness asked me whether a school forming a company would be allowed to join a federation. The answer is that it would. She also asked whether the governing body of the federation would be the company shareholder. The answer is that it would. Of course, those matters will be subject to all the discussion and debate that schools will have before taking that option.
I want to reiterate again that governing bodies of federations will be required broadly to comply with the stakeholder principles recommended by the Way Forward Group, which, under Clause 18 of the Bill, will be set out in regulations. We believe that it is vital to ensure that a fair balance of interests between the key stakeholders—parents, staff, local education authorities, community, foundation and partnership governors—is secured.
I turn to specific stakeholder groups. In relation to parent governors, we intend to regulate that at least one parent representative from each school within a federation will sit on the governing body of the federation. I understand how important it is that is that schools within a federation remain accountable to the parents of the pupils in each school.
With regard to staff, we do not think that it would be sensible to require each school within a federation to have staff representation on the governing body. One of the goals for federation is to allow strategic collaboration to enhance the joint working that already takes place. We are aware that in many cases schools are already sharing resources, such as staff and facilities. Largely because of that possibility of schools sharing staff, we believe that it should be left to the governing bodies of the schools involved to propose the appropriate staff representation from each school on the governing body of the federation.
With regard to the other stakeholder groups, I again reassure noble Lords that, whatever the combination of schools involved in the federation, each stakeholder group particular to the category of any one school proposing to federate will be represented on the governing body. That means that within a federation including voluntary or foundation schools there will always be a foundation or partnership governor.
748
I turn to Amendment No. 47. As the right reverend Prelate is aware, the effect of the amendment would be to give the diocesan authority and foundation interests the power of veto over whether certain kinds of school can decide to federate. I believe that my position is consistent, if not to the liking of the right reverend Prelate. The governing body of a school is in the best position to take a balanced decision on whether a federation is in the best interests of its school. However, in the hope of answering some of his queries, I should like to give the right reverend Prelate some detail of the work behind this, and I do so in the spirit of having said on Monday that my door is always open and that there is always room for further consideration.
As part of the decision-making process on whether or not to federate, the governing body will have to consult all interested parties, including parents, staff, community and local education authority interests. Importantly, of course, it will also include trustees, diocesan interests and foundation interests, each of which will be treated as separate entities in the consultation process. I can reassure your Lordships that I fully appreciate the importance of that consultation process. That is why we shall be setting out clear procedures for governing bodies to follow, to ensure that the consultation process is consistent, thorough and fair to each interested party.
Let me assure the House that we shall not remove any rights currently enjoyed by bodies in relation to agreeing the instrument of government. In respect of maintained schools that have foundation governors, the governing body and the education authority of a school are currently required to agree the instrument of government, as well as any alterations to it, with the foundations interests, including those who appoint foundation governors, trustees and, of course, the diocesan authority.
We shall regulate so that that requirement will also apply for the instrument of government to be developed for schools with foundation governors that are federated under a single governing body. If any of the parties I have mentioned, including the diocesan authority, disagree with the instrument of government, or any alterations to it, for a school within a federation involving foundation governors, the particular case will be referred to the Secretary of State. My right honourable friend, having taken representations from the relevant parties, will then arbitrate and come to a final decision. That is exactly the same process that currently successfully applies to any maintained school with foundation governors. It will ensure that the dioceses have the protection of arbitration by the Secretary of State if they disagree with the proposal to federate.
The Secretary of State would need to use her arbitration powers to consider the arguments put forward by the relevant parties on a case-by-case basis. In considering each dispute, she would take into account the differing views. She would weigh any concerns expressed, for example, about the number of governors and the balance of stakeholder interests against any relevant provisions in regulations and

749
associated guidance. Of course, we intend to consult widely on the content of the provisions before they come into effect.
Any of the stakeholder groups, including diocesan boards and trustee interests, will be able to petition a governing body to request that a school leaves the federation. I appreciate that the case may arise where parents and teachers at a school with a religious character feel that it is in the best interests of the school to have its own governing body again, whereas the diocesan board may take a different view. However, as with the proposals to join a federation, the decision to exit should also be taken by the governing body. The whole purpose of federations is to promote collaboration and partnership. It will not benefit pupils if schools are held unwillingly against the wishes of staff and parents.
I understand that many of the concerns highlighted by the right reverend Prelate are related to the fact that we cannot guarantee a foundation majority on the governing body of a mixed-category federation involving voluntary-aided schools and the consequent fear that the religious character of schools in such a federation will be diminished. I repeat my assurance that federation cannot be used in any way to alter the religious character and structural arrangements of a school.
I want to give a practical example of how we shall ensure that the governing body of a mixed-category federation achieves that. We appreciate that, in particular, the appointment of the head teacher may be vital in maintaining the character of a voluntary-aided school. Therefore, we have agreed that if the governing body of a mixed-category federation involving voluntary-aided schools wishes to appoint a common head teacher, the voluntary-aided foundation governor representatives who sit on the federation's governing body will have the right to veto the appointment of the head to their school if they believe that such an appointment would be detrimental to maintaining the religious character of the school.
We are also aware of the issue of reserved teachers in schools with a religious character. If any of those schools opted to share staff within a mixed-category federation with schools of other categories, we would make provision to ensure that, if they wished to appoint reserved teachers, they could continue to do so in accordance with Section 58(5) of the 1998 Act in exactly the same way as individual voluntary-controlled and foundation schools with a religious character are able to do now.
Perhaps I may briefly mention another safeguard which we shall put in place in relation to shared staffing. If schools decide to share staff ahead of federating, then we shall require that to be included in the federation proposals which each school's governing body develops and consults on and which, subsequent to this comprehensive consultation, it is required to accept or reject. If at a later date it is proposed by the federation governing body that schools should share staff after federation occurs, then we shall allow the foundation representatives of
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voluntary-aided schools to exercise a veto which would exclude their schools from such arrangements if they considered that the sharing of staff would be detrimental to preserving the religious character of their schools.
We shall, of course, discuss with the Churches how a similar arrangement could be written in to allow for the preservation of reserved teachers in a controlled or foundation school with a religious character. In any case, the governing body of a federation will be under a duty to preserve the religious ethos of any school with a religious character.
I hope that that bears testimony to our commitment to ensuring that federations do not diminish the religious ethos of individual schools which choose to become involved in such arrangements. As I hope the right reverend Prelate knows, I am available to him to discuss this matter.
I turn finally to Amendment No. 48. Effectively, this amendment means that schools would not be able to federate. We believe that that would undermine what we see as an important part of the scope for those who wish to collaborate. Federation would allow them to take strategic decisions to improve educational standards across the board by coming together under a single governing body. I believe that federations could yield real benefits and advantages.
I hope that, in speaking to these amendments, I have reassured noble Lords that we have put in place solid safeguards to ensure that each school within a federation retains its own character and structure and remains accountable as an individual school. I do not deny that federations will involve some compromises, particularly where mixed-category federations are involved. However, I firmly believe that the potential for the outcome of improved educational standards through strategic collaboration is a worthwhile objective that should be open to all maintained schools, regardless of their category.
Federation is voluntary. It is for the governing body of each school to decide whether it wishes to federate. No element of compulsion is involved. I ask that we trust schools to decide for themselves whether the improvements that could be gained through federation justify the compromises that may have to be made.
Perhaps I may sum up by placing federations in context. They offer schools one, but by no means the only, model for strategic collaboration. In the light of that, I believe that the option of federation should be open to schools. However, for schools that do not wish to give up their existing governing bodies, federation is not the answer. I hope that with the explanation and assurances that I have provided, the noble Baroness will feel able to withdraw the amendment.
3.30 p.m.
Baroness Blatch: My Lords, first, I am grateful to the noble Baroness for the very detailed reply that she has given both to me and to the right reverend Prelate. Before I respond to what she said, perhaps I may ask two questions because I believe that in the course of that very long answer I missed the relevant points.

751
First, did the noble Baroness say that the parents, but not necessarily the staff, of every single school will be represented on the federal governing body; that is, that each school will not necessarily have a staff representative? Secondly, does the federal governing body become the employer of all staff, including those of a faith school?
Baroness Ashton of Upholland: My Lords, the answer to the first question is, as the noble Baroness said, that there will be a parent representative from each school. With regard to staff, we know that some schools already share staffing. Therefore, it will be for them to decide how they organise their staff representation, and there will not be a requirement for a representative to be available from each school.
The employment of staff would take place as if the governing bodies had come together, and responsibility for employment would rest with the LEA or the school, as appropriate. Therefore, the one governing body would act on behalf of what had been the individual governing bodies. That would be the position.
Baroness Blatch: My Lords, I shall have to read the answer to that question in Hansard. My understanding is that the employer of staff at a faith school is the governing body and not the local education authority. Where the local education authority is the employer of all the other schools, I can see that continuing; it would not change as a result of federation. However, the single-faith school within that organisation would have different employers. Therefore, the sharing of staff, to which the noble Baroness has just referred, would have some legal and constitutional interests that have not been properly addressed.
Ultimately, what makes for good education is the quality of the teacher in the classroom teaching the children. That is what affects the teaching and the learning. They will not be affected by endless committees and collaborations, with people coming together on joint committees. Ultimately, what matters is that, if it does not add value to the quality of the teaching and learning in the classroom, then it will be to no avail.
In previous debates, I have referred to the fact that I have first-hand experience of federations. We federated quite a long time ago, particularly in rural areas where the schools were very small. We believed that the pain of closing schools could be alleviated by bringing them together in a federation, and, indeed, staff-sharing took place. But we were defeated by our own good idea. We were defeated because, in the end, the logistics of sharing staff and of either moving children to meet staff or staff to meet children became so debilitating and time-consuming and so interfered with the curriculum that the arrangement was counterproductive. In the end, sadly, that federal idea was changed.
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Some of the noble Baroness's answers were very well intentioned. I understood, in particular, her response to some of the points raised by the right reverend Prelate concerning what would occur if this happened and what would occur if the other happened. The noble Baroness's constant response was, "We shall make sure in regulations that they will not be able to do this or that". Therefore, we are already creating a federation which will come together to act jointly in several respects. Then, suddenly, caveats are made stating that they are free to do this but that they cannot do that, and that they are free to do something else but they cannot do the other. I can see that a very complicated set of guidelines and guidance will be issued to schools and that regulations will come before Parliament so that the noble Baroness is able to put some flesh on the bones of the pledges made during the course of the response today.
Much of that said by the Minister is not in the Bill and is not even among the subjects that will be covered by regulations. We shall have nothing to fall back on other than the Pepper v. Hart system: "It was stated in Hansard". We will have to wait until some time in the future, to make sure that it happens. There is no legal requirement for some of the safeguards to be in the Bill. We have only the Minister's word for it— which I do not doubt for a minute. However, the noble Baroness will move on, as will her colleague in another place, and upwards. Good people do not stay in office for ever. We must legislate in such a way that protection is provided for the children, staff and parents—not for Ministers, councillors or third parties.
There is so much that schools can do now, collaboratively and collectively. The Minister says that the main aim is to enable schools to work strategically together. They can do that and engage in joint curriculum initiatives, and governing bodies can come together, now. No legislation is needed for that.
The Minister also says that there is no need for everything to be written on tablets of stone. My argument is that the federation proposed in the Bill is a tablet of stone. Once entered into, the only way to disengage will be by a legal process that a school may find quite daunting. There is a good possibility that tension will arise.
A great deal of funding does not come through core funding, which is much under threat, but from the department—with individual schools having to bid through their governing bodies. It is conceivable that a governing body would take the view that some funds need bidding for in respect of certain schools but not necessarily all. When the governing body has to determine priorities, it may be that some schools within the federation will be preferred and win while others will not be preferred and will lose. A school may feel aggrieved but there will be no one to represent it. The body that is taking decisions in the name of the school will be the federal governing body.

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I am more in tune with the notion of a confederation, which offers all the benefits of a federation with flexibility. Where a school wants to use its own sovereign power, it could do that through its own governing body.
The Minister referred to dispute resolution procedures. Because the Bill is so binding, there must be such procedures. A school that feels aggrieved but does not wish to dislocate from the federation will nevertheless want the problem resolved.
I am grateful for the Minister's answer that the federation's governing body will subsume or assume the responsibilities of being the company's shareholder. Under company law, not DfES law, would that count as a takeover or as a sale—with the single governing body of the one school selling it on to the federal governing body of a group of schools? There needs to be some procedure whereby a company can be owned by a completely new set of people. It is not only likely but highly probable that all the governors of a school that is a company or part of a company will not become governors of the federal body.
Where a company has been formed with two or three other schools, as the new arrangement kicks in there will be a federal arrangement comprising five schools plus the company. Will it be responsible only for that company as part of the company or will it become a much larger company of five plus three schools? Culpability, liability and all the other responsibilities of being a company come into play.
I do not know what to do at this moment because I need answers to some of my questions.
I like to think that there is support in all parts of the House for Amendment No. 46. The Minister says that the parents associated with each school will be represented on the new governing body. That safeguard is not in the Bill; it should be. I believe that teachers should be represented on the governing body. If teachers at four out of the five schools were represented, teachers at the fifth school would on some occasions feel disfranchised because the school's entire staff would not be represented on the governing body. It will be the governors who decide.
I am grateful to the Minister for saying that the principle in the proposed subsection (3)(a)(iii) would be met, so that a special needs or faith school would be represented. That too is not in the Bill. From what I have heard from the right reverend Prelate, from colleagues on the Liberal Democrat Benches and other noble Lords who have spoken at other stages of the Bill, I believe that to have these measures on the face of the Bill would be popular. By pressing Amendment No. 46, I am saying that the Government have agreed that parents and other specialist categories will be represented and I am adding to that the staff of each school. I seek to test the opinion of the House.
3.47 p.m.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 155.

Division No. 1

CONTENTS

Aberdare, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopling, L.

Astor of Hever, L.

King of Bridgwater, L.

Avebury, L.

Knight of Collingtree, B.

Biffen, L.

Laird, L.

Blatch, B.

Lang of Monkton, L.

Boardman,L.

Lucas, L.

Bridgeman, V.

McColl of Dulwich,L.

Briggs, L.

Maginnis of Drumglass, L.

Brooke of Sutton Mandeville, L.

Masham of Ilton, B.

Brookeborough, V.

Mayhew of Twysden, L.

Brougham and Vaux, L.

Miller of Hendon,B.

Byford, B.

Monro of Langholm, L.

Campbell of Alloway, L.

Mowbray and Stourton, L

Campbell of Croy.L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Naseby, L.

Cope of Berkeley, L. [Teller]

Noakes, B.

Cox, B.

Northesk, E.

Craigavon, V.

O'Cathain, B.

Crathome, L.

O'Neill of Bengarve, B.

Dacre of Glanton, L.

Oppenheim-Barnes, B.

Dean of Harptree, L.

Palmer, L.

Dixon-Smith, L.

Park of Monmouth, B.

Dundee, E.

Pearson of Rannoch, L.

Elles,B.

Platt of Writtle,B.

Elliott of Morpeth,L.

Renton, L.

Ferrers, E.

Roberts of Conwy, L.

Freeman, L.

Rogan, L.

Gardner of Parkes, B.

Seccombe, B. [Teller]

Garel- Jones, L.

Sharples, B.

Glentoran, L.

Shaw of Northstead, L.

Goschen, V.

Skelmersdale, L.

Gray of Contin, L.

Stoddart of Swindon, L.

Hayhoe, L.

Strathclyde, L.

Hooper, B.

Swinfen, L.

Hooson, L.

Trefgarne, L.

Howe, E.

Vivian, L.

Howe of Aberavon, L.

Waddington, L.

Howe of ldlicote, B.

Warnock, B.

Howell of Guildford,L.

Weatherill, L.

Hurd of Westwell,L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Bruce of Donington, L.

Addington, L.

Burlison, L.

Ahmed, L.

Campbell-Savours, L.

Alli,L.

Carter, L.

Amos, B.

Chorley.L.

Ampthill, L.

Christopher, L.

Andrews, B.

Clarke of Hampstead, L.

Ashton of Upholland, B.

Clement-Jones, L.

Bach,L.

Clinton-Davis, L.

Barnett, L.

Corbett of Castle Vale, L.

Bassam of Brighton, L.

Crawley,B.

Bernstein of Craigweil, L.

David, B.

Bhatia, L.

Davies of Coity, L.

Billingham, B.

Davies of Oldham, L.

Blackburn, Bp.

Dealing, L.

Blackstone, B.

Dholakia, L.

Borrie, L.

Dixon, L.

Boston of Faversham, L.

Dormand of Easington, L.

Bradford, Bp.

Dubs,L.

Brookman, L.

Eatwell, L.

755

Elder, L.

Milner of Leeds, L.

Evans of Parkside, L.

Morris of Aberavon, L.

Evans of Temple Guiting, L.

Morris of Manchester, L.

Falconer of Thoroton, L.

Newby, L.

Farrington of Ribbleton, B.

Nicol, B.

Faulkner of Worcester, L.

Orme, L.

Fearn, L.

Oxford, Bp.

Filkin, L.

Patel of Blackburn, L.

Fitt, L.

Pendry, L.

Gale, B.

Peston, L.

Geraint, L.

Peterborough, Bp.

Gibson of Market Rasen, B.

Pitkeathley, B.

Gladwin of Clee, L.

Plant of Highfield,L.

Golding, B.

Ponsonby of Shulbrede, L.

Goldsmith, L.

Prys-Davies, L.

Goodhart, L.

Puttnam, L.

Gordon of Strathblane, L.

Quirk, L.

Goudie, B.

Radice, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B.

Graham of Edmonton, L.

Randall of St. Budeaux, L.

Grenfell, L.

Rea,L.

Grocott, L. [Teller]

Redesdale, L.

Hardy of Wath.L.

Rendell of Babergh,B.

Harris of Richmond, B.

Richard, L.

Harrison, L.

Richardson of Calow, B.

Haskins, L.

Rooker, L.

Hayman, B.

Russell, E.

Hilton of Eggardon, B.

Scotland of Asthal, B.

Hollis of Heigham, B.

Sharp of Guildford.B.

Howells of St. Davids, B.

Sheldon, L.

Howie of Troon, L.

Shutt of Greetland,L.

Hughes of Woodside, L.

Simon, V.

Hunt of Kings Heath, L.

Smith of Clifton, L.

Irvine of Lairg, L. (Lord Chancellor)

Smith of Gilmorehill, B.

Stallard,L.

Islwyn, L.

Stokes, L.

Janner of Braunstone, L.

Stone of Blackheath, L.

Jenkins of Putney, L.

Strabolgi, L.

Jones, L.

Strange, B.

Jordan, L.

Symons of Vernham Dean, B

Judd,L.

Taylor of Blackburn, L.

Kirkhill, L.

Temple-Morris, L.

Lea of Crondall, L.

Tenby,V.

Levy, L.

Thomas of Walliswood, B.

Lipsey, L.

Tomlinson, L.

Livsey of Talgarth, L.

Turnberg, L.

Lockwood, B.

Turner of Camden, B.

Lofthouse of Pontefract, L.

Uddin, B.

McIntosh of Haringey, L. [Teller]

Walmsley, B.

Walpole, L.

McIntosh of Hudnall, B.

Warner, L.

Mackenzie of Framwellgate, L.

Watson of Richmond, L.

Mackie of Benshie, L.

Wedderbum of Charlton, L.

McNally, L.

Whitaker, B.

Maddock, B.

Whitty, L.

Mar and Kellie, E.

Williams of Elvel,L.

Mason of Barnsley, L.

Williams of Mostyn, L. (Lord Privy Seal)

Massey of Darwen, B.

Merlyn-Rees, L.

Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.57 p.m.
The Lord Bishop of Blackburnhad given notice of his intention to move Amendment No. 47.
Page 14, line 30, at end insert—
"( ) A school that is a Church of England school, a Church in Wales school or a Roman Catholic Church school shall not be federated without the consent of the appropriate diocesan authority, and where a federation referred to in subsection (1) includes such a school, the instrument of government for the federation shall not be changed without the consent of the appropriate diocesan authority.
756
( ) In the case of a foundation school, a foundation special school or a voluntary school which has a religious character but is not a Church of England school, a Church in Wales school or a Roman Catholic Church school, the school shall not be federated without the consent of the persons who appoint the foundation governors of the school, and where a federation referred to in subsection (1) includes such a school, the instrument of government for the federation shall not be changed without the consent of those persons."
The right reverend Prelate said: My Lords, with apologies to the House, I had intended to move Amendment No. 47. In many ways this amendment is quite different from that tabled by the noble Baroness, Lady Blatch.
I thank the noble Lord, Lord Peston, for what I believe was a helpful suggestion. If we were to return to the matter at Third Reading I would certainly consider that. I wish that I had thought of it myself. However, I do not believe that I shall return to the matter at Third Reading because I am extremely grateful to the Minister for her detailed reply that she has put on the record about the various and many questions that I raised in regard to voluntary schools, and in particular to Church schools if they were to go into federation. I found that most helpful because she also included matters such as reserve teachers whom I had not specifically mentioned, but they were at the back of my mind. I am enormously grateful for that.
We shall want to read carefully that reply, but my feeling is that we have now achieved what we wanted to achieve with regard to federation. Therefore I shall not move the amendment.
[Amendment No. 47 not moved.]
[Amendment No. 48 not moved.]
Baroness Sharp of Guildfordmoved Amendment No. 49:
After Clause 24, insert the following new clause—
"CONFEDERATION OF SCHOOLS
(1) Where the governing bodies of two or more maintained schools wish to work together and co-operate in a manner similar to that of a federation of schools but do not wish to dissolve and merge their respective governing bodies, they may, after consultation with the local education authority, form a confederation of schools.
(2) If the governing bodies of the constituent schools agree, the confederation may make arrangements for any of their functions to be discharged jointly or by a joint committee as designated in section 29.
(3) A confederation shall not involve any transfer of property, rights or liabilities from or between local education authorities and the governing bodies of the respective schools."
The noble Baroness said: My Lords, I was prompted to table this amendment as a result of a discussion in Committee when it became clear to me that a number of noble Lords welcomed the idea of schools working together, but did not like the idea of them having to merge their governing boards. As on Amendment No. 46, on the face of the Bill there is a requirement that federated schools have a single governing board; that the existing boards are dissolved and that a new governing board is formed. Therefore, it seemed to me that if there is the notion of the single governing board—what one may call the "federal solution"—there should also be a confederal solution in which

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individual schools can retain their governing boards, but work together in strategic collaboration for precisely the purposes that the Minister explained. She made the point frequently that federations are there to promote collaboration and partnership.
A great deal of collaboration and partnership is taking place and it struck me that one does not have to have the solution of dissolving the board of governors. I return to the point I made earlier that it is extremely important that on the whole schools should have an individual board of governors. That is a vital channel into the local community that they serve and it is necessary that they are retained. Not only is there an innate feeling that it is a good idea to have collaboration of one sort or another of the variable geometry model to which the noble Baroness, Lady Blatch, referred, but it is followed through in The Evaluation of the Role of Teachers in Education Action Zones by PricewaterhouseCoopers commissioned by the NUT. It shows that programmes which support schools in working together and in planning the allocation and distribution of resources and projects have resulted in a shift towards a more collegiate approach to educational provision.
The development of school clusters—pioneered in particular in Birmingham by Tim Brighouse—whether or not triggered by government programmes, has helped to break down some of the needless rivalry and competition for pupils fostered by recent education reforms. The clusters have led to a better understanding by schools of each other's needs and have encouraged the sharing of good practice between schools.
It became clear in Committee that the notion of a Muslim school, a Church of England school and a Catholic school working together as a confederation is wholly acceptable although one does not want to lose the individual governing boards of those schools because they represent the religious ethos in the schools. It seems to me that we need on the face of the Bill something which makes clear the case for this proposal.
I discovered a nice little clause in the Bill, Clause 29, under the heading "Arrangements for joint discharge of functions". In a sense that allows groups of schools to set up joint committees to fulfil any function that one wants it to perform. In other words, the effect is that the legislation already covers my idea of the confederation. The Minister will probably say that we do not need the new clause on the face of the Bill because we already have it.
I feel rather strongly that the problem with the prominence given to confederation and the total lack of prominence given to this little clause about joint functions is disproportionate. My own guess is that the majority of schools would prefer to confederate rather than to federate and that they would prefer to keep their own governing boards. The notion, if put to them, would probably prove quite attractive. But it is not publicised in the Bill. I hope that the Minister will say that we should not worry, that the idea is thoroughly approved of and that the legislation
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already exists but that the title of that little clause to which I referred could perhaps be changed to incorporate something more positive from my amendment.
The idea I have put forward says,
"Where the governing bodies of two or more maintained schools wish to work together and co-operate in a manner similar to that of a federation of schools but do not wish to dissolve and merge their respective governing bodies, they may, after consultation with the local education authority, form a confederation of schools".
I would like that positive statement somewhere in the Bill; that is why we tabled this amendment. We believe that it fulfils a need. It is important that it is flagged up as an opportunity for schools. It seems to me that it meets precisely what the Government want in terms of promoting collaboration and partnership to form joint strategic committees where desired. At the moment there is a lacuna in the Bill. I beg to move.
Baroness Blatch: My Lords, as I said, I believe that where schools wish to collaborate of their own volition they should be allowed to do so. In these times of unprecedented central control of schools, so far as possible that should be encouraged. However, if they are intending to work together, the sovereignty of each governing body should be retained. I feel that very strongly; that is why I tabled my previous amendment. It would have strengthened federation with representation of staff and parents and specialisms of each school in the federation. I find it almost incomprehensible that the Government. with a good deal of support throughout the Chamber, should vote against the notion that the teachers of each school are represented on the federal governing body. I believe strongly in the sovereignty of the individual school. Amendment No. 49 on the face of the Bill would encourage more schools to have all the benefits of collaboration without all the disbenefits of central bureaucracy.
The Lord Bishop of Blackburn: My Lords, I, too, lend my support to this amendment. It seems to follow the logic that I have been so concerned about in bringing together varieties of schools and diversity where appropriate. It is another way which may be more appropriate to some schools. The two noble Baronesses who have spoken have made that very clear. We on these Benches lend our support to the idea. It needs to be spelt out in the manner suggested by the noble Baroness, Lady Sharp. I hope the Minister will be sympathetic to the idea.
Lord Dearing: My Lords, it is clear from what I said on the last amendment that I very much welcome this amendment. This is the way in which education generally should go. It is so obvious that higher education needs to rethink its structures, not necessarily through the merger of institutions which is difficult to achieve, but by confederation in which they agree to do certain things together. It may lead to something more, but this must be the way. The increased use of communication and information technology facilitates such arrangements. I would like

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to see such arrangements extend across the traditional boundaries to sixth form colleges and perhaps also to FE colleges. A move into the 14 to 19 approach would break down the barriers between schools and FE colleges and allow collaboration in the provision for that group. It could make sense to include FE colleges within the framework of confederation arrangements.
Lord Peston: My Lords, I am lost. We all believe that collaboration is a good idea where the schools themselves agree. But it may well be that I fell asleep during the speech of the noble Baroness, Lady Sharp. She alluded to Clause 29. My noble friend the Minister may be able to elucidate, but it seems to me that that clause contains everything that the noble Baroness has in mind other than the word "confederation". I am not at all clear what we would gain by agreeing the amendment as opposed to Clause 29. The clause enables schools to collaborate in anything they might find to their joint advantage. I am all in favour of putting things on the face of the Bill, but in this case—unless I have misunderstood the Bill—it is already there. Perhaps my noble friend can explain what I have missed.
Baroness Blatch: My Lords, with the leave of the House and before the noble Lord sits down, perhaps I may ask a question so that the noble Baroness can respond to it and extend the point made by the noble Lord, Lord Peston. What is illegal now about two governing bodies working exactly as described in Clause 29?
Baroness Ashton of Upholland: My Lords, perhaps I may begin by saying that I agree with the principle behind the amendment and that I am eager to ensure that we make provision to allow for the form of collaboration that the noble Baronesses, Lady Sharp and Lady Warmsley, have asked for, including consultation with local education authorities.
I recognise that to support and encourage that development it is important to have alternative governance arrangements in place for schools that want to collaborate strategically but do not want to go as far as dissolving their governing body and ceding all their functions to a single federated governing body. In response to earlier amendments, I said that this is about ensuring that we have the options available to allow schools to decide for themselves which is the best way forward in terms of the collaboration that they want to have.
As noble Lords will know, some schools want to pursue full federation. Others will feel that relinquishing their governing body would be too high a price to pay for the ability to have a single body to take certain key decisions. However, I am mindful that no schools in education action zones—the noble Baroness, Lady Sharp, mentioned them—chose to cede all their responsibilities to an EAZ forum. Therefore, I understand that schools may be reluctant to pursue the federation route, particularly where mixed category federations involving schools of a religious character could be involved.
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We want to create an opportunity for schools to put their toe in the water or to slide slowly into the shallow end on their way to what will be the best collaborative model. The noble Baroness, Lady Sharp, said that we have included provision within the Bill and my noble friend Lord Peston is correct. Clause 29 does do that. It allows for schools to collaborate strategically without disbanding their individual governing bodies. That clause allows for two or more governing bodies to delegate certain functions to a joint committee, as well as allowing for a joint committee between two or more schools' whole governing bodies.
The noble Baroness asked whether that was allowed. She will be aware that under the Schools Standards and Framework Act 1998 the decision to prevent schools from having other collaboration—infant and junior schools being the classic example—meant that it was more difficult for them to set up strategic groupings of committees that could take decisions. This puts back into legislation the ability to do that and that is precisely what we are trying to do.
Baroness Blatch: My Lords, I am grateful to the Minister for giving way. The School Standards and Framework Act 1998 prevented the governing bodies from joining and not their joint working; namely, governing bodies working with each other as sovereign governing bodies.
Baroness Ashton of Upholland: My Lords. I shall need to write to the noble Baroness to be precise about that. However, my understanding is that there were some issues surrounding committees being able to collaborate effectively on behalf of other governing bodies. We shall need to ensure that we have clarified that correctly, but that is my understanding.
I am advised that Clause 29 does allow for delegations or the ceding of certain key strategic decisions to an overarching strategy or policy committee; namely, a confederation option. I agree with the principles behind that. I have indicated to the noble Baroness that the amendment itself contains some technical issues. I am mindful of the words that the noble Baroness used about being disproportionate. I believe that where the noble Baroness is driving us is to ensure that we do not put federations and confederations in different places in terms of how schools feel that we are looking to them.
Therefore, I should like to propose to the noble Baroness, Lady Sharp, that between now and Third Reading we might have a conversation to ensure that we achieve the objective I believe we both share—to demonstrate that the legislation is entirely adequate to that end. In the course of doing that, we shall discuss with parliamentary counsel what more could be done on the face of the Bill. I hope that with that reassurance the noble Baroness will feel able to withdraw her amendment.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for her comments. Perhaps I may use this opportunity to reply to the noble Lord, Lord Peston, by saying yes. The title of the clause did

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not indicate that it was supposed to be positively encouraging the coming together of schools in this way. I believe that, bearing in mind the prominence given in the Bill to federations, this clause at the end of the chapter is not enough. That is why I deliberately said to the Minister that I realise that the clause is here, and that her answer was going to be that we have already got the powers. I am now saying that the powers may be there but I would like to see more prominence given to them. I welcome the opportunity to discuss the issue with the Minister further between now and Third Reading. Perhaps we can then return with something that is jointly agreeable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Clause 26 [Limits on power to provide community facilities etc.]:
Baroness Blatchmoved Amendment No. 50:
Page 16. line 27, leave out "to a significant extent"
The noble Baroness said: My Lords, Clause 26(3) reads:
"A governing body shall exercise the power conferred by section 25( I ) only if and to the extent that they are satisfied that anything which they propose to do will not to a significant extent interfere with the performance of any duty imposed on them by section 20(2) or by any other provision of the Education Acts".
I am arguing that anything which interferes with the performance of any duty of a school to educate children should not be allowed.
Section 20(2) refers to the conduct of the school and the requirement to promote high standards. However, that is undermined by Clause 26(3) which states:
"A governing body shall exercise the power conferred by section 25(1) only if and to the extent that they are satisfied that anything which they propose to do will not to a significant extent interfere with the performance of any duty imposed on them".
It is of concern that the legislation provides for the governing body to do anything which will interfere with that duty—not just to "a significant extent". What constitutes "significant" is not defined in the Bill and no light has been thrown on what "significant extent" meant when the issue was brought up at the previous stage of the Bill.
Is my understanding correct that the governors of each school have carte blanche to determine what "to a significant extent" actually means? In addition, should governors define what,
"interfere with the performance of any duty"
means?
When the noble Baroness responded to the debate on this issue on 9th May, she said:
"The inclusion of the wording "to a significant extent" ensures that insignificant incidental effects on a school's main educational role are not seen as obstacles that would prevent worthwhile services being established. For instance, it might be argued that adults using an ICT suite on school premises during school hours could potentially impact on teachers' and pupils' flexibility to use that suite". [Official Report, 9/5/02; col. 1372.]
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If adults using the ICT suite on school premises did impact on teachers and pupils in that school then it should not be allowed. Therefore, I am arguing that schools should not have their work to educate and teach children and children's learning interfered with at all.
The governing body's first and foremost duty is to the pupils at the school. Nothing should be allowed to distract them from that key task. Therefore, it would be helpful if the legislation required them to satisfy the local education authority that their proposals will not interfere with the performance of their duty. The governing body should conduct the school with a view to promoting high standards of educational achievement at the school and that work should not be impeded by any outside activity. I beg to move.
Baroness Walmsley: My Lords, I rise to speak to Amendment No. 51 which is grouped with Amendment No. 50. When that part of the Bill was discussed in Committee I reassured the Minister that from these Benches we are supportive of the many ways in which schools are developing their links with the community and embedding community facilities within the school environment. The noble Baroness, Lady Andrews, who is not in her place today, outlined some valuable and impressive initiatives which we all welcome.
However, we expressed concern that the need to consult parents and teachers about the provision of community facilities on the school site was to be put only in guidance and not on the face of the Bill. We accept the Minister's reassurance that it is not the Government's intention that such provision would have any detrimental effect on the performance by school staff of their duties. Indeed, at a time when the Government are seeking ways of lightening teachers' workloads that would surely be foolish. However, despite our acceptance of that, we are still concerned that a matter so potentially fundamental to the operation of the school as the provision of community facilities must be discussed with teachers and parents. That must be enshrined in the Bill.
Such consultation would surely give ownership of the project to the staff and the parents and thus ensure its success in the end. I hope that by pressing the matter the Minister will feel able to respond positively as she has on a number of other matters.
Baroness Ashton of Upholland: My Lords, perhaps I might speak first to Amendment No. 50. I understand that the noble Baroness, Lady Blatch, is concerned to ensure that the activities that we have been discussing do not interfere with the way in which schools are able to provide education for their children. I believe that we are in agreement on this. The question is how best to ensure it within the Bill.
I have discussed this matter with our legal adviser to ensure that the words we use are appropriate. I hope therefore that the noble Baroness will accept, in the spirit of my reply, that I have considered carefully the

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points she made. I do not believe that the words "interfere" and "compromise" mean the same thing. However, I am clear that,
"interference to a significant extent",
could amount to "compromise".
Let me emphasise again what it is that Clauses 25 and 26 seek to achieve. We want to give governors a clear legal basis under which they can provide services for the benefit of their pupils and their families. That will include the provision of services which seek to remove the barriers that currently stand in the way of children's education; services such as pupil and family counselling (in cases of bereavement or family breakdown for example); child and family health services where on-site provision will reduce the amount of time children are out of the classroom and improve access which might otherwise be difficult in areas where there is poor local transport; social care to address more immediately the complex needs of the pupils and their parents; and provision of out-of school hours childcare which will ensure that pupils are looked after in a safe environment. Almost any of those services could be argued to interfere in some way with the governors' duty to promote high standards of educational achievement.
Further, if this amendment were accepted, it may expose schools to judicial review proceedings on spurious grounds. As a past Minister for Education I am sure the noble Baroness, Lady Blatch, will know that, on occasion—rare thankfully—some have used the wording of the law to involve schools in long, drawn-out legal process. While we also want to protect educational standards, and I believe that Clause 26 does, I am keen to ensure that governors are not discouraged from providing a service such as a breakfast club—a service offered perhaps in a classroom that might interfere to an insignificant extent with the running of the school because it causes a slight delay to the start of the formal school day while breakfast is cleared away.
Likewise I would not want governors to be deterred from making full use of the school premises and facilities at weekends. We know from schools and the local education authority in Cambridgeshire, who have been working very closely with us in developing this approach and who have a long established history of community education, of the benefits that can be gained from opening up schools to the whole community. These clauses will enable more local authorities and schools to develop a similar vision to that of Henry Morris while ensuring that the main object of the school is safeguarded.
I should like to emphasise once again that we expect all schools that develop family and community services to see a positive impact on education standards. I trust the noble Baroness, Lady Blatch, is reassured by my explanation and will withdraw her amendment.
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I turn now to Amendment No. 51. Clause 26(4) already places a statutory duty on governing bodies to have regard to guidance issued by the Secretary of State, and that guidance will make it clear that governing bodies will always need to consult with all major stakeholders including school staff, parents and pupils, before providing family and community services.
However, on reflection, we accept that we should place a duty upon governing bodies to consult specific key stakeholders, including parents, staff and pupils. The Government are therefore prepared to accept this amendment in principle. However, we would like to consider further whether the proposed group of statutory consultees should be expanded. We should therefore like to have a little time to reflect on the precise wording of the amendment and come back with our own amendment at Third Reading. Given that assurance, I hope that the noble Baroness, Lady Walmsley, will not press her amendment.
Baroness Blatch: My Lords, I am not happy with the noble Baroness's response. She said that she understands and then went on to argue that it would be possible to have activities that interfere with the primary duty of the school to produce good education and achieve high standards for the children in that school. The noble Baroness even went on to say that a small compromise of the fundamental aim of the school would he acceptable.
There should be no compromise regarding a school's duty to promote high standards of educational achievement for the school. The noble Baroness cited my authority, Cambridgeshire. William Morris would turn in his grave if he thought there was any suggestion that what he started was anything that would impede the achievement of high standards of education for children in school. What William Morris did enhanced education; it did not impede it in any way.
A breakfast club in a school was the only example which officials came up with. But any breakfast club that overruns into the school day is actually failing children. The school day is already short enough. For many children it starts between nine and nine-thirty in the morning, and it is over between three and three-thirty in the afternoon. The idea of break fast clubs overrunning is an absolute scandal. If they cannot be run to enable children to start their lessons on time, then there is something wrong with the management of the school.
I feel very strongly about this amendment. I ask for the opinion of the House.
4.26 p.m.
On Question, Whether the said amendment (No. 50) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 157.

Division No. 2

CONTENTS

Aberdare, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopling, L.

Astor of Hever, L.

Knight of Collingtree, B.

Blatch, B.

Lucas, L.

Boardman, L.

Luke, L. [Teller]

Bridgeman, V.

McColl of Dulwich,L.

Brooke of Sutton Mandeville, L.

Maginnis of Drumglass, L.

Brookeborough, V.

Marlesford, L.

Brougham and Vaux, L.

Mayhew of Twysden, L.

Byford,B.

Miller of Hendon,B.

Campbell of Alloway, L.

Molyneaux of Killead, L.

Carnegy of Lour, B.

Monro of Langholm, L.

Chan, L.

Mowbray and Stourton, L.

Cooke of Islandreagh, L.

Murton of Lindisfame, L.

Cope of Berkeley, L.

Northesk, E.

Cox, B

O'Cathain, B.

Craigavon, V.

Oppenheim-Barnes, B.

Crathome, L.

Pearson of Rannoch, L.

Crickhowell, L.

Platt of Writtle,B.

Dacre of Glanton, L.

Prior, L.

Dean of Harptree, L.

Rees,L.

Dixon-Smith, L.

Renton, L.

Dundee, E.

Roberts of Conwy, L.

Eccles of Moulton, B.

Rogan, L.

Elles, B.

Saltoun of Abernethy, Ly.

Elliott of Morpeth, L.

Seccombe, B. [Teller]

Sharples, B.

Ferrers, E.

Shaw of Northstead, L.

Flather, B.

Simon of Glaisdale, L.

Freeman, L.

Skelmersdale, L.

Gardner of Parkes. B.

Stoddart of Swindon, L.

Garel-Jones, L.

Strathclyde, L.

Glentoran, L.

Swinfen, L.

Gray of Contin, L.

Thatcher, B.

Holderness, L.

Thomas of Gwydir, L.

Hooper, B.

Trefgarne, L.

Howe, E.

Vivian, L.

Howe of Aberavon, L.

Waddington, L.

Howell of Guildford, L.

Warnock, B.

Hurd of Westwell.L.

Wilcox,B.

NOT-CONTENTS

Acton, L.

Chorley, L.

Addington, L.

Christopher, L.

Ahmed, L.

Clarke of Hampstead, L.

Alli,L.

Clement-Jones, L.

Amos, B.

Clinton-Davis, L.

Ampthill, L.

Corbett of Castle Vale, L.

Andrews, B.

Crawley, B.

Ash ton of Upholland, B.

David, B.

Avebury, L.

Davies of Coity, L.

Bach, L.

Davies of Oldham, L.

Barker, B.

Dholakia, L.

Barnett, L.

Dixon, L.

Bassam of Brighton, L.

Dormand of Easington, L.

Bernstein of Craigweil, L.

Dubs, L.

Billingham, B.

Elder, L.

Blackstone, B.

Evans of Parkside, L.

Boothroyd, B.

Falconer of Thoroton, L.

Borrie, L.

Falkland, V.

Boston of Faversham, L.

Farrington of Ribbleton, B

Bragg, L.

Faulkner of Worcester, L.

Brookman, L.

Fearn, L.

Burlison, L.

Filkin, L.

Campbell-Savours, L.

Fitt,L.

Carter, L.

Gale,B.

766

Geraint,L.

Methuen, L.

Gibson of Market Rasen, B.

Milner of Leeds, L.

Gladwin of Clee, L.

Mitchell, L.

Golding, B.

Morris of Aberavon, L.

Goldsmith, L.

Morris of Manchester, L.

Goodhart, L.

Newby, L.

Gordon of Strathblane, L.

Nicol, B.

Goudie, B.

Orme,L.

Gould of Potternewton, B.

Palmer, L.

Grabiner, L.

Patel of Blackburn, L.

Graham of Edmonton, L.

Pendry, L.

Greengross, B.

Peston, L.

Gregson, L.

Pitkeathley, B.

Grenfell,L.

Plant of Highfield,L.

Grocott,L. [Teller]

Ponsonby of Shulbrede, L.

Hardy of Wath,L.

Prys-Davies, L.

Harrison, L.

Puttnam, L.

Haskins, L.

Quirk, L.

Hayman, B.

Radice, L.

Hilton of Eggardon, B.

Ramsay of Cartvale, B.

Hollis of Heigham, B.

Randall of St. Budeaux, L.

Hooson, L.

Redesdale, L.

Howells of St. Davids, B.

Rendell of Babergh,B.

Howie of Troon, L.

Rooker, L.

Hoyle, L.

Russell, E.

Hughes of Woodside, L.

Sainsbury of Turville, L.

Hunt of Kings Heath, L.

Scotland of Asthal.B.

Irvine of Lairg, L. (Lord Chancellor)

Sharman, L.

Sharp of Guildford, B.

Islwyn, L.

Sheldon, L.

Janner of Braunstone, L.

Shutt of Greetland, L.

Jeger, B.

Simon, V.

Jenkins of Putney, L.

Smith of Clifton, L.

Stallard, L.

Jones, L.

Stone of Blackheath, L.

Jordan, L.

Strabolgi, L.

Judd, L.

Symons of Vernham Dean, B

Kirkhill, L.

Temple-Morris, L.

Lea of Crondall, L

Tenby, V

Levy, L.

Thomas of Walliswood, B.

Lipsey, L.

Thomson of Monifieth, L.

Livsey of Talgarth, L.

Tomlinson, L.

Lockwood, B.

Turnberg, L.

Lofthouse of Pontefract, L.

Turner of Camden, B.

Macdonald of Tradeston, L.

Uddin, B.

McIntosh of Haringey, L. [Teller]

Walpole, L.

Warner, L.

McIntosh of Hudnall, B.

Warwick of Undercliffe, B.

Mackenzie of Framwellgate, L.

Watson of Richmond, L.

Mackie of Benshie, L.

Weatherill,L.

McNally.L.

Whitaker.B.

Maddock, B.

Whitty,L.

Mar and Kellie, E.

Williams of Elvel,L.

Mason of Barnsley, L.

Williams of Mostyn, L. (Lord Privy Seal)

Massey of Darwen, B.

Merlyn-Rees, L.

Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.36 p.m.
[Amendment No. 51 not moved.]
Clause 28 [Governors' reports and other information]:
Baroness Blatchmoved Amendment No. 52:
Page 17. line 33, leave out sub-paragraph (ii).
The noble Baroness said: My Lords, I shall speak to both Amendments Nos. 52 and 53. Clause 28(1) states:
"Once in every school year the governing body of a maintained school shall prepare a report (a 'governors' report') dealing with such matters, and otherwise complying with such requirements, as may be specified in regulations".

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The clause goes on to deal with the regulations which may:
"impose requirements on the governing body of a maintained school with respect to … the giving of copies of a governors' report to such persons as may be prescribed, and … making such copies available for inspection at the school"—
and making provision for—
"enabling the governing body to determine the language or languages in which a governors' report is to be produced and the form or forms in which it is to be produced".
That is where I believe it should end. It should be a matter for the governing body, which knows its own school, its parents, children and community, to determine the languages in which the report should he produced. If the Government are concerned that governing bodies cannot be trusted to do that, the subsection should say something like:
"appropriate languages meeting the language needs of all its community"
and that should be the end of the matter. But the clause then requires the governing body:
"to comply with any direction given by the local education authority with respect to any additional language to be used or with respect to any additional form in which the report is to be produced".
I want to trust the governing body to know what it is doing and to understand its own client group—the children, parents and the local community. It is wrong to then require governing bodies to be under the direction of the local education authority to add yet more languages for communicating with schools and communities.
Amendment No. 53 refers to yet more regulations. I am still awaiting a reply about how many sets of regulations there will be in the Bill. Subsection (3) states that regulations may:
"require the governing body of a maintained school to provide the local education authority with such reports and other information in connection with the discharge of the functions of the governing body as may be prescribed or as the authority may require (either on a regular basis or from time to time) for the purpose of the exercise of any of their functions".
The statute book is littered with requirements for schools, head teachers, teachers and governing bodies to provide information, but it is already public information. The annual report is public; meetings with parents are public; Ofsted inspections are public. They are visited by endless numbers of people who have the right to see such information.
It is absurd to lay yet another set of regulations on schools. I beg to move.
Lord Davies of Oldham: My Lords, Amendment No. 52 would mean that a school maintained by a local education authority would be under no obligation to comply with any direction from that authority with respect to any additional language in which the governors' annual report is produced, or any additional forms in which it is produced, such as in braille.
Of course, we accept the thrust of the noble Baroness's argument; namely, that governing bodies have the prime responsibility for determining the
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languages, or forms, in which their annual report is to be produced. However, we differ from the noble Baroness in the following respect. We believe that there are circumstances in which a local education authority, by virtue of its knowledge over a wider area than the school, may be better placed to determine an additional language, or form, in which the report could be produced that would benefit the local community, or part of it.
As I believe the noble Baroness indicated, this subparagraph is a re-enactment of Section 42 of the School Standards and Framework Act 1998, under which there are existing regulations. We are not aware of any complaints that the existing requirements, which we want to continue, have caused any difficulties. These provisions provide an additional guarantee for the local community that the interests of all parts of it will be taken fully into account. We see nothing to be gained in dropping the provisions, arid possibly something to be lost for some parts of the local community. I hope that the noble Baroness is reassured by my response and that she will decide to withdraw her amendment.
On Amendment No. 53, I should like to emphasise that the scope of the regulation-making power in subsection (3) of Clause 28 is very similar to the content of the current provisions to which I referred in Sections 42(3) and (4) of the School Standards and Framework Act 1998. The only addition is to allow regulations to prescribe information that must be provided.
I hear what the noble Baroness says about regulations; indeed, we have heard her complaints about them on numerous occasions. However, I should point out that some of those regulations flow from Acts of Parliament introduced during the 18 years of the previous administration. I take note of what she said about the issue of seeking to keep the number of regulations that are required under constraint. We believe that it would be helpful, and add clarity and consistency, to have the scope to prescribe in regulations what information must be provided by governing bodies and head teachers.
However, we have listened most carefully to the noble Baroness's arguments, which were also outlined in Committee. I should like to make progress on the matter. I am prepared to bring forward a government amendment on Third Reading that will replace subsection (3) of Clause 28 with the current provisions in Sections 42(3), (4) and (5) of the School Standards and Framework Act 1998. This will remove the regulation-making power and maintain just the current provisions, which we believe to be important. I hope that this addresses the point made by the noble Baroness on the question of regulations. I trust, therefore, that she will be prepared to withdraw the amendment.
Baroness Blatch: My Lords, this is a very small victory; indeed, I should quite like to sweep away the requirements for regulations under the School Standards and Framework Act. However, I am grateful for small mercies. I am also grateful that, as I

769
understand it, subsection (3) will disappear from the Bill. I tentatively wait to see what will replace it at the next stage of the Bill.
I am in a fairly cynical frame of mind. I have to say that the appointment of Mr Miliband to the department that I welcomed so readily the other day is turning out to be something of a disappointment. These are the earliest opportunities for actually living up to the very words that he spoke on accepting the appointment and sweeping away some of the bureaucracy.
I am sure that he did not mean it personally, but the Minister said that he had heard my complaints about regulations "on numerous occasions". But it is the schools, the head teachers, and the teachers who are going on and on about regulations. I am not burdened down with having to read them, interpret them, and, in turn, read and interpret the guidelines and the guidance: it is the schools who have to cope with this burden. Minister after Minister has promised the schools faithfully that he or she will do what can be done to reduce the amount of bureaucracy. But, as they speak those words, we mount on yet more bureaucracy. I do not, therefore, accept that criticism from the Minister.
The Minister also referred to the 18 years of the previous administration. One would not believe that this Government are actually in their sixth year in Parliament. Indeed, they are now in their sixth year and the level of regulations, guidance, guidelines, and bureaucracy that has been laid upon schools is unprecedented. I am not happy with the response that I received to my first request. I believe that we should trust schools to determine what languages they use to speak to their school community. We should leave this to schools; they should not be under further exhortation from a third party.
I am grateful to the Minister for what he said about Amendment No. 53, but I shall wait to see what replaces it. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
4.45 p.m.
Baroness Blatchmoved Amendment No. 54:
After Clause 30, insert the following new clause—
"PROTECTION OF SCHOOL PLAYING FIELDS
Regulations shall provide for the control by the governing body of a maintained school of school playing fields and sporting facilities, which shall, among other things, provide that neither the Secretary of State, nor a local authority, nor any other public authority, shall give consent to the sale, transfer or disposal of playing fields or pitches owned or leased by a governing body of a maintained school or local authority unless—

(a) it can be shown by the governing body or bodies, or local authority, concerned that the sale, transfer or disposal is for the purpose of providing playing fields or sporting facilities of equal or improved quality for the use of the school and, if appropriate, other schools;

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(b) in the case of a sale, transfer or disposal made by a local authority, it is done with the consent of the governing body or bodies concerned;

(c) it takes into account the impact in the local authority area on team sports requiring extensive playing fields or pitches and demonstrates that children at schools in the area will still have full and regular access to practise those sports; and

(d) the parent body of the school or schools concerned has consented in a ballot to the sale."

The noble Baroness said: My Lords, this is an important clause that relates to playing fields. Many of us will remember the exhortations of a number of Ministers before the 1997 election, the most vocal of whom was the right honourable Mr David Blunkett. He was very critical of the previous Conservative government for selling off playing fields. Such was the voluble noise from Ministers at that time that one would have been forgiven for believing that there was no more scope for disposing of playing fields.
I should like to refer to two newspaper articles: the first dated November 2001, and the second February 2002. In the Sunday Telegraph of 18th November 2001, Martin Bentham wrote:
"The number of playing fields sold off for building development has leapt by 60 per cent in the past year, according to a leaked Government document. The figures, in a confidential report for the Department of Culture, Media and Sport, show that 446 applications for building on sports fields were approved between April 2000 and March this year. That compares with only 279 approvals for the previous 12 months. In the vast majority of cases, no objection was made to the applications, despite repeated Labour promises to stop playing fields being sold off. The number of planning applications refused rose by just two".
The latter information was put to the honourable Kate Hoey in another place, who held ministerial office at the time. I quote her response, which appeared in the same article:
"These figures bear out what I am finding when I go round the country, and show quite clearly that our promises"—
that is, the Labour Party's promises—
"to save playing fields are not working. There needs to be a moratorium on sales because the people who are objecting to the loss of sports pitches are not being listened to".
The article goes on to quote Elsa Davies, the director of the National Playing Fields Association, who said:
"The loss of playing fields is proceeding at a rate which is totally unacceptable. For years the Government has talked motherhood and apple pie, saying that they will save playing fields, but nothing has been achieved".
The article continues:
"The new figures are contained in a draft report drawn up by a monitoring unit on the sale of playing fields, set up by the department in April 2000 … the Government pledged that the unit would 'publish monthly figures on playing field disposals so that progress can be accurately charted'".
That has not happened. Martin Bentham then pointed out that:
"The figures, which the report says 'should not be released, quoted or used in any form', show that 860 valid applications for development on playing fields were received in the year ending March 2001 …The statistics also show a steep rise in the number of applications that were then given final planning permission by the relevant local authority. Whereas in 1999/2000 the number of unconditional approvals was 279, by last year the total had risen to 446, an increase of 60 per cent. Another 21 disposals were approved subject to conditions. Only 47 applications were

771
refused, and not one application was 'called in' by the Secretary of State for detailed examination … The Government's failure to prevent the sale of playing fields comes despite a series of promises made during the 1997 general election campaign that sports pitches would be protected".
At that time the Home Secretary, Mr David Blunkett, while he was education secretary, was speaking a great, deal on this issue. He said:
"I will ensure that those playing fields which schools and local communities need are not sold in the future".
That was in November 2001.
Given that report, one would expect things to have changed for the better. But, on 27th February 2002, an article in the Daily Mail stated:
"Fresh evidence that ministers have repeatedly broken promises to protect school playing fields was revealed in official figures yesterday.
The Government has approved all but two applications to sell off sports pitches since laws to protect them were introduced in 1998.
Of the 100 applications received, by the end of January, [2002] 98 have been waved through by Ministers.
A further 77 out of 81 requests to sell off smaller fields were given the green light, giving an overall total of 175 approvals from 181 applications".
The article went on to say that,
"most applications are still being approved, with the figures suggesting the number of sell-offs is gathering pace".
It also stated:
"An independent panel was set up to examine applications before making recommendations to ministers, who have the final say. A total of 945 applications to build on playing fields are expected this year—up from 590 in 2000 and 860 last year.
Ministers were … accused of reneging on their pledges to protect the field.
'They have not kept to their word', said Elsa Davies, director of the National Playing Fields Association.
'We were looking to the Government to protect playing fields, but what we have seen is tinkering in the system, which will not help'".
I have an answer to a Question asked by my honourable friend Mr Brady in another place. He asked what the proceeds of sales were for each playing field development application approved by the Secretary of State since 1998 and what went for sports and educational facilities. Out of 79 that are listed in that reply by the department, 47 were not to enhance sports facilities. That is 47 out of 79. Those that were to enhance sports facilities only partly funded them, and the money was used for other things.
We will take the criticism for what happened before 1997.1 have no doubt that the Minister will not lose the opportunity to refer to that again. But, given what the Minister said at that time, as I said right at the outset, one could be forgiven for believing that the scope for yet further selling off of playing fields would have been reduced if not eliminated altogether.
Many people are concerned about this aspect. Certainly the schools are. At a time when sport is a concern in schools, particularly extra-curricular sport, and given the Government's policy of inclusiveness in wanting young people, both in and out of school, to benefit from sports facilities in their community, I believe that what is happening is unforgivable.
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At this stage, the Government's criteria are informal. I want to make them formal by placing them on the face of the Bill. Those criteria are:
"(a) it can be shown by the governing body or bodies, or local authority, concerned that the sale, transfer or disposal is for the purpose of providing playing fields or sporting facilities of equal or improved quality for the use of the school and, if appropriate, other schools [in the area];
(b) in the case of a sale, transfer or disposal made by a local authority, it is done with the consent of the governing body or bodies concerned;
(c) it takes into account the impact in the local authority area on team sports requiring extensive playing fields or pitches and demonstrates that children at schools in the area will still have full and regular access to practise those sports; and
(d) the parent body of the school or schools concerned has consented in a ballot to the sale".
I beg to move.
Lord Addington: My Lords, the argument regarding getting rid of playing fields has gone on for a long time. The noble Baroness has effectively put her hands up and said that it was a mistake—I think that it was a mistake initially—to allow too many playing fields to disappear.
The Government said that they would stop it. They have not done enough. The noble Baroness has made a good attempt to solve the problem in the context of an education Bill. The problem is that this is not totally an education problem. Playing fields are educational facilities. The Department of Health and the Home Office could be interested in the issue. The Government should embrace the fact that sports fields are needed in order to allow sports to be played. We need turf. Sports halls do not allow one to play in our society the culturally acceptable sports for mass participation.
Basketball is not a major sport. Major participation sports are the various forms of football—association, union and league—hockey and so on. They require turf in order to be played properly. One cannot play them inside a sports hall. One needs grass on the ground.
When one says that it is a terribly small pitch, often that gives one somewhere to warm up or play a shortened version of a game. That is particularly true for children. The minute that one starts to reduce that area of open preserve for turf one cuts down the opportunities for playing sport. Our society is suffering tremendous health deprivation because it is not taking enough exercise. Unless exercise is fun—and that means sport—it will not happen.
The amendment is a brave attempt effectively to stop a form of rot. I support it. I hope that the Government will give us a reason for not needing to support it by saying that that they will put in place something which goes even further. But, in the context of an education Bill, I believe that this is an appropriate approach. I look forward to a response from the Government which does not refer to historical blame, but what will be done now. Under the current system, it is quite clear that we are not

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preserving the vital thing that we need in order to play the culturally acceptable sports in our society; that is, preserved and maintained turf.
Lord Peston: My Lords, I hate to introduce a discordant note into our proceedings, but I must. Recently, my right honourable friend Mr Mandelson said that we were all Thatcherites now. Let me first say what an enormous pleasure it is to see the noble Baroness, Lady Thatcher, in her place. But he was slightly wrong, because if there is one group that clearly are not Thatcherites now, it is the Tory Front Bench in the House of Lords. This is an amendment that more or less says that the policies that they pursued previously were completely unacceptable and wrong.
The amendment is put forward by the excellent noble Baroness, Lady Blatch, in all innocence as if somehow these points were not made ages ago when many of us did not even know that one could sell playing fields. Suddenly, it became policy. We pointed out the consequences. It is really not good enough to get up and say, "Well, things have not worked out the way we said". They have worked out exactly in the way that one thought they would.
Therefore, we have the paradox that what is happening is that the Labour Government are being accused of not being a Labour Government. It is perfectly reasonable for someone such as myself to make that criticism. But to hear it coming from the Official Opposition Front Bench is absolutely ridiculous, to put it as mildly as I possibly can.
Having made—quite unusually for me—a political point, which, as noble Lords know, I hate to do, it does not mean that there is not a problem here. Clearly, we must think, and the noble Lord, Lord Addington, is quite right in saying that despite the great pleasure one gets in referring to the past, the present and the future are what matter. It is incumbent—and I am sure that the Minister will speak to this—on the Government to respond to these concerns.
I still remember with a shudder going miles to my school playing field, getting covered in mud and then discovering that there was no way of washing and having to trudge back to the bus in the freezing cold, having taken part in a game which I hated. So I do not have delusions about what the great pleasures of school sport are. I do not believe that the greatness of our country depends on school sport but, none the less, I accept that it is a matter of some significance. My noble friend is aware that I, like many of my noble friends, look with sadness at the sale of playing fields if there is no facility to replace them. The children of the current generation should suffer as we did—one of the great advantages of being old is to see the young not getting away with things when we could not.
So I hope that while rejecting the amendment my noble friend will still have some positive things to say, including one or two things that remind us that we are a Labour Government.
5 p.m.
Lord Lucas: My Lords, it is interesting to consider what the independent sector is doing. Its parents and pupils can express their opinion, as it were. The independent sector is investing vast sums in sporting facilities. That is one of the main things on which it spends money. It spends money on that before it spends money on classrooms—certainly before it spends money on decoration. That is what parents and pupils want.
That is not happening in the state system; the opposite is happening. That is because parents' and pupils' views are not being taken into account in what schools are doing. Given the financial pressures in the other direction, I can understand why, but we ought to be more responsive to what parents and pupils clearly want, which is provision of secure and better sporting facilities, and not to allow that part of schools' heritage to be bled. Apart from anything else, it results in people having nowhere to walk their dogs.
Baroness Ashton of Upholland: My Lords, do not get me started on the subject of dogs.
I am delighted that the noble Baroness, Lady Blatch, has raised this important issue. I am the Minister responsible for how we deal with school playing field policy and for working in close collaboration with the Department for Culture, Media and Sport and the Department of Health in our trilateral meetings on how to address our children's needs in terms of sport and exercise. I could talk at great length on the subject, but I feel that it is inappropriate to do so now. I offer to do so to any noble Lord who wants to hear me.
I turn to the amendment. The figures that are often cited are inaccurate because they refer to playing fields in all situations, not to school playing fields. With your Lordships' indulgence, I shall spend a moment to ensure that by the end of my contribution, the precise, exact figures are on the record. I think that that is important to noble Lords.
I take my responsibilities in this area extremely seriously. We introduced Section 77 of the School Standards and Framework Act 1998 to protect school playing fields. A sale or change in the use of a playing field may now happen only with the consent of the Secretary of State. Noble Lords will know that we do not have figures for the disposal of playing fields prior to the introduction of that protection, nor indeed for how the proceeds were used. I shall focus on what we have done.
Section 77 already requires a local authority or the governing body of any maintained school to obtain the consent of the Secretary of State before disposing or changing the use of a school playing field. To ensure that all relevant areas are captured, the definition of "playing field" is extremely broad. It ensures that all open areas on a school site are protected. So we are already ensuring that all outdoor areas used for social or recreational purposes or as habitat areas, as well as sports pitches, fall under the Act.

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Any application to dispose or change the use of a school playing field is considered against strict criteria. Consent will be given only when the remaining playing fields and sporting facilities meet the needs of local schools and the communities that formerly used them, and all proceeds are ploughed back into improved sport provision or educational facilities. Applicants are also required to consult fully on their proposals, including consulting the parents of pupils.
So the amendment adds nothing that is not already provided for in existing statutory provision. But our current protection also goes further than is proposed in the amendment. Since 16th July 2001, all applications have been subject to independent scrutiny by the School Playing Fields Advisory Panel. The panel comprises representatives of the National Playing Fields Association, the Central Council of Physical Recreation, the Local Government Association, the National Association of Head Teachers and the educational charity, Learning through Landscapes. I pay tribute to their work. The panel advises the Secretary of State on the extent to which applications meet the criteria. Only those applications that meet the criteria and are recommended by that group are accepted by me—and, of course, through me, by the Secretary of State.
I contend that the protection for school playing fields that we introduced is working. Last year, in all maintained schools—of which, your Lordships will be aware, there are well over 20,000—only 22 applications to sell school sports pitches were approved. That represents 0.1 per cent of all maintained schools. I can give the House the full position for all changes in all schools since 1st October 1998. We have approved 105 applications involving the loss of school sports pitches. In 43 cases—almost half— the reason for the loss was that the school was closing or had closed. Of the 62 cases involving schools that continued to operate, 38 resulted in improved sports facilities, including new or replacement sports pitches, all-weather pitches and sports halls. In the remaining 24 cases, the proceeds were used to improve teaching facilities.
So I can be clear that the amendment would not increase the existing protection for school playing fields, on which the Government have achieved a great deal. In addition, it would require ballots of the parental body, which would be bureaucratic and time-consuming for all involved. In some cases—this is the defect of the amendment—where the school is to close, it would simply be unworkable. In those circumstances and in the light of the technical defect in the amendment, I hope that the noble Baroness, Lady Blatch, will feel able to withdraw it.
Lord Addington: My Lords, the noble Baroness talked about when school pitches are sold. Does she accept that one needs a lot of turf around the pitch to make it useful?
Baroness Ashton of Upholland: I do, my Lords. I know that the noble Lord takes a great interest in this matter. I can tell him that in every single case, when an
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application is dealt with by the independent panel, it carefully considers the specifics of what is proposed. It has plans and drawings before it. It ensures that the school cannot possibly have a detrimental effect in terms of providing what the children need; that it has the full support of the community; that all of the other schools are asked whether they have any need for that piece of ground; that it consults the community; and that representations are invited from the Member of Parliament. I am sure that all noble Lords will recognise that the organisations that I have cited take a strong, clear stance—hence their involvement in the group—of ensuring that no child suffers a detrimental effect.
But there are some circumstances in which there is land around a school that is not used and could be used to better purpose and the proceeds from the sale of that land could be used to improve facilities. Those are the circumstances in which a recommendation is made to me as the junior Minister responsible and, through me, to the Secretary of State and it is only in those circumstances that it is accepted. I am extremely proud of our record during my time in office in the last year and before that.
Baroness Blatch: My Lords, the noble Lord, Lord Addington, picked up the very point that I was going to address. Many schools, especially primary schools, have a field—not a pitch, but an area specifically used for sport. There are running tracks that are not pitches. There are many grassed and tarmacadamed areas that are sports facilities but do not fall into the narrow definition of sports pitches. I have before me the Government's list— from the north of the country to its most southern tip—of school playing fields—the words in the Minister's Answer are "playing fields"— that have been sold off. In the list in front of me, in 47 of the 79 cases, playing fields were sold off and the moneys were not used to enhance sports facilities.
The Minister confined herself to a very narrow definition of school sports pitches. If the department feels strongly about this issue, it would be helpful to know what is its definition of the playing fields and playing areas that are used by schools for sports and—I agree with those who made the point—recreation for children. I agree with the noble Lord, Lord Addington, that in this context one has to think of a community wider than the school. There is now very much more community involvement with school facilities and schoolchildren involvement with community facilities.
Why is it that Kate Hoey was so unhappy and, indeed, remains so? On a recent phone-in programme on Radio 5 she again expressed her displeasure at what was still happening since she left office as a Minister. Despite the list of organisations mentioned by the Minister, as recently as February this year the director of the Playing Fields Association said:
"We were looking to the Government to protect playing Fields, but what we have seen is tinkering in the system, which will not help".

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I do not think that that is an answer. There is a glossing over of a real problem. The Government are in their sixth year and they must live up to what they said when they came into office in 1997—that is, that playing fields will not be under threat from them.
5.12 p.m.
On Question, Whether the said amendment (No. 54) shall be agreed to?
Their Lordships divided: Contents, 115; Not-Contents, 129.

Division No. 3

CONTENTS

Aberdare, L.

Lucas, L.

Addington, L. [Teller]

Luke, L.

Anelay of St Johns, B.

McColl of Dulwich, L.

Astor of Hever, L.

Maclennan of Rogart, L.

Avebury, L.

Maddock, B.

Baker of Dorking, L.

Maginnis of Drumglass, L.

Barker, B.

Mar and Kellie, E.

Biffen, L.

Marlesford, L.

Blatch, B.

Masham of Ilton, B.

Boardman, L.

Mayhew of Twysden, L.

Bridgeman, V.

Methuen, L.

Brigstocke, B.

Miller of Hendon, B.

Brooke of Sutton Mandeville, L.

Monro of Langholm, L.

Brookeborough, V.

Montagu of Beaulieu, L.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Byford, B.

Murton of Lindisfarne, L.

Campbell of Alloway, L.

Newby, L.

Carnegy of Lour, B.

Northesk, E.

Clement-Jones, L.

Norton of Louth, L.

Colwyn, L.

O'Cathain, B.

Cope of Berkeley, L.

O'Neill of Bengarve, B.

Cox, B.

Oppenheim-Barnes, B.

Craig of Radley, L.

Palmer, L.

Crathorne, L.

Pearson of Rannoch, L.

Crickhowell, L.

Plummer of St. Marylebone, L.

Dacre of Glanton, L.

Prior, L.

Dean of Harptree, L.

Rawlings, B.

Dholakia, L.

Razzall, L.

Dixon-Smith, L.

Redesdale, L.

Dundee, E.

Rees, L.

Eccles of Moulton, B.

Rennard, L.

Elles, B.

Renton, L.

Elliott of Morpeth, L.

Roberts of Conwy, L.

Falkland, V.

Rogan, L.

Fearn, L.

Roper, L.

Ferrers, E.

Russell, E.

Freeman, L.

Saltoun of Abernethy, Ly.

Gardner of Parkes, B.

Seccombe, B. [Teller]

Garel-Jones, L.

Sharman, L.

Geraint, L.

Sharp of Guildford, B.

Glentoran, L.

Sharples, B.

Goodhart, L.

Shaw of Northstead, L.

Greenway, L.

Shutt of Greetland, L.

Hooper, B.

Skelmersdale, L.

Hooson, L.

Smith of Clifton, L.

Howe, E.

Stoddart of Swindon, L.

Howe of Aberavon, L.

Strathclyde, L.

Howe of Idlicote, B.

Swinfen, L.

Howell of Guildford, L.

Tenby,V.

Hylton, L.

Thatcher, B.

Jenkin of Roding, L.

Thomas of Gwydir, L.

Jopling, L.

Thomas of Walliswood, B.

Knight of Collingtree, B.

Thomson of Monifieth, L.

Laird, L.

Trefgarne, L.

Livsey of Talgarth, L.

Tugendhat, L.

778

Vivian, L.

Weatherill, L.

Waddington, L.

Wilcox, B.

Walmsley, B.

NOT-CONTENTS

Acton, L.

Howie of Troon, L.

Ahmed, L.

Hoyle, L.

Alli, L.

Hughes of Woodside, L.

Amos, B.

Hunt of Kings Heath, L.

Ampthill, L.

Irvine of Lairg, L. (Lord Chancellor)

Andrews, B.

Ashton of Upholland, B.

Islwyn, L.

Bach, L.

Janner of Braunstone, L.

Barnett, L.

Jones, L.

Bassam of Brighton, L.

Jordan, L.

Bernstein of Craigweil, L.

Judd, L.

Billingham, B.

Kirkhill, L.

Blackstone, B.

Layard, L.

Borrie, L.

Lea of Crondall, L.

Boston of Faversham, L.

Levy, L.

Bragg, L.

Lipsey, L.

Brightman, L.

Lockwood, B.

Brookman, L.

Lofthouse of Pontefract, L.

Brooks of Tremorfa, L.

Macdonald of Tradeston, L.

Bruce of Donington, L.

McIntosh of Haringey, L. [Teller]

Burlison, L.

Campbell-Savours, L.

McIntosh of Hudnall, B.

Carter, L.

Mackenzie of Framwellgate, L.

Christopher, L.

Mason of Barnsley, L.

Clarke of Hampstead, L.

Massey of Darwen, B.

Clinton-Davis, L.

Merlyn-Rees, L.

Cohen of Pimlico, B.

Milner of Leeds, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morris of Aberavon, L.

David, B.

Morris of Manchester, L.

Davies of Coity, L.

Nicol, B.

Davies of Oldham, L.

Orme, L.

Desai, L.

Patel of Blackburn, L.

Dixon, L.

Pendry, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Pitkeathley, B.

Elder, L.

Plant of Highfield, L.

Evans of Parkside, L.

Ponsonby of Shulbrede, L.

Evans of Temple Guiting, L.

Puttnam, L.

Falconer of Thoroton, L.

Radice, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Faulkner of Worcester, L.

Randall of St. Budeaux, L.

Filkin, L.

Rea, L.

Fitt, L.

Rendell of Babergh, B.

Freyberg, L.

Rooker, L.

Gale, B.

Scotland of Asthal, B.

Gibson of Market Rasen, B.

Sheldon, L.

Gilbert, L.

Simon, V.

Gladwin of Clee, L.

Stone of Blackheath, L.

Golding, B.

Strabolgi, L.

Goldsmith, L.

Strange, B.

Gordon of Strathblane, L.

Symons of Vernham Dean, B.

Goudie, B.

Temple-Morris, L.

Gould of Potternewton, B.

Thornton, B.

Grabiner, L.

Tomlinson, L.

Graham of Edmonton, L.

Turner of Camden, B.

Gregson, L.

Uddin, B.

Grenfell, L.

Walker of Doncaster, L.

Grocott, L. [Teller]

Walpole, L.

Hardy of Wath, L.

Warwick of Undercliffe, B.

Harris of Haringey, L.

Whitaker, B.

Harrison, L.

Whitty, L.

Haskins, L.

Williams of Elvel, L.

Hayman, B.

Williams of Mostyn, L. (Lord Privy Seal)

Hilton of Eggardon, B.

Howells of St. Davids, B.

Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 31 [Responsibility for fixing dates of terms and holidays and times of sessions]:
5.22 p.m.
Baroness Matchmoved Amendment No. 55:
Page 18, line 43, at end insert—
"( ) Nothing in this section shall permit the introduction by a local education authority or a governing body of a change to the number of school terms in a year without prior consultation with, and the approval of, the majority of parents of pupils in the school or schools affected."
The noble Baroness said: My Lords, with this amendment I can be brief. Changing the school year has an enormous impact on the structure not only of the lives of people in an area but of schools within the area. If it is done without proper consultation and without proper endorsement, such a change would be ill-conceived. I beg to move.
Baroness Ashton of Upholland: My Lords, this is an area where the Government see no need to regulate existing arrangements for local decision-making if these are working well. Perhaps I may briefly explain why.
My department has received very few requests for any change to the present arrangements under which school term dates are decided locally by those most affected. Non-statutory consultation procedures appear to work well. We simply do not wish to add to the body of education legislation where it is not necessary.
Although it is not a statutory requirement, we expect local authorities to consult widely on issues that affect people in their areas; and the evidence is that local education authorities understand the need for wide consultation. We are satisfied that under the existing arrangements local education authorities are taking a responsible approach to this. The report of the Local Government Association on the six-term year, for example, includes a detailed account of the consultation carried out by Wigan before deciding to change the pattern of terms locally. We know of several other authorities that are conducting consultation exercises on this issue, involving parents as well as other interest groups.
The evidence indicates that local education authorities consult on changes that affect school terms. Therefore, the amendment is unnecessary. I accordingly invite the noble Baroness to withdraw it.
Baroness Blatch: My Lords, it is unfortunate that the noble Baroness believes that local education authorities are doing everything right in this respect, but trusts them on almost nothing else—the Bill contains so much regulation because they are not trusted to do this, that and the other.
There is no legal obligation on local education authorities to consult, and there is nothing that says that they should. I thought that this was a perfectly sensible thing to do and—given that it is a cost-free option—that the Government in their generosity would accept the amendment. In despair, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Baroness Sharp of Guildfordmoved Amendment No. 56:
After Clause 33, insert the following new clause—
"NATIONAL PARENTS' COUNCILS
(1) The Secretary of State in England and the National Assembly for Wales shall make arrangements for the establishment in each country of a National Parents' Council, which shall consist of elected representatives of parent governors, one from each local education authority area.
(2) Regulations shall provide for—

(a) eligibility for election to the respective Councils;

(b) the procedures by which such elections will take place;

(c) the terms of office of members and officers;

(d) the procedures by which the chairman and vice chairman are to be elected;

(e) arrangements for meetings of the respective Councils;

(f) the reimbursement of members for travel and expenses; and

(g) any other matters relating to the constitution, procedures and meetings of the Councils as are appropriate."

The noble Baroness said: My Lords, I moved this amendment in Committee—but do so again because the response that we received was not at all satisfactory.
As I made clear in Committee, when the amendment was debated late at night, there are a great many countries where there is official representation of parents. In the US and Canada, parent representatives sit on state boards of education; and in Denmark, France, Germany, Ireland, Portugal and Spain, parents are represented on key national policy-making committees. In most cases, parental representation is set down in legislation. Only in England, Wales and Japan are parents not represented as of right on any national policy-making or advisory committee.
In his response in Committee, the noble Lord, Lord Davies, said that the amendment was not necessary because the Government have already done what I am asking for: we now have parent representatives on local governing bodies, so parents are well represented and that is all we need. My response to the noble Lord is that that is not all we need. As I said at the time, we need representation at national level.
Parents have a huge investment in education because in a sense they entrust their children to it. By proxy, they are the consumers of education, certainly up to key stage 4, because they make the key decisions for their children in education.
The Government place great emphasis in the provision of public services on listening to consumers and on taking note of what they say. Yet at the national level there is no body which they can consult which represents parents—in spite of the fact, as the Minister pointed out in Committee, that we have a very good way of representing parents: we elect parent representatives to governing bodies, and they elect representatives to sit on local education authorities. The amendment suggests that we go one step further and ask those who sit at each local education authority level, between themselves, to elect someone to go forward to sit on the national council.

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As I say, this is odd, given the degree to which the Government are anxious to involve stakeholders in decision-making and given their recognition that the consumer voice should count in public services. The report written by Joe Hallgarten of the Institute for Public Policy Research, which I quoted in Committee, notes that a support network has been set up to support and pass information on to parent governors. There is a parents' centre on the DfES website. However, as the report notes,
"There is one missing link; parents are still not represented by a single body at the national level".
It continues—and given the Minister's reply last time these words seem very apposite:
"The arguments against the creation of such a body are limp. Of course, parents are a heterogeneous group, and cannot be truly represented by a few individuals. The same could be said for virtually every national organisation".
Indeed, the Government consult several national teacher and head teacher organisations, and they consult the national organisation representing governors. They consult what might be termed the "producer interests" very well. But they do not at present consult the consumer interests very well. There is no national organisation representing parents. Yet in many respects we have all the structures set up and ready to create such a council. The School Standards and Framework Act 1998 made it a requirement for LEAs to have parent governor representatives, elected by parent governors, on the appropriate committee dealing with education. These elected parent governor representatives could, as suggested in the amendment, so easily come together to form national parents' councils.
I cannot accept the Minister's arguments that such a body would not be representative. We have elected parent governors who in turn elect their representatives on the LEAs. They have the legitimacy of being elected, not self-selected, which is true of so many other national bodies. Surely this is the best way in which to make them representative while at the same time creating national parents' councils which would add purpose and status to their position as governors.
If the Government believe in practising what they preach, in giving the consumer interest a real say in national decision-making, then here is an excellent point at which to start. Let us have national parents' councils. I beg to move.
5.30 p.m.
Lord Peston: My Lords, I am very glad that the noble Baroness, Lady Sharp, has raised this issue at a reasonable hour today. I am very sympathetic to the underlying philosophy she has put forward. My concern is whether we really want this to be done in this way—via government regulations, government money and so on.
If I may start with an acerbic remark, the Government have set up a number of bodies, the common trait of which, I feel, is that they are powder-puff bodies. I shall not name names or the various
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chairman, but I believe that on the whole they do not subject the education system to the type of tough scrutiny that should be the result of setting up such bodies. My fear is that the body proposed by the noble Baroness, Lady Sharp, would go the same way.
I reflect on Lord Young of Dartington, our late lamented friend who was a great man in this sphere. Looking at Amendment No. 56, I thought to myself, "What would he have done in response to the same set of needs?" I do not think that he would have thought that the way to do it was to say to the Government, "You make regulations. You find the money. You finance the secretariat". I think that he would have said, "I shall go"—he was an amazing man in this regard—"to various charities and trusts and tell them, 'This is what I want to do. I need this money to set up the secretariat, and I need this money to get the whole thing going'. I would therefore set up an independent body rather than this"—as he did with the Consumers' Association and many other bodies.
I am therefore totally with the noble Baroness, Lady Sharp, in her objective. I do not, however, quite like the model of producers and consumers in education. I do not see the parent solely as a consumer, and I am sure that the noble Baroness probably does not see it quite like that either. I see the parent as a much bigger contributing factor to the whole way in which we educate in this country and not merely as a recipient. I should like to see such a body. However, what I would really like to see—perhaps the noble Baroness is the person to take the lead in this—is a body that is separate from the Government, with a great deal of independence. It should have the type of independence that enables it to say, "This is not right". I think that such a statement on a given issue would carry great weight because, as the noble Baroness said, the body would be composed of the elected members of other governing bodies.
So I am with the noble Baroness. However, I am not sure that it would be right to go down the path of letting the Government finance the body. When a government body is established, regardless of how independent its members seem, despite everything, they really do pay attention to what the Government want as well as to what they were set up for in the first place. The noble Baroness is right to raise the issue and, as I said, I am with her in her objective and philosophy. On the whole, however, I think that it might be better to take a path via our country's voluntary tradition and persuade one of the great charities that, if they would find the money, this would be a great achievement for them.
Lord Davies of Oldham: My Lords, we seemed to be in danger of repeating our debate in Committee almost word for word and line for line. In Committee, however, we did not have the benefit of a speech from my noble friend Lord Peston. We are all the better for having had one today.
We are all united on one obvious point: we want to ensure that parents play the fullest possible part in our education provision. In all sorts of ways, we seek to ensure that that happens. We are always looking for

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ways in which to enhance that role. My noble friend Lord Peston was right that we would be very fortunate to have another Michael Young to play the type of unique role he played in this sphere. Michael Young was extraordinarily adept at identifying needs and creating structures in which those needs could be met. However, Michael Young also recognised that, in many respects, a modern and healthy democratic society has ways of articulating those needs. If a national body would fill an enormous gap in our consultative procedures and fill a role currently denied to parents, surely that point would have emerged from our present structures.
The parent governor representatives elected to our schools' governing bodies play a very important part in local—and increasingly in regional—consultation on developing education strategy. If a national body were needed, surely those representatives would have articulated that need and the department would have been under considerable pressure to establish a national council to bring together the various groups. I can only say that that has not happened. I believe that it has not happened because parents feel that there is a range of bodies in which they can play their part in challenging weaknesses in education provision and producing constructive outlines which provide a framework for consultation.
I shall make the most obvious point. Many parents play their part in the campaign for state education, and many play their part in the National Governors' Council. Many parents play a very effective part in parent teacher associations, which have a national council. Those may be membership organisations, but that does not mean that they are not effective in collecting views and making valuable contributions to the debate on all aspects of the work in schools.
We share the desire of the noble Baroness, Lady Sharp, to enhance parents' role in education. None of us believes that we can provide effective education in schools without the crucial role played by parents. However, as my noble friend Lord Peston said, the case has not been made for establishing another body entirely with government resources. I also do not believe that parents have identified a crucial gap which they feel limits their opportunities to contribute to education. It is also not an emerging point. The National Confederation of Parent Teacher Associations has, after all, existed for more than 40 years.
I accept entirely the good and valuable intentions of the noble Baroness, Lady Sharp. I also hope that I have done rather better than I did in Committee in persuading her as to why the Government do not believe that this body is necessary. I therefore hope that she will consider withdrawing her amendment.
Baroness Sharp of Guildford: My Lords, I thank the Minister for his further limp reply. I did not expect that he would go much further on this issue, but the fact remains that there is a need for such a body at a
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national level. If the Minister had received as many e-mails as I have received from parent governor representatives, he would recognise that they would like to have a national body to represent them.
I thank the noble Lord, Lord Peston, for coming up with a valuable suggestion. As he rightly said, there is the great danger of having government placemen on a body that is paid for by the Government. My main objection to a great many of the bodies that have been set up by the Government is that they are quangos and the people who sit on them are nominated and they are frequently placemen. The notion that we might try to use governor representatives to form a national council but try to get a body such as Rowntree or Leverhulme to help fund it is a good one and I shall feed it back to those who have prompted me to make such representations.
I believe that we shall get no further if we try to push the Government on the matter. I regret that as I believe that we need to have a consumer voice. The problem at the moment is that it is divided. I was at one time a member of the national executive of CASE. We constituted a strong voice but we could never claim to be totally representative as we constituted a particular group. The National Governors' Council represents parent governors, but many governors are not parent governors. The National Confederation of Parent Teacher Associations represents parent teacher associations, but it has its own agenda. I recognise that each of those bodies is consulted on occasions but that is by no means always the case. What is needed is a body whom the Government can consult when they want to consult parents. There is a void in that regard at the moment which needs filling. However, as I say, I take on board the point made by the noble Lord, Lord Peston. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Staffing of community, voluntary controlled, community special and maintained nursery schools]:
Baroness Walmsleymoved Amendment No. 57:
Page 20, line 22, leave out from "under" to end of line 24 and insert "the direction of the head teacher of a school to which this section applies is to be employed by the local education authority under a contract of employment."
The noble Baroness said: My Lords, in moving Amendment No. 57 I wish to speak also to Amendment No. 62.
These amendments seek to clarify on the face of the Bill that a member of staff, teaching or otherwise, employed at a maintained school or a voluntary-aided school working under the direction of the head teacher must have a contract of employment either with the LEA or with the governing body in the case of foundation or voluntary-aided schools. As my noble friend Lady Sharp pointed out in Committee, the Bill as it stands states only that there should be a contract of employment at a school; it does not say with whom. She commented that we seek to make the distinction between those who are under the direction of the head and have a contract with the LEA or governing body and those who have a contract with someone else such

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as an agency and are therefore ultimately under its direction as employees. The agency may transfer the day-to-day direction of the member of staff to the head teacher, but ultimately they are employees of that agency in terms of employment law.
I see no reason why making this matter clear would restrict the flexibility of schools in terms of sharing staff from other local schools, or place "unhelpful limitations" on schools as the Minister suggested in her reply in Committee. That is because the amendment does not insist that all staff working at the school should be employees of the LEA or governing body but it does seek to make a distinction about whether the head is directing a subordinate member of staff or managing the engagement or programme of work of a self-employed contractor or agency employee. If the staffing of schools is to become more flexible and more complex, I see it as vital that this detail is made perfectly clear. I hope that now that the Minister has had more time to consider these amendments she will accept them as being constructive and in the interests of good employment practice. I beg to move.
5.45 p.m.
Baroness Blatch: My Lords, this is a large group of amendments. I wish to speak to Amendments Nos. 58, 59, 60, 63, 64, 65 and 66.
Amendment No. 58 concerns subsection (2) of Clause 34. Subsection (2) states:
"Any teacher or other member of staff who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the local education authority".
Amendment No. 58 contains the caveat that subsection (2) shall apply only,
"to schools in any category set out in subsection (1) which have failed to satisfy OFSTED in relation to their general standards of education and school management".
In other words, schools should be responsible for employing their own staff unless they have fallen foul of the standards expected by the Secretary of State and have failed to satisfy Ofsted.
I turn to my Amendments Nos. 59, 60, 63, 64, 65 and 66. Amendments Nos. 63, 64, 65 and 66 are the same as Amendments Nos. 59 and 60 respectively. However, Amendments Nos. 59 and 60 refer to community schools, voluntary controlled schools, community special schools and maintained nursery schools, whereas Amendments Nos. 63, 64, 65 and 66 refer to voluntary-aided schools and foundation special schools. We seek to make absolutely clear and beyond doubt what we are talking about when referring to staff who work at a school otherwise than under a contract.
I believe that we are talking about people who work at a school who are not under a direct contract of the school but are either contracted to a third party; that is, an agency, or may be volunteers, in which case they will come under a contract. Sometimes people who volunteer in a school are comprised of parents or friends who may help to teach children to read, for
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example. They usually have nothing like a formal contract but nevertheless they are working in a school. I seek to make the position explicit by inserting the words "direct" and "with the school". I give an example of the wording that would apply if one of my amendments were accepted. Subsection (5)(b) of Clause 35 would state:
"make provision with respect to the appointment of teachers and other staff to work at a school otherwise than under a direct contract of employment with the school".
That would put the position beyond doubt. There is something puzzling about a provision that simply states,
"the appointment of teachers and other staff to work at a school otherwise than under a contract of employment".
Baroness Ashton of Upholland: My Lords, I hope that I may reply, first, to Amendments Nos. 59, 60 and 63 to 66. I want to try to remove any misunderstanding about the meaning of these provisions which are related to school staff who work otherwise than under contracts of employment.
These provisions refer to people who are working at or for a school but who are not employed by the local education authority or the governing body depending on the school category. They may be paid by an agency or some other establishment, educational or otherwise, and work under contracts of employment with those bodies to provide services at the school. Alternatively, they may be self-employed and work under a contract for services at a school, but not under a contract of employment.
We want governing bodies to be able to continue to engage or appoint such staff, and to provide for regulations to make provision for the appointment of such persons. This will make clear that schools are able to make use of staff resources in this way outside the normal employment arrangements with either the local education authority or the governing body, and will give scope to ensure that schools follow good practice in these matters. Examples of such people are supply teachers; cleaners who work for an agency; kitchen staff who may work for an agency that provides school meals in a school or technical staff brought in to look after computers in a school.
These are technical matters and we have had to use legal terminology in drafting these provisions. In referring to contracts of employment, the addition of the words "with the school" would introduce confusion and be inaccurate. The words may appear to clarify the meaning, but contracts of employment in this context are either with the LEA or the governing body, depending on the category of school concerned. The governing bodies of the categories of schools under Clause 34 have traditionally never employed staff and cannot do so. The role of employer is undertaken by the local education authority. The governing bodies of the categories of schools under Clause 35 on the other hand do employ staff directly.
We do not propose to change those arrangements. However, schools are free to seek to change categories, if the governing body wishes it, for greater or lesser autonomy in those matters. We propose to continue to

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provide for that diversity in staffing arrangements and at the same time ensure scope for schools to innovate and use a variety of resources in delivering education. I hope that that clarifies the scope of these provisions sufficiently for the noble Baroness to feel able to withdraw the amendments.
I turn to Amendments Nos. 57 and 62. As noble Lords said, we debated almost identical amendments in Committee. I have considered these amendments and I still believe that they would severely limit the ability of schools to use staff resources flexibly. According to the amendments, as I have explained, all staff would have to work under a contract of employment with either the local education authority or the governing body, depending on the category of school concerned.
We believe that that would place greater limitations on the scope of schools to use a variety of staffing methods to deliver education. We want to free schools so that they may innovate by using different ways of delivering education. These amendments would discourage and prevent schools from sharing staff or using expertise from other institutions. An example would be the use of further education lecturers or those delivering education via information and communications technology facilities. I hope the noble Baroness appreciates that that would not help schools to deal with the challenges or take advantage of the opportunities that the future may present.
In a previous amendment, the noble Baroness, Lady Sharp, raised the matter of the proposed EU directive on agency workers and its effect on the position of agency supply teachers in schools. I have written to the noble Baroness about that, and I refer noble Lords to the copy of the letter which I have placed in the Library. On that basis, I hope that the noble Baroness will feel able to withdraw those amendments.
I turn to Amendment No. 58. I make it clear that local education authorities have traditionally employed staff in the categories of school to which this clause relates. The governing bodies concerned have never undertaken the role of employer. As I said, they are not empowered to employ staff. I refer noble Lords to paragraph 3(7) of Schedule 1, which replicates the existing provisions under the School Standards and Framework Act 1998.
Over many years schools have had opportunities to change the categories and acquire the scope to employ staff directly. That option will continue. But the large majority of schools have chosen to continue with the local education authority as the employer of staff. Many schools whose governing bodies employ staff directly use their local education authorities to employ non-teaching staff. In our view, it is then clear that local education authorities play a fundamental role in employing staff in state schools.
This amendment suggests that local education authorities should employ staff only if schools are failing. That would leave a big gap to fill. If this amendment were introduced, it would be very disruptive and damaging to education. The majority of people who work in schools would overnight be placed
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in an employment limbo. Their existing contracts of employment with the education authorities would be undermined. Clear arrangements would need to be in place for contracts of employment to be passed on to another employer.
If the intention is that governing bodies should assume the role of employer, the question to ask is what evidence exists to show that that is what those schools want. No one is forcing those schools to stay with local education authority employment arrangements. If they wish to, they can leave now. But all schools must have the freedom to choose what is best for them and to choose the arrangements that suit their particular local circumstances.
Practice has shown that the role of local education authorities in employing school staff is a widely valued and freely accepted element of our education service. I therefore ask the noble Baroness, Lady Blatch, to reconsider the consequence of this amendment and agree to withdraw it.
Baroness Walmsley: My Lords, I thank the Minister for her clarification of these matters. I should like to consult with the NUT whose concerns I have expressed in moving these amendments. Meanwhile, I beg leave to withdraw.
Amendment, by leave, withdrawn.
Baroness Blatchhad given notice of her intention to move Amendment No. 58:
Page 20, line 24, at end insert—
"( ) Subsection (2) shall only apply to schools in any category set out in subsection (1) which have failed to satisfy OFSTED in relation to their general standards of education and school management."
The noble Baroness said: My Lords, I accept that the LEA has traditionally been the employer, but in tabling Amendment No. 58 I was trying, perhaps rather feebly, to extend the right of the schools to employ themselves. I totally accept the arguments put by the Minister. I shall not press the amendment, nor shall I return to it at a later stage of the Bill. However, the Minister has not spoken to any of my other amendments in this group, Amendments Nos. 59, 60, 63, 64, 65 and 66, and I wonder whether the Minister intends to reply to them, because I have in fact spoken to them.
[Amendment No. 58 not moved.]
Baroness Blatch: My Lords, I was saying that I had spoken to Amendments Nos. 59, 60, 63, 64, 65 and 66, but that the Minister has not responded to them.
Baroness Ashton of Upholland: My Lords, I should make it clear that I replied in one of my groups to Amendments Nos. 59, 60, 63 and 66. I have checked that I responded to all amendments.
Baroness Blatch: My Lords, I apologise that I did not pick that up. I thought that it was a general answer on staffing arrangements. Having listened to what the

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Minister said, without realising that it specifically related to my amendments, I am not sure that I have made myself clear.
I accept that individual third parties, such as window cleaners, caterers and plumbers, who come into a school to work, will not be under a direct contract with the school. Nevertheless, they will—
Lord Davies of Oldham: My Lords, I am not quite sure whether the noble Baroness is moving the amendment at the present time or replying to the original debate, on which she has already spoken.
Baroness Blatch: My Lords, if it is the only way in which I can speak to it, I move Amendment No. 59:
Page 20, line 37, after second "a" insert "direct"
The noble Baroness said: My Lords, I apologise for getting the procedure wrong. It was because I did not realise that the Minister had in fact referred to all my amendments.
I return to the notion of a third party, who would not be under a direct contract with the school but would nevertheless be under a contract with his or her own employer, or, in the case of a window cleaner, perhaps self-employed—the employer in turn being under a contract to the school—coming to work on school premises to either service computer equipment, to clean the windows, to feed the children or to lay the carpets. Referring to subsection (5)(b), I am making the distinction between a teacher who is under a direct contract with the school and another person who works at the school but is not under a direct contract with the school.
It is a question of making that explicit. I am not sure that I have understood the Minister's response. Had I been in the Minister's shoes, I would at least have courteously repeated my point, given that I had a total misunderstanding. I thought that the Minister was simply refusing to answer. I saw her nodding her head and asking the Deputy Speaker to get on with it.
Baroness Ashton of Upholland: My Lords, I was nodding my head because this is a very new procedure to me. This is only my second day of Report stage and I rely on the knowledge and experience of other noble Lords when we find ourselves in a difficulty that I have not created.
Although it may be appropriate for me to repeat what I said in response, we have another stage of the Bill, and I shall ensure that I have dealt with every point that the noble Baroness has raised. However, I am quite sure that I specifically dealt with them.
I said that those provisions refer to people working at or for a school, but not employed by the local education authority or governing body, paid by an agency or other establishment and working under a contract of employment with those bodies to provide services at the school—precisely the group to which the noble Baroness referred—or the self-employed. We want governing bodies to be able to continue to engage or appoint such staff and to provide for
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regulations to make provision for the appointment of such persons. We make it clear that schools are able to make use of staff resources in that way, outside the normal employment arrangements, with either the education authority or the governing body. I went on to say that these are technical matters and that we have had to use legal terminology in drafting these provisions.
With regard to contracts of employment, we believe that the addition of the words "with the school", contained in the amendment tabled by the noble Baroness, would introduce confusion and would be inaccurate. The words may appear to clarify the meaning, but contracts of employment in this context are either with the local education authority or the governing body, depending on the category of school concerned. The governing bodies of the categories of schools under Clause 34 have traditionally never employed staff and cannot do so, and those under Clause 35 employ staff directly. We do not propose to change those arrangements, but schools are free to change categories as their governing bodies wish in order to achieve greater or lesser autonomy.
6 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for repeating that, and I am sorry that I missed it earlier in the debate. I have no objection to the notion that there must be regulations to make provision for people who work on the campus, whether employed directly or indirectly by the school. Subsection (5)(b) and other subsections in this part of the Bill refer to staff who,
"work at a school otherwise than under a contract".
However, the people to whom I referred are under a contract. The Bill does not say, "contract with a school"; it states, "under a contract". Those people are working under a contract. The contract may not be with the school; it may be with their employer or it may be a self-employed contract, but they are under a contract.
I knew that the noble Baroness was referring to third-party people who enter premises in order to work and for whom regulations must set out how they conduct themselves when on those premises. They are not working there under a direct contract with the school, which is what the wording of my amendment implies; nevertheless, they are under a contract. I believe that the wording of my amendment is in plainer English than the wording proposed by the department. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 60 not moved.]
[Amendment No. 61 not moved.]
Clause 35 [Staffing of foundation, voluntary aided and foundation special schools]:
[Amendments Nos. 62 to 66 not moved.]
Clause 39 [Determination of specified budgets of LEA]:
Baroness Sharp of Guildfordmoved Amendment No. 67:
Page 24, fine 26, after "schools" insert "including expenditure on special educational needs support services"
The noble Baroness said: My Lords, we now move on to Clause 39 and the next section of the Bill, which concerns the determination of local authority budgets and, indeed, the ring-fencing of those budgets. In moving Amendment No. 67, I shall speak also to Amendment No. 70.
These two amendments are concerned with special educational needs. They come from the Special Educational Consortium, which has very real concerns that the increased delegation to schools, while desirable in many ways, will have a detrimental effect on special educational needs services.
In many local education authorities, the delegation of the special educational needs support services has led to their erosion. When they are delegated, it is difficult to maintain the expertise that once existed in the service. There is concern that the high levels of delegation now expected in LEAs is eroding the specialist expertise in local support services, particularly where staff from hearing impairment and visual impairment services have been absorbed into general services.
Concerns are now at such a level that a number of organisations are worried that the expertise in their specialism is threatened. The RNIB, the RNID and Sense have all expressed concern. However, this matter relates not only to services for hearing and visually impaired pupils and for speech and language-impaired pupils; it is a problem in other areas where there is an acute need to build up expertise in schools—for example, in understanding the special educational needs of pupils with autistic spectrum disorders. The National Autistic Society also shares those concerns.
Without specialist services to support and develop the capacity of schools to work with a range of pupils with special educational needs, national policy on developing effective inclusion is likely to be limited by the pace of the slowest school. We discussed that issue at length when the Special Educational Needs and Disability Bill came before the House. At that time, it was made clear that one needs to use the specialist services that are available at local education authority level or within special schools to ensure that they are available to help other schools and other teachers to develop their specialisms in this area. In so far as those specialist services are being eroded, it is far more difficult for that to happen.
This Bill proposes new ways of calculating the LEA's budget and the schools budget. The intention behind the amendment is to ensure that the funding of SEN support services is located where it will not be subject to pressures to delegate. However, there are some doubts as to whether that will really be achieved.
Amendment No. 70 relates to the overall pressure on SEN support services. There is concern about the lack of clarity in regard to the respective
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responsibilities of schools and local education authorities for children with special educational needs. It is not possible to see the effect of the new regulations requiring LEAs to set out what schools are expected to fund from their delegated budget and what LEAs will fund from their retained budget. These regulations have only just come into force, and it is too soon to assess the extent to which they may be able to help to ease the situation.
This amendment is modest. It would give schools a guideline for special educational needs spending. Such a guideline would, first, provide a benchmark for special educational needs spending in schools in the LEA area; secondly, it would combine with the new regulations so that schools would have a guideline on what they might purchase with their delegated budget and how much they might spend on it; and, thirdly, it would provide a basis for professional discussion between the LEA and the school about the delegated budget. All that can be done within the context of the LEA-schools relationships code of practice and its guiding principle of intervention in inverse proportion to success.
There is some feeling that Amendment No. 70 is too modest. There is a feeling that in order to stop the erosion of services and to start to build up the capacity of schools in response to the range of needs of pupils who may be placed in mainstream settings, there is a requirement for a far more radical approach to restructuring what had been the old SEN budget and a new and significant injection of funds.
Both amendments derive from the current apparent erosion of specialist expertise and doubts as to whether these budgetary arrangements will be able to stop that erosion. I beg to move.
Baroness Ashton of Upholland: My Lords, I have listened with great care to what the noble Baroness, Lady Sharp, said in moving Amendment No. 67. I agree with what she said about the importance of the specialised services through which local education authorities support their schools in meeting the special needs of their pupils. I hope that I can give her the assurances which she seeks.
Final decisions on the scope of the local education authority and schools budgets have yet to be taken. However, our firm intention—I can see no reason at all to expect this to change—is that expenditure on educational psychology services and on the statutory assessment and statementing processes will be part of the local education authority budget, while other SEN expenditure will fall within the schools budget.
Moreover, while we would wish local education authorities to keep in mind the benefits of further financial delegation in the special educational needs field, we have no plans to impose any new restrictions on the purposes for which they may retain funding centrally. Under the present regulations, LEAs are permitted to fund specialist SEN support services centrally. Our intention is that they will continue to be allowed to do so under the regulations which will be made under subsection (4) of new Section 45A.

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I can well understand the concerns expressed about the level of delegation. We believe that the way to address the issue of further delegation from here on is to ensure that the local education authorities' expenditure plans—whether for special educational needs or anything else—are subject to well-informed local scrutiny. That is why we want to establish separate LEA and schools budgets, each with its corresponding needs assessment against which the local education authorities' expenditure can be benchmarked. It is also why Clause 41 provides for the establishment of schools forums, whose role will include the examination of LEAs' budget plans.
In the light of the additional local scrutiny that we expect forums to provide, we believe that for most items, and certainly for special educational needs, the right balance for the future is struck by leaving the last word on whether to delegate with the LEA.
I can go further and say that, because of the additional scrutiny that we expect to be provided by forums, at present we have no plans to place LEAs under pressure to delegate funding for SEN support services by imposing limits on the total amount which they may retain centrally within the schools budget. Nor are we minded to set non-statutory targets of the kind which have been a feature of Fair Funding so far. Those targets have been valuable in raising the general level of delegation and in promoting convergence in place of the widely varying delegation levels which existed previously. We believe that the local scrutiny that school forums would provide will be sufficient to avoid the need for further delegation targets.
On the strength of those assurances, I hope that the noble Baroness will withdraw Amendment No. 67. In our view, subsection (2) in its present form already clearly enables expenditure on SEN support services to be included in a school's budget.
I understand the concerns behind Amendment No. 70. It is important that schools have a clear picture of the assumptions underlying their LEAs' funding arrangements for SEN. However, we have already taken action. LEAs must produce annual budget statements. Since 1999, those statements have to show how much of the budget generated for each school by the LEA's funding formula is notionally attributable to special educational needs. Of course such figures have limited value if schools are unclear what aspects of SEN their budgets are meant to fund. Uncertainty is most likely to arise in relation to pupils without statements. However, each LEA is required—with effect from 2002–2003—to publish a statement explaining to schools what aspects of SEN provision for non-statemented pupils they must expect to meet from their own budgets and what aspects the LEA will normally fund centrally.
We are not keen to encourage LEAs to go further in telling schools how to spend their money. SEN funding is changing, in ways discussed in the guidance document that we issued last year, The Distribution of Resources to Support Inclusion. Not only has there been a large increase in the delegation of SEN funding
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but LEAs have been reconsidering the ways in which they allocate it. New funding methods are often designed to encourage schools to manage SEN resources on a whole school basis, rather than treat funding as a collection of more or less earmarked amounts. That is not just a matter of regarding a school's SEN budget itself as a totality. A whole school approach to SEN and to inclusion in general implies a readiness to deploy resources creatively, which can he inhibited if a school sees a particular amount in its budget as being exclusively for special educational needs. Too easily, that amount can be tacitly converted into a limit.
There is no reason for that approach to put pupils' interests at risk. Whether funding is delegated or not, governing bodies are under a duty to use their best endeavours to make the provision for which a child's learning difficulties call—including the provision specified in a statement. Moreover if funding is delegated for pupils with statements, LEAs can reserve the right to intervene if pupils do not receive the provision specified in their statements. In that event, the LEA can make the requisite provision itself and charge the cost to the school's budget. It is right that LEAs should have to tell schools about the SEN elements of their budgets but the substance of the amendment is reflected in existing secondary legislation.
Baroness Sharp of Guildford: My Lords, I am grateful to the Minister for her lengthy reassurances on both issues. It is useful to have on record that there will be limits on the degree to which an LEA budget will be delegated and that a number of central services relating to SEN will remain centralised, which is a useful facility. As to Amendment No. 70, the Minister's reassurance that the emphasis will be on the whole school approach and that the budget will be incorporated within the whole school budget is extremely useful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Baroness Walmsleymoved Amendment No. 68:
Page 25, leave out lines 3 and 4.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I must tell the House that if this amendment is carried, I cannot call Amendment No. 69.
Baroness Walmsley: My Lords, I will speak also to Amendments Nos. 69, 71 and 72, which also relate to the new funding system that gives powers to the proposed schools forums—about which there was considerable debate in Committee—to determine that part of a school's budget that relates directly to pupils. That provision was clearly described in Committee by my noble friend Lady Sharp.
Our problem with the proposals boils down to two matters of principle—the first of which is Clause 39(4)(c). Should an unelected body have ultimate

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responsibility for deploying a school's budget when a perfectly suitable, legitimately elected body already exists for that purpose—the local education authority? I believe in the slogan "No taxation without representation" and thought that a Labour Government would do so too. The proposed school forums would be unelected and contain representatives of heads and governors. Forums would have no democratic accountability. Practical problems of how representative and balanced they would be pale into insignificance in the face of the overarching principle that in this country councillors are elected to do the job. If we do not like the way that councillors perform that duty, we can throw them out at the next election—and do. We shall not be able to do that with the people who serve on school forums.
Although the present regulations give forums powers over only a small part of the budget, there is nothing to stop a future Secretary of State changing the regulations, to give forums much greater power in future. The proposal is a small but significant wedge in a large door and we do not want to see it opened further. There is already pressure for that to happen. The National Association of Head Teachers' briefing on this part of the Bill comments:
"Whilst having a number of concerns regarding the limited powers of the School Forum as currently proposed".
That is a clear indication that some head teachers will press for regulations to be changed in future, to give unelected bodies more power.
The second principle relates to the desirability of devolving decision-making to the lowest appropriate level. Giving the Secretary of State the reserve power to intervene and impose a prescribed minimum level of schools budget where the council's provision is thought to be inadequate is an attempt to make a major change to the balance of power between national and local government. No amount of assurances from the Minister that the power would be used sparingly addresses the fact that the power would be there.
Ring-fencing erodes the power and authority of local government in two ways. It takes away the power itself and undermines the whole reputation of local government for the future—such that the public believe that local councils do little and do not bother to vote for them. The low turnout in local government elections encourages people to say, "Nobody votes for them anyway"—creating a vicious spiral that leads to a complete collapse of confidence in local government. Is that what the present controlling Government want?
The Government contradict themselves. The finance Green Paper published in September 2000 stated that ring-fencing weakens local accountability and democracy, whereas delegating power to local authorities strengthens democracy and encourages participation and serious local responsibility. What are we to think if, in total contradiction, the Secretary of State wants to take to herself a power that has always been in the hands of locally elected representatives? That is being done in the name of
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curbing the excesses of a small number of inefficient LEAs that are anyway subject to the scrutiny of Ofsted and the local electorate.
The only conclusion that one can draw is that the Government do not trust real democracy where it results in a body that does not do what the Government tell it to do. My late husband suffered a number of bitter electoral defeats but always said to me, "In the end, in a democracy, people will democ". A joke perhaps but one with a serious message. Clauses 39 and 40 are an attack on local democracy. I beg to move.
Lord Jones: My Lords, I am glad to follow the noble Baroness's spirited speech. I speak in support of the Minister's Clauses 39 and 40 and with the specified budget of LEAs in mind. In the previous Parliament the previous Secretary of State found it necessary to publish a list of LEAs that had not played fair. Those LEAs did not spend the moneys allocated to them by central government and they did not spend them in the way that central government expected. Therefore, they were named. Their titles were promulgated in the press of our country and perhaps beyond.
One presumes that Clauses 39 and 40 aim to improve matters. Do local authorities continue to misbehave as they did in the previous Parliament? What report will the Minister give on such matters? Is the money that is now being allocated by the department to LEAs being spent on schools? Can we be absolutely sure that that is the case? Is the money getting into the classrooms? Is the money providing more teachers? Does the money buy more library books? The Government provides money for those things.
I ask the Minister what intelligence she has on local education authorities' spending records as of now? How does she know that the treasure of the state being pumped into the service is being spent on the children? That is the Government's aim. I believe that the Government have a splendid record, but I would like to be reassured every month of the year that no LEA is in effect siphoning-off the money. Can she tell the House how the department currently checks to ensure that the money goes where it is intended, to the children and on their books? Can she also say what checks take place to ensure that the money is not secretively siphoned-off by local authorities to be spent under other council spending headings? That is my suspicion. Are the Government sufficiently equipped to monitor effectively our LEAs in that respect?
By asking those questions I am indicating my support for the clauses and I presume that the Government are determined that our children shall receive a better deal, that our councils will do better and that the Government's objectives will be achieved.
Baroness Blatch: My Lords, I am happy to follow the noble Lord, Lord Jones, because I believe that he has posed pertinent questions. I cannot answer what progress has been made by local authorities since the previous Parliament. It would be helpful to have on

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record whether there has been any improvement. Certainly the funding regime was changed. We were promised more clarity and the percentage of money that had to be passported on to schools was deemed important enough to be made a legal obligation. We now know that there are ways and means for the Government, without this Bill, to do something about breaches. It would be helpful to have the question posed by the noble Lord, Lord Jones, answered.
I can answer another question posed by the noble Lord. He asked whether the money is reaching the schools. The answer is no, it is not. But the villain of the piece is not necessarily local authorities. Like the noble Lord, Lord Jones, I accept that some local authorities go to enormous lengths to camouflage the way in which they fund their local authority schools and do not serve their local schools well. My personal friend, Nick Seaton of the Campaign for Real Education, will soon produce a pamphlet on the amount of money that is held back by local authorities, which by anyone's judgment should be money that goes into schools and into classrooms.
However, there is a real lack of clarity about the information that we need to make judgments on whether the money is being passed on to schools. At the moment we have a Government that are holding back unprecedented sums of money from schools. On a number of occasions when we have spoken on this subject, I have said that almost by the week we hear of another tranche of money that is being spent nationally by Government, and every pound that is spent nationally, with a national Government tag on it, is money that does not necessarily find its way into the classroom through the core funding mechanism.
This afternoon a handout of today's sum of money has been handed to me. It is £43 million. Unless that money comes from even more additional money, it will come from money that could be spent in individual schools. We know that it will he spent somewhere in the education system, but there will be a great deal of bureaucracy involved in the spending of that money. Sums of money will be dissipated and they will not find their way into schools. So the villain of the piece is not local government.
A third point, which I make with some feeling as my own local authority has suffered from it, relates to what I believe is called "brown money". The Chancellor of the Exchequer decided that rather than trust local authorities, he would send some money direct to head teachers. The money would be sent to the head teachers as a cheque in the post and they would spend it directly.
There were also other sums of money that the Government exhorted local authorities to passport on to schools and if they did not passport them on, they would be punished. Many such local authorities, my own included, were spending either at or above their standard spending assessments that the Government deem to be the sums of money that they should spend on their services to provide a normal level of service in each authority. It is almost offensive to a local authority to say that it should passport more money
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down when it already spends at or above its SSAs. I have no objection to encouraging local authorities to pass down to schools as much money as possible, but I would like the Government to accept that message. I would like to put a clause into the Bill that tells the Government to passport money down through the local education authorities into schools.
There is still a need for greater clarity. We were promised greater clarity by the Government; we were told that everything would become transparent, but we know that it is not. We know that it is difficult to ascertain the kind of information that we need to make a judgment about whether a local authority is doing right by its schools, or whether schools are receiving a fair deal. A school that is badly served by its local authority—we are talking about a minority of local authorities that fall into that category, as the noble Baroness, Lady Walmsley, said—experiences a double jeopardy. It has a Government that are holding back unprecedented sums of money and it has a local authority that is also holding back unprecedented sums of money.
I agree with the principle that was outlined by the noble Baroness, Lady Walmsley. If there is to be determination of an aspect of the budget, I believe that those responsible should be accountable through the ballot box. We have a system of accountability for local authorities, which I support. Can the Minister say why it is that the Government have found it necessary to remove from local authorities the power to determine that aspect of the budget set out in the clause and give it to unelected, unaccountable groups of people in authorities to make the determination? Yet, they have not chosen to do that for the Learning and Skills Councils that will fund sixth forms.
A school for 11 to 18-year olds will have two separate streams of funding. I believe that the noble Lord, Lord Dormand of Easington, referred to that the other day. There will be separate streams of funding for sixth forms from the Learning and Skills Councils, a separate funding stream from the local authority and a decision made by an unelected, unaccountable third body that is set up by this part of the Bill. There is a great deal wanting in this part of the Bill. We certainly wish to support the removal of this power. I have a later amendment dealing with Clause 41, to which I shall not refer at this moment.
Lord Lucas: My Lords, I entirely agree with my noble friend. It is fascinating to watch the Government bearing down on the individual pet projects of local education authorities while multiplying their own. It should be that what is sauce for the goose is sauce for the gander. I know it is hard when in government and thinking that at last there is a chance to do something to resist the opportunity to pocket all the money that might he going to schools and use it as you wish. It is a discipline which Ministers ought to be rather better at in exercising on themselves.
I particularly support Amendment No. 68 in this group of amendments. It is unacceptable that an unelected schools forum which, as the right reverend Prelate has said on previous occasions, may well not

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include important elements of the local school set-up because they are not seen to be sufficiently significant in that particular area and may have a very partial view of what is going on—it is certainly not elected—should set the budget. It should advise, yes, but it should not put local education authorities in the position where, if they reject the advice, they are in public trouble or in the middle of a public argument. I remember what it was like even to dare thinking about going against the advice of SEAC when we were in the middle of the BSE crisis. You could not do it.
If a committee is properly constituted and representative and represents the views of schools and others around the local education authority, the LEA will not be able to go against its advice to any degree or will do so at its peril. But to have the statutory final responsibility given to an unelected body rather than to the elected body is entirely wrong. I do not believe that the Government would do it to themselves and they should not do it to LEAs.
6.30 p.m.
Baroness Ashton of Upholland: My Lords, if I had not already guessed, I am aware that when we reach Clause 41 there will no doubt be a good deal of debate on the role of schools forums.
Amendment No. 68 arises at this point because, as noble Lords have indicated, one of the proposed functions of the schools forums is to take decisions as to whether certain categories of expenditure should be retained by the local education authority or be delegated to schools. As will become clear when we reach Clause 41, the schools forums are primarily advisory bodies. They are in no sense a replacement for the local education authority and neither will they have the scope to usurp its functions or accountability. However, we do believe that it is appropriate to give the forums a limited role—
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. She has just said that schools forums are purely advisory. My understanding is that they have been given a power to determine an aspect of the budget.
Baroness Ashton of Upholland: My Lords, I am sorry; I said "primarily advisory" and not "purely advisory". I hope that clarifies it for the noble Baroness and I apologise for that. I shall speak more clearly.
As I have said, in no sense are they a replacement for the local education authority, but we do believe that it is important to give them this very limited role.
We are in consultation about our proposals. We have listed the areas of expenditure which we propose should be remitted to the forums for decisions on delegation. The most significant of these is primary and special school meals. It is important to note that such a decision might be in the direction of taking such expenditure hack into central control where it has already been delegated. Primary and special schools can already opt for meals delegation on an individual
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basis and we believe that it is acceptable that the forum should be able to take a collective view on whether this is right for that item of expenditure. The other expenditure items are much smaller: museum and library services and licence/copyright fees. Again, there are often local reasons for schools to prefer one outcome or the other and the forum can usefully address these. This is a modest exercise in giving schools a little more responsibility. On that basis I hope that the noble Baroness will feel able to withdraw her amendment.
Amendment No. 69 is more or less a duplicate of Amendment No. 68. We have considered this amendment and wondered whether it had been tabled in error because, if agreed to, it would leave the new Section 45A(4)(c) simply reading,
"enable any prescribed determination to be made".
Baroness Walmsley: My Lords, we had intended to withdraw that amendment.
Baroness Ashton of Upholland: My Lords, in that case I hope that the noble Baroness will not mind if I do not speak to it.
In considering Amendment No. 71, which seeks to delete the whole of Clause 39,I hope that we can focus on what this clause is really about. There are links with Clauses 40 and 41, but the role of the schools forums in the context of Clause 39 is really a self-contained issue, while Clause 40 is the subject of a separate amendment.
The essential purpose of Clause 39 is to modify the budgetary framework within which local education authorities fund their schools. The present "fair funding" framework, based on a broadly defined local school budget, was introduced in 1999 and has worked well. The level of financial delegation to schools has risen sharply. Local education authorities on average delegated over 86 per cent of their school budgets last year, compared with 79 per cent in 1998. There have also been improvements in the transparency of the system.
However, there is still too much "funding fog". In terms of the range of expenditure which it covers, the local schools budget which forms the basis of the school funding system does not match with the education standard spending assessment which forms the basis of the local education authority funding system, and the fairness of the present ESSA has been widely criticised. All of this makes it unnecessarily difficult to judge whether an education authority's spending is too low, needlessly high or about right.
We are therefore proposing to replace the education standard spending assessment with two separate spending needs assessments: a school assessment and an education authority assessment. The school assessment will relate essentially to the cost of making provision for pupils and the education authority assessment will cover the education authority's essential functions. This will reflect the differing needs of the local education authority in a fairer and clearer way than the present system.

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The new needs assessments will be introduced under existing local government legislation. Clause 39 brings the school funding system into line with the new education authority funding system by replacing the present local schools budget with a schools budget and a local education authority budget corresponding to the two assessments.
With the separation of the budgets provided for by Clause 39, schools and other interests will be able to see exactly how much their education authorities are spending on front-line provision for pupils as distinct from back-up services and regulatory functions. They will be able to compare their education authority spending on front-line provision with a needs assessment, which itself relates to front-line provision. This will make it easier to scrutinise education authority spending plans in an informed way and we believe it will thus promote improved accountability.
I hope that all noble Lords can agree that this is a worthwhile aim. Naturally, we believe that they will be even more effectively achieved if Clause 39 is supported by Clauses 40 and 41. But Clause 39 would bring about important improvements whether it is supported in this way or not. On that basis I hope that the noble Baroness will feel about to withdraw her amendment.
I turn now to Amendment No. 72. As noble Lords have said, this clause gives the Secretary of State a power, to be used in exceptional circumstances, to set a minimum level for an authority's school budget as defined by Clause 39 where it is considered that the budget is seriously inadequate. The level may apply to the next financial year or the financial year after that.
We are introducing this measure to help to ensure that funding increases for schools made available by central government are passed onto schools by local authorities. We expect that the proposals we have made to require local authorities to provide a transparent account of school funding will perhaps put a little pressure on authorities to pass on funding increases, but where that does not achieve sufficient progress we believe that we need a reserve power.
The way in which we look at what happens as regards adult education, and in response to the question from my noble friend Lord Jones, is that every year in January we check that local education authorities are passing on increases in the education standard spending assessment to education and we check through the budget statements of the local education authorities in April and May of each year. I am not in a position to give the noble Lord a list; and neither do I believe that it would be appropriate in this context. But we have said that we do believe that it is important to have this reserve power.
In setting the minimum level, I want to reassure noble Lords that the Secretary of State must have regard to all relevant circumstances. We have set out in the Explanatory Notes some of those circumstances: how the authority's proposed budget for schools compares with its school funding assessment; the performance of an education authority's schools;
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pressures from other services and the degree to which the authority has failed to pass on the increase in funding to its schools. That is not an exhaustive list. There may be other criteria that we want to consider. We do not want to list all such criteria in the Bill, only to find that we have admitted a criterion that we would not then be allowed to consider and which is of importance.
The clause sets out the timetable for use of the power. We shall be asking local authorities to let us know their proposed budgets for schools by the end of January. That is no earlier than this year and a little later tian previous years when we have approached authorities early in January to ask them to indicate whether or not they intend to pass on increases in education SSA. We could not set a later deadline for authorities because that would not allow sufficient time for the rest of the process. If a local authority fails to let us know its proposed budget for schools by the end of January the Secretary of State will also be able to set a minimum level.
The timetable also allows authorities to make representations if they object to the level of budget set for their schools. For example, they will be able to explain the impact that the proposed minimum budget would have on other services run by the council. Where there is an objection, the clause allows, but does not require, the Secretary of State to make an order setting the level of budget to be subject to affirmative resolution in another place.
The Government believe that the clause is important for our plans on schools and local education authority funding. It allows for the dialogue between central and local government on the minimum level of the school's budget. On that basis, I urge the noble Baroness to withdraw her amendment.
Baroness Walmsley: My Lords, I thank the Minister for her answer. Our main objection to Clause 39 is the involvement of the schools forum—an unelected and unaccountable body—in decision making. Our objection to Clause 40 is the matter of the reserved power of the Secretary of State. We believe in devolving decision making down to the most appropriate level and when one has democracy one has to trust it. The noble Baroness, Lady Blatch, mentioned that there are few local authorities that do not pass all of the school's budget on to schools—even of those there are very few that have had a poor Ofsted.
Therefore, there is little case and necessity for the measure. However, it is clearly one that we shall be returning to at the next stage of the Bill. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 69 to 71 not moved.]
Clause 40 [Power of Secretary of State to set minimum school budgets]:
[Amendment No. 72 not moved.]
Clause 41 [Schools forums]:
[Amendment No. 72A not moved.]
Baroness Walmsleymoved Amendment No. 73:
Page 26, line 35, leave out "a" and insert "an advisory"
The noble Baroness said: My Lords, I rise to move Amendment No. 73 and to speak to Amendments Nos. 74, 75 and 77. Those amendments refer to Clause 41 which sets up the schools forums. My contention on the first three of those four amendments is that if Clause 41 should eventually find its way into the Act, at the very least schools forums should only be advisory.
The arguments that I have already made for the principle that such decisions should be made by the legitimately elected local education authority are also relevant here. The forums would be both unelected and unnecessary. Local authorities already consult widely with stakeholders when setting their budgets. Many do it well and there are many examples of best practice. If the Department for Education and Skills is unhappy about the way a few of them do it, in order to rectify the situation it would be far better to find ways of persuading them to emulate best practice rather than take away the democratic rights of LEAs all over the country.
I have already made the arguments for Amendment No. 77 to delete Clause 41 which sets up schools forums themselves. I stand by those arguments. However, in addition, here we have a small group of amendments that would give this part of the Bill the virtue of not overriding the principle that elected and accountable people should decide on the deployment of public money, but that stakeholders have a right to be consulted and to advise. I beg to move.
6.45 p.m.
The Lord Bishop of Blackburn: My Lords, I speak to Amendment No. 76 which is included in this grouping. I must say that, the matter of faith schools apart, I have had more correspondence and lobbying on the matter of schools forums than on almost any other part of this long Bill.
I do not have strong feelings one way or the other about the matter though I believe that I can see a role for them. Perhaps I may suggest a general point. There are dearly some issues about transparency and funding between what the local education authority receives and what the school receives. There are some issues there that need to he addressed. There is perhaps the question of the extension of good practice to all areas and not just to those areas who want to adopt it. Therefore, there may be a need for legislation to deal with that.
Amendment No. 76 assumes—rather like the noble Baroness, Lady Walmsley—that schools forums may remain on the face of the Bill and may come into existence. Therefore, this deals with the specific point which we debated and I withdrew in Committee stage.
The original amendment asked for head teachers and governors of the various categories of schools within a local education authority to be represented on the forum. We are concerned to protect the interests and rights of voluntary schools as well as other schools in those particular forums. We have modified the
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amendment in the light of conversations with the Minister and we are now asking for a wider group— namely, persons representing each of the categories. As far as the voluntary Church of England and Roman Catholic schools are concerned, that would allow diocesan appointees to represent a group of schools.
We take the point that it is not possible for people directly engaged in the schools within that particular forum to be there. However, we believe that it is essential if forums come into existence—and I really have no great desire for or against them—that there should be a way in which the decisions which have to be taken affecting budgeting in voluntary schools should be represented.
I understand that the Minister has offered regulation to provide for that, but we believe that it should be on the face of the Bill. Therefore, I tabled Amendment No. 76
Lord Lucas: My Lords, I withdrew my amendment because on reading it I believed it did something that I did not want done. The difficulty I have with Clause 41 is that in many cases it will replace something that is working well in good local authorities with something that is less satisfactory. It is more prescriptive and less flexible. If Clause 41 remains in the Bill I should like to see it as a reserve power that could be invoked by the local education authority when necessary, which is what my amendment would have done. Alternatively—or what my amendment did not do—it could be invoked by a group or sufficient number of schools if they wanted something of that sort to be in place.
In other words it could be there as a reserve arrangement, but if the local education authority and the school community could come to arrangements which were better and would work better in their own particular circumstances, then they should be allowed to do that. I agree that under those circumstances the schools forum cannot be given power to make certain decisions. However, I do not believe that it should have those powers anyway.
I apologise if I nip out for a moment to look after my ducklings, but I shall return quickly.
Baroness Blatch: My Lords, the mind boggles—ducklings outside the door!
I have sympathy with what my noble friend has just said. If I thought his amendment actually achieved that objective I would be supportive of it. I was disappointed that the Government do not believe that it would be appropriate for a majority of schools in an area to say that they would like a forum and to set one up. It seemed to be right. If schools are crying out for the power to enable them to understand what local authorities are doing with the money, the schools would simply say that that is what they want and would set it up.
I remember saying at the previous stage of the Bill that the better run local authorities have the equivalent of a schools forum. They do what is right and tailor make it to their own area. Anything that comes

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through regulations is not tailor made; it is a one size fits all. I have yet to see a regulation that allows for the kind of flexibility that says, "Set up a forum and do it in your own way. Have the number of people on it you want". The size of the forum is prescribed—up to and no more than 50. The people who cannot sit on it are prescribed by the Government, and so forth. It becomes a very rigid framework. If I thought my noble friend's amendment achieved what he would like it to achieve, I should certainly want to support it.
In the previous debate the noble Baroness said—it is pertinent to this debate—that we should not worry about the powers to be given to the forums because they are extremely minor; they concern only libraries and museums; they concern only insignificant matters. But in this Bill a regulation power is being taken under the negative instrument procedures to add anything in the future. This is the thin end of a wedge where, in order to get the power through Parliament, the noble Baroness talks about libraries and museums. But, once it is through, serious items of budget-making could be added to the list and we could do nothing to stop that, other than praying against an instrument which we could not modify; we could only vote against it. The Minister is making light of a serious point.
The right reverend Prelate mentioned the lobbying that has taken place in relation to this amendment. It is extraordinary that of all the provisions in this Bill, many of which I regard as extremely serious, this specific one has excited two camps. One camp says, "We must have these forums. It is about time we got to know what local authorities are doing. We want the power." The people who argue in that way, with great feeling, believe that if they have a schools forum, they will get a great deal more money into their schools. That is the simplistic understanding of the matter.
On the other side of the argument, people are saying, "For goodness sake get schools forums out of this Bill. We will support any effort to do that". I want to take the provision out of the Bill. That is the purpose of my amendment. I believe that we should go down the road of saying to local authorities that they should be more clear about what they are doing; there should be a great deal more transparency. The Government could do more to make the system transparent. They could do more about putting their own house in order before invoking local authorities to put order in theirs.
I believe also that where a local authority has the equivalent of a forum which is working well, tailor-made to their own ways of doing things, and where the schools, the head teachers and the governors are entirely happy, they should be allowed to continue. Indeed, in many local authorities, and mine is one, they take the whole budgetary process out on to the road; they have a road show. They discuss it with local communities, with parish councils and with district councils as well as with their primary and secondary schools forums. That is the road to go down. If, as my noble friend who is outside looking after his ducklings suggests, we could achieve the same end by his amendment, gaining flexibility where the schools themselves wished to have such a set-up, then we
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should go down that road. But, like my noble friend too, I am concerned about the power. It is genuinely the thin end of the wedge.
Baroness Ashton of Upholland: My Lords, I am afraid I cannot think of a quip on ducklings; it is beyond me.
I turn first to Amendments Nos. 73 to 75. In our proposals for schools forums, which we have begun to talk about with all the appropriate bodies, we made clear that we proposed four main functions. Three of those were consultation on the funding formula for schools; consultation on various aspects of the management of the schools budget as specified in regulations; and consultation on aspects of local education authority contracts for services. I accept that the primary role of forums is to be advisory. We see the forums as acting in partnership with their authorities. We hope that they will bring the opportunity of a collective opinion on the way that the schools budget should be managed.
However, as I said, we believe it right that they should have a limited role in taking decisions. In the consultation we are talking about, the areas of expenditure which we propose should be remitted to the forums for decisions on delegation. I have outlined the most significant of those as being primary and secondary school meals. I have also indicated the other areas of museum and library services, and licensed copyright fees.
There are often local reasons why schools prefer one outcome or the other, and we hope that the forums can usefully address those. It is a modest exercise in giving schools more responsibility. I hope that, on that basis, the noble Baroness will feel able to withdraw her amendment.
I turn to Amendment No. 76 and say at once that I understand the concerns of the right reverend Prelate that on current plans there is to be no requirement for separate categories of school to be automatically represented on schools forums. However, the draft regulations on which we are currently consulting contain an explicit power for a local education authority to order its elections so as to achieve that result if it wishes.
We have spent some time considering this issue. However, the position on schools forums is very different to that for some similar bodies such as school organisation committees. First, the recurrent funding of maintained schools is hardly affected at all by its category. Therefore separate representation on the forum is not a clear necessity. Secondly, in many authorities the number of schools in certain categories is very low. Having an absolute requirement in the manner proposed by the right reverend Prelate's amendment would make the election process throughout the country more complex for little reason.
That is why we feel that the discretionary power in the draft regulations is sufficient. There will be authorities with large numbers of voluntary or perhaps foundation schools which will wish to consider using

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it because of their local circumstances, and we shall be happy to see them doing so. But we feel that a universal requirement goes too far.
However, I remind noble Lords that forums will also have non-schools members. In our consultation paper we made clear that we see diocesan authorities as obvious candidates for nomination to such membership. When we come to issue guidance to authorities on setting up forums we shall say that we expect them to take full account of the need to have diocesan authorities in membership. I hope that that commitment meets the spirit of the right reverend Prelate's concern to ensure that those interests are represented.
As we come to Amendment No. 77, after discussion of various aspects of the schools forums policy, I want to emphasise some principal points. I have made clear that we see the forums as mainly advisory bodies with a modest decision-making role. We want them to be meaningful. We want them to have a real job to do. Essentially, we trust that they will be vehicles for partnership, and we hope that local education authorities will increasingly come to value them.
We do not want them to be, and they will not be, another layer of top-heavy bureaucracy taking away significant sums from schools. In the average local education authority the cost per school will be around £200 for schools to play a proper part in managing the new schools budget. They will be a resource for schools and education authorities.
I know, and noble Lords have mentioned it—I address my remarks specifically to the noble Baroness, Lady Blatch—that the House has been concerned at the possibility that local consultation arrangements, some of them working satisfactorily and indeed praised by Ofsted, would be damaged by the introduction of the forums. Our aim is to spread best practice and not destroy it. That is why we shall be considering carefully the responses to the consultation exercise.
I readily concede that the debate remains open. I accept that the noble Baroness made some strong points as to what is already happening in different local authority areas, such as the road show in Cambridgeshire. The Secretary of State is mindful of the points made by the noble Baroness, Lady Blatch, and others in Committee about the need for flexibility in this matter to avoid displacing good existing arrangements. I can say today that, when we consider responses to the consultation, we shall be looking to find a way to create sufficient flexibility to allow local education authorities the scope to keep the best features of their existing arrangements while making sure that effective forums are put in place in education authorities throughout the country.
I reiterate a point I made in response to concerns expressed earlier in our debate about the impact of increased delegation on SEN services. The existence of forums will provide the assurance of local scrutiny that will enable us to cease to set delegation targets for LEAs. They play an important role in our reforms of the funding system.
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In conclusion I want to emphasise this. Schools have come of age in managing themselves. They now have larger budgets. They make most expenditure decisions for themselves. They take responsibility. But they do not operate in isolation. They are part of a community. The establishment of schools forums will add meaning to that and will become a vital component of it. By establishing forums we signal to schools that they should be taking part in the process of managing public resources, not in a way which usurps the overall responsibility of the democratically elected authority, but in a way which recognises that schools have come a long way since the first experiments in local financial management.
In the light of those assurances on the regulations and our search to find sufficient flexibility, and from her experience of the well-known experiments in Cambridgeshire, I hope that the noble Baroness, Lady Blatch, will feel able to withdraw her amendment.
7 p.m.
Baroness Blatch: My Lords, with the leave of the House, I shall raise two points arising from those remarks. When arrangements become formal under the law, as opposed to being informal arrangements, they tend to take on a life of their own. We are talking about travelling subsistence for up to 50 people, service provision, and all the formality that will surround the information that will be collected, collated, checked and monitored. The Minister talked about £200 per school, which is a very modest sum. It also has to include supply cover for each teacher who takes half a day or more out of term time.
My second point relates to SSAs, which the noble Baroness said would no longer be a feature of education funding. Can I take it that SSAs for all other services will be swept away? Unless they are swept away for all services, it would make no sense to sweep them away for education only.
Baroness Ashton of Upholland: My Lords, the calculation of £200 per school is a real one. We talked about schools forums meeting three times a term as a possibility. We are keen to have flexibility on how forums are set up and that, as far as possible, they retain the most important aspects. We took incredibly seriously what the noble Baroness, Lady Blatch, said in Committee about not wanting to tear down arrangements that are working successfully. The intention of schools forums is to bring about successful arrangements across the country. We shall have some early indications before Third Reading from the consultation that is taking place, and I shall be happy to write to the noble Baronesses, Lady Blatch, Lady Walmsley and Lady Sharp, to set out our first thoughts. I recognise that I am unable today to give the noble Baroness, Lady Blatch, more assurances about these issues.
The answer to the noble Baroness's second point is that all SSAs are being replaced.
Baroness Walmsley: My Lords, I thank the noble Baroness for her response. She is aware that we are

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unhappy with schools forums. Although the area in which schools forums will be more than advisory is small and relatively insignificant, we wonder why the Government want to put the measure in place to achieve that. That could be achieved just as easily by extending consultations with schools on these subjects. We have nasty, suspicious minds about the purpose of these clauses and we shall certainly return to them at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 74 and 75 not moved.]
The Lord Bishop of Blackburnhad given notice of his intention to move Amendment No. 76:
Page 27, line 11, at end insert—
"( ) Regulations shall ensure that the membership of a schools forum includes persons representing each of the categories of school maintained by the authority."
The right reverend Prelate said: My Lords, I listened carefully to the Minister's remarks, and I am enormously grateful to her for the time that she has taken. I genuinely believe that she and her department have worked very hard, but I am extremely unhappy at the outcome. I am sorry about that, as it is my final amendment to the Bill.
We should be taking into account the special relationship between voluntary schools and money. We are dealing with governors who, on behalf of trustees, have a particular responsibility for the buildings. Large sums of expenditure are involved and unless their voices and views are heard, there will be dissatisfaction. There will always be a claim that there is prejudice and bias.
We all bring a certain amount of experience or baggage to such debates. In my 12 years as director of education in the diocese of Durham, there were times when various authorities within the diocese, of which there were four—I shall not name any particular one—sought to disadvantage the voluntary schools by not enabling them to provide nursery units and other things that were popular at the time, and which had a direct effect on recruitment to such schools.
I am disappointed that that point has not been acknowledged. I feel that perhaps I have been unable to express the nature of what we are discussing. It is not about expenditure on the running of schools, such as teaching and so on, but the fact that voluntary school governors have particular responsibilities with regard to the buildings, and ultimate responsibility if buildings deteriorate. Those future problems are not being addressed.
We shall have to consider further our attitude to schools forums.
[Amendment No. 76 not moved.]
[Amendment No. 77 not moved.]
Clause 42 [Accounts of maintained schools]:
Baroness Blatchmoved Amendment No. 78:
Page 27, line 42, leave out from "authority" to end of line 44.
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The noble Baroness said: My Lords, Clause 42 deals with yet more regulations—our perennial favourite—requiring,
"the governing body of a maintained school … to keep prescribed accounts and prescribed records in relation to the accounts".
I am amazed that we are only just legislating for that as governing bodies have been required under the law to keep accounts since Adam was a boy. The clause continues that such bodies will be required,
"to prepare prescribed financial statements or reports",
which they already do under law, and,
"to comply with prescribed conditions with respect to audit".
They have a legal obligation to do that without the Bill.
Clause 42 also requires governing bodies,
"to send copies of the accounts, together with such financial statements or reports as may be prescribed, to the local education authority".
That is the point at which I suggest it should stop, but the clause continues with the words,
"or to the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales)".
Local authorities, in addition to preparing their accounts, and complying with all the rules that I have just read out, must also produce an annual report and accounts, which is a public document. They must provide all that information for auditors, whose report is part of the public accounts. They are inspected by Ofsted and every Ofsted report has to include a section on the way in which the school is managed and how its report and accounts are produced. All the information contained in every Ofsted report is held in public libraries and is available to the community and the parents. In addition, a copy of every Ofsted report is sent to the Secretary of State.
I should like Clause 42 to be removed from the Bill altogether. I suspect that there will be some reason why all previous statutes should be superseded by this clause as I cannot believe that it is not already a legal requirement to do all those things listed in Clause 42(1). It is taking it a little far if each school has to do that. If the information has to go to local authorities, which the amendment would allow, let them provide the information for the Secretary of State. Schools should be relieved of that duty. I beg to move.
Baroness Ashton of Upholland: My Lords, this clause supports the introduction of the consistent financial reporting initiative that will provide data so that all schools will be able to bench-mark their expenditure against a good range of comparator schools. We believe that this is an important new initiative that is already under way. The clause has been introduced to give it a specific legal basis rather than relying upon a set of current legislative provisions that were not designed with the CFR in mind.
We anticipate that returns from schools will usually go via their local education authority for quality assurance. Onward submission to the Secretary of State, or the National Assembly for Wales, for national aggregation of data could be required under Clause 42(4). However, we have inserted into Clause

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42(1) the facility to require direct submission of material to the Secretary of State. Upon reflection, we have decided that that is unnecessary. The noble Baroness is right in this respect. It will be sufficient to rely on documents being routed via the LEA. We are, therefore, extremely happy to accept the noble Baroness's amendment.
Baroness Blatch: I feel faint, my Lords; I am having an attack of the vapours! I am grateful for that acceptance. I was about to say that it was inconceivable that the good sense of this amendment would not be seen. However, it has been seen. I am eternally grateful to the Minister. I commend the amendment to the House.
On Question, amendment agreed to.
Baroness Blatchmoved Amendment No. 79:
Before Clause 44, insert the following new clause—
"RESTRICTIONS RELATING TO PETITIONS AND BALLOTS
After section 106 of the School Standards and Framework Act 1998 (c. 31) (ballot regulations: eligibility of the parents to request or vote in ballot) there is inserted—
"106A RESTRICTIONS RELATING TO PETITIONS AND BALLOTS
Where a petition of parents has been initiated and failed to acquire the requisite number of signatures within the prescribed time limit, or a ballot has been held and no change to admissions arrangements has been agreed, no further ballot may take place within a period of six years.""
The noble Baroness said: My Lords, I do not suppose that I shall be as lucky with this amendment. The Government are very fond of referring to the Ripon petition and ballot process as a panacea for the answers to absolutely every point that one raises as regards a problem with both petitioning and balloting. However, I should like for a moment to explain just how unsettling it is for any school to be threatened with the collection of signatures for a petition. That applies even more so when that process begins to gather apace, although very often it is abandoned. Indeed, that has happened in almost all cases, except in the Ripon grammar school petition and ballot. After it is abandoned, the school stops worrying and gets back to what it should be doing with the children but then another group of parents appear and the whole process starts all over again.
This process can continue for year after year in some parts of the country, so it is important for there to be some respite. A child starting in the first year at a grammar school can have his or her life of education disrupted by this kind of political—that is, "political" with both a small "p" and a big "P"—activity in the local area, which causes tension and is most unsettling for the staff, the head teacher, the parents, and the children.
I addressed the point fairly raised by the Minister during the previous stage of the Bill; namely, that if it were to count from the initiation of the petition, one
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had only to collect one signature and the clock would start ticking. Therefore, my amendment says:
"Where a petition … has been initiated and failed",
because, if it has failed, the process cannot start again until the following academic year. However, if petition has been initiated but,
"has failed to acquire the requisite number of signatures",
I believe that there should be a respite for a least the life of one child passing through one school. That is why I have chosen the period of six years. It is arguable whether it should be five or six years, but most of the schools about which we are talking are 11 to 18 schools. It is only fair that that should be so. It would not remove the petitions and ballots, and it would not remove the system—indeed, I accepted defeat on that during the previous stage of the Bill. There is a very real argument for allowing these young people to go through school without the constant war of attrition on their education by political activists, with both a small "p" and a big "P", in their local area. I beg to move.
Lord Peston: My Lords, the noble Baroness starts from the position that she has asserted to your Lordships on several occasions; namely, that she favours academic selection at the age of 11, and the continuation of grammar schools. Therefore, it is not in the least surprising that she should take every opportunity to speak on matters relating to the ballot, and so on.
I share one view with the noble Baroness. I am totally opposed to petitions and ballots, the reason being that I am opposed to grammar schools. After all the wasted years, I had assumed that a Labour Government elected with a massive majority would have stuck to their fundamental philosophy of simply abolishing the grammar schools. Having achieved this great majority that those of us in the early days never had and, therefore, could not do what we thought was right, I was very taken aback when this Government decided to go down the petitions and ballots route. I say to the noble Baroness that, yes, we should not have petitions and ballots; but, equally, we should not have selection at the age of 11.
The bias involved in petitions and ballots has made things practically impossible for any parents' group. Most of the groups that I know are not party political; they are just people who believe that selection at the age of 11 is immensely damaging to children—a subject to which I shall return if we ever reach my amendment this evening. It is news to me that such ballots have actually been damaging to the education of children. When speaking to parents, I have heard nothing about the slight possibility that, via a ballot, a grammar schools might one day get itself abolished and, as a result, somehow affect the education of any children. I repeat a remark that I have made on other topics. I know of no research that suggests that the ballot process has led to that outcome. If we were to undertake the usual kind of survey, my guess is that on questioning the young children about the ballot we

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would discover that 1 per cent would say "yes", 1 per cent would say "no", and the remaining 98 per cent would respond by asking "What's a ballot?".
The argument put forward by the noble Baroness is simply not a valid argument to which we ought to pay attention. The valid argument is the one that she does not put forward; namely, that she likes the grammar schools, she wants them protected, and she does not want any means put forward that would assist people in getting rid of them. That seems to me a totally forthright and straightforward position and something with which one could come to grips. However, that is not the argument that has been put forward. I assume that the amendment is proposed as a debating point. I am sure that my noble friend the Minister will produce a debating answer. I honestly do not believe that it is about reality in terms of education in our schools.
7.15 p.m.
Baroness Ashton of Upholland: My Lords, this proposed new clause has two purposes. It changes the current moratorium period of five years from the date on which the ballot result is announced to six years. Because, in practice, it will usually take the better part of a year for campaigners to gather names for a petition and for the ballot company to check its validity and hold a ballot, this aspect of the new clause would have little practical effect. More significantly, it would introduce a new moratorium in the event of an unsuccessful petition when a ballot has not actually been held.
I dwell on the Ripon example only for a few moments. When a ballot clearly demonstrates local support for the existing admission arrangements, as, for example, in Ripon, it is of course right that the school concerned should enjoy a period of stability. That is why our procedures allow a five-year moratorium on further campaigns. However, where there has been no ballot and, therefore, no expression of local feeling, it cannot be right to deny parents the opportunity to reconsider the issue.
As the noble Baroness, Lady Blatch, said, I spoke in Committee of my concern that the introduction of a moratorium following an unsuccessful petition could be open to abuse. The clause now before us, although worded slightly differently, does nothing to address that possibility. Someone would have only to register a request for a petition threshold to be set with the ballot company to prevent any attempt in the next six years to gauge support for change among local parents. The effect of introducing such a provision would only be negative. It would prevent local parents who, after consideration of local issues, came to believe that a grammar school was no longer appropriate for their community from testing opinion in a measurable way.
The question of grammar school ballot arrangements has been aired on a number of occasions in this House and in another place. I believe that we have had the opportunity during the debates on this Bill to put forward arguments. We on this side of the
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House continue to believe—well, nearly all of us—that the arrangements currently in place strike a sensible balance between the stability that schools need and parents' right to express a view. I hope that the explanations I have given will be sufficient to persuade the noble Baroness to withdraw this proposed new clause.
Baroness Blatch: My Lords, I thought that trotting out Ripon yet again would be irresistible. I say to the noble Lord, Lord Peston, that I make no secret of my preference for the continuation and even the extension of grammar schools. But the point that I was making in my amendment was that, whether or not one is for or against grammar schools, there ought to be a concern for the relentless and—what I would describe as—the "disruptive" activity of the petitioners. They create quite a fuss, standing outside school gates, in the market square and stopping people as they are shopping in the area.
The threat of closure is the outcome of a successful ballot: the grammar school is closed. If there are places in the area it may not even re-open as a comprehensive school. It may be merged with another school. If the noble Lord remembers the Act where that was enacted, he will know that the organisation of the school on ceasing to become a grammar school is a matter for discussion after and not at the time of the decision. That closure threat is unsettling for the parents and for the staff. I must also argue that that can have an effect on the education of the children. It is disruptive. It pre-occupies the minds of those who oppose the notion of closing the grammar school.
Therefore, the parents who support it—and they are not always the parents of children at the school but those in the area—the children, the teachers and certainly the governors and the head teacher will become involved in a campaign. Their energies are dissipated in the activity of opposing the closure. I return to Ripon. Ripon is not the example that should be used here because it had a successful petition. There was a ballot. It was determined by the local parents that the grammar school should continue. And there is a moratorium in place.
That is not the point of my amendment. If those who collect the signatures for a petition are unsuccessful—they may collect half or three-quarters, or even 99.9 per cent of the signatures—and do not collect 100 per cent of the required signatures, the petition fails. They are allowed to return to that year after year. I am simply saying that that is unacceptable. It creates a relentless war of attrition on the schools. I do not think that in putting that on the statute book the Government made a principled point. I think that the politics of envy are at play here. Somehow or other they see grammar schools as some creature of middle England that should be lost from the system. Mr Blunkett said that he frankly could not care less whether or not they survived. He does not see them as an important part of the tapestry of education.
However, if there is a principle at stake here, why, if it is so important for parents to have a view about whether grammar schools should continue, is it not the

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same for city academies—I think that the noble Lord, Lord Peston, agrees with me—city technology colleges, specialist, music and drama schools? They all select children. For every child that is selected, many children are not. Those parents could feel equally aggrieved. As I say, I do not think that there is a principle here: it is the politics of envy. Sadly, there are too many people who oppose the existence of grammar schools. That is a great pity because I think that they are an important part of the tapestry of education in this country. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 [Admission forums]:
Baroness Blatchmoved Amendment No. 80:
Page 29, line 11, after "shall" insert "if requested by a majority of governing bodies of maintained schools in their area"
The noble Baroness said: My Lords, we have rehearsed the arguments with regard to Amendment No. 80. They are similar to those for schools forums. We are now talking about admission forums. I again want to argue for all those authorities with good arrangements in place which work well. Some operate a collegiate system, others operate a system akin to the UCAS. Those plans go on.
Where there is dissatisfaction or grievance about the admission arrangements not working in an authority, and a group of schools say that they would like to have an admission forum, I believe that one should be set up. If that is not the case, and what is working in the authority works well with the approval of the schools, I see no reason why that system should not continue. I beg to move.
Lord Peston: My Lords, I want to use the amendment in order to ask a question. Mine is the next amendment which is also connected with admission forums. I have one problem: I have great difficulty in understanding the composition of the admission forum. Who will be on the admission forum? I cottoned on late to the composition of the schools forums. I was therefore able to follow our debates on that subject.
I wonder whether I am alone in being the only person who does not understand what the composition of the admission forum will be. I am hoping therefore that, best of all, the Minister will stand up and tell me who will be on the admission forums, but if my noble friend does not know—which I cannot believe for one minute—then maybe the noble Baroness, Lady Blatch, will tell me if she knows. It has held me back a little in terms of my approach to the matter.
That is my only reason for intervening at this point on admission forums. It would be helpful to know rather more precisely who will be doing this.
Baroness Sharp of Guildford: My Lords, I rise to speak to Amendment No. 82 which is grouped with Amendment No. 80. It seeks to add city technology colleges and city academies among those included in the admission forums' discussions. We had a fairly lengthy discussion on this matter in Committee.
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The outcome of our discussion on admission forums was, first, that the forums are to be purely advisory. Their aim is to help smooth the admissions arrangements in any local area. Normally that local area will be smaller than that of the local education authority. It will revolve around a sub-area of a town or a particular rural district area.
City technology colleges are totally independent. They will be outside, but will be invited to participate as the Minister said. We would very much like them to join in. We want to encourage city technology colleges to participate in forum discussions. We shall, by way of regulations, require forums to invite city technology colleges to attend meetings. All academies, through their funding arrangements, will be obliged to comply with the requirements of admissions law as it applies to maintained schools. They will be required, therefore, to take part in the statutory admissions forums. Since that is the case, our view is that it would be sensible to include them on the face of the Bill.
Quite clearly, city technology colleges have a major impact on admissions arrangements. Since the forum is only advisory and since its purpose is to try to sort and smooth matters out, the sensible thing would be to have not only the academies which are required to be there—and it is silly not to have them on the face of the Bill if they are going to be there—but to include city technology colleges on the face of the Bill. That is why we tabled the amendment again. I do think that there would be some sense in the Minister agreeing to it.
Lord Lucas: My Lords, I support the amendments tabled by my noble friend and by the noble Baroness, Lady Sharp. They seem to be eminently sensible. My noble friend's amendment is essential for this part of the Bill.
Amendment No. 81A is intended to take matters a little further. The Government have never fought shy of giving advice to people who do not want or need it. I do not see why they should fight shy of giving advice to all schools up to and including independent schools where to other schools in the area that seems to be an important part of the way that admissions are handled locally.
Obviously, that does not apply in some towns and cities, such as Winchester. Winchester College might as well be on Mars for all the interface that it has with the other schools in the locality. But there are other independent schools—Manchester Grammar School springs immediately to mind—that would like to be back in the state system if only the right funding arrangements could be organised. Many other independent schools, such as the arts-related schools, have a strong interface, one way or another, with what is the general education pattern in the area. I want the admission forum to have the power to involve those schools and issue advice to them if that is considered right by those schools and others in the locality. That would take the amendment tabled by the noble Baroness, Lady Sharp, a little further.
7.30 p.m.
Baroness Ashton of Upholland: My Lords, I hope that my noble friend Lord Peston now feels that he knows what is to be the membership of the forum. For the benefit of any other noble Lords who have doubts, we have issued a policy statement that is available in the Library. When we rise—I am with the noble Baroness, Lady Blatch, in wanting to move to that point—I am happy to discuss the matter with noble Lords who are in any doubt.
I turn to Amendment No. 80, which, as the noble Baroness, Lady Blatch, said, we debated in Committee. I am a great fan of mandatory admission forums. I speak as a parent who was on the receiving end of a good quality one last year, when my son moved from primary to secondary school. It is one of the ways in which we know that we can improve the school admission process for even more parents and children. Every area will benefit from having a forum and the forum's role will be valuable. Many people have told us that forums would have a greater impact if they were in every area and admission authorities were required to have regard to their advice.
They will advise all admission authorities in the area, including the education authority, on admission issues and consider how well existing arrangements serve the interest of local parents and children. They will reach local agreement on new or controversial issues and an important part of their work will be to broker arrangements to ensure that vulnerable and challenging children—and those who arrive in an area outside the normal admission round—have fair access to local schools. Those are matters that are far too important to be left to chance. The schools most likely to vote against the establishment of a forum are those that that would not want to join in such collaboration.
All maintained schools will, of course, have a voice on the forum. We will expect core members to include representatives of head teachers and governors of foundation, community and voluntary schools. Mandatory forums will improve the admission process by ensuring real discussion and consensus between the key admission partners in an local education authority area. That is a matter of real importance and should no longer be voluntary. We do not want every governing body to have to debate, vote and then make a request in order for forums to be established. I hope that, on that basis, the noble Baroness will feel able to withdraw the amendment.
I turn to Amendment No. 82, tabled by the noble Baroness, Lady Sharp. As I explained in Committee, city academies, academies and city technology colleges are not maintained schools and are not subject to the admission provisions of the School Standards and Framework Act 1998. However, we recognise that certain schools not maintained by local education authorities, such as academies, have an important contribution to make to admission forum discussions and should be included in the membership of the local forum and have regard to its advice.
All academies will be obliged through their funding agreements to comply with the requirements of admission law and the admission codes as if they were
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maintained schools. Academies will therefore be required by their funding agreements to take part in statutory admission forums and to have regard to the forums' advice. In regulations, we will require education authorities to appoint representatives of academies to be members of the forum.
We have put in place robust arrangements to ensure that academies will be inclusive schools and that they will agree their admission arrangements in partnership with education authorities and other admission authorities. Their admission arrangements will be compatible with those of other schools in the area, and parents will have the same rights when applying for a place at an academy as they would in relation to maintained schools.
I have considerable sympathy with the aims of this amendment and I shall reconsider the involvement of academies in admission forums to see what could he done further to strengthen the provisions. I shall return to the issue, after discussion with the noble Baroness, if needed, at Third Reading.
The situation for city technology colleges is somewhat different. Although we also want to encourage CTCs to participate in forum discussions, and in regulations we will require LEAs to invite representatives of city technology colleges to attend meetings and to appoint members of the forum where nominations by the CTC are made, we have no power to require CTCs to take part or to have regard to the advice of the forums. Their funding agreements have been established for some time and their admission arrangements are required to be in line with their original principle: to provide education for children of different abilities drawn wholly or mainly from their local area. It is not possible at this stage to require them to have regard to the advice of the local forum, although we would greatly encourage them to do so— and, of course, there will be no more new city technology colleges. On that basis, I hope that the noble Baroness will not press her amendment.
I turn to Amendment No. 81A, tabled by the noble Lord, Lord Lucas. As he said, it would make an admission forum responsible for advising all schools, including those in the private sector, on admission matters. The noble Lord helpfully clarified that what he seeks is an assurance that if a forum wanted to involve the independent sector and the independent sector wanted, that would be allowed. I must say that I do not see great advantage in that. However, if the local education authority and the schools think that there would be benefit from such an arrangement, there will be nothing to stop them doing that. I hope that, on that basis, the noble Lord will be satisfied and not press his amendment.
Baroness Blatch: My Lords, the noble Baroness has already mentioned page 41 of the policy statement prepared for Standing Committee G in another place, which has been a helpful document—so helpful that most of what the noble Baroness said is not included. City technology colleges are not mentioned, nor are academies—they are not part of the detailed account of the draft regulations, which runs to several pages.

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So policy is here being made on the hoof and it would he interesting to know why that change was made and precisely how it will be introduced. It is being introduced only in response to an amendment.
If the noble Lord, Lord Peston, did not realise it, I must tell him that I was being facetious when I asked why the Government put in place petitions for ballots to remove grammar schools but not CTCs, academies and all the rest. The principle is similar. I was not advocating that; I was simply pointing out the inconsistency of the Government's policy. There is an inconsistency here, too, because the admission arrangements for the academies, if they are following the same route as the CTCs—I understand that they are—were laid out in great detail when they were set up. Under their constitutions, they are already legally obliged to follow procedures for admission to their schools. So entering an admissions forum would serve no purpose. As I said, that is new policy made on the hoof and it would be helpful to have either a letter or some other explanation of that later.
I am sorry that it will not be left to a majority of schools in an area to request a forum if they are unhappy and one does not exist. Again, we return to "one size fits all". When the regulations appear, there will be little flexibility, because the Minister's argument was that the Government want uniformity, everyone doing the same and consistency. That means the dull uniformity and greyness of one size fits all. All of those wonderful, flexible, innovative ideas flourishing out there will be disbanded and we shall have to fall into line with Whitehall, which the Government think knows best. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that further consideration on Report begin again not before 8.39 p.m.

Army, Air Force and Naval Discipline Acts (Continuation) Order 2002
7.39 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach)rose to move, That the draft order laid before the House on 1st May be approved [28th Report front the Joint Committee].
The noble Lord said: My Lords, your Lordships will be aware that Parliament is asked to consider an order of this nature in most years. The purpose of the order is straightforward. It continues in force for a further year the Army and Air Force Acts 1955 and the Naval Discipline Act 1957. These three Acts provide the statutory basis for discipline in the Armed Forces. The Government therefore attach the utmost importance to this order as the means of ensuring that this key
820
legislation remains in force. The order was approved yesterday in committee in another place and I hope that your Lordships will follow suit.
Having just highlighted the importance of the order, it is perhaps appropriate for me at this stage to offer a few remarks on the amendment that has been tabled by the noble Lord, Lord Chalfont. The noble Lord's amendment asks your Lordships to withhold approval for the Motion on the Order Paper until the Government have responded to the report of the Select Committee on Chinook ZD576.
Your Lordships will know that the noble Lord, Lord Chalfont, and other noble Lords have raised the issue of the Government's response to this report on a number of occasions. The Select Committee's report was published on 5th February this year. The Government have consistently said that they intend to respond to the report before the six months allowed for responses to such reports have elapsed. That remains our intention. We fully expect to publish our response before the House rises. The Select Committee's report is a detailed assessment of a set of complex technical, legal and airmanship issues. It is quite right that it should be fully and carefully assessed, and we are doing this.
As noble Lords may know, we have commissioned further work from Boeing. While I understand the wish of the noble Lord, Lord Chalfont, for a speedy response, it is important that this work is fully and thoroughly completed. Boeing's work is nearing completion and should be available to us shortly. Subsequently this will be taken into account in our response.
The implications of supporting the amendment of the noble Lord, Lord Chalfont, if he were to move it to a Division, would be very serious. Unless the draft order has been approved by both Houses of Parliament and approved by Her Majesty in Council before 31st August, the service discipline Acts will expire. The significance of this will not be lost on most of your Lordships, but I must spell out some of the consequences.
I say straightaway that the effect of the amendment could not be confined to the Royal Air Force alone, although that is what it seeks to achieve. Even if that were the effect, it would not be acceptable to the Government. As it is, however, if the amendment were to be carried, it would mean that the draft order, which covers all three services, had not been approved. Therefore, if the amendment were passed, there would clearly no longer be statutory authority for the maintenance of discipline in all three services. Commanding Officers would have no authority to back up their orders with sanctions; service personnel would be able to walk away from the job or disobey orders without any of the consequences associated with the requirements of disciplined Armed Forces.
The Acts do not deal with discipline alone. They provide the authority for most recruitment. The amendment would take that away. There are all kinds of other administrative matters of importance to our Armed Forces which hang on the provisions of the Acts. These, too, would he affected by the amendment.

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But there is an even more fundamental point. Constitutionally the service discipline Acts are regarded as Parliament's agreement to the maintenance of the Armed Forces. In consequence, the effect of your Lordships' House deliberately allowing the expiry of these Acts would amount to the withdrawal of that approval. Obviously no government can regard such a prospect easily, nor, in my view, will this House—nor, indeed, will the noble Lord, Lord Chalfont. I am sure that he will use this debate to make his legitimate points on the very important issue which has prompted him to table the amendment. I hope that he will then withdraw it.
Returning now to the substantive Motion, the only years in which we do not generally consider an order such as this is when the three service discipline Acts are themselves up for renewal. This is achieved by the five-yearly Armed Forces Bills. The passage of these Bills through Parliament enables us to review as well as renew the discipline Acts. The present draft order is presented under powers in the Armed Forces Act 2001. The next Armed Forces Bill is due to he introduced in 2005–06.
There is one comment that I should offer about the order itself. The Government have given an undertaking that Ministers moving instruments which are subject to the affirmative procedure will tell the House whether they are satisfied that they are compatible with the rights provided under the European Convention on Human Rights. That undertaking, which covers this order, broadly mirrors the procedure for certifying primary legislation set out in Section 19 of the Human Rights Act 1998. Nothing in this order is incompatible with the ECHR. The continuation order which your Lordships are being invited to approve today is a brief document. It raises convention issues only in that it continues in force Acts that have been considered compatible with convention rights.
However, the European Court of Human Rights took the view in its recent judgment in the case of Morris v the United Kingdom that the procedures for post-trial review provided for in the service discipline Acts are not compatible with Article 6 of the convention. The court considered that the involvement of non-judicial authorities in the review of court martial findings and sentences impaired the independence of the court martial, even though that process is intended to safeguard the accused.
We have been considering how to react to this judgment and it might have been expected that we would have announced our intentions by now. However, the issues concerning post-trial review were given a fresh airing in a hearing last week before your Lordships' House in its judicial capacity. It seems appropriate to await their Lordships' judgment before taking a decision on the future of the review procedure. We shall of course make an announcement as soon as possible. The best advice that we have is that the decision of their Lordships is not likely to come before July and it may be later. If it is not July, it will be the autumn.
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As I have already mentioned, it is essential that this order should be approved. It is about continuing the legislative basis for discipline in the Armed Forces. However, as your Lordships will know, the order continues three separate Acts of Parliament, one for each service. The Government have made clear their intention to alter the structure of the legislation, the better to fulfil the needs of the services and the way in which they will operate in the future. We have stated that we wish to replace the three separate Acts with a single tri-service Act. As I know of the interest in the House in seeing this come to fruition, this may be an opportune moment to provide a brief report on progress.
Following preliminary scoping work, a tri-service Act team was set up within the Ministry of Defence last September. The team is about half-way through the policy development stage, which is largely concerned with examining the differences in statutory provisions and in procedures between the services and considering how best to reconcile them.
The aim in this work has been to consider the impact of the existing legislation in the context of the increased level of inter-service co-operation, both on operations and elsewhere. This provided the impetus for the tri-service Act project in the first place. However, for most of the time most members of the Armed Forces will clearly continue to work and live in single service environments. We need to find a solution that supports operational effectiveness in both joint and single service settings.
Although discipline is a central focus of the team's work, it also has to consider other areas covered by the present legislation, such as terms of service, grievance procedures and arrangements for hoards of inquiry. Some of these raise complex issues, particularly as we should like to see the tri-service Act lead to improvements in the way we do our business, over and above those to be expected simply from rationalising the legislation. We appreciate also that the benefits to be gained from the tri-service Act should not be achieved at the cost of a detrimental impact on the ethos of the single services. We expect to receive the final report from the policy development stage next spring. This will provide the firm basis for translating policy intentions into the new legislation, although I am sure that there will still be much detail to be resolved.
The next five-yearly Armed Forces Bill is due in the 2005–06 Session. Your Lordships will, I hope, understand that no commitments can be given at this stage as to when the tri-service legislation might be introduced, as this will be subject to the availability of parliamentary time. A factor here is that we are certainly talking about a very large Bill, perhaps containing between 300 and 400 clauses. Quite apart from the issue of finding a legislative slot, our overriding objective is to get this important legislation right. There is much more involved than mechanistically sticking the three present Acts together—and we are not interested in adopting a lowest common denominator approach.

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Against this background, I am unable to offer any prospect at present that the legislation might be presented to Parliament in the 2003–04 Session, as was suggested in last Session's report of the Select Committee on the Armed Forces Bill in another place. We shall keep timing under review. However, the resources that we have allocated to this project and the progress made so far mean that we are on track to achieve the Ministry of Defence's overall schedule. This is based on being ready for the 2005–06 Session, should parliamentary time be available then.
The need for a tri-service Act derives from the importance of having a better disciplinary framework in those many circumstances where the services work so well together. However, I can assure the House that service discipline today is in good order, as is the operational effectiveness that it serves to underpin.
We see this in Afghanistan and elsewhere. I am pleased to take this opportunity to pay the warmest possible tribute to the personnel of the Armed Forces serving in the most challenging of environments. The qualities that they display are founded in large part on firm and fair discipline, the legislative basis of which we are discussing this evening. I know that these qualities are fully valued in all parts of this House. I invite your Lordships to approve the order. I beg to move.
Moved, That the draft order laid before the House on 1st May be approved [28th Report from the Joint Committee].—(Lord Bach.)
Lord Chalfontrose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert, "this House declines to approve the draft Army. Air Force and Naval Discipline Acts (Continuation) Order 2002 in respect of the Air Force until such time as Her Majesty's Government have responded to the report of the Select Committee on Chinook ZD576".
The noble Lord said: My Lords, I am fully aware of the significance of this amendment. Indeed, had I not been, I should not have tabled it. If it were pressed to a Division and carried, it would mean, as the Minister said, that from 31st August Parliament's approval to the continuation of the Armed Forces—particularly the Royal Air Force, although the Minister says that it would apply to all three—would be withdrawn. That would be a drastic step. Your Lordships know me and my record well enough to know that I find such a step difficult to contemplate. However, I am concerned to demonstrate that it is a step which a sovereign Parliament is constitutionally empowered to take. Your Lordships could, in fact, take it tonight. I am not, however, about to suggest that your Lordships should actually take that step, merely that we should remind the Government, and especially the Ministry of Defence and some of its officials, of the existence and importance of the constitution and of Parliament's place in it.
My principal aim in tabling this amendment is to suggest that in the matter of the Select Committee on the Chinook helicopter crash we are now dealing with
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a matter which has constitutional implications. There is no place in this issue for concepts like "airmanship" or "the chain of command", important as they may be in the services. This is a matter of natural justice and constitutional propriety, and these are the important issues. I am no lawyer or authority on the constitution, but if I have misunderstood the position there are those in this House who are qualified to put me right.
As I understand it, in this country executive institutions, including departments of state, have their source in a constitution which, even if it is unwritten, is to be obeyed and not departed from at the whim of the government of the day, of whatever complexion—which means in effect that we have in this country a government of law, not of men. In that context I should like this House to see the response of the Government to the Select Committee's report before it approves the continuation in force of the Air Force Discipline Act.
The constitution, according to Dicey, the great constitutional lawyer, rests upon two pillars—parliamentary sovereignty and the rule of law. These twin pillars are reflected in the draft order that your Lordships are being asked to approve today. My amendment is designed as a reminder of those two principles. It seems to me that the attitude of the Ministry of Defence in the case of the helicopter crash displays a somewhat cavalier attitude to both.
I need hardly remind your Lordships that this saga began in 1994 when a Chinook helicopter crashed on the Mull of Kintyre, killing the aircrew and all 25 passengers. After a Royal Air Force board of inquiry had initially failed to establish a cause for the accident, the reviewing officers, Air Marshals Day and Wratten, decided that it was due to gross negligence on the part of the two pilots, Flight Lieutenants Tapper and Cook.
After much controversy, a Select Committee of this House was set up to consider whether this verdict was justified. On 31st January this year, it delivered a report which came to the unanimous conclusion that,
"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
It is not my intention today to go into any further detail on the Select Committee report or on any other aspects of the helicopter accident. This is not, as someone rather rudely suggested in the House Magazine, a peg on which to hang another Chinook debate. But, according to the Companion, the Ministry of Defence—as has been confirmed by the Minister—has six months to respond to the report. It is somewhat surprising that it needs quite so much time. The obvious response to the unambiguous report of the Select Committee is to set aside immediately the verdict of gross negligence. However, one would normally wait, with whatever patience one could muster, until the response was forthcoming. But there are reports from sources that I would normally regard as reliable that, in spite of the Select Committee's report, there is no intention of setting aside the air marshals' verdict.

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If that is true, it seems to me that it runs counter to the constitutional principles both of parliamentary sovereignty and of the rule of law. But it would not be entirely surprising, since the Ministry of Defence virtually ignored the report of the Public Accounts Committee in another place, which also questioned the validity of the air marshals' verdict, leading the chairman of the Public Accounts Committee to accuse the MoD of "unwarrantable arrogance". I do not go so far as that. Incidentally, the Ministry of Defence has also ignored the finding of the fatal accident inquiry in Scotland, which came to the same conclusion; namely, that there was no evidence to indicate negligence on the part of the pilots. This seems to me again to be showing little concern for the rule of law.
A further negative response from the Government would signify that the verdict of two air force officers is to stand in spite of the fact that a Select Committee of this House has decided that it is in effect unlawful. That is a decision which this House would naturally wish to debate. The Select Committee was set up after a substantial majority in this House voted for it. If its report is to be rejected or ignored, the House may have something to say about that. The Ministry of Defence insists that no decision has yet been made. In that case it may want to take this into account before arriving at its decision.
We were told by the Minister on 1st May that the Government hoped to have their response ready for debate in this House—if indeed a debate were necessary—before the Summer Recess. Evidently, from what the Minister said, that is unlikely to be so. Perhaps he will confirm that in his reply. If the report is not received by your Lordships' House within a very short period, there will be no time for the debate before the Summer Recess that we had been led to believe there would be. Your Lordships would therefore not have an opportunity to debate the important issue of the Ministry's response to the report of the Select Committee before, at the very earliest, October.
I conclude on an important point. I recognise that the Government are not obliged to accept the report of a parliamentary Select Committee. I fully recognise that. I do not agree with it. I think that it is offensive to anyone who believes in the importance of constitutionalism. However, it is the case and we have no way out of it. Perhaps the only way of persuading the Ministry of Defence to respond positively to the report is to use the constitutional means which I am using today to underline the sovereignty of Parliament and the rule of law, and to express the hope that the Ministry of Defence will have full cognisance of both as it comes to its final decision.
As I said, my principal aim in moving this amendment is not to cause disruption in the Armed Forces or to damage national security, but to draw attention to the constitutional dimension in this matter, to give noble Lords an opportunity before October of expressing their views on the MoD's handling of this whole tragic affair, and perhaps to
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give the MoD a constitutional reason why it should accept the report of the Select Committee of your Lordships' House. I beg to move.
Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert, "this House declines to approve the draft Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 in respect of the Air Force until such time as Her Majesty's Government have responded to the report of the Select Committee on Chinook ZD576".—(Lord Chalfont.
8 p.m.
Lord Fitt: My Lords, when this matter was first discussed in your Lordships' House a few years ago, in the wake of the Chinook disaster, I believed that I was right in supporting the noble Lord, Lord Chalfont. In fact, I went to the site of the accident and met lots of people, including those who were there that evening when the helicopter crashed. They all believed that the weather that day had played a great part in the accident.
I have a little house in County Antrim, on the shores of Murlough Bay, 11 miles from the Mull of Kintyre. Last weekend and the weekend before—and probably this weekend, too—one could not see the Mull of Kintyre at five minutes to noon because of the clouds. At 12.10 p.m., however, it was totally clear. At 12.20 p.m., the clouds had returned. That is how it is there. I shall not get involved in the issue of whether the Chinook had defects. However, I am quite prepared to accept that the weather conditions played a part in the disaster.
I have met many of the widows of those killed in the disaster. Like me and the noble Lord, Lord Chalfont, they feel that it is absolutely unfair to blame those two young pilots for crashing their helicopter into the Mull of Kintyre. The situation has placed a burden on their families—on their fathers, mothers and other relations—but most of all on their children, who now carry the burden of claims that their fathers are responsible for causing the death of the 28 officers on the flight.
When the Select Committee reported, I thought that that would probably be the end of the matter. A Select Committee composed of Members of your Lordships' House examined in great detail every aspect of the facts surrounding the crash. I believed that the MoD would have to abide by the report. From what I have heard since, however, it seems that the MoD has its back to the wall. It is not going to give way one inch on the findings of the two air marshals. I am certain that some noble Lords will defend the two air marshals in this debate. However, there are those like the noble Lord, Lord Chalfont, and me who will tenaciously pursue this case until the pilots are cleared or we have to accept without a shred of doubt that they are guilty of gross negligence. There is no way in which I and many others in that community can be convinced that the two pilots were so unconcerned about their duties that they mistakenly, drunkenly or in any similar way flew into the Mull of Kintyre.

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The Ministry has taken the view that it must accept the Air marshals' findings. However, the two air marshals are as capable as anyone else of misinterpreting the facts of the disaster. No one is saying that they are God and must be right. They were not on that helicopter. Regardless of the reports that they have read in the MoD, it is not beyond question that they are right. I do not believe that they can prove beyond the shadow of a doubt that those two young pilots are guilty of gross negligence which led to their death and the death of their comrades.
It has been suggested that the noble Lord, Lord Chalfont, believes that the Select Committee report should be accepted. I should hope that it will be. However, if it is not, it should be debated on the Floor of the House. We can then decide whether to accept findings unanimously accepted by 12 noble Lords. The Select Committee examined every aspect of this terrible accident, and I believe that its report should be accepted.
I know that we shall hear from people in the military about the matter. The military has a view on this, and the military has its back to the wall. It will want to defend its position. However, millions of people in this country are not in the military and do not abide by every diktat from air force and MoD officers. The first investigation into the matter, conducted in Scotland, found that it could not be proven beyond doubt that the pilots are guilty. However, the Ministry and the air marshals contradicted that and gave their verdict.
The Chinook disaster has had an awful effect on the people of Northern Ireland. Most of the young people killed in the accident the 28 police officers—-had been conducting a war against the greatest terrorist organisation that these islands have seen. Those young police officers had dedicated their lives to eradicating terrorism in Northern Ireland. That is why the Chinook disaster and everything surrounding it has had such an effect on the people of Northern Ireland.
As I said, I have repeatedly met the widows of the two pilots and the widows of the police officers killed in the tragedy. If the Government are not prepared to say that they will accept the Select Committee's findings, let the whole issue be debated in this House. Let us all have a say on what we know about the circumstances relating to this disaster.
I believe that the noble Lord, Lord Chalfont, in his tenacious attitude to pursuing this case, is carrying on a campaign which I believe will have the support of the overwhelming majority of the people living in these islands.
Lord Mayhew of Twysden: My Lords, along with so many of your Lordships, I have taken naturally enough a close interest in this tragedy and in the subsequent handling of the inquiries as I happened to be Secretary of State for Northern Ireland at that time and knew many of those who lost their lives and met the families of the two young flight lieutenants subsequently.
I congratulate the noble Lord, Lord Chalfont, on his ingenuity in finding this vehicle as a means of putting some ginger under the tail of the MoD
828
because, after all, the report was delivered on 31st January. Some four-and-a-half or five months have passed and there is still no response from the Ministry of Defence. I sympathise warmly with the sentiments that the noble Lord, Lord Fitt, has just expressed. They come very much from the heart.
It is, however, possible to look at the issue before us tonight a little more clinically by reminding ourselves of the terms of reference of the Select Committee which were to consider,
"the justification for the finding of those reviewing the conclusions of the RAF Board of Inquiry that both pilots … were negligent".
The committee was not tasked by this House to find out what happened and what caused the crash. How could it have been so tasked? It would be quite beyond it. It was narrowly tasked in that way. It identified the question to be answered at paragraph 147 of its report on page 33. It states that,
"the question to be answered is whether there is absolutely no doubt whatsoever that they [the pilots] ought to have foreseen that their action would in all probability occasion the final event".
Those were the words of the RAF's own rules at that time—"absolutely no doubt whatsoever".
The committee concluded —let us not forget that it was headed by no mere tiro in this kind of matter; it was headed by the noble and learned Lord, Lord Jauncey of Tullichettle, a retired Lord of Appeal in Ordinary—at paragraph 174 that in the light of all t he evidence before it, and having regard to that very high standard of proof,
"the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
It is perfectly true and only fair to acknowledge that the committee had before it some evidence which was not available for one reason or another to the air marshals. I ask the Minister when he replies to confirm that the evidence relied upon by the committee in coming to its conclusion was not limited to evidence that was freshly before it and was not available to the air marshals but that there was other evidence, which it identifies, which led it to the conclusion that it reached. If the Minister will confirm that, I should be grateful. If he cannot confirm it, it would be good to know why he cannot do so.
What is the purpose of commissioning further evidence or further information from Boeing? What are the particulars of what it is being asked to do? Why is it being asked to do that now? Can the Minister give an undertaking that when the response is ready it will be brought before this House in time for a debate to take place before we rise on whatever date in July that will be? Finally, can the Minister confirm that if the response fails to shake, and therefore to reject, the finding of the committee, the appropriate amendment to the records of the two young officers will be made within the MoD?
Lord Ackner: My Lords, Parliament is being mocked by the executive. The noise of feet being dragged, so as to cause unjustified delay, is becoming quite intolerable. The Motion of the noble Lord, Lord Chalfont, is a rare opportunity to draw this Parliament's attention to the position.

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To put the matter in its proper perspective perhaps I may, quite shortly, refer to some background facts although they are well known to your Lordships. As has been stated, on 2nd June 1994 RAF Chinook helicopter ZD576 crashed on the Mull of Kintyre. RAF rules in force at the time provided that the deceased air crew could be found negligent only where there was "absolutely no doubt whatsoever". I stress the words of emphasis—"absolutely" presupposes and emphasises that the doubt is unqualified and unrestricted. Doubt is not limited to cases of "reasonable doubt". The final word "whatsoever" makes clear that there can be no doubt of any kind; the onus requires certainty. There is clear justification for this. The board of inquiry takes place in private. The deceased's family is not entitled to representation. There is no appeal. No member of the board is legally qualified as in courts martial, whose function it is to ensure the legal validity of the decision.
During the debate of 5th March 2001—which was the first application for the appointment of the Select Committee—my noble and gallant friend—indeed my boss or the nearest I am likely to get one—Lord Craig of Radley said that the board of inquiry was not a court of justice. Its overriding concern was to discover what happened. Indeed, today a board of inquiry is not entitled to apportion blame in the case of a deceased pilot.
The RAF investigating board concluded that the most probable—I underline those words—cause of the accident was that the crew had selected an inappropriate rate of climb to overfly the Mull. However, the investigating board made no finding of negligence on the part of the pilots; nor did the two station commanders who reviewed its findings. Nevertheless, the two air marshals, to whom the investigating board's report was submitted, concluded that the pilots were guilty of gross negligence in that they failed to take appropriate action when approaching deteriorating weather near the Mull. That is tantamount to a finding of manslaughter.
Nearly two years ago your Lordships appointed a Select Committee to consider whether that finding was justified, and to complete its report by 31st January 2002. I refer to the decision, which, as your Lordships will recall—it has just been referred to—itself made clear that the,
"finding of negligence against … the applicable standard of proof, which required 'absolutely no doubt whatsoever'. In the light of all the evidence before us, and having regard to that standard, we unanimously conclude that the reviewing officers were not justified in finding that negligence on the part of the pilots caused the aircraft to crash".
My noble friend Lord Chalfont sought leave to raise a PNQ against the executive, the Government, as to how it intended to respond to this report. With characteristic courtesy, the noble and learned Leader of the House wrote to my noble friend on 5th February 2002, explaining why he had refused to accept the PNQ; namely, that it would be quite inappropriate for the executive to make any kind of response until it had had time to read the report and to consider the recommendations. I in no way criticise that decision.
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The noble and learned Lord went on to give two virtual assurances: first, that the executive would not drag its feet in replying to the report; secondly, that once it had responded, there would then be an opportunity for the House to debate both the report and the executive's response, and that he, the noble and learned Leader of the House, would through the usual channels request an early date for the debate. That looked very hopeful.
In a Starred Question only last month, my noble friend Lord Chalfont asked the Government whether they expected to provide a response to the report before the Summer Recess. The Minister stated:
"The Government have said they intend to respond to the Select Committee's report before the six months allowed for response to such reports have elapsed. That remains its intention. Moreover, I hope that it will be possible to publish our reply and debate the issue in your Lordships' House before the Summer Recess".
We have now heard from my noble friend Lord Chalfont that the executive's response to the Select Committee's report is not likely to be available for debate in the House before the Summer Recess, taking full advantage of the six months without giving us any details as to why all that time is necessary.
In the debate on 30th April 2001, in which the second and successful application was made for the appointment of a Select Committee, the noble Baroness, Lady Young, said:
"… this is a constitutional matter. It is a duty of the House of Lords, as the legislature, to hold the executive to account".— [Official Report, 30/4/01; col. 1596.]
For the verdict to be considered valid, two requirements must be satisfied. They are, first, that the air marshals must have concluded that,
"there was absolutely no doubt whatsoever that the pilots were guilty of gross negligence"
and, secondly, that if—I underline that word—they did so conclude, there must be adequate material to support such a conclusion.
I deal with the first of those two requirements, which the executive has absolutely no chance of satisfying. It was my submission on 5th March and also on 30th April 2001 that the verdict reached by the air marshals was quite simply unlawful because it was made beyond their power. In forensic language, it was ultra vices and, for that reason, had to be set aside ex debito justiciae—"because justice so demands". It is not a question of discretion. The decision is a nullity. That is simply because the air marshals did not purport to say that it was one of those rare cases in which there was absolutely no doubt whatsoever that the deceased pilots were negligent. The nearest they got to that, albeit a long way off, was that Air Marshal Day said:
"The Board and Officer Commanding RAF Odiham postulate various factors and scenarios, including possible distraction or disorientation, in attempting to explain why the crew might have failed to make a safe transition to Instrument Flight Rules".

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I interpose to stress the following words:
"In my judgment, none of the possible factors and scenarios is so strong that they would have been likely to prevent such an experienced crew from maintaining safe flight".
In other words, it was being said that none of the factors or scenarios was of sufficient strength to provide a likely explanation. That has two consequences. First, it puts the onus on the deceased, which is wrong. Secondly, it deals with probabilities. It does not even deal with reasonable doubt, let alone certainties. That is the only material that the air marshal vouchsafed as his reason for exercising his power. His senior officer, Sir William Ralten, added nothing at all. However, Air Marshal Day to some extent gave the game away when he stated:
"Therefore, while aware of the difficulty of attributing negligence to the deceased air crew, I am nevertheless forced to conclude that Flight Lieutenant Tapper was negligent to a gross degree".
"Difficulty", the word that he uses, is a gross understatement of the task that faced him. What faced him was a near impossibility, and that is something that he did not address.
The only other part of the judgment which I think is worthy of quoting is:
"It is incomprehensible why two trusted, experienced and skilled pilots should, as indicated by all the available evidence, have flown a serviceable aircraft into cloud-covered high ground".
I entirely agree that it is incomprehensible, which shows that it cannot have been a situation in which there was "absolutely no doubt whatsoever".
My submissions to your Lordships on 30th April and 5th March 2001 were never challenged. They were specifically supported by my noble and learned friend Lord Lloyd of Berwick, who emphasised that the first requirement raised a legal, rather than a factual, question and that it was a relatively short one. I had the privilege, as is often the case, of sitting next to my noble and learned friend, the former Lord Chief Justice, Lord Lane. He voted for the setting-up of this committee and I know that he accepted what I submitted.
The reference in the Motion to the Army, Air Force and Naval Discipline Acts (Continuation) Order 2002 is a shot in our locker which I had hoped could have been used following—I emphasise the word "following"—the anticipated refusal by the executive to set aside its verdict. Perhaps one of the stimuli to the foot-dragging operation has been to ensure that the obligation to make the order arises before rather than after the executive's decision.
I end by saying that I hope that, in the course of this debate, the House will thoroughly deplore the executive's near contemptuous treatment of Parliament—a very depressing indication of worse to follow.
8.30 p.m.
Lord Craig of Radley: My Lords, I shall be very brief. I did not consider that tonight was a suitable occasion on which to go into detail on the findings of the hoard of inquiry or the Select Committee. I believe that the time to do that is when the report is available.
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However, it is worth reminding your Lordships that, in spite of all that has been said tonight, no fewer than, I believe, 10 Ministers of the Crown have stood at Dispatch Boxes in this and the other House and upheld the findings of the original board of inquiry. I believe that that, of its own, is sufficient to suggest that there must be more than one view on the matter. That is not surprising. Even noble and learned Lords of the very highest legal repute do not always see eye to eye. Therefore, I believe that it is right that we wait for the response of the Ministry of Defence. We shall then be in a better position to debate this subject.
However, any doubt about the intention of Parliament to proceed with the continuation order is wholly unacceptable. The services are under very great pressure, as all sides of the House have acknowledged on many, many occasions. However well-intentioned the protagonists for the amendment of the noble Lord, Lord Chalfont, may be, I abhor any attempt to detract from the wholehearted support that this House should give to the Armed Forces.
Lord Hardy of Wath: My Lords, I agree entirely with the point that the noble and gallant Lord, Lord Craig, has expressed. The noble Lord, Lord Chalfont, presented his amendment as a means of securing from Ministers a pledge that there would be a debate. Unfortunately, we have already had the debate in large measure this evening. We shall need to have a serious debate because there are various sides to this story, as the noble and gallant Lord, Lord Craig, has indicated.
My regret in relation to the amendment is that debate on the order presented an annual opportunity for the House to pay tribute to the Armed Forces for their work over the past year. Over that time, our Armed Forces have served in various and very different ways both the country and the cause of international peace and stability with success and distinction. I believe that in large measure the amendment would have deprived us of an opportunity to offer words of tribute. I hope that the House will recall that the order is normally something of a formality. But the formality should at least provide an opportunity for tribute to be paid without qualification, and I hope that the Minister will recognise that.
It is perhaps more appropriate for this House to offer comments. A few moments ago I counted up and calculated that, of the Peers present in the Chamber during the debate, approximately 20 have served in the Armed Forces. I believe that if there were a debate in the other place now, one would be lucky to find more than two or three Members present. Therefore, it is perhaps particularly appropriate that words of commendation are expressed during this debate.
Lord Maginnis of Drumglass: My Lords, I had not intended to speak in this debate, simply because I do not have the experience of people such as my noble and gallant friend Lord Craig of Radley and I do not have the background information that Ministers and former Secretaries of State for Northern Ireland have. However, for a considerable number of years I served

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as a commissioned officer and I suppose that I could claim to have been on active service continuously for 11 years. With the exception of those who flew with the Royal Air Force, I believe that I could safely claim that, within your Lordships' House, I have spent more hours in the air in helicopters than most.
What disturbs me about this evening's debate is that the constraints that the processes and procedures of this House place on the noble Lord, Lord Chalfont, whose dignified presentation of his case must have impressed us all, are such that we cannot move forward as expeditiously as we should on this extremely serious issue.
As someone who worked for many years with those who fly our helicopters, and who did so under very difficult circumstances in Northern Ireland, the one thing to which I can bear personal witness is the competence and discipline of those people. I have always found it difficult to believe that not one—so often I flew in a helicopter with one pilot—but, in this case, two experienced pilots could have made the type of mistake that it appears to many of us was summarily decided that they made. That is unreasonable.
Again, I have the disadvantage of having no technical knowledge in terms of aircraft and helicopters. But, like your Lordships, I can read the reports of faults that occur in Chinook helicopters. Hence, from experience, I would deduce that the cause of that horrific crash was far less likely to be pilot error than some external problem. I hope that your Lordships recognise that many of those killed in that helicopter were acquaintances and friends of mine. Therefore, I should like to see a proper, considered response to the tragic event of 1994.
I heard the Minister caution what the outcome would be if the amendment were carried tonight. I understand that. I would not be at all desperate for this matter not to be pressed to a Division in so far as my experience of military life is that discipline is not a diktat but a culture within our armed services. I do not believe that it is beyond the competence of the House, if the Government remained adamant that the amendment would delay the process of justice in respect of the Chinook disaster, to ensure that the Government returned to the House long before August to put right what I believe is wrong. The Government could also bring forward new legislation—so that there would be no crisis within the armed services.
We have a responsibility not to add up the number of Ministers who have remained solid in their support of the Ministry of Defence and the Government's attitude but to examine the breadth of available experience. I am envious of members of the Select Committee having the opportunity to examine and weigh up the facts.
I shall not incite the House to a form of rebellion. Perhaps my military service makes me recognise the need for things to move forward with a degree of order. However, I implore the Minister, when he responds, to remember the many people involved—not just the two
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pilots and their families. In so far as the pilots stand condemned by their own service, I feel most for them—but 26 others were involved in that disaster. Their families also deserve some sort of comfort from knowing that the executive is not hard nosed but has compassion. I ask the Minister to remember that this evening.
Lord Bruce of Donington: My Lords, the House will be grateful to the Minister for giving it a preview of the various actions that the Government propose in regard to consolidation of various Acts that now exist separately—which he did with some force. On the basis of my experience of the Palace of Westminster over the past 50 years, I thought that the Minister rather overdid it. Everybody knows perfectly well that if the Government wish to get through an Army Act—Whatever happens to the Motion—they would anyway. The Government have the machinery to do so—even extra parliamentary machinery. The Government have the Prime Minister sitting in the seat of active power—and he does more or less what he likes anyway. Anyone who thinks that the whole future of the Army, Air Force and Naval Discipline Acts will be affected by the amendment in the name of the noble Lord, Lord Chalfont, is looking through the wrong end of a telescope. Such a thing cannot be conceived and would not happen. I expect that the Minister himself knows very well that, whatever happens, the new Act will go forward and the entire Armed Forces would not be paralysed. One can overdo scare nonsense too much.
We are really talking about a question of law. I draw your Lordships' attention to the rule in force at the time of the accident—which is to be found at paragraph 13 on page 7 of the report:
"The RAF manual of flight safety AP 3207 published by the Inspectorate of Flight Safety and in force at the time of the accident provided in paragraph 9 of Annex G to Chapter 8 that 'only in cases in which there is absolutely no doubt whatsoever should deceased air crew be found negligent'".
To me, that statement is clear.
With controversy raging in varying degrees over the past eight years, according to the pressure applied by the noble Lord, Lord Chalfont, the cause of the accident has been a matter of dispute. The efforts made to ascertain the truth over the past eight years mean that there is already doubt. That is implicit even in tonight's debate, in which different views are being expressed. It is clear that there are already grounds for reasonable doubt. The existence and continuation of debate on the subject over eight years proves that the matter is far from settled.
I shall forebear going into the legal aspects, which have anyway been dealt with by one of the finest lawyers that this country has ever known—the noble and learned Lord, Lord Ackner. I prefer to take an entirely different view. I have always been under the impression, since being in practice and in the Armed Forces for six years—with some flying experience— that an Englishman's word is his bond. It is not necessarily a question of law. Progressively over the years, this country has lost that sense that an

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Englishman's word is his bond, if something else exists. That is the kind of situation that I, as a Briton, cannot tolerate. There must be some regaining of the sense of honour—making due allowance for the views of some of one's friends and political associates, who may disagree. In the finality, that is where the role lies.
The time will return, hopefully shortly, when an Englishman's word is generally recognised—not as a matter of law but of normal practice. For that reason, I hope that the efforts of the noble Lord, Lord Chalfont, meet with success. They certainly have my support and those of all people who have any regard for what has hitherto been regarded in this country as normal and civilised behaviour, lived in accordance with ordinary moral principles.
Baroness Park of Monmouth: My Lords, I warmly support everything that my noble and learned friend, the noble and learned Lord on the Cross Benches and the noble Lord, Lord Chalfont, said. Precisely because we all greatly love and respect the Armed Forces, for whom we often speak when they cannot speak for themselves, it is essential that the Government should not give even the appearance of dragging their feet and kicking the debate, practically speaking, into the distance. Not only noble Lords, but also the men and women of the armed services, will note with deep regret the Government's failure to give as early an answer as possible to such a major and unequivocal conclusion as the report furnishes.
I feel that any further delay is wholly unacceptable. The Government say that we will have a debate by the end of the summer. That will prolong the whole process and it will be November before we can debate it. Already eight years have passed and soon it will be nine. I beg the Government to think hard before they behave in that way.
Lord Redesdale: My Lords, I have taken part in debates on many orders and I believe that this is one of the longest with which I have been associated. It will also probably receive the most amount of press coverage. The only order that I can think of that received any press coverage was one that removed the offence of a landlord serving more than a pint. Apparently it was illegal to give more than a pint.
The order before us is uncontentious. I do not believe that any noble Lord has spoken against the order. On these Benches it has full support. I echo the words of the noble Lord, Lord Hardy of Wath. This is an opportunity to commend the work of our Armed Forces. I had a number of questions for the Minister about a forthcoming Army Act but he answered those in his introduction to the order.
I also echo the words of the noble and learned Lord, Lord Mayhew, who said that this was an ingenious opportunity for a debate to be brought forward on this subject. I realise, as the noble Lord, Lord Chalfont, said, that this is not just a peg on which to hang a debate about this terrible tragedy but an issue that he believes has constitutional implications. I take on board that sentiment. However, only two questions appear to have been raised this evening: one, whether
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the Government will publish the report before the Summer Recess; and, two, whether the House will be given the opportunity to debate that report before the Summer Recess? I hope that the Minister will be able to answer those questions.
Lord Vivian: My Lords, I am most grateful to the Minister for moving the order. On these Benches we naturally support it for the reasons that the Minister so clearly identified. The House welcomes the Minister's statement concerning the government response to the House of Lords Chinook report ZD576. We on these Benches want to debate the response before the Summer Recess. I agree with what your Lordships have said. It has taken too long and we should debate the response before the recess. I agree with the reasons given by the noble Lord, Lord Chalfont, and I agree with what my noble and learned friend Lord Mayhew said. I prefer to say no more on the issue now and to keep what I have to say for the debate on the Government's response.
The continuation order represents an occasion when some associated matters can be included in the debate, although I shall keep my contribution short. I am most grateful to the Minister for bringing us up to date on the tri-service Act. Will he confirm that there will be advance consultation with Parliament at various stages of preparation of that new Act?
During the past 10 years there has been increased emphasis on joint aspects of all three armed services. Because of that, the need for further continual amendments and a tri-service Act has developed. During the drafting of' that Act it will be important to ensure that due to the nature of the three services and their different roles there may be a need to introduce some parts of the Act which will be applicable only to a specific service. To support that comment, the Chief of the Defence Staff said that we should recognise the tolerable variation that needs to exist between the three service environments. However, to wait another four years, as the Minister indicated, seems an exorbitant length of time.
It must be recognised that the way of life in the Armed Forces is very different from that of civilian life. The temptation to tinker with the discipline of the Armed Forces must be resisted at all costs when drafting the new tri-service Bill. The new Act will be of such importance that we should try every way to retain the effectiveness of the military discipline system, ensuring that commanding officers retain their full powers.
I take this opportunity to comment on the Human Rights Act and some aspects affecting Armed Forces military law which did not comply with the European Convention on Human Rights. I am aware that the Minister has touched on that subject. Changes were made to existing military law and although they achieved the object of retaining summary powers of jurisdiction and custody before trial, they also undermined the authority and effectiveness of a commanding officer as did a number of other changes.

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Your Lordships are well aware that morale is built of various components and a large component is military discipline. The efficiency and the state of morale of a regiment is the sole responsibility of a commanding officer and for that reason such power is vested in him. If we undermine that power and authority we shall destroy the ethos and morale of regiments and we shall be left with inefficient units that may not be successful in times of conflict.
I wish to touch on one aspect of the International Criminal Court, which rightly caused so much concern in your Lordships' House. Part of the Act deals with actions taken by military commanders in times of conflict and could have led to those military commanders being arraigned on charges by a foreign court. By signing up to retain jurisdiction over our own Armed Forces it denied the right of any foreign government to bring charges against a UK serviceman or woman until the case had been investigated by our own United Kingdom authorities. If the United Kingdom decides that there is no case to answer, I understand that that is the end of the matter and no European court would have any jurisdiction. Can the Minister clarify the situation and explain why we did not take advantage of Article 124 of the Rome statute which would have allowed us to opt out for a period of seven years?
In conclusion, we on these Benches pay great tribute to the men, women and families of our Armed Forces. They have been over-committed and yet they have performed their tasks highly successfully with great skill and bravery. But a word of warning: those skills are beginning to fade and troops and families are beginning to become tired. Retention rates are poor and consequently experience is drifting away which is the start of inefficient Armed Forces. It is Her Majesty's Government's responsibility to ensure that the Armed Forces of the Crown are funded correctly. If under-funding persists, manning levels will fall, equipments will be cancelled or delayed, commitments will have to he cut and our fighting efficiency will deteriorate.
9 P.m.
Lord Bach: My Lords, I thank all noble Lords who have taken part in this discussion of the order and the amendment to the order. The passion and thought with which all distinguished noble Lords have spoken has certainly been effective.
I hope that noble Lords will not think it offensive if I tell the House straightaway that I do not intend tonight to go into the merits or otherwise of the Chinook affair. There will be a debate following the publication of the Government's response. But I tell the noble and learned Lord, Lord Mayhew, that it may not be possible to have that debate before the Recess because it may not be possible to publish the response until very close to the Recess itself.
When the response is published it is intended that there will be a Statement made in this House so that there will be a short discussion—I know how long
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Statements take in this House—at the time. I do not see that, nor will noble Lords, as a substitute for a full debate. That debate will take place, but I cannot give a guarantee that it will happen before the Recess.
I shall briefly deal, first, with the timetable and, secondly, the attacks which have been made on the executive and the Ministry of Defence. I shall not be long about either. As regards the timetable, at the risk of repeating what I said some time ago when I moved the order, I say this. The Select Committee's report was published on 5th February, not 31st January, of this year. The Government have consistently said, and I say it again tonight, that they will respond to the report before the six months allowed for responses—I repeat, allowed for responses—under the rules which we have to follow have elapsed. That remains our intention and we fully expect to publish our response before the House rises.
The committee's report is a detailed assessment of a set of complex, technical, legal and, we believe, airmanship issues. Surely it must be right that it has to be fully and carefully assessed. That is what we will be doing and we will not be deflected by name-calling from doing that.
I turn briefly to the comments made about the Ministry of Defence and the executive. The comments sadden me and I believe them to be unfair and unfortunate. I hope that some elements of the House may agree with me. It is not fair to say that the Ministry of Defence has dragged its feet, or that its back is against the wall.
Two important matters need to be resolved by the Ministry of Defence before it can put forward its decision and its view, which will be decided by Ministers and nobody else, on this very important matter. It is extremely important as well as being an extremely tragic case. The first matter relates to further advice from counsel on the application of evidence concerning the standard of proof criterion. We have heard some very distinguished views on that today. We are obtaining further advice from counsel. I share that with the House. That is what we are doing and I believe that we would be rightly criticised if we did not do that.
Secondly, as regards Boeing, the House will recall that the very distinguished committee which looked into these matters criticised the original Boeing simulation and the standard of proof. As part of the detailed assessment of the report that is currently being undertaken, surely it is right to seek Boeing's input. Indeed, I would have expected the House to criticise us if we had not bothered to do that. We want the best possible advice. We have asked for Boeing's comments and that they review their original analysis with the inclusion of a full FADEC simulation. The modelling tool available at the time did not include FADEC parameters although the engineers who conducted the original simulation factored in known FADEC performance criteria. Boeing has also been asked to re-examine to what extent the minimum speed at the way-point can be established. Boeing is doing that and is assisting. We are grateful to it and to the other

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companies involved in this work—in other words, the sub-component manufacturers—for their co-operation.
Boeing is the only manufacturer and design authority of the Chinook. Only Boeing possesses the necessary detail about the design and material of the aircraft and its capabilities. We intend to make the evidence produced through Boeing's work, in the light of the re-modelling process, available although there may be some matters of commercial sensitivity which preclude publication of some elements.
I want to emphasise to noble Lords that we have been consistently open. Nothing is being hidden; there is nothing to hide. Anyone who has experience of the defence industry and, one might say, of industry generally, will know that it sometimes takes quite a long period of time for these reports and examinations to be done and sent back to Britain. It is unfair to suggest that the Ministry of Defence is dragging its feet because those reports have not yet reached us. We are hoping that they will shortly and they will be considered properly and carefully. I cannot believe that the House would expect us to do anything else.
The suggestion that a decision has somehow been made by the Ministry of Defence as to what conclusion we are going to reach on the Chinook matter is absolutely wrong. No decision has been made. We will look carefully at the whole issue when we have received the new information and then make the decision, we hope, coolly, calmly and properly. We will report within the six months that we are allowed. I repeat, the decision will be made by Ministers.
I end this part of what I have to say by making this point. Given the level of interest that there is in this matter—we have seen it tonight in a very articulate form—how could the Government consider that any delay on their part would be helpful, as some noble Lords have suggested? We want to clear this matter up just as much as those who have spoken with such passion tonight.
I turn to what the original Motion speaks about and particularly with reference to the speech which the noble Lord, Lord Vivian, made a few minutes ago. I would like to thank both him, the noble Lord, Lord Redesdale, and other noble Lords for their support for the order itself. The noble Lord, Lord Vivian, acknowledged many of the issues which we are taking into account in our work on the tri-service Act, including striking the right balance between harmonisation and single-service requirements. He recognised the need to get the new legislation right. That is what is most important to us. The services are naturally concerned that we should proceed with caution and care in enveloping the new framework that is needed. In consideration of our timetable it is right that we should proceed at a pace with which the services themselves are comfortable.
Consultation with the House was mentioned and that is understood. One means of consultation is these annual debates and it may be that in years to come we shall be able to concentrate more on the order itself. However, this time next year the policy development
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stage that I spoke about should be complete. I am happy to consider whether it would be possible to publish information about our proposals. If we were to do so I am sure that there would be no reticence on your Lordships' part in giving the Government the benefit of your views. I invite the noble Lord to leave that matter with me for the time being.
The noble Lord, Lord Vivian, commented on the changes that are to be made to service discipline because of the European Convention on Human Rights. I agree with his comments about the critical importance of the commanding officer in upholding discipline and maintaining morale, and the key role that those factors play in preserving operational effectiveness. Where I part company gently from him is in his analysis that the changes to be made in some way undermine the position of the commanding officer or are damaging to discipline and morale.
The changes have increased the fairness of the system of discipline and, I would argue, have helped to bolster the respect in which the subsystem is held by those who are subject to it. If so, we do not believe it necessary to consider leaving the ECHR even on a temporary basis. We take a positive view. Those who bear the heavy responsibility of defending our rights— the rights of the population at large—should enjoy those appropriate rights themselves.
I shall briefly mention the International Criminal Court. The noble Lord asked why the UK did not opt to take advantage of the seven year transitional period in Article 124 of the statute whereby a state can declare that provisions on war crimes do not apply to crimes committed by its nationals or on its territory. In the negotiations for the ICC statute we made it clear that it would have been better not to include such a transitional arrangement if agreement had been possible without it. It is a perverse position for states to join the court but not to accept the hulk of its jurisdiction for seven years. We believe that making use of that provision would have called into question our commitment to the International Criminal Court.
The complementary provisions of the statute whereby we have primacy of jurisdiction in cases where our nationals are accused provide the protection that our service personnel require. In other words, if the UK decides that there is no case to answer, then the ICC would not have jurisdiction unless it could claim that the UK was deliberately shielding war criminals or that the justice system had broken down. We do not believe that either of those situations is likely to occur.
The noble Lord, Lord Vivian, ended by referring to the commitments of our Armed Forces and the implications for personnel and their families. It remains our policy to achieve a balance of commitments. We aim to commit personnel to operations for no longer than is necessary to achieve their military purpose. That was evident in the case of the deployment to Macedonia last year. I am grateful for the kind remarks that he and the noble Lord, Lord

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Redesdale, and others have made about our Armed Forces. They are well deserved. I commend the order to the House.
Lord Chalfont: My Lords, I shall be brief. I said that this amendment was not intended to disrupt or undermine the Royal Air Force or any other part of the Armed Forces. Indeed, I have been somewhat resentful of some of the suggestions made that this amendment has in some way prevented us from paying tribute to the Armed Forces as though it were a formality that we had to go through.
I served for 25 years in the Armed Forces and I yield to no one in my regard and admiration for them. I am willing to repeat that admiration at any time—not just as a formality during a debate. The reason why I tabled the amendment was to point out that Parliament is not a talking shop—although it may have sounded like it tonight—to be ignored by the Air Staff or by the Government. Sometimes people should be reminded that Parliament has teeth and may sometimes bite. It is not going to bite on this occasion, but there may be occasions in the future when it might.
I shall not take up any of the arguments that have been made tonight for obvious reasons of time, except to make two points. I want to make a small point about the date of the report. There is not much argument about it because it is printed on the report—ordered to be printed on 31st January. As far as I am concerned that is when the report was issued. However, we will not argue about five days when we have already waited this length of time for the Ministry of Defence response.
My only other point was made also by my noble and gallant friend Lord Craig of Radley. He mentioned the number of Ministers who supported the view of the air marshals. I can tell him that a number of Ministers from the Ministry of Defence over recent years have personally told me that they have some doubt about it. Perhaps I can remind your Lordships' House that the Secretary of State at the time has said publicly that if he had known then what he knows now, he would never have allowed the verdict to stand.
The debate has done to some extent what I intended it to do. I found no other way of achieving that end. As the noble and learned Lord, Lord Mayhew, said, it was a device, whether or not ingenious I do not know, but the only one I could think of which would point to the fact that we have now been waiting since either 1st January or 5th February for a response from the Government. We have not had one.
In passing perhaps I may say that if it is only now that they are seeking the advice of counsel on the matter of whether there is any doubt and what the legal implications of that are, I wish that the air marshals had taken counsel's advice before coming to their decision.
However, this is an issue which your Lordships will undoubtedly wish to visit when eventually there has been a chance to consider the Government's response to the Select Committee's report. I regret that we shall
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not have an opportunity for debate before the Summer Recess. But we shall at least have an opportunity to consider a Statement, which is moving us some way towards what I hope will be a happy conclusion. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

Education Bill
9.16 p.m.
Further consideration of amendments on Report resumed on Clause 44.
Lord Pestonmoved Amendment No. 81:
Page 29, line 16, after "prescribed" insert—
"( ) advising all admission authorities on how to provide a non-selective school system,"
The noble Lord said: My Lords, having lost a fair amount of time, your Lordships will probably prefer me to be as brief as I can. In moving Amendment No. 81, standing in the names of my noble friend Lady David and myself, perhaps I may immediately thank the Minister not merely for answering my question on what the membership of the forums would be, but actually handing me a piece of paper containing all the information.
That piece of paper also contained a very interesting sentence which may affect how I organise the next few years. It says that the chairman of the forum could, if it so decided, be an independent person. I am certainly an independent person and what I need to do is find a forum that is looking for a possible chairman because it looks very interesting. I just mention that en passant.
The Minister said in terms, at col. 212 of Hansard on 14th May, that,
"as an individual as well as a Minister, philosophically [I] do not support selection by ability at 11".
Again at col. 637 of Hansard on 11th March of this year she said,
"I am pro-education, pro-equality and pro the comprehensive system".
I can find no better sentence to convey my own views on this matter. Though I shall not weary your Lordships with other quotations, that is certainly also the view of my right honourable friend the Secretary of State who said in terms that she supports the comprehensive schools.
The question before us, therefore, is why there is so much selection in our education system, some of which is overt and a great deal of which is covert. Why is it that some of us are so worried that selection will increase with the introduction of all the new forms of school that have been placed before us in the past few years?
When we think of selection by ability at 11, we are not looking at something that is new or something about which we are completely ignorant. This subject has been around a long time and has been studied in great depth. It is no longer a matter of anecdote or

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anything else. It is something that education researchers know about. The considered view is that selection at 11-plus is socially divisive. Much worse than that, it damages individual self-esteem. Worse still, it places unreasonable pressures on pupils and teachers in primary schools. The noble Baroness, Lady Blatch, talked about disruption, which she thinks is due to the ballots, but it is known overwhelmingly that the 11-plus exam disrupts teaching and learning at a very important stage in the primary curriculum.
We also know, as a matter of research, not of anecdote, that because of the dynamics of child development, the selection at 11-plus not only of itself does not work properly, it reinforces rather than reduces inequality of opportunity.
The worst thing about selection at 11 is that although we all have experience of failure in life, happily a few of us do not have that experience until we are quite a bit older. Many of us campaign for the abolition of selection at 11 because it is appalling to inflict failure on a young child. When I was 11 an enormous number of children were immediately branded as failures. I know that we all experience failure, but for it to happen at 11 is cruelty beyond acceptability.
That is the background to my position and it leads to at least one suggestion, which is all that my amendment is about. My noble friend Lady David and I, along with others, think that an admission forum could, first, look at what is happening within the area on selection, and so on. Secondly, it could advise the admission authorities on how to set up a genuinely non-selective school system.
This is a minor proposal. It is not my way of saying that we should get rid of selection because it is too cruel. The amendment is simply saying that we should use these forums in an advisory capacity but in a way that would be immensely helpful. It would lead to local debate and bring out these issues in a balanced and interesting way that would lead to action.
That is the reason for tabling the amendments. I beg to move.
Baroness Blatch: My Lords, the noble Lord, Lord Peston, would expect me to rise to the bait, but I shall be brief.
I would be impressed if I thought that the argument was all about the age at which selection takes place. The noble Lord concentrated a great deal on the inappropriateness of selection at 11. If that were the issue, we could have a serious debate about the appropriate age for selection on the basis of ability. But I think that the noble Lord, Lord Peston, would fundamentally disagree with selection on the basis of ability at any age.
Lord Peston: No, my Lords, That is not my view and it never has been.
Baroness Blatch: My Lords, then I am impressed. There is a serious debate to be had. As we know, in the independent sector, selection takes place at 13-plus,
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rather than 11-plus. There may be some hope in the idea of a debate on the issue. Certainly there is selection at age 16 and there is a great deal of selection at age 18 on the basis of ability. That is how people move into the world of tertiary education.
My short intervention has at least elicited from the noble Lord something on which we can build in future debates.
Baroness Ashton of Upholland: My Lords, I shall confine myself to replying to the amendment. As my noble friend Lord Peston said, the amendment would require admission forums to advise all admission authorities on how to provide a non-selective system. We simply do not see it as part of the job of admission forums to promote specific changes of character in schools, or in local education authorities.
Noble Lords are well aware that we do not believe in selection by ability, but we do believe that children with a particular talent—for example, in the arts or in sport—should have the opportunity to develop that talent. A small proportion of schools select by aptitude, but most do not. Of course, selection by aptitude of a minority of talented students will occur only where a school is oversubscribed and the oversubscription criteria will be applied.
I agree that forums should advise on how well particular admission arrangements work, including selective arrangements. We expect admission authorities to have regard to that advice. However, it is for admission authorities to determine admission arrangements. We believe that such arrangements should be a matter for local decision. Existing provisions, and those that we are introducing under this Bill, are designed to encourage local discussion with a view to reaching a consensus on admission arrangements that will work in the best interests of local parents.
We already have in place a framework for local consultation on proposed admission arrangements, with the possibility of objection to the adjudicator if admission authorities consider that particular admission arrangements determined by others are undesirable. Under the provisions of the Bill we are also strengthening objection arrangements and extending them so that community and voluntary controlled school governors may also object to admission arrangements at foundation and voluntary aided schools.
I hope that noble Lords will agree that the provisions set out in this Bill, together with the existing framework, will enable local partners to agree a local system for admissions that will work well for local parents and children. I hope that my noble friend will feel able to withdraw his amendment.
Lord Peston: My Lords, I thank my noble friend for her response. There is no difficulty about my withdrawing the amendment, but I am disappointed by her reply because I thought that my noble friend Lady David and I had put forward an amendment that could make a constructive contribution to the role of the admission forums.

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Perhaps I may respond a little to the remarks made by the noble Baroness, Lady Blatch. Selection has to take place—as, indeed, does choice—at various stages in one's education and career. The point is when. The research evidence available overwhelmingly tells us two things: first, that we should do this as late as possible; and, secondly, that we should always ensure that systems exist in order to rectify errors. Let us take, for example, 16 as an age for the purpose of this argument. Someone might be given certain advice at that age; indeed, I was. I was told that I would never be a hot-shot pure mathematician and that I ought to do something else in the sixth form.
We have all had that sort of experience. Such comments were made in the form of advice, and we took it because that was how we reacted to our teachers. However, there was never any sense of failure involved. It was not a matter of grading us, or telling us that we were worthless; it was advising us what we could do. But there always existed a way—in the case of pure maths, for me, it did exist—of discovering that one had received the wrong advice, and means through which one could put it right.
The real point here is not to say that we should never select, because life is full of selections. On Friday morning 11 young Englishmen will be selected to play for England, while another 11 will be told "You're not good enough". I am sure that they will be very disappointed. But selection is of the essence in the case of a football team. The point about education is that selection is precisely not of the essence; indeed, it is exactly the opposite of what we want at the age of 11.
If, in due course, the noble Baroness, Lady Blatch, who is more influential in this House than I am, could manage to secure us a good debate on selection, I should willingly take part in it. We could then discuss the whole philosophy of it, as well as the practicalities. However, I promised to be brief in my remarks. I shall not, therefore, pursue the matter ad nauseam. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81A and 82 not moved.]
[Amendment No. 82A had been withdrawn from the Marshalled List.]
Clause 45 [Admission numbers]:
Baroness Ashton of Uphollandmoved Amendment No. 83:
Page 29, line 39, leave out "In" and insert "For"
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 84 to 87. These amendments fulfil the promise that I made to noble Lords in Committee to return on Report with our own proposals to address the concerns of those who represent state boarding schools. We share their concern to safeguard the long-term viability of maintained boarding schools, but also think it most important that all schools make clear to parents, in their published admission arrangements, how many
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places can be applied for and in what circumstances. These amendments, as now drafted, will achieve both objectives.
They will allow maintained boarding schools to have separate admission arrangements, and, therefore, separate admission numbers, for their day and boarding places respectively. The changes already made in Clause 45 of the Bill, replacing standard numbers with admission numbers facilitate that. If a school takes that route, day-place applicants would be ineligible for boarding places, and vice versa.
So, for example, where a parent expresses a preference for a day place at a school that offers boarding accommodation, the admission authority could refuse that child admission if all the day places up to the published admission number have already been allocated to higher priority day-place applicants, even though there may still be boarding places available. We believe that this approach will help schools to keep places available for those who specifically want their child to board, whether during the course of a normal admission round or later. And parents would know where they stand.
However, where boarding school places remain empty in the relevant year group, there is nothing to prevent admission authorities from accepting a greater number of day pupils, or vice versa.
I understand that the State Boarding Information Service welcomes the amendment and is grateful for our recognition of the importance of the state boarding sector. I hope, therefore, that noble Lords will accept the amendment. I beg to move.
9.30 p.m.
Lord Lucas: My Lords, I very much hope that the noble Lord, Lord Peston, will join me in opposing Amendment No. 87. It reads:
"References in this section to the determination of any number include references to the determination of zero as that number".
What is wrong with zero? Why not have one or two or 59 in the amendment? Zero is a number. It has one or two interesting properties that other numbers do not. But it is a perfectly ordinary number. That reinforces my prejudice against the Civil Service. Presumably it is full of classicists and just because the Greeks and the Romans did not have a zero they think that zero has something improper about it. It is a perfectly good Hindi concept. It was brought to us through the Arabs and the Italians in the 12th to 13th century and has been part of our mathematics for a long time. It is a number. Why are we trying to define it especially as a number as though there were something odd about it?
The noble Lord, Lord Peston, was quite right at our previous session to point out the logic that "or" includes "and", although of course ordinary English has this odd concept "and/or" as if it does not. Legislation manages to avoid that. I really do not think

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that we should commit a similar fallacy just because there are not enough mathematicians in the Department for Education and Skills.
Lord Peston: My Lords, perhaps I may say to the noble Lord, Lord Lucas, that I read the amendment and assumed not that the draftsman or the civil servants were mad or ignorant but that there must be some very clever legal point. Often when I do not understand something, the lawyers go back to primitive times when—the noble Lord will be aware—people had great difficulty with zero as a number. It is special because it is the only number that can be added to another number leaving the other number still the same. That troubled people enormously.
However, I decided not to speak on the amendment simply because I do not want some smart alec advising the Minister to get up and say that if I only knew about legal drafting, I would know how important this is.
Lord Lucas: My Lords, I am younger and more foolish than the noble Lord, Lord Peston.
Baroness Blatch: My Lords, I hesitate to get into this argument because I do not claim to be a mathematician, but I thought that if one added a zero to a one it became 10, and that that was a different number from one. That is as far as I intend to go in intervening between my noble friend and the noble Lord, Lord Peston.
I want to thank the Minister most warmly. I argued the case for these amendments on the last day of Committee. The noble Baroness gave her word that she would go away and think about the matter. I know that STABIS, the organisation representing state boarding schools, is particularly grateful for the work of the noble Baroness. I want it recorded that I am grateful for what has happened. I accept these amendments—zero or no zero.
Baroness Sharp of Guildford: My Lords, I, too, in Committee tabled an amendment about boarding schools. I know that, as the noble Baroness, Lady Blatch, has just mentioned, STABIS is delighted with the amendments. They answer its case precisely. It is extremely grateful. I thank the Minister very much for doing this for us. We are very grateful.
Baroness Ashton of Upholland: My Lords, I am grateful to your Lordships and delighted that we have been able to table the amendments. I must tell the noble Lord, Lord Lucas, that the Bill manager is a mathematician and that the noble Lord is absolutely right that it would cancel conventional drafting if we were to do that in any other way. I shall now sit down.
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendments Nos. 84 to 87:
Page 30, line 2, leave out from "greater)" to end of line 5 and insert "there is substituted—
"(5) No prejudice shall be taken to arise for the purposes of subsection (3)(a) from the admission to a maintained school, in a school year of a number of pupils in a relevant age group which does not exceed the number determined under section 89 as the number of pupils in that age group that it is intended to admit to the school in that year; but this subsection does not apply if the conditions set out in subsection (5A) are met in relation to the school and the school year.
(5A) Those conditions are—

(a) that the school is one at which boarding accommodation is provided for pupils; and

(b) that the determination under section 89 by the admission authority of the admission arrangements which are to apply for that year includes the determinations mentioned in paragraphs (a) and (b) of section 89A(1A).

(5B) Where the conditions set out in subsection (5A) are met in relation to a maintained school and a school year, no prejudice shall be taken to arise for the purposes of subsection (3)(a) from either of the following—

(a) the admission to the school in that year as boarders of a number of pupils in a relevant age group which does not exceed the number determined under section 89 as the number of pupils in that age group that it is intended to admit to the school in that year as boarders;

(b) the admission to the school in that year otherwise than as boarders of a number of pupils in a relevant age group which does not exceed the number determined under section 89 as the number of pupils in that age group that it is intended to admit to the school in that year otherwise than as boarders.""

Page 30, line 12, at end insert—
"(1A) Such a determination under section 89 may also, if the school is one at which boarding accommodation is provided for pupils, include—

(a) a determination of the number of pupils in each relevant age group that it is intended to admit to the school in that year as boarders, and

(b) a determination of the number of pupils in each relevant age group that it is intended to admit to the school in that year otherwise than as boarders."

Page 30, leave out lines 13 to l6.
Page 30, line 22, at end insert—
"(4) References in this section to the determination of any number include references to the determination of zero as that number.""
On Question, amendments agreed to.
Clause 46 [Co-ordination of admission arrangements]:
Baroness Blatchmoved Amendment No. 88:
Page 30, line 30, leave out "arrangements" and insert "dates"
The noble Baroness said: My Lords, the amendment would change the word "arrangements" for "dates". As I said in Committee, the arrangements for admissions and actual admissions of pupils are one of the most important functions that any school carries out. A school that is its own admissions authority must act within the law. Once the criteria are set they must be fairly applied. If they are not, the procedures can be challenged. The most vexed aspect of the arrangements is the setting of dates by which parents know whether their child has been accepted for a school place. Different dates operating in an area

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causes real confusion. That is why the factor in greatest need of co-ordination is the setting of the date by which all schools should make offers.
I want to make a point about the response that I received from the noble Baroness in Committee. She said:
"The main difference a co-ordinated scheme will make to foundation and voluntary-aided schools is that, rather than put forward the offer themselves, they"—
I assume that "they" means the schools themselves—
"will notify the relevant education authority as to which schools are eligible".
How can a school say which schools are eligible? I do not understand what that means. She continued:
"Each local education authority will then check in relation to all pupils resident in its area the potential offers to be made".
I am not sure what that means. How do they check the potential offers to be made to all pupils resident in the area—unless in plain English that means that parents will make their bid for a place and the local education authority will consider those bids and try to reconcile them with the places available? But what is stated there simply does not make sense.
The noble Baroness continued:
"Applying the rules applicable to the co-ordinated scheme in question".
So I think that what the noble Baroness is saying is that schools may be their own admissions authority but, nevertheless, the rules must be applied according to the scheme in question. So I do not agree that schools will not be much affected on the basis of what the Minister herself said. She continued:
"the education authority will then decide what offer will be made to those who would otherwise receive multiple offers, or none, and then the local education authority will transmit the single offer of a school place to residents in their area".—[Official Report, 14/5/02; cols. 271–2]
Again, I am not sure what that means. Will a "guesstimate" be made of those who would otherwise receive multiple offers? No parent will have received a multiple offer because, under that system, offers will not have been made. How are LEAs to assume which parents would otherwise have received multiple offers or none? I received a confusing response from the Minister and clarification would be helpful.
I return to my original point. It is important for those schools that are their own admissions authority what arrangements they can make. If there were a co-ordination of dates, that would make their position much more simple. What happens at the moment is that one school will have a date at one stage and parents will receive one set of information while still hoping for information from another school of their choice. There is a great deal of playing one school off against another, which causes confusion. It would be helpful to have some explanation of what the noble Baroness said at cols. 271 and 272. I beg to move.
Baroness Ashton of Upholland: My Lords, I apologise if I was less than helpful in my previous remarks. Perhaps it was late.
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Let me spend a moment explaining the effect of the amendment and addressing the points, I hope more succinctly, raised by the noble Baroness. The whole purpose of the clause is to provide a co-ordinated and simplified admissions process that will result in all local parents in the local education authority's area being offered a single school place at the same time. We know that this is what many parents want. The amendment will not achieve it.
As drafted, the amendment will not achieve what the noble Baroness seeks to achieve—that is, that parents should know by a single date whether or not their child has been accepted for admission. All that the amendment would effectively do would be to co-ordinate the date within a local education authority's area on which children are physically admitted to school.
Under current legislation, parents often apply to several admission authorities for their child to be admitted to a school and may receive a number of offers, or sometimes no offer at all. Simply co-ordinating the date on which children are admitted to school would not prevent the situation, which often arises at the moment, where some parents receive and hold onto several offers of a school place for their child while others do not receive any.
However, under the new provision the published coordination scheme for an area will give the date on which parents will be offered a school place for their child, either at a preferred school or, if that is not possible, at an alternative available school. This will be an improvement on the current situation, which causes unnecessary distress and uncertainty for many parents and children. I am sure that, like me, noble Lords would not wish that to continue. We want to build on the existing framework because we believe that it will provide a smoother process. Co-ordinating the date of admission but not the arrangements for admission will not achieve that.
I gave an assurance in Committee—I reiterate it—that foundation and voluntary-aided schools should not and need not be concerned about our proposals to co-ordinate admission arrangements. Under any agreed scheme, the governors of such schools will continue to be the admission authority, receiving all applications from parents and applying their own published over-subscription criteria before deciding which applicants are eligible for a place.
The local education authority will send out the letters on their behalf—that is the role that the local education authority will play. Where parents have more than one potential offer, the local education authority will simply apply the co-ordinated scheme agreed by all the admission authorities in the area to decide which single offer of a school place will be made to all the parents in its area. The most obvious example will be where parents put down preferences. If a child is eligible to be admitted to more than one school and there is a place, in such cases it will he parental preference. But it will be for all the admission authorities to decide the specifics of that.

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I hope that that puts more succinctly the situation of those schools. They will continue to decide which children are admitted. If there are more children than places, the local education authority will apply the coordinated scheme and send out letters. It does not affect in any way the admission arrangements for those schools. I hope that on that basis the noble Baroness will feel able to withdraw her amendment.
Baroness Blatch: My Lords, I accept the Minister's point that my amendment reads "arrange dates for admission". That is certainly not what I intended. I intended that there should be a date by which the preferences were responded to by all schools in an area. That would get over the problems of multiple applications and multiple offers. I shall have another look at that issue between now and the next stage.
I also accept the Minister's explanation about schools which are their own admission authorities. But I took the words on the page to mean that the main difference that a co-ordinated scheme will make to foundation and voluntary-aided schools is that, rather than the schools putting forward the offer themselves, the schools will notify the relevant education authority as to which schools are eligible. That is not what the Minister has just said. I understand her now to be saying that the schools will notify the LEA that, for example, Mr Jones's daughter, Alison, has been offered a place under the criteria that apply; and a letter goes out to Mrs Jones saying, "Your daughter, Alison, has been offered a place". That is not what this says. It says that the school will notify the relevant education authority as to which schools are eligible—it is probably "which children are eligible" rather than which schools. So it was confusing.
However, I understand that my amendment is defective. I shall look at it again between now and Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.45 p.m.
Baroness Ashton of Uphollandmoved Amendment No. 89:
After Clause 46, insert the following new clause—
"REPEAL OF POWER TO MAKE CERTAIN SPECIAL ARRANGEMENTS FOR PRESERVING RELIGIOUS CHARACTER
Section 91 of the School Standards and Framework Act 1998 (c. 31) (special arrangements to preserve religious character of foundation or voluntary aided school) shall cease to have effect."
The noble Baroness said: My Lords, when the Bill was considered in Committee, I said in response to a proposed amendment by the noble Lord, Lord Lucas, that we would he bringing forward an amendment on Report to repeal Section 91 of the School Standards and Framework Act 1998.
Special arrangements under Section 91 of the 1998 Act permit aided and foundation schools with a religious character to preserve that religious character by rejecting applications from families not of their particular faith or denomination, even where they
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have places available. As noble Lords may know, faith schools usually give priority for admission, if they are over-subscribed, to applicants who are adherents of their faith. In that situation, a Section 91 arrangement has no additional effect.
Where it makes a difference in practice is where, for example, fewer Roman Catholics apply for a Catholic school than there are places available. If that happens, a Section 91 arrangement would allow the school to keep places it cannot fill with Catholic pupils empty—even though there may be a demand for those places from non-Catholic families. In our view, keeping places empty when there is a demand for them is incompatible with parental preference and wasteful of resources.
We have discussed this proposal to end Section 91 agreements with the Roman Catholic authorities, whose schools it is that make use of Section 91 agreements, and the Catholic Church is happy for the benefits of Catholic schooling to be extended to other families who appreciate and want those benefits, as long as demand from Roman Catholics can continue to be met. I beg to move.
The Lord Bishop of Blackburn: My Lords, I support the amendment. I do so with the full backing of the Catholic Education Service, as the Minister has said. I pay tribute to the way in which the Minister and her officials have dealt with this issue. It is a matter of making schools more inclusive where possible, and that is very much in the spirit of what we have been talking about in earlier debates. I greatly welcome the amendment and hope that it will be accepted.
Lord Lucas: My Lords, this was a hit of good news when the Minister announced it in Committee and I am delighted to see the amendment now.
Baroness Ashton of Upholland: My Lords, I thank noble Lords. I hope that the amendment will be accepted.
On Question, amendment agreed to.
Schedule 4 [Admission arrangements]:
Baroness Ashton of Uphollandmoved Amendment No. 90:
Page 134, line 28, at end insert—
"(3A) In subsection (3)—

(a) at the end of paragraph (a) there is inserted "or", and

(b) paragraph (b) is omitted."

On Question, amendment agreed to.
Baroness Walmsleymoved Amendment No. 91:
Page 134, line 28, at end insert—
"( ) After subsection (3)(c) there is inserted"; or
(d) if the child has been identified upon an assessment requested by the head teacher of the school as having significant emotional and behavioural difficulties and the local education authority responsible for maintaining the school is unwilling or unable to provide to the school such resources as may reasonably be considered appropriate to meet the needs of the child""

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The noble Baroness said: My Lords, the purpose of this amendment, as in its previous incarnation, is to amend the School Standards and Framework Act to establish the right of heads to refer pupils for assessment prior to entry to the school if they have reasonable grounds to believe that they have significant emotional and behavioural difficulties, and to encourage the provision of adequate resources to support schools in meeting the needs of these pupils.
During discussion on this amendment in Committee, we were gratified by the support from the Minister and from the noble Lords, Lord Northbourne and Lord Alton. However, the noble Lord, Lord Lucas, had a problem with it, since he felt that it might lead to "playing ping-pong" with a child. Perhaps I can set the noble Lord's mind at rest. The game of ping-pong only begins when a child is placed in a school without any thought at to what is required to meet his needs. This amendment seeks to prevent that by ensuring that the child's needs are properly identified and catered for, so that three or four months down the line the school does not find itself having to exclude the child. The child would then be placed in another school without a proper assessment of his needs. He is then expelled, and so the tragic human ping-pong game goes on.
As the noble Lord, Lord Dearing, said in Committee, it is very often an issue of adequate resources. Additionally, teachers and heads can be frustrated by a lack of support from the LEA for one reason or another. This amendment seeks to ensure that there is a professional assessment of need followed by an impartial judgment on what resources are necessary to meet those needs. As the Minister has rightly pointed out on several occasions, the Government are providing more resources to support pupil behaviour in mainstream schools. On 25th April, the Secretary of State announced a new package of £66 million. This amendment would ensure fair and impartial deployment of those resources according to the needs of the pupil and the school. I hope that the Minister will look favourably on it. I beg to move.
Baroness Ashton of Upholland: My Lords, I am a little surprised that this amendment has been tabled again. As I said in Committee, the thrust of this amendment is that some decision would be made about a child's suitability before he or she had even obtained a school place. That is not the direction in which we want to see education move in this country. We do not want schools to have grounds for refusing admittance to this group of children with special needs. We think that this could be abused, to the detriment of these children.
The noble Baroness, Lady Walmsley, has quite rightly talked about the ping-pong situation facing some children in school, and acknowledged that we are very concerned about children with challenging behaviour. We have put £178 million into schools specifically to cover issues arising from behavioural problems. I acknowledge that more needs to be done. However, we want to achieve that within a context of
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an inclusive system in which such children at least get a chance to get through the door of a school and the opportunity to prove themselves.
We already have in place a system for assessing and supporting children with emotional and behavioural difficulties through the special educational needs framework. The SEN code of practice sets out a systematic process for schools to identify and provide for children's special educational needs in school.
It is not clear from the amendment how head teachers could identify which children seeking admission to the school should be assessed for any emotional and behavioural difficulties they may have. There is also a real danger that any such assessments could be somewhat subjective. If a school is approached about taking a child, either by the child's parents or the LEA, head teachers cannot possibly know what that individual child is like. It is therefore entirely conceivable that their initial conclusions about the child would be unfair, being based on nothing more than perhaps word of mouth, family reputation, or worse, simply where they live—by postcode. Furthermore, if a child's apparent behavioural difficulties were related to a disability, "screening" the child for admissions purposes could he unlawful under the Disability Discrimination Act 1995.
We also consider that if the LEA were to be required to undertake the additional assessments that this amendment requires, it would significantly increase the burdens on their child psychology services. In a normal admission round, such assessment could delay the whole process and would be unfair to other children, particularly if a place had to be kept open for a particular child until an assessment were completed. Of course, a school can always request a statutory assessment of a child's special educational needs once that child has been admitted to school.
Accepting this amendment could lead to significant numbers of such children being out of school needlessly, for an indefinite period. I do not believe that that is what the noble Baroness, Lady Walmsley, wishes to achieve. I agree with her that we can do much more. However, this is not the amendment that would achieve what I believe she is searching for. In the light of that, I hope that she will feel able to withdraw the amendment.
Baroness Walmsley: My Lords, I thank the Minister for her response. She makes two particular points to which I respond as follows. First, if there were a right to an impartial assessment and an entitlement to the resources to meet that assessment, there could be no grounds for refusing admittance to the school. So I believe that the consequences which the Minister fears would not occur.
Secondly, the Minister said that the information received about the child might well be wrong. Every secondary school receives information from the previous school. We have no reason to believe that that information is incorrect or has not been compiled after

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considerable thought as to the helpful and constructive information that needs to be passed on to the next school in the interests of the child.
Frankly, the lack of child psychiatry resources is no reason to refuse an amendment of this kind which is aimed at ensuring that children with special needs have the appropriate resources based on a proper assessment of their needs. However, I shall read carefully what the Minister said and consider whether we need to bring the measure back. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 91A not moved.
The Earl of Listowelmoved Amendment No. 92:
Page 135, line 11, at end insert—
"(8) After subsection (9) there is inserted—
"(10) Where a care order is in place with respect to a child, and the local authority designated by the order names a maintained school as the school at which it wishes education to be provided for the child in the exercise of the authority's functions, the governing body of the school shall admit the child to the school.""
The noble Earl said: My Lords, the purpose of my amendment is to ensure that children in public care have fair access to our better performing schools. Currently, they are disproportionately placed in less successful schools. Local education authorities would have the power to direct maintained schools to accept looked-after children in exactly the same way as they now have the power to direct schools to accept children with special educational needs.
I hope that a little background may be helpful. That children in public care experience an unacceptable level of instability in their lives is acknowledged. The Government have set a target that fewer than 13 per cent of such children should experience more than three placements a year, but that still allows 15 placements in five years and is in any case uncertain of success.
Looked-after children frequently face changes of social worker. For those in residential care there is again an unacceptably high level of turnover of staff. A good school placement is essential in ensuring that the home placement endures. Once school fails, home is likely to follow. So, stability is crucial. It is crucial that these children have access to schools that are most likely to meet their needs. Often these will be the better performing oversubscribed schools. These schools often provide pastoral care that is second to none as well as academic success.
In Committee the Minister said that local education authorities already have the necessary powers. It is true to say that local education authorities have the power to direct head teachers of many schools to accept children with care orders. Local education authorities can also direct governors of voluntary-aided and foundation schools to accept such children, but only if every other school in the locality has already refused admission. Local education authorities can but rarely apply that power because seldom does a child meet that requirement.
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I welcome the news that admission forums may establish protocols to protect the interests of looked-after children and that social services will be involved in discussions affecting looked-after children. I welcome the Minister's decision to strengthen the education code to prioritise admissions of looked after children. I am pleased that the Government's Social Exclusion Unit will report shortly on means to improve the educational achievement of looked-after children.
I apologise as I must be tiring noble Lords. I am speaking at too great length. I take this matter very seriously. I have spent much time today concentrating on preparing the amendment. I am aware that noble Lords have been present for hours going through the Bill thoroughly. I am keeping noble Lords occupied late in the evening. That is most inconsiderate of me. However, I hope that noble Lords will forgive me as this is an extremely important issue and could make a great deal of difference to the most vulnerable children in our society.
However, there is no guarantee that admission forums will be introduced. The education code applies only to normal admission periods at the ages of five and 10. I am advised that at least 50 per cent of looked-after children seek admission outside those times.
The Social Exclusion Unit will probably allude to the increasing number of out-of-county placements for looked-after children. Local authorities are short of foster parents and look abroad for them. Children in public care are given even lower priority by foreign schools or foreign local education authorities because they tend to be seen as alien transients. The Social Exclusion Unit may propose solutions to that problem, but we do not yet know what the solutions are likely to be. This amendment has the potential to make a big difference in that regard.
The Minister expressed sympathy for my concerns in Committee, and I was grateful for her response. Surely, therefore, she is prepared to accept this modest proposal, which has the potential to make such a difference to the lives of looked-after children. The amendment may help the Government to exceed their educational target for children in care. Perhaps the Minister would be good enough to remind the House what that target is. I cannot remember off the top of my head, as she may not. It would also be helpful to know their target in relation to no more than three placements per annum per child. I beg to move.
10 p.m.
Baroness Howe of Idlicote: My Lords, I support the amendment tabled by my noble friend Lord Listowel. He has absolutely no need to apologise for again raising such an important matter at the Report stage of the Bill.
We all know that looked-after children have failed dramatically in relation to educational attainment. My noble friend seeks some visible action on the face of the Bill to ensure that positive treatment is given to looked-after children. It has always been one of my

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worries that once children are in care, particularly if they have no contact with parents or relatives, their own interests are not catered for in any way.
I cannot remember which Bill specifically stated that any child in care should have a friend—I do not mean a legal friend—appointed to be an advocate or to whom he or she could relate. I should like to see that as a first part of the system for prioritising these children and ensuring that their educational attainments, which I am sure are much greater than those shown in the statistics, are maximised. With that in mind, I very much support the amendment.
Lord Lucas: My Lords, there is a step change between lucky and unlucky children in ordinary families and those in care. Ordinary families who are lucky enough to have their own children on board should have no difficulty contemplating the idea of doing something special for children in care, to try to help them when, so early in their lives, they have ended up in such difficult and unhappy circumstances. Putting them in the right school is one of the least and easiest steps we can take.
I do not feel comfortable with the drafting of the amendment. One cannot confer on a local authority an absolute right to put a child into a school. There is more to it than that. One might approach the problem concerning conditions of entrance by saying that children were deemed to have satisfied any requirements relating to their residence or primary schools, so that they would be considered to be within the catchment area—not that that particular phrase works any longer—and therefore could be considered for entrance to the school best suited to their needs. As part of their entry criteria, many schools allow for the possibility of a child demonstrating an overriding medical or other need to be at that school.
Perhaps we might also approach this problem by saying that children in care should, prima facie, be considered to have such a need where it is part of the entry criterion of a school that they should be considered on that basis. However, I should like some effort to be made to see what we can do to move in the direction that the noble Earl suggests.
Baroness Sharp of Guildford: My Lords, I join other noble Lords in saying that the noble Earl has no need to apologise to the House. We have had a number of debates about looked-after children. It is clear that society's record towards such children is appalling. My goodness, we owe them something, do we not? Partly thanks to a very disturbed education, their achievements are currently very low indeed. It is absolutely right that we should consider what we can do best for their education.
In discussion in Committee, the Minister said that she was well aware of the needs and difficulties of children in public care and other vulnerable children. She said that the Government would therefore attempt to assist their admission into popular schools in other ways. If those needs and difficulties are recognised, along with the need for such assistance, then why must
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we rely on other ways? The drafting may be defective but, to some extent, the intent of the amendment is surely something for which we should aim.
The other ways described by the Minister, such as revising the code of practice to strengthen the position of looked-after and vulnerable children, are welcome and may reduce the need to rely on the duty of governing bodies to admit such children, as the amendment would require. But the creation of a clear duty towards this most disadvantaged and vulnerable group which applies equally to all schools, regardless of category, is surely the only measure that will guarantee an immediate and dramatic improvement in their chances of gaining access to our most popular schools.
It seems to me that there is no case for rejecting the amendment. The strongest reassurance offered would not apply in the majority of cases, and the other ways of meeting this acknowledged need might well be unsuccessful if foundation and voluntary-aided schools sought to get around the measure and resist it. There appears to be no disagreement over the desirability of opening up access to the full range of popular schools, nor over the need to do so. Therefore, why is there reluctance to adopt the one measure that would achieve that outcome?
Baroness Blatch: My Lords, I want to make a slightly different point. But, first, I join all other noble Lords in saying that we really should not apologise for bringing a subject such as this before the House. It seems to me that that is what we are here for. Of all the children who have been very badly let down, as the noble Baroness, Lady Sharp, said, particularly, I am sorry to say, by local authority care, young looked-after children have been the worst affected.
I am assuming that, because of the way that the amendment is worded, we are talking about a child who may be the subject of a care order but who may not necessarily be the subject of a statement. If a child were the subject of a statement, first, the school would be named in the statement and, secondly, the receiving school would have no power in law to reject the child. The child would have to be received so long as there were room in the school for him.
Therefore, we are talking about a child who is not subject to a statement and who would therefore fall short of requiring provision for special educational needs. However, we all know of many children in that category who may not have a statement requiring special educational needs but who, nevertheless, need a great deal of social support. Some looked-after children are fostered with supportive families and others are in residential homes and are very well cared for in a stable environment. There is a good relationship between the child and the staff, and the staff show a genuine interest in the child's life outside the residential institution. But, sadly, very many children fall outside that category. They do not have a stable fostering placement; nor are they in the type of residential care home that properly looks after their social, and every other, need. When a child who is

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subject to a care order is placed in a school without any domestic support, the school will also need support to make proper provision.
There is a great wringing of hands over what should be done about looked-after children. They have a propensity for more truanting, entering a life of crime, behavioural problems or even resorting to drugs. The more we can do to anchor the young child and provide the framework in which he or she can grow and develop, and to support the school in providing for that child— much more so than with a child from a supportive home—the better.
I am not sure that the amendment's wording is right and that there is not a statute somewhere that obliges a school in law to accept children if the school is designated. I am querying the gap between the child who is statemented, where the law is clear cut, and the child who is not statemented but is subject to a care order. I support the case made by the noble Earl.
Baroness Ashton of Upholland: My Lords, the noble Baroness, Lady Blatch, has hit several nails on their heads. I join all noble Lords in thanking the noble Earl, Lord Listowel. I am more than delighted that he constantly keeps these children at the forefront of our discussions. The noble Earl and I have met five times to talk through the issues. I am in full agreement that we should seek to protect this vulnerable group of children and I completely understand the concerns that inspired the amendment.
Social Exclusion Unit work will be helpful as we deliberate on policy. I sit on a group with my honourable friend Jacqui Smith, the Minister of State with responsibility for mental health and social care. I was concerned about these children long before I became a Minister and the low level of expectation that we have of them.
I explained in Committee that a school that is not oversubscribed is under a duty to comply with parental preference—in this case, the corporate parent's preference. If the school is full, the local education authority could decide to admit a child who is the subject of a care order to a community or voluntary controlled school because the LEA is the admission authority. Alternatively, the LEA has the power to direct the governing body of a foundation or voluntary-aided school. There are limits to the use of that power and the noble Earl and I have discussed them. Good LEAs do not find that an issue or a handicap. The special education needs code applies at any time. The noble Earl's information that it applies only at the ages of five and 10 is incorrect.
Noble Lords have spoken eloquently about the particular needs and difficulties of children in public care. We intend to take them into account when we revise the admissions code of practice later in the year. We intend to recommend to all admission authorities, subject of course to consultation, that they give top priority to looked-after and vulnerable children in their oversubscription criteria and place them at the top of any waiting lists.
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We intend to prescribe in regulations for England that admissions forums must discuss the admission arrangements for children in public care. Forums have an important locus and we want them to take it seriously and think beyond the child being admitted to a school. We shall be consulting shortly on proposed regulations that will give admission forums responsibility for considering issues relating to the children in public care and how to ensure, by means of local protocols, that such children are placed in schools that meet their social, pastoral and academic needs.
I have great sympathy with the intentions behind the amendment but it presents technical difficulties. I do not want to promise anything but will continue to talk to the noble Earl about our policy. As I have said in relation to some of these issues in your Lordships' House and outside, we need to consider policy rather than legislation. I want to consider how best to take this matter forward. I promise to do so with the noble Earl before the next stage. I hope that we shall all agree the way forward for these particularly vulnerable children.
10.15 p.m.
The Earl of Listowel: My Lords, that is a sympathetic and helpful response. I am grateful for the several occasions on which we have discussed this matter together. I am somewhat reassured by what the Minister has said. I shall study carefully her responses. However, I am anxious that we may be missing an opportunity to put into statute protection for these children that sadly in the past has been missing. There is a great deal of competition for the best schools. Some schools are oversubscribed by five to one and if these children are to get a look in and are not to be fobbed off, something stronger than what the Minister proposes, although welcome, may be necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Sharp of Guildfordmoved Amendment No. 93:
Page 136, line 40, leave out paragraph 6 and insert—
"6 (1) Section 90 of the 1998 Act (reference of objections to adjudicator or Secretary of State) is amended as follows.
(2) In subsection (1)(b), for "consulted by the admission authority under section 89(2)" there is substituted "who were, or would but for subsection (2A) of section 89 have been, required to be consulted by the admission authority under subsection (2) of that section".
(3) In subsection (2), paragraph (c) is omitted."
The noble Baroness said: My Lords, I have tabled Amendment No. 93 because on re-reading the Minister's answer to me in Committee I did not consider that she had given due weight to the equity issues involved. Groups of 10 parents already have the right to appeal to the adjudicator in cases where admission arrangements allow for partial selection

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and where that selection was enforced prior to the School Standards and Framework Act 1998. The Minister said on 23rd May:
"We gave parents that right because we believe that they should have the opportunity to make their views known when such partially selective arrangements are an issue".—[Official Report, 23/5/02; col. 922.]
That right has now been extended to allow parents to object over admission numbers, where the admissions number, determined by the admissions authority, is lower than the one indicated using the new capacity assessment formula. However, it does not allow parents to appeal when the admission procedure—the original right of appeal was all about procedures—is de facto partial. The case of Prendergast School to which I referred in Committee involved a foundation school that supposedly did not have a partial selection procedure and yet was pursuing practices that overtly flouted the code of practice and could de facto have resulted in partial selection.
The Minister's argument against change was that it was predicated on three strands of argument. First, she said that consultations had not indicated that there was any strong feeling among parents for such an extension, but there was a low rate of response to the consultation document. I believe from the Government's report about the consultation that there were only 416 responses in total of which only 13 can be said to have come from parents. In other words, 3 per cent of the responses were from parents. Most parents were unaware that that consultation had taken place. As the report says,
"the majority of responses were received from those with a professional interest in education".
In the foreword to the report, the Secretary of State acknowledged that she knows how important school admissions are to parents and to children and yet parents did not participate much in the consultation. The strongest objections in fact came from the voluntary-aided and foundation schools and the professionals involved there precisely because these are the categories of schools in which some of the less desirable admissions arrangements occur and to which there might be objections.
The second strand of argument that the Minister used was that the Prendergast case was one of maladministration and that the decision in that case would, it was hoped, send out a very clear signal to local authorities. In that case Lewisham Borough Council were found guilty of maladministration, but as the ombudsman pointed out, the case had been brought there and to the attention of the DfES as early as 1998 and nothing was done in spite of the fact that the governors continued to flout the objections raised by the LEA and the DfES.
As the ombudsman said:
"Given the Council's failure over a protracted period to change the School's position, the Council's failure to refer the matter to the Adjudicator … was in my view maladministration. It also seems likely that had a referral been made then the Adjudicator
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would have determined that at least some of the admissions criteria should be changed. Had this happened, the outcome may have been very different for the children of these complainants".
That indicates that it affected the children. The ombudsman then went on to say:
"I believe the policy should have been reviewed at least in time to govern admissions for September 2001. The failure to do so was maladministration".
The report came out in April of this year. The governors have now reviewed it. The ombudsman continued:
"I welcome the Governors' recent review of the School's admissions arrangements in the light of these objections and also their decision to stop using interviews. However, the School's new policy will not come into effect until children are admitted in September 2003".
In other words, the children were unnecessarily affected by delays, which the ombudsman condemned as,
"further maladministration by the admissions authority".
The point I make to the Minister is this. It took four years for the parents to register these quite fair complaints, even though both the LEA and the DfES knew about them, and only then through the lengthy procedures via the ombudsman. The adjudicator procedures are there in order to deal with unresolved issues. The checks and balances already written into the Act prevent abuse by any over-litigious individual parent, but if a group of 10 or more parents have the right to appeal a case of pre-existing partial entry arrangements, then surely the backstop of allowing parents to go directly to the adjudicator ought to be there in a case such as this when there is de facto partial selection.
Finally, the Minister seemed to misunderstand the effect of the amendment. She referred to the possibility that one group of parents might object to criteria that others found acceptable, such as a priority for siblings. But that was not the issue. The amendment affects only who is able to refer objections to the adjudicator in order that he or she may determine whether arrangements breach the code of practice. Sibling priority plainly does not. It would not affect at all the grounds on which the adjudicator made his determination. That is determined by the contents of the code which is a matter for the Secretary of State.
In the light of these three objections it seems to me that the Minister should reconsider her answer. I beg to move.
Baroness David: My Lords, I strongly support the noble Baroness. I added my name to the amendment at Committee stage, but I could not be present. The noble Baroness has made a very strong case. It is grossly unfair and parents should have this right. It is a very strong case and I hope that my noble friend the Minister will grant that that is so and change her mind about it.
Baroness Blatch: My Lords, I make no comment on the amendment tabled by the noble Baroness, Lady Sharp, because I disapprove of the adjudicator and the whole adjudicator system. There is almost no other

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category of person who can make an objection to the adjudicator. There is no appeals system. The adjudicators have absolute power in anything they determine. They can modify something or alter a proposition which comes from the organisation committee. I believe that the House will have to return to this matter and do something about it. There is dissatisfaction with the way in which the adjudicator system works and it leaves a great deal to be desired.
I do not know how the Minister will deal with that particular question but if it is agreed to—and I make no comment on whether it is right that it should be—I believe that there will be a long line of categories of people who would want the same opportunity.
Lord Davies of Oldham: My Lords, I am grateful to all who have contributed to the debate and I shall try to deal with the careful arguments presented by the noble Baroness, Lady Sharp. Perhaps I may speak first to the noble Baroness, Lady Blatch. The position of the adjudicator and why there is no appeal system is because the concept of the adjudicator is a less significant version of the concept of the ombudsman. There is no question of appeal because there is an authority above. Therefore, the implication so far as the adjudication is concerned is that the person should be independent and not subject to a secondary review.
Baroness Blatch: My Lords, I am grateful to the noble Lord, Lord Davies, for giving way. There is no comparison with the ombudsman who takes and hears evidence and does a great deal of investigative work. The adjudicator does not operate like that.
Lord Davies of Oldham: My Lords, the noble Baroness is right. What I was seeking to identify was the concept of the independent position of the adjudicator. On the question of dependency, it would be an odd system if one had an appeal system dependent upon that, in the same way as one could not conceive of an independent structure in regard to the ombudsman with a subsequent concept of appeal. I was merely seeking to make that point.
However, on the more general issues on which the noble Baroness did not vouchsafe any views because of her well attested position of objecting to the concept as a whole, I shall try to reply as fully as possible to the issues which the noble Baroness, Lady Sharp, raised and which were supported so assertively by my noble friend Lady David.
First, I note that sub-paragraphs (1) and (2) of the amendment are in the same terms as paragraph 6 of Schedule 4 which clarifies that the bodies who may refer an objection about admission arrangements to the schools adjudicator include those who should have been consulted about proposed admission arrangements as well as those who actually were. That duplication simply reflects the different drafting structure needed to introduce sub-paragraph (3), which is the substantive change that this amendment seeks to make.
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Sub-paragraph (3) would remove the Secretary of State's power under Section 90(2)(c) of the School Standards and Framework Act 1998 to prescribe the type of objection about admission arrangements which parents of a prescribed description may refer to the schools adjudicator. Our choice would then lie between allowing parents or parent groups to object to every aspect of every school's proposed admissions arrangements or not allowing any to object at all.
Under present regulations, parents in groups of 10 have the right to refer objections to the adjudicator, but only one type of objection. They may object if an admission authority—the school's governing body in the case of foundation or voluntary aided schools, otherwise the LEA—proposes to retain partially selective admission arrangements that are of a type that could no longer lawfully be introduced. Examples of partial selection that could not now lawfully be introduced include any selection by ability, and selection by aptitude in excess of 10 per cent.
We gave parents that right of objection because although the 1998 Act did not prohibit such arrangements where they already existed, it did seem right to allow parents to raise with the adjudicator whether such arrangements continue to be in the interests of local children and parents. Similarly, as noble Lords are aware, we believe that it is for parents to decide the future of selective admissions to existing grammar schools through a ballot and petition process.
As I explained in Committee—I recognise that the noble Baroness, Lady Sharp, was not entirely convinced—our admissions consultation asked whether rights to object about admission arrangements should be extended in ways other than those proposed in the consultation document. As the consultation document proposed extending parents' rights of objection in a limited way—enabling parent groups to object where an admission authority intends to set an admission number which is lower than our new net capacity assessment formula indicates—I am sure that the consultees will have had the issue of parents' objection rights in mind when they replied. Yet only just under one third of respondents thought that we should go further than we had proposed, and not all of those suggested going further in the direction of this amendment.
As was also explained in Committee, existing legislation allows us the flexibility, through regulations, to extend parental objection rights further in the future if the need to do so is agreed. Amendment No. 93 would deprive us of that flexibility.
I ask that noble Lords consider the potential practical effects of the amendment. Any admission arrangements could potentially be challenged by parent groups during the annual consultation round, even if they included only the type of over-subscription criteria which the admissions code states to be commonly used and acceptable—siblings already at the school, distance from the school, medical or social grounds, catchment areas and transfer from named feeder primary schools. We would also need to impose

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quite burdensome or potentially expensive additional requirements on admission authorities to publish their intended admission arrangements so that parents could see them and have the chance to object. The partially selective arrangements to which parents may presently object are published in local newspapers.
I appreciate the intent behind the amendment. But it would create significant difficulties in its practical application. I hope therefore, on the basis of that response, the noble Baroness feels able to withdraw her amendment.
10.30 p.m.
Baroness Sharp of Guildford: My Lords, I thank the Minister for his reply. But I do not believe he was listening to what I said.
The Minister brought up again the whole question of a poor response. But as I pointed out, only 416 people replied to the consultation document and only 13 of those were parents. Yet the Government claim that there was consultation.
The Minister raised again the point on the criteria. I agree that the drafting of the amendment may not be correct; I agree also that the Government already have the power; but the Minister could at least have said that they were thinking of shifting the power in this way.
The Prendergast decision is actually a stain on the Government in many senses. The DfES knew in 1998 about the sorts of procedures that were taking place and for four years both the local authority and the department allowed it to proceed until finally it was referred to the adjudicator. It seems to me that there is in equity a case for allowing groups of parents to appeal. As I pointed out, the criteria are decided by the adjudicator. The parents cannot question the criteria; they can only question the procedures that schools use in interpreting them.
However, I shall leave this matter for the moment. I am not satisfied with the Minister's answer. As I say, I do not believe he listened to my remarks. I hope that he will read what I said, as I shall read carefully what he said and we can perhaps talk about it a little more. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendments Nos. 94 to 97:
Page 137, line 1, leave out paragraph 7.
Page 139, line 39, leave out "(9)(b)" and insert "(9)"
Page 139, line 39, at end insert—
""(9) Such children shall, in addition, be taken into account for the purposes of—
(a) the references in section 86(5), (5B) and (9) to a number of pupils, and"
Page 139, line 41, after "admit" insert ", or to admit either as boarders or otherwise than as boarders,"
On Question, amendments agreed to.
Baroness Walmsleymoved Amendment No. 98:
Page 139, line 42, at end insert—
"Selection by aptitude
( ) In section 99 of the 1998 Act (general restriction on selection by ability or aptitude) subsection (4)(b) is omitted.
( ) Section 102 of the 1998 Act (permitted selection: aptitude for particular subjects) shall cease to have effect."
The noble Baroness said: My Lords, Amendment No. 98 would remove the ability of specialist schools to select up to 10 per cent of pupils on aptitude. I should make it clear at the outset that we do not oppose more schools choosing a specialism, becoming particularly excellent in that specialism and sharing their expertise with other schools.
Indeed, at an earlier stage in the Bill, my noble friend Lady Sharp proposed widening the range of specialisms. Those schools provide a healthy measure of diversity in our schools system. We oppose the selection of pupils at 11 on any basis, but particularly on one that has no research or evidence base to show that it can be done accurately at that age. The noble Baroness gave no evidence in her response in Committee that that can be done.
As we said in Committee, it is unnecessary, and it has proved unpopular as only 7 per cent of schools with a specialism use the power. It is worrying, however, that the retention of this power gives an advantage to voluntary-aided and foundation schools, as we know that out of 24 schools that had used it, 19 fell into that category. As nobody really knows how to select by aptitude, we fear that as the number of specialist schools increases, the power will increasingly he used to select by ability under cover of selection by aptitude.
I well remember our debate on this issue in Committee and, in particular, the comment of the noble Baroness, Lady Blatch, that it was about the "politics of envy". It is no such thing. Our objection is rooted in the firm belief that properly resourced and well-managed comprehensive schools can serve children well right across the ability range. There are major academic and social advantages in their doing so.
Sadly the retention of the ability to select on so-called aptitude, combined with the Government's specialist schools programme, will reduce choice for many children, bar those few who are found, by some means, to have the aptitude—it sounds a hit like the knowledge, rather than the aptitude. That will apply especially in rural areas where there is only one secondary school within reach.
Schools will choose pupils, rather than the other way round, and 10 and 11 year-olds will be subjected to yet more tests as if there were not enough. Is that really what the Government want? I really hope that the Minister will see the sense of getting rid of this discredited and little-used power to save me having to bring it back at Third Reading. I beg to move.
Baroness Ashton of Upholland: My Lords, we had an interesting debate in Committee, following which the amendment was withdrawn, and we have had an

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equally interesting opening speech from the noble Baroness, Lady Walmsley now. I am sure that she will accept that I would do a lot to stop her bringing the amendment hack again, but unfortunately not what she wants me to do.
I accept entirely her support for specialisms. Our debate and conversations around the issue of schools with specialisms have moved a long way, and I am grateful for the dialogue that we have had. I understand the position held by the noble Baroness. She is absolutely right that there are only a few schools—I have a figure of 6 per cent rather than 7 per cent. The difference between us is that there are certain circumstances when a school is over-subscribed; it does not apply if a school is not over-subscribed. There is a small percentage of students who have a particular talent—I use the word "talent" deliberately. I searched for a word that works better for me than something that is quite nebulous. Such students might be allowed to come into a school. Noble Lords will know that we have been careful about the specialisms to which this applies. I have talked about the performing arts and sport. Does the next David Beckham exist out there? I hope so, as we may need him before too long.
We are trying to find a figure that represents a comparatively small number of pupils—say 10 per cent——that safeguards parents' wishes to get a place at their local school and gives those children with a particular talent for the subject in which the school specialises the opportunity to be admitted to that school which might otherwise not have been possible. We have said that such schools are under no obligation to select by aptitude in their admission arrangements. An over-subscription criterion can be applied only if there are more applications for a school than it has places available.
I understand that there are parents who do not think that that is appropriate, but there are others—and I can say this because of the letters that the department receives—who believe that it is sensible that children with an aptitude for a school's specialist subject should have the opportunity to attend that school. I find it difficult to understand why such children should not be able to do so.
We are committed to the comprehensive system, but we are also committed to modernising it and creating diversity. Allowing schools this small flexibility that will enable some pupils to benefit from their expertise in a particular area is one small part of our drive to achieve that aim. With that in mind, I hope that the noble Baroness will be able to withdraw her amendment.
Baroness Blatch: My Lords, am I wrong in thinking that the amendment applies only to nursery schools? There has been much talk about schools accepting 10 per cent of children on the basis of an aptitude for a particular subject, but my understanding is that that does not apply to nursery schools. This part of the Bill
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seems to relate only to nursery schools. Indeed, the whole of the previous Clause 13 is certainly about nursery schools.
Baroness Ashton of Upholland: My Lords, I am not aware that that is the case. I do not believe that I have been given any false information in that respect. But, obviously, if that is so, I shall write to the noble Baroness and clarify the position. As far as I know, neither the mover of the amendment nor I in replying to the amendment believe that the way it is positioned has that effect. The noble Baroness is very experienced in these matters. I shall, of course, look into the matter in the mean time.
Baroness Walmsley: My Lords, I thank the Minister for her response. I stand before the House as a living, breathing example of' why this is a daft measure and, indeed, could be dangerous. When I was aged about 11 or 12, I was thought to have a budding talent for languages. Anyone who has ever heard me speak French will know that that was a mistake; and so it turned out to be. It transpired that I had a talent for the sciences. If my whole career had been based on that incorrect and misleading premise, there might have been some kind of disaster in my educational outcomes. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Exclusion of pupils]:
Lord Lucasmoved Amendment No. 98A:
Page 33, line 11, at end insert—
"(ba) requiring that, as part of any such consideration, the responsible body show by way of documentary evidence following recommended practice laid down in the Code of Practice on the Identification and Assessment of Special Educational Needs that it had—

(i) considered whether the child has any special educational needs, and

(ii) that it made appropriate provision for such needs."

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 98C. I shall not speak to Amendment No. 98B, which, on looking at it this evening, appears to me to be complete rubbish. It is certainly nothing like the amendment that I intended to table. I presume that it was a slip of the pen, but I score zero for drafting on this occasion.
I believe that I have also made a mistake in the drafting of Amendment No. 98A. At the end of the first line, the amendment refers to "the responsible body". Under this clause, I thought that that would be a reference to the school, but I now suspect that it would refer to the disciplinary committee. Clearly, I mean the school in this part of the amendment, because it is the school that has the responsibility to assess people regarding special educational needs, not the disciplinary committee. I apologise to the House for having made those errors.
I return to the substance of the amendments. Amendment No. 98A is concerned with special educational needs and exclusions. My understanding

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of the amendments moved earlier by the Minister is that the new clauses relating to SEN and the considerations to be given to special educational needs do not extend to this aspect of the Bill. I also understand that no additional protection is provided as a result of the amendments moved by the Minister earlier on Report for children with special educational needs who face exclusion.
Therefore, where a child appears in front of the disciplinary committee for exclusion, I am trying, by way of Amendment No. 98A, to ensure that the school must show the committee that it has conducted a proper investigation into whether the child has special educational needs—and, if so, that it has made proper provision for such needs—and that the exclusion is being sought despite the school having operated properly in that regard.
At an earlier stage, the Minister made reference to the latest statistics for exclusion. She said that it appeared that children with SEN were now much less likely to be excluded. There are some funny aspects to those statistics; for example, the number of pupils with SEN in pupil referral units does not appear to have decreased at all. Indeed, it has gone up slightly. Why that should happen if referrals of children with SEN are going down is not apparent to me. My understanding is that the matter is being looked at by statisticians. We shall know in a few weeks or months, perhaps, the reason behind that anomaly.
In any event, we should recognise that undiagnosed special educational needs are not uncommon in the school system. They can be disguised. Many break out in the form of behavioural difficulties. Certainly, in some of the better special schools for dyslexia that I have seen, it is very noticeable that the kids arriving in the first year have noticeable behavioural problems that are not fundamental. They are merely byproducts of their dyslexia not being observed or properly treated and/or of the way that other pupils in the school have treated them as a result of their dyslexia. We should be particularly careful in relation to exclusions to make sure that a child who may have special educational needs has been properly assessed.
Amendment No. 98C returns to a subject that we discussed in Committee. The Bill, as it is now before us, has the school's right to exclude, but there has been chopped out, in comparison with previous legislation, the parents' right to information, appeal and guidance. That is now to be consigned to secondary legislation. I do not think that that is the right balance. It leaves matters for parents far too uncertain. In this kind of matter appearances and status are important. Parents and pupils count. In legislation, their voice should be equal to that of the school.
In relation to the particular aspects of the proposed amendment, I say that the school should have a duty to inform parents and the pupil, whoever is the relevant person or persons in a particular circumstance, of the opportunities that they have to deal with the situation in which they find themselves. Therefore, they are told of the period of exclusion and the reasons for it. They
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are told of their right to make oral or written representation about the exclusion to the disciplinary committee of the governing body.
The amendment is in response to the noble Baroness's criticism of an amendment which I tabled in Committee. That stated that the parents should always have the right to say something to the disciplinary committee. There are occasions when many little exclusions suddenly end up in an application for a permanent exclusion, and the child's parents had no previous chance to discuss their child's case with the governing body or with any other kind of appeal forum within the school.
I can see that the noble Baroness is saying that if I put things in the way that I did in my amendment in Committee that would create difficulties. I seek to provide the opportunity for the flexibility of secondary legislation or guidance to address the fact that, where a kid is continually excluded for a day or two, there ought to be proper consultation between the school and an opportunity for parents to make representations in order to make sure that the child's circumstances are properly understood.
Paragraph (d) is an additional suggestion. Where a child is going to be permanently excluded, the parents ought to be pointed in the direction of the support and advocacy services. The noble Baroness and I both discussed those matters in Committee. They are available to such parents in those circumstances. I beg to move.
Baroness Blatch: My Lords, I want to speak briefly, but with some feeling, about one of the points made by my noble friend. I refer to the issue of where exclusions are made and no attempt is made to assess the child's need. In this year of autism awareness, we know that at this moment—because we are all receiving a good deal of correspondence about the issue—a record number of people with autism are being expelled or "excluded" from school, which I believe is the contemporary name for it. For the family, that is really distressing. They know that they have a problem with their child; they are banging their heads against the wall to make someone take notice of them. I am in correspondence with a lady from Hertfordshire who has been battling for years with the local authority for proper provision for her son, who has autism.
We have a real opportunity here. If the amendment is not perfect, we can discuss doing something about it by Third Reading. My noble friend Lord Lucas has a point. A good teacher will know whether the problem is wilful naughtiness or wilful difficult behaviour or whether the child is uncontrollable and apparently incapable of managing its mood swings. An attempt should be made by someone within the education system to make a proper assessment so that, if the child is excluded, it is excluded on proper grounds and not simply because it is in need of other forms of treatment.

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One has only to consider the occupants of our prison cells throughout the country to understand how many young people have ended up in a life of crime and have been taken into custody. What they need is some form of assessment and medical help.
The Earl of Listowel: My Lords, I shall speak to my Amendments Nos. 98D and 98E, which are in the group. Previous speakers have put the case most eloquently. My amendments are on similar lines and I hope that they give the Minister a choice of drafting as to the preferable direction to take.
The purpose of Amendment No. 98E is to encourage schools to consider an assessment, especially of educational needs, before excluding a pupil. Its effect would be to oblige disciplinary committees and independent appeal panels to take account of action taken to assess a child and to meet any assessed needs in their deliberations. Two reports of the late 1990s found that approximately 90 per cent of excluded children presented with special educational needs.
Clearly, as we have been hearing, many excluded children are not having their special educational needs recognised while at school. There is a dearth of educational psychologists— to which the Minister alluded earlier—to provide the statutory assessment for special educational needs, but it is possible for certain specialist teachers to provide less formal assessments and, following that, to increase resources to meet the recognised need. Again, the Minister mentioned earlier the recent increased investment in learning support units and behaviour support units.
The final paragraph of my amendment addresses concern that has been expressed about dissemination of information. The noble Lord, Lord Lucas, covered the point adequately. The Bill does away with a statutory duty on head teachers to advise parents of excluded children of the existence of, for example, the Advisory Centre of Education. That paragraph would ensure that the parent or carer received adequate information.
I turn to Amendment No. 98D, which is similar to the amendment tabled by the noble Lord, Lord Lucas. In Committee, the Minister spoke of the need for schools to communicate with parents and said:
"legislation must be in place to secure the key rights and duties of all parties".——[Official Report, 23/5/02; col. 952.]
The amendment seeks to do just that. My amendment differs from that tabled by the noble Lord in that it would write into the Bill the parent's right to make representations to the disciplinary committee and to appeal to the independent appeals panel. I believe that that is a difference, although I must check.
Also, following concern expressed by the Minister in Committee that governors may be over-taxed—again, the noble Lord, Lord Lucas, approached the problem in a different way—the amendment allows the term of exclusion that would trigger the right to make representations to be determined by regulation. Exclusions can have a significant impact on the direction that a child's life takes, as the noble
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Baroness, Lady Blatch, pointed out. If the Minister rejects our amendments, how is she to recognise the gravity of the situation?
Baroness Sharp of Guildford: My Lords, we on these Benches thoroughly support this group of amendments. They concern an important issue that society needs to think about very carefully.
Baroness Howe of Idlicote: My Lords, I support this group of amendments, in particular Amendment No. 98C which has been tabled by the noble Lord. Lord Lucas. Quite apart from the points made by the noble Baroness, Lady Blatch, about the need for assessment—which is clearly very important—as early as possible to save the other horrors which occur all too often in prison cells, there is the important aspect of human rights legislation. It will be increasingly important that visible and transparent ways of ensuring that everything has been made available to individuals who are likely to be disadvantaged are written into legislation. On that point, as well as for the more humanitarian reasons, I strongly support the amendments.
Baroness Ashton of Upholland: My Lords, perhaps I may begin by rather bizarrely referring back to the previous amendments. I want to clear up the issue of whether or not they referred to nursery schools. The amendments I moved earlier introduced a new heading within the schedule. The amendments moved by the noble Baroness, Lady Walmsley, would have come after that heading. That is why, at first glance, it looked as though we were referring to nursery schools, but we were not. The noble Baroness was right in what she did. I apologise for this but I thought that it was worth dealing with that issue straightaway.
Let me deal, first, with Amendments Nos. 98A and 98E. I sympathise with the sentiments that lie behind the amendments. Noble Lords will know from the conversations that we have had outside the Chamber that I am constantly looking for areas that we need to cover in legislation. We are talking about issues of policy and guidance, and it is in that spirit that I shall address the amendments.
I take these issues extremely seriously. As noble Lords will know, within the department it is one of my policy areas. I wish to clear up the issue of whether or not the amendments are appropriate and get the facts out of the way.
Discipline committees and independent appeals panels must consider two simple questions: whether the pupil did what it is said that he did that prompted the exclusion; and, if it is concluded that the pupil did, whether permanent exclusion is a reasonable response to the pupil's behaviour. That is the essence of what we are asking our appeals panels to do.
The current guidance on exclusions already makes it clear that, other than in exceptional circumstances—I repeat, other than in exceptional circumstances—schools should avoid permanently excluding pupils with statements of special educational needs. It also requires head teachers to say, when reporting

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exclusions to discipline committees and education authorities, whether the pupil has a statement or is on the special educational needs code of practice. I believe therefore that special educational needs is being taken into account appropriately in these matters and that any further detail on exclusions in the context of special educational needs is best left to the additional guidance that we wish to give.
I am happy to give noble Lords an assurance that I shall look again with my department and my officials to ensure that the guidance is as clear as possible on that point. I am always ready to discuss the detail of the guidance with noble Lords and to seek their views and advice on it.
The noble Lord, Lord Lucas, referred to the recent figures in regard to the issue of permanent exclusions. In Committee, I said that we had gone down from 6.1 times more likely to be excluded to three. That is also a reduction from 18 per cent of the total number of excluded children to 8 per cent. I want to make it absolutely clear that the figures are not as low as we would like, but, as I said in Committee, they are moving in the right direction. We are checking with education authorities that that is the real situation. We are beginning to see the effects of the drive to reduce exclusions and the measures that we have put in place to improve the arrangements for identification and for making appropriate provision for children with special educational needs. I am the first to say—and the Government would be behind me in saying—that we are not there yet. We have not finished the task. But in the way in which one looks for real measures to demonstrate achievement, I am pleased that we may be beginning to see that. I shall, of course, keep noble Lords informed as we delve into the figures and make sure that that is indeed the case.
I also believe that the wide range of practical steps we are taking to support schools and education authorities in building pupils' social and emotional competence and in improving behaviour in schools will have a positive effect in reducing exclusions. I am thinking of the 1,000 on-site learning support units that we have set up; the 3,500 learning mentors working to keep vulnerable children in school and on track with their learning; the new multi-agency behaviour and education support teams that we are piloting in 34 areas; and the role of the Connexions service. What I want to say more than anything is that I believe that we have the right approach in order to be able to build on this work. It is that approach that I want to champion as the way in which we should take matters forward rather than the need to change statute.
In relation to Amendment No. 98E, head teachers are already required to provide the name of an officer of the local education authority who can give advice and the telephone number of the Advisory Centre for Education's exclusions helpline. I acknowledge the valuable work that ACE does. I know that my officials are always happy to discuss with the centre the feasibility of additional advice lines and indeed have had such discussions. We remain committed to
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keeping the service level under review so that we can ensure that all parents who need ACE's advice have access to its service.
From January 2002, local education authorities have been required by law to arrange for the parents of children with special educational needs to be provided with advice and information relating to special educational needs and to make arrangements for resolving disagreements between schools and parents and the local education authority, including the appointment of independent persons to facilitate the avoidance or resolution of disagreements. Local education authorities must make these arrangements widely known to parents, head teachers, proprietors of schools in their area and any others whom they consider appropriate. I believe that these arrangements are beginning to have an effect and that they will prove to be very effective in providing support for parents.
The approach I want to take is through guidance and through the work that we are doing—building on what we are beginning to see. I hope that in the light of my reassurances, the noble Lord, Lord Lucas, and the noble Earl, Lord Listowel, will not press their amendments.
I now turn to Amendments Nos. 98C and 98D. Existing subsection (3)(a) of Clause 49 already places a duty on the Secretary of State to make regulations requiring prescribed persons—which will include the parents of an excluded pupil—to be given prescribed information relating to any exclusion. Subsection (3)(a) is broad enough to encompass the matters which are the substance of the noble Lord's amendment. I can assure both noble Lords that the period of the exclusion, the reasons for the exclusion, and the parent's right to make representations will certainly feature in the regulations that we make under subsection (3)(a).
I say to the noble Lord, Lord Lucas, that there is no difference in legal effect between primary and secondary legislation. Therefore, I believe that there is nothing here that would lower the status of these rights. They will have the same force.
Similarly, the existing subsection (3)(c) of Clause 49 already places a duty on the Secretary of State to make regulations requiring local education authorities to make arrangements for the relevant person, including the parent of an excluded pupil, to appeal against the decision of a discipline committee not to reinstate a pupil who has been permanently excluded. I hope that the noble Lord will be able to accept those reassurances and that, in the spirit of what I have said, he will feel able to withdraw the amendment.
Lord Lucas: My Lords, I am grateful to the noble Baroness for that reply. I feel that she and I are disagreeing in some measure, not on the substance of the approach but on the style, and on whether this should be in primary or secondary legislation. The noble Baroness has said a good deal that I should like to consider. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98B to 98E not moved.]
Baroness Blatchmoved Amendment No. 99:
After Clause 49, insert the following new clause—
"PARENTAL BEHAVIOUR
(1) If a parent or guardian of a child registered at a maintained school behaves in a manner which—

(a) exhibits violence towards a member of staff of that school, whether or not on the premises of the school, or

(b) disrupts the normal functioning of the school, he shall be guilty of an offence.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) Section 8 (parenting orders) of the Crime and Disorder Act 1998 (c. 37) is amended as follows—
(a) after subsection (1)(d) there is inserted—
"(e) a person is convicted of an offence under section (parental behaviour) of the Education Act 2002";
(b) in subsection (2) after "444" there is inserted "of the Education Act 1996 (c. 56) or section (parental behaviour) of the Education Act 2002"; and
(c) after subsection (6)(c) there is inserted—
"(d) in a case falling within paragraph (e) of that subsection, the commission of any further offence under section (parental behaviour) of the Education Act 2002"."
The noble Baroness said: My Lords, I return to my bid to extend parenting orders. I have read very carefully what the Minister said in Committee about parenting orders. In that debate, she said that the department consulted last autumn on extending their use. She went on to say:
"We have made it clear, as the noble Baroness, Lady Blatch, said, that we intend to pursue this option when a suitable criminal justice Bill is available".—[Official Report, 23/05/02; col. 979.]
It was also said that we would return in legislation to the issue of disruptive or violent behaviour by pupils.
I am sorry that I did not pick up on this opportunity earlier, as this is a God-given opportunity to make that provision. We all know how difficult it is to get a legislative opportunity. All we would have to do is convert my amendment to cover children rather than parents. I simply wonder whether the Minister would consider making that conversion on Third Reading. I believe that there would be support on all sides of the House for the provision.
We should take advantage of this opportunity. It is not uncommon to use one Bill to amend another. It certainly would be appropriate to make the provision in this Bill as this is legislation about parents and children. This is a very good opportunity to make the change. Moreover, if the provision did appear in a criminal justice Bill, it would appear way at the back as a miscellaneous item and bear little relation to the main thrust of that legislation.
The substance of the Minister's case against my amendment was that—having consulted on parenting orders for violent parents as opposed to violent pupils—-various statutes already provide for remedies against violent parents, and all that is needed is more effective enforcement. I certainly agree that much more could be done on enforcing the law. When it comes to enforcement, I believe that not only schools and education authorities but even neighbours living close to schools are remiss. I also agree that the law
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offers some remedy. As the Minister said, people can resort to the Criminal Justice Act 1998, the Criminal Damage Act 1971 or the Harassment Act 1997 to deal with the type of activity indulged in by violent parents.
Nevertheless, I make another appeal to the Minister to consider extending parenting orders. I was not thinking of parenting orders as in any way a substitute for those Acts. That legislation will remain on the statute book as a remedy to deal with violence by parents. However, there is a case for adding to the number of remedies. We should extend parenting orders because, almost as night follows day, a parent who is violent on school premises is almost certain to be a pretty awful parent. We know the scenario. The parent goes to the school because a child has been badly dealt with, loses his temper, thumps the teacher, or runs amok and damages a lot of property out of simple rage. We know that the chances are that the children of that parent are going to stiffer pretty miserably when they get home. I think that there is a real issue of vulnerability in relation to the children.
I am not arguing that this provision should replace current laws which are there to be used if a parent is wilfully disruptive, damaging and violent. However, as I said, I think that a parent who is violent on school premises will not be a good parent. I therefore believe that there is a very strong case to extend parenting orders as an addition to the remedies mentioned by the Minister. I believe that there is a very strong case for supporting my amendment. I beg to move.
Baroness Ashton of Upholland: My Lords, we shall indeed examine the issue of converting parenting orders to cover pupils. I am not sure whether that is technically possible, but I thank the noble Baroness for the suggestion. I shall come back to the point. Obviously, we are at one with the noble Baroness in wanting to ensure that parents who are violent or abusive in schools are dealt with. I agree absolutely with the noble Baroness's central point. I accept that a small number of parents are violent and abusive towards school staff. I share the feeling of all noble Lords that that simply cannot he tolerated. It is our duty to ensure that we use the full force of the law to tackle the problem. I am absolutely sure that we are all agreed on that.
However, the question is whether we should extend parenting orders to tackle the problem, as proposed in the amendment. I fully understand all the points that the noble Baroness made. However, let us be clear what parenting orders are because that explains why, in the light of consultation, we now believe that extending parenting orders is not the right approach.
A parenting order is designed to help a person better to manage their disruptive child. An order typically requires a parent to attend parenting classes. The point of the parenting order is to help a parent to control their child better. It does not concern a parent being a bad or disruptive parent; it concerns a parent's needs better to manage their disruptive child.
Although I can see what the noble Baroness is getting at, the amendment is not the right way to tackle the matter. I am of the view that children who behave

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well in circumstances where they have disruptive parents ought to be given a medal. As I say, parenting orders are designed to help parents with disruptive children; they are not about parental behaviour. I believe that parents who assault teachers do not need their parenting skills improved; they need punishment. If someone punched a nurse in a casualty department, we would not expect that person to be made subject to a parenting order. We would expect that person to receive the full weight of the criminal law and for the nurse and his or her colleagues to know that they were fully protected by the law. So we have concluded that the extension of parenting orders is not the right answer.
So the question is whether we have the legal sanctions in place or not. I believe that we do. The noble Baroness, Lady Blatch, indicated a number of ways in which we can bring the weight of the law to bear in such situations. Following the consultation, and having decided that parenting orders are not suitable for aggressive parents, we are taking vigorous steps to make sure that the existing sanctions are better known. We are urging schools and LEAs to pursue the appropriate measures in every single instance of parental violence, threat or abuse in school.
We hope that we have sent a clear message across the education service in recent months that we shall not tolerate that kind of behaviour. There is no excuse for parents or anyone else ever to assault a teacher. We are urging schools and education authorities to take all proper action to protect teaching staff. Those who assault teachers must be prosecuted.
As part of our drive to deal robustly with the problem, we have just recently consulted a wide range of organisations about our approach on the matter including the National Association of Head Teachers, the Secondary Heads Association, all the teacher unions and the Association of Chief Police Officers. They share with us the wish to get out the strongest possible messages and to ensure the highest level of support for schools. We know that, as employers, LEAs will want to act decisively, including pursuing prosecutions, where teachers are threatened or assaulted in the course of their duties. And we are pressing them to do so.
I understand the noble Baroness's concerns. As I say, parenting orders are designed to deal with disruptive children, not parents. I know that the whole House is united in agreeing that our teachers and staff deserve the fullest protection. But I believe that our efforts will be best directed to ensuring that we enforce
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fully the powers we currently have. I hope that on that basis the noble Baroness will feel able to withdraw her amendment.
11.15 p.m.
Baroness Blatch: My Lords, I understand much of what the noble Baroness said. However, I am sorry that she does not consider that there is a case for extending parenting orders and using them as an additional measure to the measures that are already in place.
I wish to make two points. First, I hope that some thought will be given to extending parenting orders for violent pupils. It seems to me that this is a God given opportunity to use the Bill to fulfil that promise to teachers. Secondly, I am beginning almost to despair as regards this matter. The distress among teachers, and the pressure on me from the education establishment to extend parenting orders to deal with the matter we are discussing, have been very great. I despair of the lack of knowledge as regards what can be done. Teachers feel vulnerable. They are being thumped and injured by violent parents in the classroom.
I wonder whether there is a case for teachers to take action against a school, or against an LEA, for its reluctance to take protective measures on behalf of the teacher. I am not quite sure who, in a particular incident, is responsible for taking action on the part of the teacher. Some people are very fearful of taking action in case they end up in court and receive very large legal bills. If our teachers are to be protected, they need to know that they can look to those who are responsible for them, such as their line managers, their head teachers and/or the LEAs—we know from earlier debates that the LEAs are the employers—for that protection.
I do not believe that there is anything between us in terms of the aims and objectives that we want to achieve. However, I shall give further consideration to those matters before the next stage of the Bill, as I know the Minister will. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at sixteen minutes past eleven o'clock.